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Statement of ALITO, J. 

SUPREME COURT OF THE UNITED STATES 

DUANE EDWARD BUCK v. RICK THALER, DIRECTOR, 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

CORRECTIONAL INSTITUTIONS DIVISION
 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
 

No. 11–6391. Decided November 7, 2011
 

The petition for a writ of certiorari is denied. 

Statement of JUSTICE ALITO, with whom JUSTICE 

SCALIA and JUSTICE BREYER join, respecting the denial of 

certiorari. 

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. 
 

 

2 BUCK v. THALER 

Statement of ALITO, J. 

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. Retained by the defense, Dr. Quijano prepared a report in which he opined on this subject. 

His report stated: 

“Future Dangerousness, Whether there is probability that the defendant would commit criminal acts of 

violence that would constitute a continuing threat to

society? The following factors were considered in answer to the question of future dangerousness: statistical, environmental, and clinical judgment. 

“I. STATISTICAL FACTORS

 “1. Past crimes. . . . 

“2. Age. . . . 

“3. Sex. . . . 

“4. Race. Black: Increased probability. There is 

an over-representation of Blacks among the violent

offenders. 

“5. Socioeconomics. . . . 

“6. Employment stability. . . . 

“7. Substance abuse. . . .” Defense Exh. No. 1 in 

No. 699684 (208th Jud. Dist., Harris Cty., Tex.), p. 7. 

The defense then called Dr. Quijano to the stand, and 

elicited his testimony on this point. Defense counsel asked 

Dr. Quijano, “[i]f we have an inmate such as Mr. Buck who

is sentenced to life in prison, what are some of the factors, 

statistical factors or environmental factors that you’ve

looked at in regard to this case?” 28 Tr. 110 (May 6, 1997). 

As he had done in his report, Dr. Quijano identified past 

crimes, age, sex, race, socioeconomic status, and substance 
 

 

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Statement of ALITO, J. 

abuse as statistical factors predictive of “whether a person

will or will not constitute a continuing danger.” Id., at 

111; see also id., at 110 (identifying the “statistical factors 

we know to predict future dangerousness”). With respect

to race, he elaborated further that “[i]t’s a sad commentary that minorities, Hispanics and black people, are over 

represented in the Criminal Justice System.” Id., at 111. 

Not only did the defense present this testimony to the jury

but Dr. Quijano’s report was also admitted into evidence—

over the prosecution’s objection—and was thus available 

for the jury to consider. See id., at 233–234. 

It is true that the prosecutor briefly went over this 

same ground on cross-examination. The prosecutor asked 

a single question regarding whether race increased 

the probability that Buck would pose a future danger to 

society: 

“Q. You have determined that the sex factor, that a 

male is more violent than a female because that’s just

the way it is, and that the race factor, black, increases

the future dangerousness for various complicated reasons; is that correct? 

“A. Yes.” Id., at 160. 

But this colloquy did not go beyond what defense counsel had already elicited on direct examination, and by this 

point, Dr. Quijano’s views on the correlation between race

and future dangerousness had already been brought to the

jury’s attention. Moreover, the prosecutor did not revisit 

the race-related testimony in closing or ask the jury to find

future dangerousness based on Buck’s race. 

The dissent makes much of the fact that the State at 

various points in federal habeas proceedings was inaccurate in its attempts to explain why the present case is

different from the others in which, as a result of similar 

testimony by Dr. Quijano, the State did not assert proce-
 

 

 

 

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Statement of ALITO, J. 

dural default and new sentencing proceedings were held.

But the fact remains that the present case is different 

from all the rest. In four of the six other cases, see, e.g., 

Saldano v. Texas, 530 U. S. 1212 (2000), the prosecution 

called Dr. Quijano and elicited the objectionable testimony 

on direct examination. In the remaining two cases, see 

Alba v. Johnson, 232 F. 3d 208 (CA5 2000) (Table); Blue v. 

Johnson, Civ. Action No. 99–0350 (SD Tex., Sept. 29,

2000), while the defense called Dr. Quijano, the objectionable testimony was not elicited until the prosecution questioned Dr. Quijano on cross-examination. See Record, 

Doc. 511601677, at 44–49; id., Doc. 511601676, at 39–44. 

And, on redirect, defense counsel mentioned race only to

mitigate the effect on the jury of Dr. Quijano’s prior identification of race as an immutable factor increasing a defendant’s likelihood of future dangerousness.* Only in 

—————— 

*On redirect in Alba, defense counsel tried to downplay the significance of Dr. Quijano’s testimony with respect to the statistical factors: 

“Q. [The prosecutor] asked you about statistical factors in predicting 

future dangerousness. When we’re talking about statistics, are we

talking about correlation or causation? 

“A. Oh. These statistics are strictly correlation. There’s a big 

distinction, and we must keep that in mind. Correlation simply says

that two events happened—coincidentally happened at the same time.

It does not mean that one causes the other. 

“Q. So when we’re talking about these statistical factors—that more

men re-offend than women, Hispanics offend more than blacks or 

whites, people from the low socioeconomic groups offend more than

people from the higher socioeconomic groups, people who have opiate 

addiction or alcohol abuse offend more often than those who don’t, 

people who have less education offend more often than those who

have—do all those things cause people to offend? 

“A. No. They are simply contributing factors. They are not causal 

factors. One cannot control one’s gender or one’s color. And obviously

there are many, many Hispanics, many whites, many Orientals who 

don’t commit crimes. But the frequence [sic] among those who commit

crimes, these are the characteristics. They don’t cause each other; they

just happen to be coincidental to each other.” Record, Doc. 511601677, 
 

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Statement of ALITO, J. 

Buck’s case did defense counsel elicit the race-related 

testimony on direct examination. Thus, this is the only

case in which it can be said that the responsibility for 

eliciting the offensive testimony lay squarely with the

defense. 

Although the dissent suggests that the District Court

may have been misled by the State’s inaccurate statements, the District Court, in denying petitioner’s motion 

under Rule 60 of the Federal Rules of Civil Procedure, was 

fully aware of what had occurred in all of these cases. It is 

for these reasons that I conclude that certiorari should be 

denied. 

—————— 

at 104–105 (one paragraph break omitted). See also id., Doc. 

511601676, at 82–84 (seeking to show that incarceration could 

decrease a defendant’s likelihood of future dangerousness, notwithstanding the immutable factors, such as race); id., at 82–83 (“If the 

person is put in a prison many of these factors will not be operative

anymore because the prison restriction will not allow those factors to be

present, and so the more of those factors are controlled by the prison 

structure, the less the danger—the less dangerous the person is in the

prison”).