Updated noon, Feb. 18: The Harris County district attorney's office agreed Monday morning at a hearing in a state district court to give attorneys for death row inmate Duane Buck 30 days to file with an application, asking the Texas Court of Criminal Appeals to review his sentencing trial. The application, said Kate Black, one of Buck's attorneys, will include arguments that Buck was unfairly sentenced to death after testimony suggested that he was more likely to be dangerous because he is black. If the state's highest criminal court rejects the application, the district attorney's office will again move to set an execution date.
"Buck is a very faithful person," Black said of her client's reaction to the news, adding that he was concerned for the well-being of the victims' families as the controversy continues. "He doesn't want to put any additional stress on the victims' families."
Original story: During Duane Buck's 1997 capital murder trial, a defense witness, psychologist Dr. Walter Quijano, told the jury, “It’s a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system.”
Sixteen years later, those words and their effect on Buck's death sentence have been fiercely debated in appeals courts and in the U.S. Supreme Court and by lawyers, lawmakers and scholars. On Monday, the debate will continue when Buck's case returns to a state district court in Houston. The Harris County district attorney’s office will ask a judge to set a new execution date for the inmate. Buck's lawyers will renew their calls for a new sentencing hearing, arguing that his race — Buck is black — played a role in his death sentence.
Defense lawyers often argue that their clients were subject to racial prejudice. And last month, Dallas County District Attorney Craig Watkins said he planned to advocate for a law making it easier for criminals to appeal convictions and sentences in cases where race was a factor.
Buck admits that on July 30, 1995 he broke into his ex-girlfriend Debra Gardner’s home in Houston and shot and killed her and a friend, Kenneth Butler, as Gardner’s children looked on. He also shot his step-sister, Phyllis Taylor, who survived.
For a jury to sentence someone to death in Texas, according to a 1973 statute, they must decide that the person is likely to be a “continuing threat to society.” Buck received the death penalty after Quijano suggested to the jury that he was statistically more likely to be dangerous in the future because he is black. “You often see race in these cases,” said Christina Swarns, one of Buck’s lawyers, who works for the NAACP Legal Defense Fund. “But it’s not so often that it is this explicit.”
During the testimony, Quijano, a witness hired by Buck’s trial lawyers, said there were several “statistical factors we know to predict future dangerousness,” including age, sex, race, socioeconomic status, employment stability and substance abuse history. When asked about race specifically by the defense, Quijano said, “It’s a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system.”
Quijano also said that Buck would be less likely to be dangerous because he had not been violent in prison and because the victims were people he knew.
On cross-examination, the prosecutor asked Quijano, “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?” Quijano answered, “Yes.”
In October 2011, the Texas Youth Commission (now the Texas Juvenile Justice Department) ended a contract with Quijano over the controversy surrounding his testimony.
Two days ago, Quijano explained that he never said Buck would be a continuing threat to society, and that the statements about race were meant to show that there was a "relational" connection between race and dangerousness, not a "causal" connection. "The statement doesn't mean that because you are a certain race you are more likely to commit a violent act," he said.
In 2000, then-Attorney General John Cornyn said that the state had made a mistake in Buck’s case and six others by using Quijano’s testimony. In the case of Argentinian Victor Hugo Saldano, Cornyn filed a petition with the U.S. Supreme Court in which he wrote that a new sentencing trial was needed.
“Despite the fact that sufficient proper evidence was submitted to the jury to justify the finding of Saldano’s future dangerousness," Cornyn wrote, "the infusion of race as a factor for the jury to weigh in making its determination violated his constitutional right to be sentenced without regard to the color of his skin."
Buck’s lawyers said they see no reason why the Harris County district attorney’s office has singled out Buck for an execution date. “Texas made a promise; Cornyn made a promise," said Christina Swarns. “They've done a complete about-face."
Cornyn’s office declined to comment, saying he would wait to see if the judge would set a new execution date.
The office of current Attorney General Greg Abbott sent its last filing to the U.S. Supreme Court in September 2011, and it stated, “The State acknowledges and agrees that it is inappropriate for it to raise an issue such as race for the jury to consider when assessing a defendant’s guilt or punishment.” But, it continued, “Buck’s constitutional rights were not violated because Buck himself presented the testimony about which he complains.” That is the factor, they argue, that distinguishes his case from the others in which Quinjano testified.
It is also the reason the Harris County district attorney’s office is now seeking a new execution date. “Mr. Buck's claim has been thoroughly reviewed,” said Lynn Hardaway, the assistant district attorney in charge of post-conviction appeals.
When Buck faced an execution date in September 2011, Linda Geffin, one of the prosecutors in the original case, sent a letter asking Gov. Rick Perry and the Texas Board of Pardons and Paroles to halt the execution and allow a new sentencing trial. "It is regrettable that any race-based considerations were placed before Mr. Buck's jury," she wrote. State Sen. Rodney Ellis, D-Houston, released a statement calling for a stay. Buck's step-sister, Phyllis Taylor, also wrote a letter asking that he not be executed. The pardons board denied clemency.
On the evening of his scheduled execution, after Buck had eaten his last meal, the U.S. Supreme Court granted a stay to review his case. In Nov. 2011, two months later, the court denied the appeal. Justice Samuel Alito wrote that although Quijano’s testimony was “bizarre and objectionable," his statement that black people are statistically more likely to engage in crime was not a reason to order a new sentencing since it was elicited by the defense. In a dissent, Justice Sonia Sotomayor noted that the testimony was revisited by the prosecution "in a question specifically designed to persuade the jury that Buck's race made him more dangerous."
After the stay of execution in 2011, family members of Buck’s victims told the Houston Chronicle that media accounts of the appeals process “victimized us all over again.”
Burnett Clay, a minister from Kirbyville who has visited Buck since 2002 and sees him “as a son,” said that when she last spoke with him in early January, he was “not expecting an execution date” and had recently gotten married. “He talks a lot about the Lord,” she said. “I tried to encourage him to be strong. He’s a strong little fella.”
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