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The US Supreme Court declined on Monday to take up the case of a death row inmate who claimed authorities in Texas improperly used race as a factor when trying to convince a jury to impose capital punishment.

Lawyers for Duane Edward Buck had argued that prosecutors crossed the line when they asked a psychologist to repeat his conclusion in a report that African-Americans were statistically more likely to commit a violent crime in the future and pose a danger to the community.

The question arose during the penalty phase of Mr. Buck鈥檚 trial, after he had been found guilty of the fatal shooting of his former girlfriend and her male friend, but before the jury had decided whether he should receive a death sentence.

In an eleventh-hour appeal, Buck鈥檚 lawyers told the justices the use of a person鈥檚 race as a reason to order his execution was a violation of the constitutional right to equal protection and due process. They said Buck should be given a new sentencing hearing.

The high court split on whether to hear Buck鈥檚 appeal. Two of the nine members of the court 鈥� Justices Sonia Sotomayor and Elena Kagan 颅鈥� announced that they voted to hear the case.

They said Buck鈥檚 trial had been marred by 鈥渞acial overtones,鈥� and that his attempts to raise the issue on appeal had been undercut by 鈥渕isleading remarks and omissions鈥� by Texas prosecutors.

Three other justices 鈥� Samuel Alito, Antonin Scalia, and Stephen Breyer 鈥� issued a statement supporting the denial of Buck鈥檚 appeal.

The three acknowledged that there had been 鈥渂izarre and objectionable testimony鈥� in Buck鈥檚 case about an alleged link between race and future criminal activities.

But the three justices said that the statements were introduced by a defense witness under questioning by a defense attorney. In essence, the majority justices concluded that Buck鈥檚 lawyers had only themselves to blame for bringing the race issue into the case.

The issue stemmed from the testimony of Dr. Walter Quijano, who had served for many years as the Texas Department of Criminal Justice鈥檚 chief psychologist. The defense called Dr. Quijano for one purpose, to convince the jury that Buck would pose no future threat to society if sentenced to life in prison 鈥� rather than death.

The problem was that Quijano had also concluded 鈥� in a report 鈥� that black and Hispanic offenders were more likely to commit future violent acts. Quijano also noted that African-Americans were statistically overrepresented in the criminal justice system.

Those points were touched on by a defense lawyer during direct examination. A prosecutor raised them briefly again during cross-examination of Quijano.

Buck鈥檚 appeal included an additional twist. Quijano鈥檚 comments and analysis concerning race and future dangerousness were not confined to Buck鈥檚 case. In the 1990s, Quijano testified in a number of capital cases in Texas.

In 2000, after a defendant successfully raised the same race issue in an appeal to the US Supreme Court, then Texas Attorney General John Cornyn ordered an audit of all capital cases featuring testimony by Quijano.

Later, Mr. Cornyn issued a press release announcing that his office had identified six similar cases in which race had been improperly cited as a factor in future dangerousness. He announced that Texas would not contest equal protection claims made in those six cases seeking a new sentencing hearing.

Five of the convicted murders were granted new hearings. The sixth case was Buck鈥檚.

Rather than following the path outlined in Cornyn鈥檚 press release, the Texas attorney general鈥檚 office opposed Buck鈥檚 motion for a new sentencing hearing. State lawyers argued that although there was testimony about race during Buck鈥檚 sentencing hearing, it was only a minor reference and there was no discussion of race in closing arguments to the jury.

Not every reference to race or ethnicity in a capital sentencing hearing is constitutionally impermissible, Texas prosecutors said. They suggested the racial reference was not an important factor leading to the jury鈥檚 decision to sentence Buck to death.

Buck鈥檚 lawyers countered that prosecutors had a choice to make during the capital sentencing hearing. They could have ignored Quijano鈥檚 references to race and sought to focus the jury鈥檚 attention exclusively on permissible factors. Or they could attempt to use the defense witness鈥檚 comments in an improper appeal to the juror鈥檚 prejudices.

One of Buck's lawyers, Gregory Wiercioch, of Texas Defender Service, said the choice prosecutors made in Buck鈥檚 case 鈥� to refer to the race issue 鈥� violated his client鈥檚 right to be treated fairly and equally in the criminal justice system without regard to race or ethnicity.

Justice Sotomayor agreed with Mr. Wiercioch鈥檚 analysis. 鈥淏uck did not argue that his race made him LESS dangerous, and the prosecutor had no need to revisit the issue. But she did, in a question specifically designed to persuade the jury that Buck鈥檚 race made him MORE dangerous and that, in part on this basis, he should be sentenced to death,鈥� Justice Sotomayor wrote in her dissent.

The justice said Buck should have been granted a new sentencing hearing like the five other convicted murderers whose earlier hearings were tainted by Quijano鈥檚 references to race.

Writing for the majority, Justice Alito said the critical distinction wasn鈥檛 whether race was mentioned but who first elicited the objectionable testimony, the prosecution or the defense.

鈥淒r. Quijano鈥檚 testimony would provide a basis for reversal of [Buck鈥檚] sentence if the prosecution were responsible for presenting that testimony to the jury,鈥� Alito wrote. 鈥淏ut Dr. Quijano was a defense witness, and it was [Buck鈥檚] attorney, not the prosecutor, who first elicited Dr. Quijano鈥檚 view regarding the correlation between race and future dangerousness.鈥�

Alito said that what distinguishes the five other death row cases from Buck鈥檚 is that prosecutors were primarily responsible for eliciting Quijano鈥檚 testimony about race. Prosecutors either called him as their own witness or raised the subject without initial prompting by defense counsel.

鈥淥nly in Buck鈥檚 case did defense counsel elicit the race-related testimony on direct examination,鈥� Alito wrote. 鈥淭hus, this is the only case in which it can be said that the responsibility for eliciting the offensive testimony lay squarely with the defense.鈥�

In a statement, one of Buck鈥檚 lawyers, Kate Black, said: 鈥淲e are disappointed that the US Supreme Court has for now declined to review Duane Buck鈥檚 case.鈥� It is now up to the State of Texas to ensure that Mr. Buck receives a sentencing hearing that is not impacted by the color of his skin.鈥�

The case was Buck v. Thaler (11-6391).