Duane Buck Loses In The End

The Supreme Court did a few things of note today. It handed down a couple per curiams without recorded dissent, giving the sixth circuit this time a rap on the knuckles (I have been told that the Sixth Circuit has been known to be a problem ... the Ninth isn't the only one, just a familiar target). It will decide if a minor can be given life without parole if guilty of murder (the answer was "no" in a non-capital case, Stevens praising Roberts' concurrence which held it was unconstitutional in some cases).

The most notable, at least in coverage, is the disposition to a case the Court held for further review. It involved an expert that testified in a capital sentencing phase that race was a factor that statistically made it more likely a person would be dangerous. The earlier decision got some attention, particularly because Texas itself admitted error. As noted by the dissent today, the state said:

[T]he infusion of race as a factor for the jury to weigh in making its determination violated [Saldano’s] constitutional right to be sentenced without regard to the color of his skin.

The troublesome witness tainted various sentencing decisions, but (again from the dissent) re-sentencing was not too promising for many of the defendants:

Accordingly, in five of the six cases the attorney general identified, the State confessed error and did not raise procedural defenses to the defendants’ federal habeas petitions. Five of the six defendants were thus resentenced, each to death.

Such is often the case, underlining the limited nature of these rulings. Still, the principle here is important [see "loki" discussing the matter here] and that one defendant counts. The state opposed one motion, however, and after looking over it some, the Supreme Court denied cert. Sotomayor (with Kagan) dissented. Alito (with the strange bedfellows of Scalia and Breyer) concurred, noting that the defense called the witness this time. But, if the use of race taints the jury's judgment, why should that matter at the end of the day? Also, the state DID ask if race increased dangerousness and repeated the reference to his dangerousness in his summation. The defense's use (per dissent) also was different:

In this case, first on direct examination by the defense, Dr. Quijano merely identified race as one statistical factor and pointed out that African-Americans were overrepresented in the criminal justice system; he did not state a causal relationship, nor did he link this statistic to Buck as an individual). Buck 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’s race made him more dangerous and that, in part on this basis, he should be sentenced to death.

Troubling conclusion, particularly troublesome that Breyer needlessly concurred in Alito's statement. Ginsburg silently went along, for whatever reason -- who knows what goes behind the scenes in cases like this. For instance, it is known (sorry if this seems arbitrary) that justices count noses and Ginsburg might have saw this as a loser, something that did not have five votes. But, though it is not surprising that Breyer is not as liberal as the stereotype, it is annoying Breyer felt a need to go on the record here. The reasoning seems more form than substance.

Meanwhile, earlier Thomas was the only one who wanted to take a cross case that some thought was prime for review, a time for the Supremes to clarify its display jurisprudence. Thomas' unconvincing simplistic allegation that the Court really has no standards (close cases go different ways ... shocker) aside, it would have made sense to take the case to clarify things now that O'Connor is gone. It's a pretty good bet that Alito doesn't share her views on the matter. As Greenhouse notes, it is not that I actually would agree with the result.

But, maybe Kennedy wants to let the endorsement test lie, unlike Thomas, respecting the passage of time.  [Or, that life is complicated.]