Man on death row because in Texas, being black means you’re dangerous?

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Justice should be blind. It should be blind to race, income, class and other factors. However, in the case of Duane Buck, race played a major factor in his death sentence for capital murder.

In 1997, Buck was convicted for the capital murder of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck was also convicted of shooting his step-sister, Phyllis Taylor, in the same incident.

During the capital murder sentencing, through testimony of Texas state licensed psychologist Dr. Walter Quijano, Buck’s race became the centerpiece to the implementation of the death penalty. Shockingly, the Supreme Court cited that the race factor was the fault of Buck’s lawyers because they called Quijano as their witness. However, the Supreme Court would not order his case to be resentenced, like several other similarly situated defendants.

From the Texas Defender Service:

Defense Attorney: 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?

Quijano: Yes.

In June 2000, then-Texas Attorney General John Cornyn named six capital murder defendants due for resentencing; Duane Buck was one of them. Cornyn knew that injustices occurred with the sentencing phases of these trials due to the psychologist’s testimony that race was a factor in reoffending probabilities. Dr. Walter Quijano testified improperly in all six cases that being black was a reason the defendants would likely reoffend. Therefore, his testimony improperly sealed the death penalty sentences for each one. Five of the cases were required to reopen for the sentencing phase, but Buck’s was not one of them.

During Buck’s sentencing, the defense called Dr. Walter Quijano. Dr. Quijano testified under defense questioning that Buck’s likelihood of re-committing a crime was low. Conversely, under cross examination questioning by the state prosecutor, Dr. Quijano agreed with the prosecution’s line of questioning that being black is a factor to consider for the future dangerousness of a person. This was similar testimony to the other five cases that Quijano testified in, in which the sentences were overturned.

However, when the United States Supreme Court reviewed Buck’s case, the Court stated that the testimony about race was improper but that the defense opened the door to this testimony — since Quijano was their witness. Therefore, the Supreme Court would not overturn the sentence. Basically, it was the defense’s fault.

Buck may die because his lawyer called the wrong witness.

In capital murder convictions, there are several factors that can be considered in sentencing a person to life in prison or the death penalty. Sentencing is based upon two things: mitigating factors and aggravating factors. Mitigating factors are facts presented by the defense to ask for leniency — in this case, life without parole and not the death penalty. Mitigation includes the defense calling psychologists and witnesses to testify to a person’s upbringing and how it influences behavior, IQ level and intelligence, lack of understanding what may have occurred, lack of criminal history and family ties. Family members and friends are often called to testify for leniency, often begging for mercy on behalf of their loved one.

On the other hand, aggravating factors are those reasons why a person should receive a harsher sentence. The prosecution has the right to present testimony and evidence as to why a sentence should be stiffer. Examples of aggravating factors include: whether the defendant is a future danger and likely to commit crimes again, whether the defendant committed more than one murder at a time, the victim’s age, or whether the murder was for monetary gain of some sort. Victims and victims’ family members are often called to testify about the impact the defendant’s actions had on them. However, race should never be a factor for aggravating circumstances, as in Buck’s case.

He testified that Buck being black made him more likely to re-offend.

In Buck’s case, despite being called as a defense witness, Quijano testified that Buck, being black, was more likely to re-offend. The inclusions of race as a factor is an unconstitutional argument and yet helped seal his death sentence. The prosecution took the defense’s mitigation witness under cross-examination and made him testify as an aggravating witness by stating that being black is a factor in a person re-offending. This was a costly and potentially deadly mistake for Mr. Buck.

The wave of support to grant Buck a new sentencing hearing has been joined by many, including one of the prosecutors on the case, Linda Geffen, who wrote on Buck’s behalf to get a new sentencing hearing. Buck’s step-sister Phyllis Taylor has joined the fight to get Buck resentenced as well.

Five of the six cases mentioned by former Texas Attorney General Cornyn were reheard for sentencing, all of which ended with resentencing to death.

Eric Guster is a civil rights and criminal defense trial lawyer. He appears regularly on HLN, MSNBC, FOX and CNN as a legal analyst and commentator. He can be followed on twitter @EricGuster