Updated: At about 7:40 p.m., the U.S. Supreme Court stayed the scheduled execution of Duane Edward Buck.
Buck was praying when Texas Department of Criminal Justice officials informed him of the news, said spokesman Jason Clark. "He said, 'God is worthy to be praised. God's mercy triumphs over judgment, and I feel good,'" Clark said.
Buck had already had his last meal of fried chicken, salad, french fries, fried fish, jalapeño peppers and apples before state officials received the decision from the high court, Clark said. Buck is now being transferred back to death row at the Polunsky Unit in Livingston.
Lawyers for Buck sent Gov. Rick Perry a letter Wednesday night seeking a 30-day reprieve for the death row inmate scheduled to be executed this evening. State Sen. Rodney Ellis, D-Houston, former prosecutor Linda Geffin and Phyllis Taylor, one of Buck's victims, joined in the request.
"No other capital case has ever come before your desk more demanding of your immediate intervention," the lawyers wrote.
Buck was sentenced to death in 1997 for the shooting deaths of Debra Gardner and Kenneth Butler. During a drug-induced shooting spree, Buck also shot Taylor, a woman with whom he grew up, but she survived the wound to her chest. Last week, Taylor called on Perry and the Board of Pardons and Paroles to halt Buck's execution. Linda Geffin, who was a prosecutor at the original trial, also urged clemency. The board denied the request, though.
Now, Buck's hopes for halting the execution scheduled for tonight lie with the U.S. Supreme Court and the governor. The governor has authority to grant a one-time, 30-day reprieve from execution. Perry has only granted such a reprieve four times since he took office Dec. 21, 2000. But, because Perry is out of the state campaigning for president, the final reprieve decision today will come from Lt. Gov. David Dewhurst, who acts as governor in Perry's absence. Spokesman Mike Walz said Dewhurst would not comment on the case until all of Buck's court options were exhausted.
Buck's guilt is not in doubt, but his lawyers and supporters argue he deserves a new sentencting trial because race was a factor during his original sentencing in 1997. Dr. Walter Quijano, a psychologist the defense called as a witness, said that Buck would not likely be a future danger to society. But during cross-examination, prosecutors asked Quijano whether he believed the fact that Buck was black increased his potential threat to society. Quijano said yes. The jury sentenced Buck to death.
Then-Attorney General John Cornyn in 2000 admitted that Quijano's testimony regarding race amounted to a constitutional error in seven cases, including Buck's. He agreed not to oppose requests for new sentencing trials. The other six defendants received new trials. "The people of Texas want and deserve a system that affords the same fairness to everyone," Cornyn said at the time.
All of the defendants who received retrials were resentenced to death, and one has been executed. Buck's lawyer, Kate Black, said he was not allowed a new trial because his case was in state court at the time of Cornyn's error admission, which meant that the district attorney, not the attorney general, had jurisdiction over the case. By the time Buck's case reached the federal court, Black said, "the AG chose inexplicably not to follow through on that promise."
In Buck's case, the U.S. 5th Circuit Court of Appeals in 2009 denied his request on procedural grounds, but it also wrote that his appeal would likely fail on the merits because it was Buck's own attorneys who introduced Quijano as a witness. "Buck cannot now claim surprise at the opinions that Dr. Quijano expressed," the New Orleans court opined.
Buck is scheduled to be executed at 6 p.m. tonight. His execution would be 236th during Perry's gubernatorial tenure, and it is one of four executions scheduled for this month.
In a press release, Sen. Ellis called on Dewhurst and Perry to allow the case to be reviewed. "Mr. Buck may have committed a horrible crime, and may deserve to be punished, but in cases involving the ultimate penalty, I believe we must guarantee a fair trial untainted by racially prejudicial testimony," Ellis said.