The Supreme Court has refused to hear an appeal from a Texas death row inmate who won a last-minute reprieve from the high court in September.
The justices on Monday turned away the appeal of Duane Buck, who wanted them to consider whether race played an improper role in his sentencing.
Buck, who is black, was sentenced to death for the fatal shootings of his ex-girlfriend and a man in her apartment in July 1995. His attorneys contend Buck deserves a new sentencing hearing because of a psychologist's testimony that black people were more likely to commit violence.
Justice Samuel Alito said that might have been enough for a reversal if Dr. Walter Quijano had been a prosecution witness.
"But Dr. 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," said Alito, who was joined by Justices Antonin Scalia and Stephen Breyer in his statement.
Justices Sonia Sotomayor and Elena Kagan said they wanted the court to hear the appeal, saying the death sentence was "marred by racial overtones and a record compromised by misleading remarks and omissions."
"Because our criminal justice system should not tolerate either circumstance _ especially in a capital case _ I dissent and would vote to grant the petition," Sotomayor said.
Five other Texas death row inmates received new punishment hearings because of racially charged statements made during the sentencing phase. Each convict again was sentenced to die.
The case is Buck v. Thaler, 11-6391.