What's Next for Duane Buck on Death Row?

The Supreme Court has declined to review his racially tainted case. Now it may be up to Rick Perry.

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By the way, Buck is not looking to go home; he knows that he belongs behind bars for life. "He realizes he needs to do time for his crime," Black said. "He is incredibly sorry and remorseful."

In putting the kibosh on Buck's appeal, Alito, with whom Justices Antonin Scalia and Stephen Breyer agreed, pretty much took a too-bad, so-sad approach. Buck's defense lawyer for the sentencing phase of his 1997 trial called a psychologist as a witness to testify about whether Buck posed a future danger to society or even to his fellow inmates. In Texas that's something to consider when deciding between a life sentence and the death penalty.

The defense witness did OK by Buck until he was cross-examined by the prosecution. That's when he essentially provided the prosecution with the ultimately successful argument that black men were prone to violence and thus likely to pose future danger. That spelled the death penalty for Buck.

Alito said he would have decided differently if the psychologist had been the prosecutor's witness and introduced race on the topic of "future dangerousness." But, he said, the defense -- Buck's lawyers -- opened the door to that issue. And the prosecutors barged right through.

Disagreeing, Justices Sonia Sotomayor and Elena Kagan said that this case -- "a death sentence marred by racial overtones and a record compromised by misleading remarks and omissions made by the State of Texas" -- is so messed up that the Supreme Court should give it full consideration and allow Buck alternatives to execution.

"We are weighing our options in terms of litigation and hoping the district attorney will work with us," said the Texas Defender Service's Black. The case did not rev up until the summer, when college students interning for the organization came in with idealism and energy, much as I did as an intern working on capital cases more than 30 years ago in Georgia. They crafted the new arguments to the Supreme Court. That kind of enthusiasm and dedication, which has already led to the release of wrongly convicted men on Texas' death row, will turn up more instances of injustice.

Their idealism will cause them heartbreak, but hopefully their efforts will encourage the indifferent majority to make a greater commitment to justice over vengeance. Or politics. You see: After the negotiations over whether or when a new execution date is set and whether or when a new sentencing hearing is scheduled, this case may ultimately come before Perry.

E.R. Shipp, a Pulitzer Prize-winning journalist, is a frequent contributor to The Root.

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