Hearing oral arguments Wednesday in an appeal by Texas death row inmate Duane Buck, U.S. Supreme Court justices appeared unswayed by the state's contention that Buck's death sentence should stand despite a psychologist's testimony at his trial that black men are more dangerous than whites.

There's no disagreement that Buck, now 53, gunned down two people, including his ex-girlfriend, more than 20 years ago. But to sentence Buck to death, his jury had to agree unanimously that he presented a future danger. It did, and Buck argues that happened in part because his own defense attorneys improperly presented testimony that blacks are statistically more prone to violence.

“This is a very unusual case, and what occurred at the penalty phase of this trial is indefensible,” said Justice Samuel Alito during oral arguments, according to a court transcript.

In the early morning of July 30, 1995, Buck broke into the Houston home of his ex-girlfriend, Debra Gardner, fatally shooting her and Kenneth Butler, whom he accused of sleeping with Gardner, court documents show. Buck also shot his stepsister in the chest, but she survived.

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Gardner’s children watched their mother die in the street as she was trying to run away, and Buck was arrested several minutes later, according to court documents. Officers described him as “upbeat and laughing,” according to court testimony. One officer claimed Buck told him “the bitch got what she deserved.”

Buck’s attorneys don’t deny the atrocity of the crime, but argue that he was denied a fair trial because of testimony by psychologist Walter Quijano.

Texas Solicitor General Scott Keller, representing the state, argued that Buck should not be allowed to continue with his appeal, pointing out it was Buck's own attorney who introduced the racially charged testimony, not the prosecution. Four justices questioned the importance of that distinction.

“Regardless of whether the evidence was admitted by the prosecution or by the defense, it would seem to be that the same concern would be present,” said Chief Justice John Roberts.

In 2000, Texas identified seven death penalty cases, including Buck’s, in which Quijano presented testimony claiming blacks and Hispanics were more likely to be a future danger. In six of the seven cases, the inmates received new sentencing hearings; Buck did not.

Lower courts have ruled that Buck waited too long to raise the issue and that Buck’s case differed from other cases involving Quijano because it was the defense that evoked the racial testimony, not the state.

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Keller said Wednesday that when the prosecution presents racist testimony, it’s “using race as an aggravator,” and that’s not the case for the defense.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan shared Roberts' doubts, and Ginsburg and Kagan said the error might be worse coming from the defense.

“Doesn’t the fact that the petitioner’s own counsel introduced this show how abysmal his representation was?” Ginsburg asked Keller during his argument.

Inadequate appeals and the complexities of death penalty appellate law have prevented Buck from fully pressing the merits of his case before. Lower courts have declined to review the claim that Buck’s counsel was ineffective in introducing Quijano’s testimony.

The lower courts ruled that Buck couldn’t prove there was a substantial likelihood that his sentence would have been different without Quijano's testimony. Keller argued the jury was watching the crime scene video at the end of its deliberations, hinting that jurors weren’t focusing on Buck’s race.

“It seems like [testimony] could have been a substantial factor,” Justice Stephen Breyer interrupted. “And Texas, in six cases, says this is totally wrong. And now in this seventh case, you’re taking the opposite position. And I have to admit, like what the chief justice seemed, I don't understand the reason. It seems to me it proves the arbitrariness of what's going on.”

Buck’s attorneys were “confident” that the court will side with them, said Kate Black with the Texas Defender Service after leaving the court. Their ultimate goal is for Buck to be granted a new, “colorblind” sentencing trial.

“[The justices] really seem to just be grappling with at this point what kind of relief to grant and how far to go,” she said.

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At the beginning of the arguments, justices questioned if the court should focus on whether Buck’s trial attorneys were incompetent for introducing racially discriminatory testimony or on the technicality of whether the lower courts should have granted an appeal. If the court votes to side with Buck, it could either send the case back to a lower court for further review or go as far as to grant a new sentencing trial itself.

Black said she expects the justices to vote on the issue fairly soon, but that a decision likely won’t be announced until May or June.

Read more on this case:

  • The U.S. Supreme Court Wednesday will hear an appeal from death row inmate Duane Buck, whose trial included racially discriminatory testimony.
  • More than 100 elected officials, religious officials and lawyers sent a letter to the Harris County district attorney's office urging a new hearing in the case of Duane Buck, who they say was unfairly sentenced to death because of an expert witness's testimony.
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