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Statement from Attorneys Representing Duane Buck

Statement from Attorneys for Duane Buck in Response to Ruling by the Fifth Circuit Court of Appeals

Today, the Fifth Circuit Court of Appeals rejected the appeal of Texas death sentenced prisoner, Duane Buck. Mr. Buck is seeking a new, fair sentencing hearing, free of racial bias, because at his capital sentencing, Mr. Buck’s trial attorneys presented an expert who testified that Mr. Buck would be more likely to be dangerous in the future because he is Black. United States Supreme Court Justice Samuel Alito has characterized this evidence as “bizarre and objectionable.”

A statement from Mr. Buck’s attorneys is below, followed by background on the case. Please do not hesitate to let me know if you would like to speak with Mr. Buck’s attorneys or one of his many supporters calling for a new, fair sentencing hearing.

Statement from Attorneys for Duane Buck in Response to Ruling by the Fifth Circuit Court of Appeals

“Now, more than ever, racial discrimination in the administration of criminal justice deeply undermines public confidence in the American justice system. Nonetheless, today, the Fifth Circuit found that trial counsel’s introduction of expert testimony linking Mr. Buck’s race to his likelihood of future dangerousness was “unremarkable” and failed to “[make] out even a minimal showing that his case is exceptional.” This decision can only deepen the growing skepticism of the fairness of the criminal justice system. No competent capital defense attorney would invite the sentencing jury to make a life-or-death decision based on racial fears and stereotypes and no court should enforce a judgment in which race was explicitly proffered as the basis for a death sentence. But because this is exactly what happened in Duane Buck’s case, he is now at risk of execution.

“Until recently, the federal courts could not consider Mr. Buck’s challenge to his trial counsel’s representation because it was not presented earlier. But the U.S. Supreme Court recently held, in Martinez v. Ryan (2012) and Trevino v. Thaler (2013), that prisoner claims that are waived or ‘procedurally defaulted’ by deficient lawyering can be heard in federal court. Thus, Mr. Buck is plainly eligible for and entitled to relief. We will ask the Fifth Circuit to reconsider, and, if necessary, the Supreme Court to review, Mr. Buck’s claim of ineffective assistance of counsel to ensure that he receives a new, fair sentencing hearing free of racial bias.”

— Christina Swarns, Litigation Director for the NAACP Legal Defense & Educational Fund; Kathryn Kase, Executive Director of Texas Defender Service; Kate Black, Staff Attorney, Texas Defender Service.
August 20, 2015

Duane Buck Case Background: Sentenced to Death Because He is Black

In 1997, in Harris County, Texas, as a result of severely deficient lawyering, Mr. Buck received a death sentence that is the unconstitutional product of racial discrimination. At his capital sentencing hearing, Mr. Buck’s trial attorneys knowingly presented testimony from a psychologist, Dr. Walter Quijano, 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.

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 state habeas proceedings, Mr. Buck’s attorney was similarly ineffective and failed to raise the ineffectiveness of Mr. Buck’s trial counsel as an issue on appeal.

The Federal Courts Now Have the Power to Achieve Justice in Mr. Buck’s Case

Recently, the U.S. Supreme Court held, in Martinez v. Ryan (2012) and Trevino v. Thaler (2013), that prisoner claims that are waived or “procedurally defaulted” by deficient lawyering, like Mr. Buck’s, can be heard in federal court. Now, the federal courts must use their equitable powers to consider Mr. Buck’s claim of ineffective assistance of counsel and do justice in this case.

State and federal courts that 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.”

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.”

Federal and State Courts Have Repeatedly Concluded that Mr. Buck’s Trial Counsel was Responsible for Injecting the Racially Biased Expert Testimony into the Capital Sentencing Proceedings

Federal and state courts have repeatedly concluded that Mr. Buck’s trial counsel was responsible for improperly injecting racial bias into the sentencing proceedings.

In 2013, three Texas Court of Criminal Appeals Judges concluded that Mr. Buck’s case was characterized by “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.”

In 2011, when the United States Supreme Court reviewed Mr. Buck’s case, Justices Alito, Scalia and Breyer concluded that Mr. Buck’s trial attorney was responsible for the admission of Dr. Quijano’s “bizarre and objectionable” testimony linking Mr. Buck’s race to his likelihood of future dangerousness.

In 2009, the United States Court of Appeals for the Fifth Circuit concluded that Mr. Buck’s trial counsel was responsible for the introduction of Dr. Quijano’s race-as-dangerousness testimony.

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 and identified six 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 and it kept its promise, and ensured new sentencing hearings for all the identified defendants – except Mr. Buck. Mr. Buck must be given a new sentencing hearing just like the other defendants whose capital sentencings were infected with racial prejudice.

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 give Mr. Buck a new sentencing hearing, 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 former Texas Governor Mark White, who oversaw 19 executions, along with more than 100 civil rights leaders, elected officials, clergy, former prosecutors and judges, current and past ABA presidents. All agree that Mr. Buck is entitled to a new, fair sentencing hearing where race is not a factor.

For more information about the Duane Buck case.

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