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A Day Of Reckoning For Duane Buck

A Day Of Reckoning For Duane Buck

Friday is a day of reckoning for Duane Buck.

That’s the day the Supreme Court will determine whether to hear his appeal for a new sentencing hearing. Buck is on Death Row in Texas.

It is important to emphasize that he is not seeking a new trial. There’s no question of Buck’s guilt in the 1995 shooting deaths of his ex-girlfriend, Debra Gardner, her friend, Kenneth Butler, and Buck’s stepsister, Phyllis Taylor. No, all he’s asking is to be re-sentenced for the crime.

There is, you see, a law in Texas that says you can’t be sentenced to death unless a jury finds that you represent a future danger, i.e., that you are likely to hurt someone else if left alive. In Buck’s case, psychologist Walter Quijano, a supposed expert testifying for the defense, no less, told jurors Buck represented just such a danger.

Because he is black.

If any of this rings a bell, it’s because I wrote about the case three years ago. If you read that column, you may recall that one of the researchers on whose writings Quijano based his testimony says his work supports no such conclusion. Indeed, Quijano’s claim was so outrageous that even Buck’s surviving victim and one of his prosecutors think he should get a new hearing. In 2000, Sen. John Cornyn, who was then Texas’ attorney general, conceded the state was wrong in allowing race to be used as a factor in sentencing.

Quijano had given similar testimony in six cases. The other five defendants, all black or Hispanic, got new hearings. Buck was denied, based on a flimsy legalism, namely that the offending testimony came not on “cross,” but on direct examination. In other words, it was first elicited by the defense.

People keep telling me I’m wrong to believe the justice system is riddled with racial bias. They tell me the system has nothing against people of color, and that it is only evidence of their own native criminality that such people are stopped, frisked, arrested, tried and incarcerated in wildly disproportionate numbers. People keep promising me the system is just.

And I keep being sickened by stories like this. I keep finding studies like the 2012 report by University of Maryland criminology professor Raymond Paternoster, which said that at the time of Buck’s sentencing, the local DA was three times more likely to seek death for a black defendant than for a white one.

It’s worth noting, by the way, that these predictions of future dangerousness are not exactly unerring. Texas Defender Services, a nonprofit law firm specializing in capital cases, studied the records of 155 Death Row inmates and found that only 5 percent went on to commit assaults serious enough to warrant more than a Band-Aid. In a place where you can get written up for saving a seat in the cafeteria or having too many postage stamps, Buck has a clean disciplinary record dating back to 1998.

So Quijano’s testimony was not only racist, but also — pardon the redundancy — wrong.

Look, I don’t like the death penalty. If you know me, you already know that. But even if I did, I would want to be sure this severest of sanctions was imposed fairly. Plainly, it is not.

And the fact that it is not cannot help but undermine the credibility of the entire system. If we countenance bias at this extremity, what confidence can anyone have in the system’s fairness at any level, down to and including parking tickets?

The racism here is not subtle. To the contrary, it is neon. To deny Buck a new sentencing hearing untainted by bizarre suppositions about the future danger he poses because of his skin color would shred even the pretense of equality before the law. So let us hope the Court does what it should.

Because, yes, Friday is a day of reckoning for Duane Buck. But it’s a day of reckoning for justice, too.

(Leonard Pitts is a columnist for The Miami Herald, 1 Herald Plaza, Miami, Fla., 33132. Readers may contact him via e-mail at lpitts@miamiherald.com.)

(c) 2016 THE MIAMI HERALD DISTRIBUTED BY TRIBUNE CONTENT AGENCY, LLC.

Photo: Duane Buck (Texas Department of Criminal Justice, via Associated Press)

See No Racism, Hear No Racism: Despite Evidence, Perry About To Execute Another Texas Man

Update: The Supreme Court has temporarily halted Duane Buck’s execution.

Whether Duane Edward Buck will live or die by lethal injection on Thursday is now up to one man: Texas Governor and presidential hopeful Rick Perry. The case for commuting Buck’s death sentence to life in prison should have been a slam dunk, given the egregious racial bias in the case. But the state’s Board of Pardons and Paroles — a panel hand-picked by Perry — denied Buck’s clemency request on Tuesday, making it far easier for Perry to do what he’s already done 234 times: allow the execution to proceed.

Without an affirmative recommendation for clemency from the board, Perry’s only legal recourse is to grant Buck a 30-day reprieve, which Buck’s lawyers could use to try and bring another claim in state court. Perry could also use his considerable political powers to explain why Buck’s case demands more serious review to ensure that justice is done. But that would be totally out of character.

Except in cases where he was compelled to do so by Supreme Court rulings or other special circumstances, Perry has commuted only one death sentence to life without parole since he took office in December 2000. Appeals for clemency that involved cases of prosecutorial misconduct and inadequate counsel have all been shunned by Perry. The governor has demonstrated no reservations about allowing execution of juveniles or those with severe mental impairments. In one case that continues to haunt Perry’s presidential campaign, he denied clemency to Cameron Todd Willingham — sentenced to death for murdering his three daughters — despite what was probably the most credible claim of innocence by any death row inmate in the United States in the last 35 years.

Duane Buck, a 48-year-old African American, is scheduled to be executed at Texas’s busy Polunsky Unit deathhouse in Livingston later this week for killing his ex-girlfriend and her boyfriend in Houston in 1995. Buck admits that he shot both of them and that he shot Phyllis Taylor, who survived a bullet wound to her chest. What’s at issue is testimony by a psychologist who took the stand at Buck’s 1997 trial and stated that Buck was more likely to be a violent threat in the future because he’s black. The state used that testimony of “future dangerousness” to convince the jury that Buck should die.

In a highly unusual intervention in 2000 then-Texas Attorney General John Cornyn called for the retrial of Buck and five other death row inmates, citing evidence of racism in all six trials. “[I]t is inappropriate to allow race to be considered as a factor in our criminal justice system,” said Cornyn, now a Texas senator. “The people of Texas want and deserve a system that affords the same fairness to everyone.” The five other defendants all received new trials because Cornyn stood firm against appeals to race.

Phyllis Taylor, the surviving shooting victim, joined Buck’s lawyers in appealing for clemency. Even the assistant district attorney who prosecuted Buck in 1997 now says the trial was a miscarriage of justice. “It is regrettable that any race-based considerations were placed before Mr. Buck’s jury,” Linda Geffin wrote in a letter to Perry and his parole board last week.

Buck’s lawyer, Kate Black of the Texas Defender Service, said the parole board’s decision “fails to recognize what the highest legal officer in the State of Texas had acknowledged,” that Buck’s trial was “tainted by considerations of race.” Black called on Perry to stay the execution and allow Buck to pursue his case for a new sentencing hearing at which a jury would be asked to hand down an appropriate sentence for the two murders without being influenced by appeals to race. That jury would still have the option of sentencing Buck to death.

Had the parole board considered seriously its responsibility to try to mitigate miscarriages of justice, the outcome in the Buck matter would have certainly been different. But the board is a creature of the governor and its members knew that recommending a commutation to life in prison — or the 120-day reprieve Buck’s lawyer’s sought as an alternative — would have only complicated Perry’s political life. For Perry to deny clemency after his own board acknowledged that Buck was sentenced to death because of his race would have been hugely controversial and would have focused even more attention on Perry’s sorry clemency record. If, on the other hand, Perry agreed to a recommendation to commute the sentence, he no doubt would have angered his hardcore conservative base. Recall that only a week ago, during a debate among Republican presidential candidates at the Reagan Library in California, the audience erupted in wild applause at the mere mention of Perry’s execution record.

The parole board’s decision to say no to Buck will allow Perry to do what he normally does — issue a statement claiming that Buck had the benefit of a thorough review by the courts, the clemency board and the governor, and then send him to his death.

At last week’s Republican debate, Perry said that Texas has a “very thoughtful, clear process” for reviewing death cases. Sadly, the case of Duane Buck and many, many more suggest that nothing could be further from the truth.