On September 15, Duane Buck came within hours of being executed by the State of Texas when the Supreme Court issued a stay to determine whether to review Buck's claim that the prosecution should not have been able to rely on the defendant’s race as evidence that he would commit criminal acts of violence in the future.
Buck was one of seven to receive a death sentence based on such testimony, all from the same expert. In 2000, then-Texas Attorney General John Cornyn (now a U.S. Senator) conceded that all seven men had been unfairly sentenced to death because of this improper racial testimony and called for new sentencing trials. He said at the time: "It is inappropriate to allow race to be considered as a factor in our criminal justice system." The other six men received new sentencing hearings. Duane Buck did not
The Supreme Court denied review yesterday, refusing to allow the parties to fully brief and argue the merits of Buck's claims. (It takes four of the nine justices to vote to grant certiorari.) In a statement explaining the denial, Justice Alito (joined by Scalia and Breyer) acknowledged that "bizarre and objectionable testimony" was given by a psychologist, who testified that Buck was likely to be more violent in the future because he is black.
"Bizarre and objectionable testimony" in a death penalty case, which was then relied upon by the prosecutor to urge the jury to impose death. But that is not enough to even warrant review by the Supreme Court.
Justice Sotomayor, joined by Justice Kagan, dissented from the denial of cert., undermining the majority's reasoning, and concluding: "Today the Court denies review of a death sentence marred by racial overtones and a record compromised by misleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent and vote to grant the petition."