Promoting a fair and just criminal justice system in Texas

Case Summary

On May 5, 1997, Duane Edward Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler while under the influence of drugs. A third person, Phyllis Taylor, was also shot, but survived. Ms. Taylor supports a commutation of Mr. Buck’s sentence. Mr. Buck is scheduled to be executed on September 15, 2011 even though the Office of the Attorney General identified Mr. Buck’s case as one containing constitutional error requiring he be resentenced.

During Mr. Buck’s trial, Dr. Walter Quijano was called by the defense and testified that he did not believe Mr. Buck would be a future danger based on several factors, primarily that Mr. Buck had no violent criminal record and did not display violent tendencies. On cross-examination, the government elicited testimony from Dr. Quijano that blacks are more likely to commit future acts of violence:

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.

The government urged the jury in its closing argument to rely on Dr. Quijano’s testimony. The jury found that Mr. Buck would be a future danger, and he was sentenced to death.

On appeal, the Texas Court of Criminal Appeals (CCA) upheld Mr. Buck’s death sentence. The reliance by the government on Mr. Buck’s race as a factor increasing his future dangerousness was not raised as a ground of error. Mr. Buck filed a state habeas application on March 15, 1997, alleging constitutional violations relating to the judge’s refusal to admit evidence regarding parole. The reliance by the government on Mr. Buck’s race as a factor increasing the likelihood of future danger was not raised as a claim for relief. In 2002, after the Attorney General of Texas identified Mr. Buck’s case as one deserving of a new sentencing hearing due to the government’s reliance on race and therefore agreed to waive any procedural defects in the cases identified, Mr. Buck’s state habeas counsel filed a subsequent application for writ of habeas corpus in state court raising equal protection and due process claims related to the government’s use of race. On October 15, 2003, the Court of Criminal Appeals denied the initial application and refused, for procedural reasons, to consider the race-related claims. Mr. Buck’s federal habeas petition raising the same issues that were raised in state habeas proceedings was also denied.

On June 10, 2000, the Houston Chronicle’s front page carried an article entitled Death penalties of 6 in jeopardy: Attorney general gives result of probe into race testimony, declaring: “The death sentences for six convicted killers likely will be overturned because prosecutors used racially charged testimony from a clinical psychologist, the Texas attorney general said Friday.”

One day earlier, the chief legal officer for the State of Texas, Attorney General John Cornyn, issued a press release in which he identified Mr. Buck’s and five other cases then pending in post-conviction proceedings as cases in which the government had unconstitutionally relied on testimony of psychologist Walter Quijano, that a defendant’s race should be considered in determining future dangerousness and, at least in Mr. Buck’s case, that being black was a factor that increased the likelihood of future dangerousness. The press release looked at a total of eight cases in which Dr. Quijano had been involved, but concluded that two cases did not have circumstances rising to a constitutional violation. Through mistake or inadvertence, however, and despite the Attorney General’s admission of constitutional error in Mr. Buck’s case, he would be the only one of the six whose racially-tainted death sentence was left intact.