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Texas Execution Stayed

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The US Supreme Court yesterday stayed the execution of Texas murderer Duane Buck while it considers his petition to review the decision of the Fifth Circuit Court of Appeals.  At the same time, the Court denied Buck's habeas corpus petition filed directly in the Supreme Court.  (It hasn't granted one of those in decades.  See this post.)

The case involves an unfortunate statement by an expert witness regarding race and dangerousness.  The odd thing about this case is that it was the defense witness who said that, and he first said it in response to a question from the defense lawyer.  An excerpt from the Fifth Circuit opinion follows the break.
The facts regarding Buck's conviction and sentencing are set forth in our
previous opinion in this case, and we recount them only briefly here. Buck was convicted by a jury in a Texas state court for murdering Kenneth Butler and Buck's former girlfriend, Debra Gardner, during the same criminal transaction. Buck entered Gardner's home, where his sister was visiting, inflicted serious gunshot wounds on his sister, fatally shot Butler, and then chased Gardner into the street as she and her children attempted to flee. He shot and killed Gardner in view of her two children. Buck has never contended that he was not the shooter.

During the punishment phase of his trial, Buck called Dr. Walter Quijano,
a clinical psychologist, as an expert witness to testify on the likelihood of Buck's future dangerousness. On direct examination, Dr. Quijano testified that he had considered several statistical factors when evaluating Buck's potential for future dangerousness, including but not limited to age, sex, race, social economics, history of violence, and history of substance abuse. Regarding race, Dr. Quijano stated: "It's a sad commentary that minorities, Hispanics and black people, are over represented in the criminal justice system."

Dr. Quijano also testified that Buck suffered from dependent personality disorder, which is characterized by an unhealthy reluctance to let go of past
relationships, even to the point of violent or destructive behavior. According to Dr. Quijano, however, Buck was unlikely to commit future acts of violence
because he would be unable to develop similar dependent relationships in jail. Basing his opinion on a combination of statistical, environmental, and clinical factors listed in his expert report, Dr. Quijano concluded that Buck would not likely pose any future danger to society if he were incarcerated.

On cross-examination, the prosecutor questioned Dr. Quijano regarding
the several factors that he had mentioned during direct examination. At one
point, the prosecutor -- without objection from Buck's defense counsel -- asked Dr. Quijano about his consideration of both race and sex as relevant factors in his future-dangerousness analysis, which led to the following exchange:

Q: 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?
A: Yes.
During closing arguments, Buck's defense counsel recalled for the jury Dr.
Quijano's earlier testimony that there was "a very low probability that [Buck]
would ever commit an act of violence." In rebuttal, the prosecution also
referenced Dr. Quijano's testimony, stating -- again without objection from defense counsel -- that Dr. Quijano, "who had a lot of experience in the Texas Department of Corrections, . . . told you that there was a probability that [Buck] would commit future acts of violence." The prosecution made no reference whatsoever to Buck's race (African-American) or to Dr. Quijano's use of race as a statistical factor for determining future dangerousness.

The prosecutor's question was pretty boneheaded.  Why bring it up?  But in the context of the witness's whole testimony -- which was that Buck was not dangerous -- it wasn't a significant factor.

In this AP story by Michael Graczyk, Buck's current lawyer Kate Black says, "No one should be put to death based on the color of his or her skin."  No dispute there, but it borders on absurd to say that Buck was sentenced on that basis.

1 Comment

I think SCOTUS (irresponsibly, by the way) granted the stay because of the Martinez issue. In other words, this is similar to the stay granted to Arizona killer, Cook.

That the Supreme Court sees fit to grant stays based on last minute appeals shows a need for legislative response. This one is particularly egregious. Buck's cert. petition with respect to his habeas case was denied in April 2010, i.e., almost a year and a half ago. Clearly, there was the opportunity to litigate this issue, and defense counsel strategically waited until the last minute. The people of the State of Texas deserve much better than this.

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