Duane Buck has long argued that a Harris County jury sentenced him to death by lethal injection partly because of racial prejudice after a psychologist called by his own attorney testified that Buck was more likely to commit more violent crimes because he is black.
Now, the U.S. Supreme Court has ruled that Buck, the Houston man who brutally murdered his ex-girlfriend and her new boyfriend in 1995, may continue to appeal his death sentence. On Wednesday morning, the Supreme Court sided with Buck in a 6-2 ruling giving him the right to have a new hearing.
In an opinion penned by Chief Justice John Roberts, the court concluded Buck had been given ineffective counsel because his own defense lawyers introduced racially charged testimony that helped a jury sentence him to death and then failed to challenge that testimony on appeal.
There's no question of innocence here. In July 1995, a few weeks after they'd broken up, Duane Buck walked into the home of his former girlfriend, Debra Gardner, carrying a shotgun and a rifle. Buck shot his stepsister, Phyllis Taylor, and Kenneth Butler, her new boyfriend. Gardner ran out of the house and Buck followed. As her young son and daughter begged him for their mother's life, Buck shot Gardner in the chest. She and Butler died of their wounds. Taylor survived.
Buck was easily convicted when he stood trial for capital murder two years later. The only question was the punishment. That's where the case went off the rails.
As Roberts notes in his decision, at that time Texas juries could only impose the death penalty if it was found, unanimously and beyond a reasonable doubt, that there was "a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."
The prosecutors were making a good case against Buck. They called witnesses that testified about Buck's apparent lack of remorse. A former girlfriend recounted how Buck used to hit her and had pointed a gun at her twice during their relationship. It was pretty clear that this was not a nice guy.
Buck's defense counsel, Jerry Guerinot, a lawyer who was already on his way to racking up a substantial record for losing death penalty cases, as we've noted before, called his own character witnesses, even putting Buck's father and stepmother on the stand to testify that they'd never known Buck to be a violent person. But then Guerinot called Walter Quijano as an "expert" witness.
Guerinot asked Quijano — who has since been found to have given 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 overrepresented in the criminal justice system,” Quijano replied.
The prosecution was on it like a duck on a June bug and Quijano confirmed during cross-examination that it was his expert opinion that black and Hispanic people are more likely to commit violent crime. With that, the jury had enough to justify sentencing Buck to death by lethal injection, and it had all been handed over to them by Buck's own lawyer.
As Roberts observes, Quijano's testimony did significant damage because when the jury was deliberating punishment, it was the one piece of "concrete" evidence they had to help weigh out the question of whether Buck was likely to commit more violent acts. On top of that, Quijano's statement tapped into a powerful stereotype, Roberts states, that black men are prone to violence. And the results were troubling, Roberts finds:
"In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race."
Just three years later, in 2000, then-Texas Attorney General John Cornyn acknowledged that seven people, including Buck, who had been sentenced to death based on Quijano's racist testimony had been denied their constitutional right 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 in 2002, the AG's office, with now-Governor Greg Abbott at the helm, decided Buck should not have another hearing since, unlike in the other cases, his own attorney had called Quijano to the stand.
Since then, Buck's case has bounced through the court system (The Fifth Circuit Court of Appeals alone has looked at the case three times), with the state AG's office continuing to argue that this one wasn't their problem since the testimony was introduced by Buck's lawyer.
Roberts wasn't having it with this excuse either, finding that who introduced the racially charged testimony was beside the point:
"The State’s various explanations for distinguishing Buck’s case have nothing to do with the Attorney General’s stated reasons for confessing error in Saldano and the cases acknowledged as similar. Regardless of which party first broached the subject, race was in all these cases put to the jury 'as a factor . . . to weigh in making its determination.'"
The high court thus vacated the Fifth Circuit's ruling. The vote split, with Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joining Roberts in his majority opinion.
The decision is being celebrated by Buck's legal team. "Today’s ruling gives us hope that the ugliness of Mr. Buck’s tainted death sentence will soon be put behind us and he will receive a life sentence,” Kate Black, senior staff attorney at Texas Defender Service and one of Buck's lawyers, stated in a release.
Still, Justices Clarence Thomas and Samuel Alito dissented from the decision, arguing that Buck's sentence had nothing to do with the color of his skin because "the facts leave no doubt that this crime was premeditated and cruel."
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Thomas goes into the details of the crime that Roberts glossed over: how Buck first called and asked to speak to Gardner and then grabbed his guns, drove 28 miles and broke down the door of her house. How his stepsister, Taylor, begged him not to shoot her before he fired into her chest. How Gardner was probably on her knees, begging for her life, when she was killed. How Buck taunted Gardner as she lay bleeding in the street, saying “It ain’t funny now. You ain’t laughing now."
Thomas writes that "[h]aving settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it."
This decision comes as Ginsberg and Breyer have been open about their interest in the Supreme Court's taking another look at the constitutionality of the death penalty. Maybe that's why it's worded in such blistering language.