Texas ordered to revisit case of murderer sentenced to death based on racial testimony

When Duane Buck was sentenced to death for a double murder in Texas 20 years ago, a psychologist had testified that Buck was especially dangerous because he was black. On Thursday, the U.S. Court of Appeals decided that Buck is entitled to a new sentencing trial, to being taken off death row — and maybe even to being released.

Buck, who is now 53 and has been on death row since 1997, appealed to the U.S. Supreme Court in 2016 after the 5th Circuit Court of Appeals denied his appeal, arguing that his defense at his original trial was inadequate.

He argued this in part because the psychologist who said Buck was more dangerous because he was black was a witness called by Buck’s own attorneys.

In February, the Supreme Court ruled in Buck’s favor, saying the 5th Circuit had erred in denying his appeal and sending the case back to the lower court for reconsideration. Texas has 180 days to decide Buck’s fate.

Under Texas law, prosecutors must persuade jurors of a defendant’s future dangerousness in order to get the death penalty, and the jury needs to unanimously agree. The Supreme Court’s opinion says the decision by Buck’s attorneys to ask the psychologist about his race played an important role in his death penalty conviction.

“No competent defense attorney would introduce such evidence about his own client,” Chief Justice John Roberts wrote in the majority opinion. The state had argued that the psychologist spoke of Buck’s race only twice, but Roberts wrote that “some toxins can be deadly in small doses.”

That Buck committed the crime is not disputed. He was convicted on capital murder charges for killing his ex-girlfriend, Debra Gardner, and her friend Kenneth Butler. Buck had been suspicious that Gardner was seeing another man, and on July 30, 1995, he barged into her home in Houston armed with a shotgun and a rifle, shooting and killing Gardner and Butler. He also shot his stepsister Phyllis Taylor at point-blank range. She survived, the bullet barely missing her heart.

One of the two lawyers defending Buck was Jerry Guerinot, known for losing every single one of his 21 capital punishment cases in Harris County, Texas. He has been described as “the worst lawyer in the U.S.”

Buck’s legal team retained psychologist Walter Quijano to assess their client’s future dangerousness. Quijano said he believed Buck was likely to commit violent acts in the future, citing a report linking race and propensity to violent crime — a notion that had already been widely condemned and discredited. But Quijano said that blacks and Hispanics were more prone to violence, citing their overrepresentation in the criminal justice system.

During cross-examination, the prosecution asked Quijano to be more specific.

“You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is,” a prosecutor said. “And that the race factor, black, increases the future dangerousness for various complicated reasons. Is that correct?”

“Yes,” Quijano replied.

Court documents show that the jury requested from the court reports submitted into evidence, including the report cited by Quijano, while the jury deliberated over Buck’s fate. They made their decision not long after receiving the reports.

Quijano provided expert testimony in six other death penalty cases involving a black or Hispanic defendant, and in 2000, Republican U.S. Sen. John Cornyn, who was then the Texas attorney general, acknowledged that the government had been wrong to allow his testimony in those cases. “The people of Texas want and deserve a system that affords the same fairness to everyone,” Cornyn said.

Defendants in those cases were given retrials — and all received new death sentences. But by the time Buck’s case reached the appeals phase, Cornyn was out of office and new Attorney General Greg Abbott opposed granting Buck a hearing because Buck’s own lawyers, not prosecutors, were the ones who called Quijano to the stand.

Buck was scheduled to be executed on Sept. 15, 2011. He had already eaten his supposed last meal when he was informed that the U.S. Supreme Court had granted him a stay of execution; Justice Sonia Sotomayor at the time described his case as “marred by racial overtones.” The Court declined, however, to hear arguments until 2016.

In an interview with VICE News when the Supreme Court decided to take Buck’s case, Jim Marcus, a law professor at Capital Punishment Clinic at the University of Texas, said, “The bottom line is that Mr. Buck has never had his day in court on this issue.”