Cases

Case Summary

On May 5, 1997, Duane Edward Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler while under the influence of drugs. A third person, Phyllis Taylor, was also shot, but survived. Ms. Taylor supports a commutation of Mr. Buck’s sentence. Mr. Buck is scheduled to be executed on September 15, 2011 even though the Office of the Attorney General identified Mr. Buck’s case as one containing constitutional error requiring he be resentenced.

During Mr. Buck’s trial, Dr. Walter Quijano was called by the defense and testified that he did not believe Mr. Buck would be a future danger based on several factors, primarily that Mr. Buck had no violent criminal record and did not display violent tendencies. On cross-examination, the government elicited testimony from Dr. Quijano that blacks are more likely to commit future acts of violence:

Q: 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?
A: Yes.

The government urged the jury in its closing argument to rely on Dr. Quijano’s testimony. The jury found that Mr. Buck would be a future danger, and he was sentenced to death.

On appeal, the Texas Court of Criminal Appeals (CCA) upheld Mr. Buck’s death sentence. The reliance by the government on Mr. Buck’s race as a factor increasing his future dangerousness was not raised as a ground of error. Mr. Buck filed a state habeas application on March 15, 1997, alleging constitutional violations relating to the judge’s refusal to admit evidence regarding parole. The reliance by the government on Mr. Buck’s race as a factor increasing the likelihood of future danger was not raised as a claim for relief.

In 2002, after the Attorney General of Texas identified Mr. Buck’s case as one deserving of a new sentencing hearing due to the government’s reliance on race and therefore agreed to waive any procedural defects in the cases identified, Mr. Buck’s state habeas counsel filed a subsequent application for writ of habeas corpus in state court raising equal protection and due process claims related to the government’s use of race. On October 15, 2003, the Court of Criminal Appeals denied the initial application and refused, for procedural reasons, to consider the race-related claims. Mr. Buck’s federal habeas petition raising the same issues that were raised in state habeas proceedings was also denied.

On June 10, 2000, the Houston Chronicle’s front page carried an article entitled Death penalties of 6 in jeopardy: Attorney general gives result of probe into race testimony, declaring: “The death sentences for six convicted killers likely will be overturned because prosecutors used racially charged testimony from a clinical psychologist, the Texas attorney general said Friday.”

One day earlier, the chief legal officer for the State of Texas, Attorney General John Cornyn, issued a press release in which he identified Mr. Buck’s and five other cases then pending in post-conviction proceedings as cases in which the government had unconstitutionally relied on testimony of psychologist Walter Quijano, that a defendant’s race should be considered in determining future dangerousness and, at least in Mr. Buck’s case, that being black was a factor that increased the likelihood of future dangerousness. The press release looked at a total of eight cases in which Dr. Quijano had been involved, but concluded that two cases did not have circumstances rising to a constitutional violation. Through mistake or inadvertence, however, and despite the Attorney General’s admission of constitutional error in Mr. Buck’s case, he would be the only one of the six whose racially-tainted death sentence was left intact.

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

TIME: Former Texas Governor: Racism Has Infected Our Justice System by Mark White – April 20, 2016

Miami Herald Syndicated Column: Justice blind? Nope – it definitely sees color by Leonard Pitts Jr – April 20, 2016

National Law Journal OpEd: Supreme Court Must Hear Texas Man’s Death Penalty Case by Seth P. Waxman – April 18, 2016

A Broken Promise in Texas: Race, the Death Penalty and the Duane Buck Case is a new video showing the racial discrimination behind TDS client Duane Buck’s death sentence. You’ll see the surviving victim in the case, one of the trial prosecutors, and others call for a new, fair sentencing hearing free of racial bias.
There are two versions of the video: a 2-minute version and a 10-minute version. On April 22nd, the U.S. Supreme Court is expected to consider whether to hear Mr. Buck’s appeal.

Los Angeles Times Editorial: A Texas man is due to die because he’s black – April 7, 2016

New York Times Editorial: Race and the Death Penalty in Texas – April 3, 2016

Statement of Elected Officials, Clergy, Civil Rights Leaders, and Legal Professionals in Support of a New, Fair Sentencing Hearing for Duane Buck

We – 102 elected officials, civil rights leaders, faith leaders, legal professionals, past ABA presidents, a former governor and concerned citizens dedicated to protecting the integrity of the criminal justice system – urge a new, fair sentencing hearing for Duane Buck free from racial bias…..READ MORE

Visit our Press Room for more information on the Duane Buck case, or view the following court documents:

Application for Writ of Habeas Corpus
Petition for Writ of Certiorari
Writ of Habeas Corpus Filed in U.S. Supreme Court
Motion for Stay of Execution in U.S. Supreme Court
U.S. Supreme Court Order Staying Execution
Media Coverage of U.S. Supreme Court Stay
More than 60 Civil Rights and Faith Leaders, Elected Officials, Former Prosecutors, and Past ABA Presidents Call On Harris County D.A. To Provide Remedy in Case of Duane Buck
Harris County Death Penalties Show Racial Pattern
U.S. Supreme Court Order Denying Petition for Writ of Certiorari
Petition for Rehearing Filed in U.S. Supreme Court
Order Denying Petition for Rehearing

 

FACING POSSIBLE EXECUTION, DUANE BUCK ASKS SCOTUS TO INTERVENE IN RACIAL BIAS CASE

On Thursday, February 4, 2016, attorneys for Duane Buck, an African-American man on death row in Texas, filed a petition for certiorari with the U.S. Supreme Court.  Mr. Buck was sentenced to death after his own lawyer introduced “expert” testimony and an “expert” report stating that Mr. Buck was more likely to be dangerous in the future because he is Black. If the Supreme Court does not grant Mr. Buck’s petition, he could face imminent execution based on a death sentence that is a direct product of flagrant racial bias and shockingly incompetent lawyering.

Mr. Buck’s Petition for Certiorari can be accessed here.

Mr. Buck’s case returns to the Supreme Court at a pivotal moment in history, when the United States is struggling to come to terms with the problem of racial bias in the criminal justice system.  While Mr. Buck’s case stands as a stark example of the explicit racial bias that can, and does, infect the administration of criminal justice, it also offers the Supreme Court a clear and powerful opportunity to demonstrate that the American justice system will not condone such injustice.  If the Supreme Court agrees to review Mr. Buck’s case, it can serve as a vehicle for restoring trust and integrity to the system.

Mr. Buck was condemned to death after his own trial attorneys 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’ law, a death sentence can only be imposed if the prosecutor can prove future dangerousness to the jury. In Mr. Buck’s case, the prosecutor relied on this “defense evidence” to argue that the jury should find Mr. Buck a future danger.  The jury agreed and Mr. Buck was therefore sentenced to death. (pp. 4-6)

Shockingly, Mr. Buck’s trial counsel presented the race-as-dangerousness evidence to the jury and never objected to the prosecutor’s questions or arguments about that testimony. And Mr. Buck’s initial appellate counsel never challenged Mr. Buck’s trial counsel’s conduct on appeal. Because of this succession of  severely deficient lawyers, Mr. Buck’s current counsel argue that his Sixth Amendment right to the effective assistance of counsel at trial was violated. Specifically:

“…[T]he nature and consequence of trial counsel’s presentation of this ‘expert’ evidence is different in kind than the errors committed by counsel in almost any other ineffectiveness case. This is not a case where, for example, trial counsel failed to investigate mitigating evidence that might provide a basis for a sentence less than death…Instead, this is a case where, as the District Court found, Mr. Buck’s trial counsel ‘recklessly exposed his client to the risks of racial prejudice’ and ‘len[t] credence to any potential latent racial prejudice held by the jury.’ …Because the injection of racial discrimination into the judicial process ‘poisons public confidence in the evenhanded administration of justice,’…the patently deficient performance of Mr. Buck’s trial counsel not only undermines confidence in Mr. Buck’s death sentence, it undermines confidence in the criminal justice system as a whole.” (p. 19-20)

The Supreme Court Has the Power to Ensure that the Racial Discrimination Infecting Mr. Buck’s Death Sentence is Properly Reviewed and Addressed

In 2012 and 2013, the U.S. Supreme Court held, in Martinez v. Ryan and Trevino v. Thaler, that prisoner claims that are waived or “procedurally defaulted” by deficient lawyering–like that received by Mr. Buck–can be heard in federal court.

Although the U.S. District Court for the Southern District of Texas concluded that Mr. Buck’s trial counsel “recklessly exposed his client to the risks of racial prejudice and introduced testimony that was contrary to his client’s interests,” the court nonetheless found that Mr. Buck’s case was not “extraordinary” enough to warrant further review.  The lower court’s recognition that racial prejudice can and does have a devastating impact on capital cases like Mr. Buck’s, cannot be squared with its decision to let his tainted death sentence stand.

Mr. Buck’s case is an extraordinary instance of racial bias. Because the Supreme Court has now lifted the procedural barriers that previously stood in his way, today’s petition argues that the Supreme Court must ensure that Mr. Buck’s claim to a new, fair sentencing hearing free of racial bias is heard.

State and federal judges who previously reviewed Mr. Buck’s case recognized its fundamental unfairness, but were barred by procedural technicalities from correcting the injustice. Texas Court of Criminal Appeals Judge (and former Harris County prosecutor) Elsa Alcala (joined by two other CCA judges) wrote that Mr. Buck’s 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 phase. . . . As a result of prior habeas counsel’s errors and the combined force of state and federal procedural-default laws, no Court has ever considered the merits of [Mr. Buck’s] legitimate claims for post-conviction relief.” (p. 13)

Before the U.S. Supreme Court changed the law to remove procedural barriers to claims like Mr. Buck’s, Justice Alito called Dr. Quijano’s testimony that Mr. Buck’s race made him more likely to be dangerous in the future “bizarre and objectionable.” Justice Sotomayor wrote that Mr. Buck’s death sentence was “marred by racial overtones” that “our criminal justice system should not tolerate.” (p. 12-13)

New Data: Fifth Circuit Court of Appeals is an Outlier in Consideration of Death Penalty Cases

The petition to the U.S. Supreme Court appeals the Fifth Circuit Court of Appeals’s decision not to hear Mr. Buck’s case on its merits. Three Supreme Court Justices recently called the Fifth Circuit’s pattern of failing to follow Supreme Court precedent governing review of such appeals “troubling.” (Jordan v. Fisher) (p. 26)

Mr. Buck’s petition for certiorari presents new data demonstrating that the Fifth Circuit is fundamentally out of step with other jurisdictions when it comes to considering death penalty cases:

“…[A] review of capital § 2254 cases over the last five years shows that in 59% of cases arising out the Fifth Circuit, a COA was denied by both the district court and Court of Appeals on all claims. By contrast, during that same period, only 6.25% cases arising out of the Eleventh Circuit and 0% of cases arising out of the Fourth Circuit have had a COA denied on all claims.” (p. 21)

In other words, death row prisoners in other circuits have a far better chance to have their claims heard.

Texas’ Highest Legal Officer Confessed Constitutional Error in Mr. Buck’s Case and in Six Other Cases where Race was Considered in Capital Sentencing Hearings

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. (pp. 8-9)

Mr. Buck must receive the new sentencing hearing he was promised and that all the other defendants whose capital sentencing hearings were infected with racial prejudice received.

There is Widespread Support Across the Political Spectrum for a New, Fair Sentencing Hearing for Mr. Buck.

One of Mr. Buck’s trial prosecutors, former Harris County Assistant District Attorney Linda Geffin, has urged the State to agree to a new sentencing hearing for Mr. Buck, stating that “No individual should be executed without being afforded a fair trial, untainted by considerations of race.”

The surviving victim, Phyllis Taylor, has forgiven Mr. Buck and does not want to see him executed.

Other supporters include a former Texas Governor and more than 100 civil rights leaders, elected officials, clergy, former prosecutors and judges, and past ABA presidents. All agree that Mr. Buck is entitled to a new, fair sentencing hearing where race is not a factor.

The U.S. Supreme Court is now quite literally the court of last resort. It is up to the Supreme Court to ensure that Mr. Buck does not face the ultimate sentence based on his race.

Media Coverage of U.S. Supreme Court Denial of Certiorari Petition

NATIONAL MEDIA

The Washington Post — Supreme Court refuse to review role race played in Texas sentence

(THE ASSOCIATED PRESS – November 7, 2011) The Supreme Court has refused to hear an appeal from a Texas death row inmate who won a last-minute reprieve from the high court in September.

The justices on Monday turned away the appeal of Duane Buck, who wanted them to consider whether race played an improper role in his sentencing.

Buck, who is black, was sentenced to death for the fatal shootings of his ex-girlfriend and a man in her apartment in July 1995. His attorneys contend Buck deserves a new sentencing hearing because of a psychologist’s testimony that black people were more likely to commit violence…

ABC NEWS —Supreme Court Denies Appeal on Race Tainted Death Penalty Case

(By Ariane de Vogue – November 7, 2011) The U.S Supreme Court declined today to grant the appeal of a Texas death row inmate who claims race was improperly taken into consideration during the sentencing phase of his trial.

Duane Buck’s guilt for the death of his former girlfriend was never at issue, but Buck sought a new sentencing hearing because of testimony that contended that he posed a greater danger because he is black…READ MORE

LOCAL MEDIA

Houston Chronicle — U.S. Supreme Court rejects killer’s appeal

(By Allen Turner – November 7, 2011)
The U.S. Supreme Court today rejected Houston killer Duane Buck’s request that it review his death sentence – a punishment handed down despite former Texas Attorney John Cornyn’s assessment that it might have been tainted by racial considerations.

The high court stopped Buck’s Sept. 15 execution in order to decide whether to take up the case. Buck, 48, was sentenced to die for the July 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck also shot his sister, Phyllis Taylor, in the chest at point-blank range, but she survived and later argued that the killer should be spared…READ MORE

Clemency Efforts

“As I explained in a filing before the United Sates Supreme Court…it is inappropriate to allow race to be considered as a factor in our criminal justice system…[T]he United State Supreme Court agreed. The people of Texas want and deserve a system that affords the same fairness to everyone.”
—Texas Attorney General John Cornyn, June 2000

Clemency Petition
Former Buck Prosecutor Linda Geffin asking for intervention on behalf of Duane Buck
Media Coverage of Clemency Efforts

Bryan-College Station Eagle – Inmate spared execution: Lawyers agree on Druery’s mental incompetence
By Jake Walker
Lawyers agreed Monday that Brazos County death row inmate Marcus Druery is unfit to be executed for the 2002 slaying of a 20-year-old man in rural Brazos County.

KBTX-TV – Druery ruled incompetent to be executed for 2002 Brazos County killing
By Whitney Miller

The man who has been on death row from Brazos County longer than any current inmate is mentally unfit for execution. That’s according to two court-appointed psychiatrists who say Marcus Druery suffers from mental illness that leaves him unable to understand why he is being punished, something required by law before an execution.

The Atlantic —Will Texas execute a psychotic man?
By Andrew Cohen
One prison doctor after another has diagnosed Marcus Druery as severely mentally ill. Does the Constitution permit the death penalty anyway?

Salon.com — Marcus Druery: Another Questionable Texas Execution
By Rania Khalek
Will Texas execute a man who thinks speakers broadcast his thoughts and Kim Kardashian was a witness to his crime?

Houston Chronicle — Appeals court halts execution over competency issue
By Cindy George
The Texas Court of Criminal Appeals has granted a stay to Marcus Druery, who had been scheduled to die Wednesday. The 32-year-old has been diagnosed as schizophrenic by prison and private doctors. On Tuesday, a Brazos County judge refused to order a psychiatric evaluation to determine whether the inmate can understand his legal situation.

Bryan-College Station Eagle — Appeals court delays Marcus Druery exceution
By Maggie Kiely
The Texas Court of Criminal Appeals Friday afternoon granted a stay of execution for Marcus Druery, a 32-year-old death row inmate from Bryan who was scheduled to receive a lethal injection Wednesday.

Texas Tribune — Marcus Druery denied competency hearing
By Maggie Kiely

With a week left until Druery is scheduled to receive lethal injection, his attorneys, Kate Black and Greg Wiercioch with the Texas Defender Service, said they’ll continue to fight for their client and planned to appeal Langley’s decision to the Texas Court of Criminal Appeals.

Texas Tribune — TDS Lawyers Argue Druery Incompetent for Aug. 1 Execution
By Brandi Grissom
Marcus Druery says that his cell on death row at Livingston’s Polunsky Unit is wired. The wires, he believes, carry voices into his cell and transport his thoughts to other people. Prison staff members, he claims, have contaminated his food with feces, urine and insects. Druery, 32, is scheduled to be executed Aug. 1. On Tuesday, his lawyers will ask a judge to appoint experts to examine the convicted murderer, who they argue is ineligible for execution because of his severe mental illness.

KBTX — Execution on the Line as Marcus Druery’s Case Goes Before Court
By Steve Fullhart
Attorneys from the Texas Defender Service representing Druery say their client suffers from schizophrenia and is incompetent to be put to death. Competency is required for execution by virtue of the Eighth Amendment to the U.S. Constitution.

Public News Service — Court Questions Constitutionality of Upcoming Texas Execution of Marcus Druery
By Peter Malof
While the state has acknowledged that Druery suffers from delusions, schizophrenia, “thought broadcasting” and auditory hallucinations, Department of Criminal Justice officials have yet to respond to the question of whether his medical condition meets the legal definition of insanity.

Bryan Eagle — Lawyers argue Druery unfit for execution
By Maggie Kiely
In the 36-page document TDS attorneys Kate Black and Greg Wiercioch submitted outlining why Druery is incompetent and therefore unfit for execution under federal law, the attorneys provided a timeline describing the deterioration of his mental health, which they argue started within a year of his arrival on Death Row at the Polunsky Unit in Livingston.

KBTX — Marcus Druery Execution Could Change Due to Competency Issues
By Steve Fullhart
The U.S. Supreme Court has ruled that an inmate must be aware of their punishment and why they are being executed, and Druery’s lawyers say their client doesn’t meet that standard. They are asking for a competency hearing, and for Druery’s execution date to be withdrawn. Judge J.D. Langley will examine the matter July 24 in court, eight days prior to the execution date.

February 3, 2015 – Leading Conservatives File Amicus Brief in Support of Scott Panetti

Today, leaders from the American conservative movement, including legal experts, former conservative policymakers, and thought leaders from across the United States, filed an amicus brief in support of Scott Panetti, a death row prisoner who has suffered from schizophrenia for three decades and whose case is pending before the Fifth Circuit Court of Appeals.

The amici, some who support the death penalty and others who do not, “are united […] in their belief that the execution of Scott Panetti would serve no penological purpose and would in no way promote public safety. Rather than serving as a proportionate response to murder, the execution of Panetti would only undermine the public’s faith in a fair and moral justice system. And it would be a glaring and unwelcome example of excessive governmental power” (Amicus brief, p. 2).

The amici national conservative movement leaders are: Mark L. Earley, Sr., Former Attorney General of Virginia and Former President and CEO of Prison Fellowship USA; David A. Keene, Opinion Editor, The Washington Times; James C. Miller III, Director of the Office of Management and Budget under President Ronald Reagan; C. Preston Noell III, President, Tradition, Family, Property, Inc.; Patrick J. Nolan, Director, Center for Criminal Justice Reform, American Conservative Union Foundation; Harold D. Stratton, Jr., Former Attorney General of New Mexico; Patrick A. Trueman, Attorney at Law; and Richard A. Viguerie, Chairman, ConservativeHQ.com.

On December 3, 2014, the Fifth Circuit Court of Appeals stayed the execution of Mr. Panetti for a careful review of the issues surrounding his competency. Mr. Panetti’s illness, schizophrenia, was present for years prior to the crime, profoundly affected his trial, and appears to have worsened in recent years. Mr. Panetti has not had a competency evaluation in seven years.

On January 28, 2015, Mr. Panetti’s attorneys, Greg Wiercioch of University of Wisconsin Law School and Kathryn Kase of Texas Defender Service, filed their Supplemental Brief with the Fifth Circuit. The brief addresses a number of questions that the Fifth Circuit posed to the parties after it granted the stay of execution, including whether the federal district court erred in refusing to appoint counsel and approve funding for a mental health expert and an investigator. Counsel for Mr. Panetti have argued in the Supplemental Brief that the Fifth Circuit should order the district court to appoint counsel and provide resources so that counsel can present new evidence that Mr. Panetti is currently incompetent to be executed.

The Amicus Brief from National Conservative Leaders, filed today, can be accessed here: http://bit.ly/1zBfmMO

Mr. Panetti’s Supplemental Brief at the Fifth Circuit, filed January 28, 2015, can be accessed here: http://bit.ly/1DgPXbM

Mr. Panetti’s Opening Brief at the Fifth Circuit, filed November 30, 2014, can be accessed here: http://bit.ly/1yLnj2S

 

January 29, 2015 – News Coverage of Scott Panetti’s Filing

Houston Chronicle – Lawyers seek investigator, mental health expert to help prove killer client is insane by Allan Turner.

Lawyers for Scott Panetti Wednesday asked the 5th U.S. Circuit Court of Appeals to take steps ensuring that the convicted double-killer be provided legal counsel, an investigator and mental health expert to help establish that he is insane and, therefore, exempt from execution.  Read more

San Antonio Current – Schizophrenic Death Row Inmate Asks Court for Funds to Prove Mental Illness by Mark Reagan.

Lawyers for a schizophrenic death row inmate are asking a federal appeals court to approve funding for defense attorneys and mental health experts so the man can make a claim that he is insane and should not be executed.  Read more

January 28, 2015 – Supplemental Filing in Scott Panetti’s Case

On December 3, 2014, the Fifth Circuit Court of Appeals stayed the execution of Scott Panetti, a man who has suffered from schizophrenia for three decades, for a careful review of the issues surrounding his competency. Mr. Panetti’s illness, schizophrenia, was present for years prior to the crime, profoundly affected his trial, and appears to have worsened in recent years. Mr. Panetti has not had a competency evaluation in seven years.

Today, Mr. Panetti’s attorneys, Greg Wiercioch of University of Wisconsin Law School and Kathryn Kase of Texas Defender Service, filed their Supplemental Brief with the Fifth Circuit. The brief addresses a number of questions that the Fifth Circuit posed to the parties after it granted the stay of execution, including whether the federal district court erred in refusing to appoint counsel and approve funding for a mental health expert and an investigator. Counsel for Mr. Panetti have argued in the Supplemental Brief that the Fifth Circuit should order the district court to appoint counsel and provide resources so that counsel can present new evidence that Mr. Panetti is currently incompetent to be executed.

Mr. Panetti’s Supplemental Brief at the Fifth Circuit, filed today, can be accessed here: http://bit.ly/1DgPXbM

Mr. Panetti’s Opening Brief at the Fifth Circuit, filed November 30, 2014, can be accessed here: http://bit.ly/1yLnj2S

 

Statement of Scott Panetti’s Attorney re: Fifth Circuit’s Decision to Uphold District Court’s Ruling that Mr. Panetti is Competent to be Executed

“Scott Panetti believes that Texas plans to execute him to prevent him from preaching the gospel and saving souls on death row. He is a severely mentally ill man who was hospitalized over a dozen times in the decade preceding the offense. At his trial, Mr. Panetti represented himself wearing a cowboy suit and attempted to subpoena Jesus and John Kennedy. Mr. Panetti is insane. Executing him would violate the Eighth Amendment’s prohibition on cruel and unusual punishments……READ MORE