Was Duane Buck sentenced to death because he is African American, because he had a bad lawyer or because he was guilty of the crimes he was accused of?
On Wednesday the U.S. Supreme Court will look at this thorny, complicated question as justices hear Buck's case, and examine the troubling implications underpinning his death sentence.
In 1997 a Harris County jury sentenced Buck to death by lethal injection for the murders of his ex-girlfriend, Debra Gardner, and Kenneth Butler, the man with her the night Buck burst into her apartment armed with a gun and high on drugs. Buck also shot his own sister, Phyllis Taylor, but she survived. Two witnesses identified Buck as the shooter, according to a Fifth Circuit ruling last year. Buck laughed during the arrest and told one officer that Gardner "got what she deserved."
In other words, up to this point, the case was pretty straightforward and Buck was decidedly guilty. The main question was what punishment would be deemed fit for the crimes. And that's where things went wrong.
“People who are well represented at trial do not get the death penalty,” Justice Ruth Bader Ginsburg has said. It's true. In a death penalty case, the defense lawyer is crucial because a good lawyer might keep a client off death row while a less competent one might not be able to come up with a defense to do that. By all accounts, Buck had a crummy lawyer.
Jerry Guerinot is a lawyer who represented clients in capital crimes cases — the ones where the death penalty is an option — for years, racking up a substantial record for losing death penalty cases, as a New York Times 2010 profile of Guerinot pointed out. More than 20 of his clients have ended up sentenced to death and critics say that Guerinot routinely failed to go after the most obvious weaknesses in the cases against his clients. (Guerinot announced he was done with capital defense in August.)
When it came to Buck's trial, Guerinot, a court-appointed attorney paid by the state, did actual damage to Buck's case by calling psychologist Walter Quijano, an "expert" witness, to the stand.
Guerinot asked Quijano — who has since been found to have given, let's say, problematic testimony promoting racial bias in numerous cases over the years — how the jury should judge whether Buck would be a future menace to society.
“It’s a sad commentary that minorities, Hispanics and black people, are over represented in the criminal justice system,” Quijano replied.
The prosecution zeroed in on this point during cross examination and Quijano confirmed that, in his "expert" opinion, African Americans and Hispanics are more likely to commit crimes.
Just three years later, in 2000, then-Texas Attorney Gen. John Cornyn (now a U.S. senator) acknowledged that seven people, including Buck, who had been sentenced to death based on Quijano's racist testimony had been denied their constitutional rights to be judged without any regard to the color of their skin. Cornyn said the state AG's office would review the sentencing hearings for these defendants.
But when now-governor Greg Abbott became the new AG in 2002, his office argued against granting Buck a new sentencing hearing because Buck was supposedly the only one in the group whose own defense attorney had called Quijano to the stand.
Since then, Buck's case has bounced through the court system. In 2011, he was scheduled for execution when the Supreme Court stepped in and issued a stay until they could review the case. The Supremes ultimately declined to hear the case, so it got kicked back down to the Texas Court of Criminal Appeals, which voted 6-3 not to allow a new sentencing hearing in 2013.
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Buck's lawyers immediately got up off the mat and went to federal district court with a request for relief which was rejected. Last year, the Fifth Circuit Court of Appeals, in its third look at the case, upheld the district court decision.
And so, Buck's lawyers once again turned to the High Court, filing a petition for a writ of certiorari from the High Court in June. This time they are asking for a new trial entirely, arguing that Buck's "trial counsel was constitutionally ineffective." It seems fair to say that a defense lawyer who introduced testimony that was used to justify using race as a factor in sentencing a man to death was remarkably ineffective.
The Supremes were at least interested enough to agree to hear the case, which is something considering the court is still divided and shorthanded since the death of Justice Antonin Scalia in February. (President Obama's nominee to replace the conservative justice, Merrick Garland, has gotten stuck in the political gridlock known as Congress.)
There's no telling how this will play out before the divided court. Maybe no lawyer could have kept Buck from death row, but it doesn't seem like a bad idea to give another defense lawyer a try.