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Lawmakers Urge New Hearing in Death Penalty Case

More than 100 elected officials, religious officials and lawyers have sent a letter to the Harris County district attorney's office urging a new hearing in the case of Duane Buck, who they say was unfairly sentenced to death because of an expert witness's testimony.

By Maurice Chammah, The Marshall Project
Death row inmate Duane Buck, Texas Department of Criminal Justice photo

More than 100 elected officials, religious leaders and lawyers, including former Gov. Mark White and the president of the American Bar Association, are urging the Harris County district attorney's office to support a new hearing in the case of Duane Buck, who they say was unfairly sentenced to death after an expert witness testified that he would be more likely to be a threat to society because he is black.

"The State of Texas cannot condone any form of racial discrimination in the courtroom," reads the letter, which was delivered by White to Harris County District Attorney Mike Anderson on Wednesday and includes signatures from leaders of the NAACP, law professors, several judges and former district attorneys. "The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary."

The letter was also signed by state Reps. Alma Allen, D-Houston; Jessica Farrar, D-Houston; Gene Wu, D-Houston; Eric Johnson, D-Dallas; and Harold Dutton Jr., D-Houston; as well as state Sen. Rodney Ellis, D-Houston.

The Harris County DA’s office maintains that all of Buck's claims of unfairness have been "thoroughly reviewed" by courts, though they agreed in February to not seek another execution date for Buck until his lawyers had 30 days to file an appeal, which is now being considered by the Court of Criminal Appeals, Texas' highest criminal court. While the district attorney's office is not directly in charge of Buck's fate — that is up to the court — Buck's lawyers insist that they should agree to a new sentencing hearing.

The Harris County DA's office responded to the letter by saying that “after giving the defense an additional opportunity to present their case to the Court of Criminal Appeals, we are waiting on the ruling and we will act accordingly."

Office spokeswomen Sara Kinney said District Attorney Mike Anderson, who was elected in November, reviewed all pending cases when he entered office and decided that because Buck's appeals had been rejected by the U.S. Supreme Court, he could be given an execution date. When there was "public outcry," Kinney said, he decided to let Buck's attorneys file a new appeal and allow the Court of Criminal Appeals to have the final say. 

On July 30, 1995, Buck 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 stepsister, Phyllis Taylor, who survived. He was sentenced to death in 1997 and scheduled to be executed in 2000, but the U.S. Supreme Court halted the execution to review the case, eventually deciding that Buck was not entitled to a new trial because the race-related testimony had been elicited by his defense attorneys and not the prosecution. 

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.” A defense witness at Buck's 1997 trial, psychologist Walter Quijano, suggested to the jury that 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, state Sen. Joan Huffman, R-Southside Place, 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 February, Quijano told The Texas Tribune 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 Argentine Victor Hugo Saldaño, 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."

Cornyn’s U.S. Senate office declined to comment on the case, 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 Quijano testified.

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 November 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 because 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 accounts of the appeals process in the media “victimized us all over again.” 

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