In a 6-3 decision, the Texas Court of Criminal Appeals denied a request from death row inmate Duane Buck for a new sentencing despite the fact that racially prejudicial statements were used during his trial. While the jury was asked to consider if Buck was a danger to society in the future, a psychologist told them that African Americans commit a disproportionate number of crimes. In a highly unusual move, Buck’s case was one of seven identified in 2000 by then-Attorney General John Cornyn in which testimony directly linked race as a factor in determining a person’s future dangerousness. The other six defendants have all received new sentences.
At the time, Cornyn said, “It is inappropriate to allow race to be considered as a factor in our criminal justice system. The people of Texas want and deserve a system that affords the same fairness to everyone.”
All seven of the cases involved testimony from the same psychologist, Walter Quijano. At the time, the Attorney General promised not to oppose any attempts to get new sentencing hearings for the defendants, but it seems that Greg Abbott, Texas’ current Attorney General, didn’t inherit that belief. Buck’s attorneys plan to appeal,
“We will ask the U.S. Supreme Court to review the important due process and equal protection issues at stake in Mr. Buck’s case, and we are hopeful that the Supreme Court will intervene…”
Buck was convicted for the 1995 murder of his ex-girlfriend and another man and he openly admits his guilt. The night of the murders, he visited his ex-girlfriend, Debra Gardner, and went into a jealous rage accusing Gardner of sleeping with her friend, Kenneth Butler. He shot and killed both of them. During the incident, he also shot his sister, but she survived. The main issue with the jury’s recommendation of death is the testimony of an expert witness, Walter Quijano, who was asked during the sentencing phase by the prosecution:
“The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?”
Quijano told the jury it did.
He went on to say that being African-American or Latino “increases the future dangerousness for various complicated reasons.” Perhaps most interestingly, Quijano was called by the defense and listed several reasons why Buck would not be dangerous in the future, but on cross-examination by the prosecutor he stated one factor for the reason he would be: his race. The State urged the jury to consider Dr. Quijano’s testimony carefully. In the cases where the defendant was Hispanic, Quijano testified that they were “dangerous” because Hispanics were “over-represented” in prison.
Cornyn found 8 capital cases that Quijano was involved with, but said only 7 involved racially charged testimony. He also said that his office reviewed 218 previously executed inmates’ files (since 1982) and found that none of them were based on “this kind of testimony by Dr. Quijano.” Sen. John Cornyn, then Texas’ AG, did a two month investigation focusing on capital cases that involved Quijano, who often served as an expert for prosecutors across Texas, after the death sentence of Victor Saldano was overturned by the U.S. Supreme Court in 2000 because of racially biased statements.
In Texas, future dangerousness is arguably the most important aggravating factor for whether or not someone is eligible for capital punishment. By upholding Quijano’s testimony, prosecutors and Texas courts have established that race is justification for execution.
According to Ray Paternoster, a professor at the University of Maryland, Quijano’s testimony isn’t an anomaly. He said that an African American charged in a capital case is three times more likely to get the death penalty in Texas when compared to a Caucasian person who committed the same type of crime. Paternoster has studied the history of racial discrimination in Texas’ capital punishment system all the way back to the Civil War. From 1875 to 1968 (a period of 93 years), about 76% of all the men executed for rape in Texas were African American. From 1980 to 1986, no Caucasians who were found guilty of murdering an African American were given the death penalty.
Houston, the jurisdiction of Buck’s case, has had more than 100 executions, the most in the state of Texas. In addition, research shows that at the time of Buck’s trial, the Harris County District Attorney’s Office was over three times more likely to seek the death penalty against an African American than any similarly-situated Caucasian and Harris County juries were twice as likely to impose the sentence.
The family of one of Buck’s victims doesn’t advocate for his execution, but also believes he receives unwarranted sympathy. When the Houston Chronicle spoke to the older sister of Buck’s slain ex-girlfriend, Debra Gardner, in 2011, she said the court should take into account the brutality of the murders and their impact on Gardner’s children, but didn’t say she herself thought it warranted the death penalty. Gardner’s daughter, Shennel, who was 14 at the time of the murders, believes that Buck knew what he was doing, but doesn’t hate him.
The denial of Buck’s appeal by the highest Texas appeals court allows prosecutors to request a date to have Buck killed by lethal injection. Buck’s lawyer Christina Swarns says there is a “very real risk” of an execution date being set because prosecutors had previously said they planned to wait for the Texas Court of Criminal Appeals ruling.
“We don’t know what they will do now. We hope they will respect the appeals process…” said Swarns, who is also director of Criminal Justice Practice at the NAACP Legal Defense and Educational Fund.
The court’s decision has disappointed activists, including the Texas Defender Service, a non-profit working to reform Texas’ criminal justice system. Kathryn Kase, the executive director said, “Mr. Buck’s death sentence is the unconstitutional product of racial discrimination. The message this sends to people of color in Texas is that the legal system is prepared to put people to death based on something they can’t control…” Those who supported the new sentencing included civil rights leaders, elected officials, activists, former prosecutors (including Linda Geffin one of the trial prosecutors for Buck’s case), former Governor of Texas Mark White, faith leaders, and the surviving victim Phyllis Taylor.
“I have forgiven Duane and could not bear to see him executed. I pray that his life be spared,” Taylor said.
Swarns said they are considering all their options, but their best hope is a stay of execution (if a date is set) and an appeal to the U.S. Supreme Court on constitutionality. Swarns said she sees hope for the case moving forward, based on the vigorous 30-page dissent.
Three judges who dissented wrote, “The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment stage.”
“That’s what we’ve been saying the entire time,” said Swarms. “We are navigating within a very deeply broken system…” His attorneys also said in a statement, “…These judges recognized that this outcome jeopardizes both the integrity of the underlying conviction and of this Court’s judicial processes and deprives Mr. Buck of one full and fair opportunity to present his claims…with today’s decision, Texas has once again reneged on its promise to ensure that Mr. Buck would not be executed pursuant to a death sentence that was the unfair product of a prosecutorial appeal to racial bias and stereotype…”
Previously, the U.S. Supreme Court stepped in to spare Buck’s life when he was scheduled for execution in 2011. Two justices agreed with appellate attorneys, that “our justice system should not tolerate” a death sentence “marred by racial overtones.”
According to Andrea Keilen, director of the Texas Defender Service, “It’s very rare to see an attorney general concede error in a capital case, much less a series of capital cases. It shouldn’t be controversial…”
The other cases identified in the investigation were: Victor Saldano, Gustavo Garcia, Eugene Broxton, John Alba, Michael Gonzalez, and Carl Blue. All the inmates were resentenced to death in hearings that did not include race as a reason for capital punishment. Michael Gonzalez (execution stayed in March for further appeals), Victor Saldano, Eugene Broxton, and Gustavo Garcia all await execution.
Carl Blue and John Alba were executed in February of this year and in May of 2010 respectively.