Case of Duane Buck puts race and the Texas death penalty in the national spotlight

Over the past month, there has been a barrage of national and social media attention to the Texas death penalty case of Duane Buck, for good reason: during his 1997 trial in Harris County, Mr. Buck received a death sentence that is the unconstitutional product of racial discrimination.

Duane Buck was condemned to death after his own trial attorneys inexplicably introduced testimony and a report from a psychologist, Dr. Walter Quijano, stating that Mr. Buck was more likely to be dangerous in the future because he is Black. Under Texas’ death penalty statute, a finding of “future dangerousness” is a prerequisite to a death sentence.  In Mr. Buck’s case, the prosecutor argued that the jury should rely on Dr. Quijano’s testimony to find Mr. Buck a future danger. The jury complied and Mr. Buck was sentenced to death for the murders of his ex-girlfriend, Debra Gardner, and her friend, Kenneth Butler.

Shockingly, Mr. Buck’s trial counsel did not object to the prosecutor’s reliance on Dr. Quijano’s testimony linking Mr. Buck’s race to his likelihood of future dangerousness.

In 2000, then-Texas Attorney General (now U.S. Senator) John Cornyn admitted that Dr. Quijano’s testimony linking race to dangerousness was unconstitutional. The Attorney General’s office identified seven cases, including Mr. Buck’s, where-because of Dr. Quijano’s testimony-new, fair capital sentencing hearings were required.  Texas promised to admit error in each of these cases. The State kept its promise, ensuring new sentencing hearings for all the identified defendants, in every case except Mr. Buck’s.

In state habeas proceedings, Mr. Buck’s attorney failed to raise the ineffectiveness of Mr. Buck’s trial counsel as an issue on appeal. Because of this succession of severely deficient lawyers, Mr. Buck’s current counsel argues that his Sixth Amendment right to the effective assistance of counsel at trial was violated. His case, Buck v. Stephens, is now on appeal to the U.S. Supreme Court.

Calling Mr. Buck’s case “a giant procedural mess”, Ian Millhiser delves into the complex legal issues in this case in his piece for Think Progress, “Everything That’s Wrong With America’s Death Penalty In One Awful Case,” (April 25, 2016).  Here are two excerpts:

Now, nearly two decades after his conviction, no court has considered whether the racist testimony elicited at Buck’s trial caused him to be sentenced to death. Moreover, thanks to errors committed by his previous lawyers and an array of laws and legal doctrines that often elevate the finality of convictions ahead of the need to ensure that innocents are not punished and that the death penalty is not doled out unnecessarily, it is far from clear that any court will examine the impact of this racist testimony before Mr. Buck is put to death.

While Buck’s original lawyers’ sin was a sin of commission — that is, they were the ones who introduced Dr. Quijano’s racist testimony — the new lawyer’s sin was a sin of omission. The new lawyer did not challenge the original legal team’s decision to present Quijano’s testimony to the jury. That failure to assert what may be Buck’s strongest legal claim at a relatively early stage in this litigation had devastating consequences once Buck’s case reached federal court. As a federal district judge explained, Buck’s claim that his original lawyers screwed up was “procedurally defaulted” because his new lawyer failed to raise this claim soon enough. Thus Buck risks losing the ability to assert this claim forever.

On April 8, 2016, attorneys for Mr. Buck released a newly-revised video examining the extraordinary racial bias in his case.  Narrated by former Texas Governor Mark White, the video demonstrates how Mr. Buck’s case exemplifies the concerns raised by people throughout the country about the fairness of the American criminal justice system.  The injustice of Mr. Buck’s case is described through a series of powerful interviews with leading figures in the Texas civil rights movement, state politicians, the surviving victim in the case, one of the trial prosecutors and Mr. Buck’s family members, all of whom call for a new, fair sentencing hearing free of racial bias.

Watch “A Broken Promise in Texas: Race, the Death Penalty and the Duane Buck Case”:

2-minute version: https://youtu.be/-ev67uDm5D4

10-minute version: https://youtu.be/TzjVcuKKqZY

The video is produced by award-winning documentarians Emily Kunstler and Sarah Kunstler and the NAACP Legal Defense & Educational Fund, Inc. which is co-counsel to Mr. Buck with the Texas Defender Service.

In a press release promoting “A Broken Promise in Texas: Race, the Death Penalty and the Duane Buck Case, ” Christina Swarns, Director of Litigation at the NAACP Legal Defense and Educational Fund, Inc. and Counsel of Record for Petitioner in Buck v. Stephens, said, “This case offers the United States Supreme Court a critically important opportunity to reaffirm the fundamental principle that racial bias has no place in the administration of criminal justice.”

“The U.S. Supreme Court is now quite literally the court of last resort,” said Kathryn Kase, Executive Director of Texas Defender Service and co-counsel to Mr. Buck. “It is up to the Supreme Court to ensure that Mr. Buck does not face the ultimate sentence based on his race.”

For additional background on Mr. Buck’s case, go to: http://bit.ly/1PquEKK.

Mr. Buck’s Petition for Certiorari can be accessed here: http://bit.ly/1QfUfp0

A bipartisan amicus brief in support of Mr. Buck can be accessed here: http://bit.ly/1UaYXJP

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Texas Defender Service, which is co-counsel for Mr. Buck, along with the NAACP Legal Defense & Educational Fund, Inc., has compiled a comprehensive list of the many articles, editorials, columns, op-eds, and editorials addressing this case.  Here are a few must-reads:

The New Yorker: Racial Discrimination and Capital Punishment: The Indefensible Death Sentence of Duane Buck by Lincoln Caplan – April 20, 2016

Sojourners: “Death by Blackness?” by Shane Claiborne, April 20, 2016