During Duane Buck's 1997 murder trial in Harris County, a psychologist told the jury that Buck was more likely to be a danger to society because he was black.
This would be a huge deal in pretty much any legal situation, but the statement had more direct life or death ramifications in Buck's trial because the jurors were deciding on whether to hand down the death penalty.
He was sentenced to death by lethal injection for the murders of his ex-girlfriend, Debra Gardner, and a man who was with her, Kenneth Butler. He also shot his stepsister, Phyllis Taylor, but Taylor survived. The big question here has never been about Buck's guilt but about his death sentence.
A few years after Buck was convicted, the psychologist, Walter 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 is one of them.
While Cornyn named seven cases to be reviewed, Buck's and one other case were not because the defense lawyer, not the prosecution, asked Quijano questions that hinged on the subject of race, Sara Kinney, public information officer for the Harris County District Attorney's Office said. (Basically, since the defense brought the issue in, the prosecution isn't responsible for their mistake.)
He was slated to be executed in September 2011 when the U.S. Supreme Court intervened; granting a rare stay while the justices reviewed the case. (The Supreme Court also got the ball rolling on this whole issue years ago, finding that race was improperly used in sentencing Victor Saldano. Quijano was the psychologist who testified on that case as well.)
The justices ultimately declined to hear the case, but Justice Sonia Sotomayor dissented on and Justice Elena Kagan joined up on Sotomayor's dissent.
"Buck did not argue that his race made him less dangerous, and the prosecutor had no need to revisit the issue," Sotomayor wrote. "But she did, in a question specifically designed to persuade the jury that Buck's race made him more dangerous and that, in part on this basis, he should be sentenced to death."
No matter what Sotomayor and Kagan expressed in their dissent of the Supreme's decision, declining to hear the case put Buck back on track for execution and now his attorneys are waiting to see if the Texas Court of Criminal Appeals will grant a new sentencing hearing. Buck's case has attracted a number of supporters who want to see another sentencing hearing where race will not be considered by the jurors. Buck's family, including his stepsister, Taylor, the surviving victim in the case, have called for another sentencing for Buck along with more than 50,000 people who have signed an electronic petition to the Harris County District Attorney's Office and Texas officials. Former Gov. Mark White has also been a strong voiced proponent of another sentencing for Buck.
"I've always had supported the death penalty, but I don't support the death penalty for people who are not properly tried and convicted," White stated earlier this year when he joined up with more than 100 civil rights leaders, former prosecutors and judges, amongst others, asking that they give Buck a newer and more proper sentencing.
In fact, White narrated a documentary, A Broken Promise in Texas: Race, the Death Penalty and the Duane Buck Case, produced by Emily Kunstler and Sarah Kunstler and sponsored by the NAACP Legal Defense and Educational Fund, Inc. The film clip released by the NAACP features interviews with everyone from Buck's lawyers to Taylor, all urging state officials to grant Buck a new hearing.
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The Supreme Court move in November 2011 lifted the stay on Buck's execution, though it hasn't been rescheduled yet as authorities wait on an opinion from the Court of Criminal Appeals, where Buck's defense filed an appeal in April. Kinney said the strong community push for another sentence prompted Harris County District Attorney Mike Anderson to allow Buck's lawyers another chance to appeal to the Texas Court of Criminal Appeals.
Once the Court of Criminal Appeals has ruled, that will be the last shot at a new sentence for Buck.
"It's gone all the way up to the Supreme Court and back," Kinney said. "We will act as the court guides us, and we'll know what their decision on this is sometime this summer."