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November 7, 2011

SCOTUS denies cert (with comments) in Texas capital case raising racial bias issues

As report in this AP article, this morning the Supreme Court "turned away the appeal of Duane Buck, who wanted them to consider whether race played an improper role in his sentencing." With an assist from How Appealing's coverage, here are the details of and links to some of the Justices' comments on this denial of cert:

The Court's denial of certiorari in Buck v. Thaler, No. 11-6391, produced two opinions. Justice Samuel A. Alito, Jr. issued a statement respecting the denial of certiorari in which Justices Antonin Scalia and Stephen G. Breyer joined.  And Justice Sonia Sotomayor issued a dissent from the denial of certiorari, in which Justice Elena Kagan joined.

Here is how Justice Altio's statement in Buck starts:

One morning in July 1995, petitioner Duane E. Buck went to his ex-girlfriend’s house with a rifle and a shotgun.  After killing one person and wounding another, Buck chased his ex-girlfriend outside.  Her children followed and witnessed Buck shoot and kill their mother as she attempted to flee.  An arresting officer testified that Buck was laughing when he was arrested and said “[t]he bitch deserved what she got.” 28 Tr. 51 (May 6, 1997).

Buck was tried for capital murder, and a jury convicted.  He was sentenced to death based on the jury’s finding that the State had proved Buck’s future dangerousness to society.

The petition in this case concerns bizarre and objectionable testimony given by a “defense expert” at the penalty phase of Buck’s capital trial.  The witness, Dr. Walter Quijano, testified that petitioner, if given a noncapital sentence, would not present a danger to society.  But Dr. Quijano added that members of petitioner’s race (he is African-American) are statistically more likely than the average person to engage in crime.

Dr. Quijano’s testimony would provide a basis for reversal of petitioner’s sentence if the prosecution were responsible for presenting that testimony to the jury.   But Dr. Quijano was a defense witness, and it was petitioner’s attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness.

Here is how Justice Sotomayor's dissent in Buck starts:

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.

November 7, 2011 at 11:39 AM | Permalink


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Et tu, Breyer?

Posted by: Reader | Nov 7, 2011 11:41:54 AM

Buck files a last-minute appeal, after all of the review process (appeal, post-conviction and habeas) is complete, and Sotomayor wants to overturn the death sentence? Lawless and a hack. Gotta love it.

Posted by: federalist | Nov 7, 2011 1:51:27 PM

And et tu Ginsburg and et tu Kennedy, I guess.

If the best you can do is get the two Obama appointees, your case must be a real loser.

Posted by: Bill Otis | Nov 7, 2011 2:06:15 PM

Having read through the opinions I think this is an excellent case for executive action. It's one of those icky cases that makes you cringe to be a judge because both sides have excellent points, someone's life is at stake, and you have to choose. In the final analysis I agree with the majority but I don't feel good about that fact. And I don't think the State of Texas should feel good about it either. The outcome is the legally correct one but it's not an honorable one.

Posted by: Daniel | Nov 7, 2011 2:48:13 PM

This isn't an icky case. And both sides don't have excellent points. Sotomayor betrays her hack self once again. I mean really, the evidence was simply cumulative, and certainly, the prosecution has the ability to have the witness sum up what he said before. Not only that, the guy had had all of the reviews, and he's unquestionably guilty. There's no reason that the State of Texas should have to feed this guy for another 20 odd years because a defense attorney got cute. He deserves to die.

Posted by: federalist | Nov 7, 2011 3:14:43 PM

Dr. Walter Quijano is already discredited in Texas, and a contract with him canceled. This racial bias has been recognized for what it is at last. Unfortunately, it appears someone either appealed this before that decision was made, or has successfully caused the Supreme Court to collude in the disgraceful disregard of the greater evidence in a number of cases.
Once again, the decision does no credit to the Supreme Court at all.

Posted by: peter | Nov 7, 2011 3:44:26 PM

I continue to wonder why a special interest policy blog invites such knee-jerk remarks as some people here provide. The ad hominem included.

Posted by: Joe | Nov 7, 2011 4:04:29 PM


Did you even bother to read the opinions? I think not. The issue that the dissent raises is a serious and fair. Dr. Walter Quijano testified about race in six different cases. In five of those cases the radical pro-defendant institution (I'm being sarcastic) known as the Texas Court of Criminal Appeals held that the hearings were tainted and ordered them reheard. This case is the one exception because of its procedural posture. So how is that fair? How is it substantively just to treat similarly situated defendants differently just because of a technical, procedural detail? Explain.

But of course you don't care about any of that. You don't even care that five of six murders got what they wanted. No, your blood lust is so strong that all you care is that someone DIES. You don't care about how and why they die, just so that they die. In that regard your blood lust makes you no different than the animals you claim to abhor.

Posted by: Daniel | Nov 7, 2011 5:21:35 PM

federalist --

As Daniel tells it, "your blood lust is so strong that all you care is that someone DIES. You don't care about how and why they die, just so that they die. In that regard your blood lust makes you no different than the animals you claim to abhor."

Be of good cheer, federalist. At least you didn't get accused tonight of being a child molestor or a necrophiliac.

On the other hand, it's only six o'clock.

Posted by: Bill Otis | Nov 7, 2011 6:22:22 PM

peter --

"This racial bias has been recognized for what it is at last. Unfortunately, it appears someone either appealed this before that decision was made, or has successfully caused the Supreme Court to collude in the disgraceful disregard of the greater evidence in a number of cases."

All these years I've been a lawyer, and it took peter's insight today to open my eyes to what I've been missing.

Yes, folks, it's all true. The reason our Supreme Court goes along with the death penalty has zip to do with its recognition in the Constitution or in precedent or any of that stuff ordinarily relied upon by child molestors and bloodlusters. Nope, the reason is......(drumroll)......COLLUSION. They're COLLUDING, I tell you. Breyer, Ginsburg, Scalia, Thomas, the lot of them.

Peter, my man, PLEASE keep up the good work. No one showcases the moorings of abolitionism like you do.

Posted by: Bill Otis | Nov 7, 2011 6:34:13 PM


If you had proposed a wager of a month's salary that during a week where Grits has been largely absent the level of discourse would actually sink considerably, I would have taken it in a minute. Unbelievably, it has.

Posted by: TarlsQtr | Nov 7, 2011 7:22:50 PM

Daniel, I have read the case. It is less than impressive. First off, Sotomayor's lead that racism should never taint a case is true, but somewhat besides the point. This guy has had his direct appeal, his post-conviction relief and habeas (N.B. Cert. was denied on his habeas case on April 29, 2010, long before his round of appeals.) Yet, Sotomayor sees fit to reopen the case because of some purported misleading information given to the District Court. Well, given the tight timeframe caused by the defendant's belated filings, it's perhaps understandable that the Texas deputy AG may not have been crystal clear on the particular issue. (See footnote 2 of Sotomayor's opinion--are we really going to get into this sort of language parsing, when, lo and behold, the capital defendant was certainly able to get all of the relevant info to the District Judge. One wonders if Justice Sotomayor is going to be so hard on attorneys for capital defendant--if past history is any guide, the answer is no--all you have to do is look at her 6.5 hrs monomania in the Harrington v. Richter (or Pinholser) oral argument, when anyone with any sense knows that the 6.5 hours was defense counsel spin.) But let's forget about that--Sotomayor seems to think that how Texas treated the other five capital defendants is somehow relevant to Buck's case. Where does she get that idea? Obviously, Buck's case is distinguishable from the other five (one may or may not buy the distinction, and that's fine, but there is an argument). So what rule of law binds Texas to giving Buck the same treatment as the others? The little known Sotomayor codicil to the Constitution that allows her anger at a particular death sentence to be overturned because she doesn't like it?

The other problem with Sotomayor's dissent is that it reads far too much into the prosecution's questioning. The testimony was simply cumulative of what the defense had already introduced. I know of no rule that prosecutors violate the Constitution when they have a defense witness recount what he or she has said before. The evidence was in front of the jury anyway. But even if one could conclude that (a) this was somehow problematic from a constitutional standpoint, (b) somehow someway there was a way to get around the procedural default and (c) that the defendant could show harm (i.e., that the result would be different), what possible justification is there for ripping open a settled habeas case on the basis of a last-minute filing? Nowhere in Sotomayor's opinion is there any discussion of that.

So, to recap, Sotomayor will use an electron microscope to parse the AG's filings (some of which were in response to tight deadlines due to the defendant's actions) for things that really aren't relevant (i.e., the treatment of the other prisoners), yet ignore the obvious federalism concerns with her proposed course of actions. It is amazing that federalism concerns (not to mention the abusiveness of the late-filing here) are nowhere to be found in her opinion, yet she'll invent, out of whole cloth, some goofy idea that the Texas' treatment of the other five capital defendants somehow is relevant to the procedural default argument. I'd love to see some citation to authority for that.

The opinion's a joke. Call me bloodthirsty all you want. I don't particularly care. Try dealing with my arguments though. You might actually learn something.

Posted by: federalist | Nov 7, 2011 7:28:22 PM

My bad, I just remembered what Sotomayor was thinking about when she did the song and dance about all the other Texas DR inmates who got another shot--offensive non-mutual collateral estoppel. I hadn't realized that was applicable in criminal cases against the state. Or maybe, there was some precedential value to the other cases.

Can someone elucidate this? The "wise Latina" being so smart probably assumed that we lesser intellects already knew this. So can someone help me?

Posted by: federalist | Nov 7, 2011 7:50:21 PM

And while you guys are at it, can someone please explain how the state is obligated to give a good reason for its assertion of procedural default.

Posted by: federalist | Nov 7, 2011 7:53:44 PM

TarlsQtr --

Oh, Grits made his contribution. When I asked Daniel to either prove or withdraw his claim that I'm a pedophile and/or necrophiliac, Grits immediately chimed in urging Daniel to do neither, as then I might "shut up."

Of course that's the name of the game. I actually have to be grateful to Grits for exposing it so quickly and succinctly. The Left's point is not to answer on the merits, the merits being against them. It's to be so insulting, rude and vulgar towards conservatives as to drive them off the site. It's the updated version of Joe McCarthy.

These are the same people, mind you, who glowingly congratulate themselves on their high-mindedness, while scolding conservatives for being wahoos and ruffians (at best). All this occurs in the midst of their atavistic snarling that conservatives are narrow minded Puritans, Nazis (the old standby) and now child molestors.

There was a time on this site when some of the liberals would have condemned this kind of argument-by-sewer. No more. It's been a week now, and not a single liberal has breathed a word of criticism of Daniel's child molestor/necrophiliac accusation.

And that, most unfortunately, is what it's come to.

Posted by: Bill Otis | Nov 7, 2011 8:11:16 PM

Oh, by the way, you guys wanna know when David Dow filed his motion for relief from judgment with the Southern District of Texas? September 7, 2011. A scant 8 days before the scheduled execution. 8 days. So Sotomayor's all upset that the meanie state may or may not have gotten its briefs letter perfect. Well, maybe if David Dow had gotten off his behind, the state's briefs would have been better. As we saw before, SCOTUS denied cert. in the habeas case in April of 2010--well over a year before Dow filed his motion. (Hey Mr. Dow, it seems you're learning--with the Richard case, you filed it the day of the scheduled execution, and we all see how that worked out--yours was the only killer who got the "big jab" while Baze was pending.)

So while you guys are at defending the work of the wise Latina and the woman who subjected military recruiters to second-class status (a patriotic American if I ever saw one), maybe you can explain why this isn't abusive practice? Maybe you can explain why killers should get to wait for over a year before filing a relief from judgment motion when the argument is known to them?

Since Sotomayor and Kagan are so exquisitely attuned to the rights of killers (inventing a hitherto unknown right to have the state explain why it chooses to assert procedural default--well, maybe not hitherto unknown, I do recall the Maples oral argument where the Alabama AG was grilled about why it didn't just waive the default), how do we explain their complete ignorance about the federalism concerns here, or, for that matter, the abuse of the federal court with this grossly late filing.

Posted by: federalist | Nov 7, 2011 8:29:14 PM

It only took his failures in the cases of Richards AND Simpson AND the censure that followed to teach him to file a whole week early. But for Texas capital lawyers, it's still an improvement.

Posted by: MikeinCT | Nov 7, 2011 10:00:53 PM

Come on guys, if I am so dumb, why can't you refute what I am saying? Who wants to defend the "wise Latina?" Daniel took a shot. Maybe Doug will try to defend her.

I'll make it easy--on page 6 of the opinion, Sotomayor says that the judgment could have been ripped open because the State had mischaracterized Alba and Blue. Can anyone identify the substantive right Buck has to the treatment in Alba and Blue?

The other question I'll ask, just for grins, is why, having opened the door with Quijano's testimony was the state precluded from characterizing it in closing argument. The "wise Latina" criticizes the prosecutor for simply saying that a defense witness concluded that Buck had a probability of committing more acts of violence? How in the world is this problematic?

Sotomayor had weeks to put this case together. She hardly cites any authority. Funny--the state only had a few days to put together its papers in the District Court and the Circuit Court (a fact not acknowledged by Sotomayor). Could it be that the Texas AG actually did a better job supporting its position than Sotomayor?

Come on guys. Defend her. Can you?

Posted by: federalist | Nov 8, 2011 8:32:31 AM

now me i think the whole thing should be a wash!

becasue of this !

" An arresting officer testified that Buck was laughing when he was arrested and said “[t]he bitch deserved what she got.” 28 Tr. 51 (May 6, 1997)."

if i'd been that cop who found someone standing over a dead body with a couple of guns and laughing about the killed...This would all be irrelivent! since he would have just been DEAD! No arrest! No trial! nothing!

Posted by: rodsmith | Nov 8, 2011 11:57:56 AM

My et tu was directed specifically at Breyer for going out of his way to join the Alito writing...

As for Sotomayor's desire to "overturn" the death sentence, note that she actually argued fairly narrowly that the record was shady/convoluted enough that a COA should have been granted and the district court should have taken another shot at it, on the basis of a more accurate presentation of the evidence.

I believe Dow's organization came in late after other counsel screwed up the habeas.

And by the way, the misleading prosecution statements at issue occurred in the original habeas proceedings (from which Rule 59/60 relief was later sought), not in the compressed proceedings beginning in September 2011. So, this whole theme of the State's misstatements being the fault of a hasty, defense-imposed schedule is just not factually grounded. Go figure.

Posted by: Reader | Nov 10, 2011 1:39:51 PM

Reader, the bottom line is that the Rule 59/60 motion was filed late in the game, and it is an outrage that this execution was stayed.

As for the statements being misleading, the bottom line is that none of it really matters in the first place. Buck has no substantive right to the same litigation treatment as the other killers. So why is the record all that convoluted? Sotomayor's argument about the prosecution's briefings are simply makeweight. (I stand corrected.) You can nibble around the edges, but my critique of Sotomayor is right.

It is long past time that justice be done for this horrible crime.

Posted by: federalist | Nov 11, 2011 8:12:51 PM

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