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Lawmakers Discuss Race-Related Evidence in Death Penalty Cases

Lawmakers on Tuesday debated a bill that would allow death row inmates to appeal their sentences if they believe that race played a role in their punishment.

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

Death row inmates who believe their condemnation in court was tainted by race considerations would be able to appeal their sentences under a bill a panel of legislators in the House considered Tuesday. 

House Bill 2458, by state Rep. Senfronia Thompson, D-Houston, would prohibit death sentences based on race-related evidence. It would allow defendants to appeal based on claims that “race was a significant factor in the decision to seek or impose the [death] sentence,” and they could use statistics or specific trial testimony to bolster their arguments. Rebecca Bernhardt, policy director of the Texas Defender Service, which represents death row inmates, said allowing the use of statistics to prove racial bias is crucial because prosecutors and jurors will seldom admit whether race played a role in their decisions.

Under the bill, prosecutors would be able to argue that race played no part in a conviction, and a judge would decide whether to maintain the death sentence. The bill would require a the defendant who files such an appeal to waive their right to object to a sentence of life without parole.

Similar versions of the bill, which do not include such a waiver, have been filed by state Rep. Eric Johnson (HB 2614) and state Sen. Royce West (SB 1270), both Dallas Democrats. The proposals have already had an effect on death penalty cases even before they were considered by the Legislature.

Death row inmate Kimberly McCarthy — who is black and was convicted of murdering her 71-year-old white neighbor — was scheduled to be executed on April 3, but Dallas District Attorney Craig Watkins asked a judge to temporarily delay the execution in case the Legislature approves a bill that could affect race-based appeals in death penalty cases.

At the House Criminal Jurisprudence Committee hearing Tuesday, Thompson referred to the Duane Buck case as a prime example of how black defendants are more likely to receive the death penalty.

“We know that blacks and Hispanics and are overrepresented on death row relative to their overall population,” she said. 

Buck, whose case is currently on appeal in Harris County, has admitted that in 1995 he killed his ex-girlfriend Debra Gardner and her friend, Kenneth Butler. He also shot his step-sister, Phyllis Taylor, who survived. His 1997 jury had to decide whether he would be a “continuing threat to society” before sentencing him to death.  

On cross-examination in Buck's case, state Sen. Joan Huffman, then the prosecutor, told psychologist Walter 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.

Recently, Quijano explained that the statements about race were meant to show that there was a "relational" connection between race and dangerousness, not a "causal" connection.

The U.S. Supreme Court has reviewed and rejected Buck’s appeals. A brief by the office of Attorney General Greg Abbott stated that “Buck’s constitutional rights were not violated because Buck himself presented the testimony about which he complains.”

Huffman, who prosecuted Buck and now is the vice chairwoman of the state Senate’s criminal justice committee, declined to comment on the case and Thompson’s bill, explaining that she was waiting to see what happens to the proposal.

But former Gov. Mark White in testimony submitted to the committee and released by Buck’s attorneys wrote that the case “shows how racial discrimination can infect Texas’ courtrooms.”

“We must make sure that racial discrimination does not poison our death penalty decision-making,” White wrote. 

He pointed to a statistical study by Ray Paternoster, a professor of criminology at the University of Maryland, who found that from 1992 to 1999, Harris County prosecutors sought the death penalty for African-Americans roughly three times as often as they did for whites with similar cases. Paternoster acknowledged in the report that “it may not always be clear exactly what factors may have led to decisions in a case.”

At the committee meeting, state Rep. Jeff Leach, R-Plano, worried that if the bill becomes law, “any minority” would file a claim of racial discrimination. “If the prosecutor is going outside the bounds of the law, they should be disbarred,” Leach said, and he added, “You’re going to have claims all over Texas dealing with this issue.”

He said he hoped lawmakers would meet to craft different language to prevent race-based testimony in death penalty cases.

State Rep. Steve Toth, R-The Woodlands, said he thought jurors in Buck’s case were likely more moved to sentence him to death because of the murders he committed, not because of testimony about race. State Rep. Matt Schaefer, R-Tyler, said defendants can already raise constitutional claims of “equal protection.” 

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