Twenty years ago, a psychologist testified that a Texas man facing the death penalty was more dangerous because he was black. Now, after years of legal wrangling, he's facing his last chance to get the death sentence overturned.
In 1995, Duane Buck shot and killed his former girlfriend and her friend in Houston. He never contested his guilt. During his trial, Buck’s defense attorney called a psychologist named Walter Quijano to testify. On direct examination, Quijano noted that blacks and Latinos were "over-represented in the criminal justice system." Then on cross-examination, the prosecutor asked Quijano if “the race factor, black, increases the future dangerousness for various complicated reasons.” Quijano said yes.
Based on that testimony, Buck asked the Supreme Court to give him a new trial in a petition filed last week. His attorneys argue that because Buck's lawyer at the time did not object to this testimony, he should get a second hearing on the grounds of ineffective assistance of counsel, a violation of his Sixth Amendment rights.
In order to sentence an inmate to die, Texas law requires a jury to find that they will be a danger to the public in the future. The prosecutor stressed Quijano's testimony about Buck's race during his closing argument, and the jury sentenced him to death.
"He was basically saying because you're black, you need to die," Buck told a documentary filmmaker. "My lawyer didn't say anything and nobody else, you know, the prosecutor or the judge, nobody did. It was like an everyday thing in the courts."
Quijano testified about black people being especially dangerous in six death penalty cases. The Texas Attorney General—now-U.S. Senator—John Cornyn admitted in 2000 that Quijano’s race-based testimony was “inappropriate.” The other five defendants sentenced to death after his testimony have all received new hearings, but prosecutors continue to object to a hearing for Buck.
It's unclear whether Quijano is still practicing. Phone calls to a number listed in his name did not go through.
The Supreme Court stayed Buck's execution in 2011 but then denied him a new trial. In a dissent of that decision, Justice Sonia Sotomayor wrote that the trial was "marred by racial overtones." Buck's lawyers hope that new precedents set since then guaranteeing adequate legal representation will result in a different verdict this time.
While Buck's case is certainly an egregious example of a death penalty injustice, it's hardly unique. In Houston’s Harris County, black defendants are more than twice as likely than white defendants to receive the death penalty. And advocates have long complained that people facing execution in the state don't always receive adequate legal counsel.
Even if the Court eventually grants Buck a new hearing, it's a long shot that would mean a change in sentence. The other five defendants who got new hearings were re-sentenced to death. But Kate Black, Buck's new attorney, said that she thought her client has a better chance.
Buck has been on death row for 18 years without getting a single disciplinary violation, she said. “As someone who’s represented a number of death row inmates, that’s incredibly unique,” Black said. “I think if the jury heard about the way he’s conducted himself they would see how wrong that prediction about dangerousness was.”
A decision from the Court is expected later this spring.
Casey Tolan is a National News Reporter for Fusion based in New York City.