Fifth Circuit Rejects Duane Buck's Appeal of Racially Biased Death Sentence

Should a person's skin color help determine whether or not he or she gets the death penalty? A doctor at Duane Buck's sentencing hearing told the Harris County jury that Buck's race was a factor that made him more likely to commit violent crimes in the future. While some would say that's evidence of the death penalty's racial bias, the Fifth Circuit Court of Appeals has once again looked at Buck's case and declared there's nothing wrong here. Nope, not a thing. 

Buck was sentenced to death by lethal injection by a Harris County jury in 1997 for the murders of his ex-girlfriend, Debra Gardner, and the man who was with her, Kenneth Butler. He also shot his stepsister, Phyllis Taylor, but Taylor survived. Two witnesses identified Buck as the shooter, according to the Fifth Circuit ruling issued Thursday. Buck laughed during and after the arrest and stated to one officer that Gardner "got what she deserved.” The big problem with Buck's case has never been a question of Buck's guilt, but why he was sentenced to death. His lawyers contend that it was because he's black. 

During Buck's murder trial, psychologist Walter Quijano testified that Buck was more of a danger to society because he is African American. Quijano had actually been called by Buck's lawyer, but the prosecutor cross-examined the psychologist.

“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?” the prosecutor asked, according to court records.

“Yes,” Quijano said. 

A few years after Buck was convicted, Quijano was cited by then-Texas Attorney General John Cornyn for giving racially influenced testimony to juries. Cornyn, now a U.S. senator, identified seven cases that needed to be reviewed for sentencing, and Buck's was one of them. All of the other cases have been allowed new sentencing hearings, but Buck's has been denied. In 2009, the Fifth Circuit concluded Buck’s lawyer was responsible for the introduction of Quijano’s "race-as-dangerousness" testimony.

He was scheduled to be executed in September 2011, but the U.S. Supreme Court stepped in and granted a stay of execution while the justices reviewed the case. (The Supremes also got the ball rolling on this issue years ago when they found that race was improperly used in sentencing Victor Saldano, who was set to die for the murder of Paul Ray King, the man Saldano abducted from a grocery store, robbed and shot to death. Quijano was the psychologist who testified on that case as well.) Ultimately, the Supreme Court declined to hear the case, though Justices Sonya Sotomayor and Elena Kagan dissented on that call. 

With that, the issue got kicked to the Texas Court of Criminal Appeals, which decided 6-3 not to allow Buck a new sentencing hearing in 2013. His lawyers immediately went back to bat with a request for relief that was rejected by the district court, a decision that was then bounced back up to the Fifth Circuit Court of Appeals. (This is the third time the Fifth has looked at Buck's case, a fact noted in the 11-page opinion.)

On Thursday, a panel of Fifth Circuit judges, including Judge Jerry Smith, Judge Priscilla Owen and Judge Catharina Haynes (all Republican appointees), issued their decision. The opinion completely dodged the question of whether race should be allowed to be considered as a factor in deciding whether to issue a death penalty.

The justices restricted themselves to "asking only whether the district court’s resolution of the claim 'was debatable among jurists of reason.'” The trio decided the district court decision they were reviewing wasn't, in fact, up for debate. They nodded at the race issue and then ignored it.

Yup, that's right, the Fifth Circuit won't even address whether it's okay to consider race when issuing the death penalty.   

The Fifth ruled that Buck's petition did not show a violation of a constitutional right or any indication that the district court had made the wrong decision in previously denying Buck's appeal. Buck's request for a certificate to appeal included 11 points that his lawyers claimed made his case "extraordinary," but the Fifth ruled that none of these points, including the contention that Buck had been promised his case would be reviewed and he would be re-sentenced the way the other Quijano cases were, qualified as "extraordinary." 

One of Buck's lawyers, Kathryn Kase, stated that they'll ask the Fifth to review the case again and that they'll also ask the Supreme Court to weigh in if they need to. 
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Dianna Wray is a nationally award-winning journalist. Born and raised in Houston, she writes about everything from NASA to oil to horse races.
Contact: Dianna Wray