How a Texas death penalty case got to the US Supreme Court

The US Supreme Court will look at whether the death sentence of Duane Buck, meted out in Texas, may have been tainted by jurors' considerations of race. The court stayed his execution Thursday.

The US Supreme Court has stopped the scheduled execution of Texas inmate Duane Buck, after his lawyers said his death sentence may have been tainted by considerations of race by the jury that sent him to death row.

Mr. Buck’s lawyers sought a stay of execution from both the high court in Washington and Texas Gov. Rick Perry, who is a top contender for the Republican nomination for president. The Supreme Court granted its stay of execution late Thursday.

In their last-minute appeal, Buck’s lawyers argued that a psychologist improperly testified during the punishment phase of Buck’s 1997 capital murder trial that African-Americans are more likely to commit future violent crimes.

Buck is black. His lawyers argue that it is unconstitutional to use race as a factor when determining whether an individual should be sentenced to life in prison or death.

“We are relieved that the US Supreme Court recognized the obvious injustice of allowing a defendant’s race to factor into sentencing decisions and granted a stay of execution,” said Katherine Black, one of Buck’s lawyers with the Texas Defender Service, in a statement.

“No one should be put to death based on the color of his or her skin,” she said. “We are confident that the court will agree that our client is entitled to a fair sentencing hearing that is untainted by considerations of his race.”

In granting the stay late Thursday, the high court said it would halt the execution at least long enough for the submission and consideration of legal briefs. If the court denies Buck’s petition, the stay would end automatically and Texas would again be free to proceed with a scheduled execution, the order says.

It adds that if the court agrees to hear the case, the stay would remain in effect until the court issues its final judgment.

On Wednesday, a panel of the Fifth US Circuit Court of Appeals rejected the same argument in Buck’s appeal to that court. The panel said that Buck’s latest appeal “fails to demonstrate a substantial showing of the deprivation of a constitutional right."

Buck was convicted of the double murder of his former girlfriend, Debra Gardner, and Kenneth Butler in July 1995. Ms. Gardner and Buck had broken up a week earlier. After an argument, Buck returned to Gardner’s house with a shotgun and rifle. Gardner’s two children watched Buck kill their mother.

In addition to the two victims, Buck’s stepsister, Phyllis Taylor, was also at the house. He pressed the muzzle of the rifle to her chest and pulled the trigger. She fell to the floor but survived.

Ms. Taylor has since forgiven Buck and has joined efforts to block his execution.

At the center of Buck’s appeal is the testimony of Dr. Walter Quijano, a child psychologist, who appeared at the trial as an expert witness to testify about Buck’s future dangerousness. Dr. Quijano told the jury that Buck was unlikely to commit future acts of violence or pose a future danger to society if he remained incarcerated.

Quijano was called by Buck’s lawyers to make that point to jury. It was part of a defense strategy designed to convince the jury to reject a death sentence.

On cross-examination, a prosecutor asked Quijano about his findings in a written report suggesting a correlation between sex and race and future dangerousness.

“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."

At trial, Buck’s defense counsel did not object to this line of questioning, or to the answer.

Three years after Buck’s conviction and death sentence, then Texas Attorney General John Cornyn identified six cases in which Dr. Quijano’s testimony had improperly injected race into judicial proceedings. Buck’s was one of the six cases.

Mr. Cornyn announced that state prosecutors would not contest equal protection claims filed in federal court on behalf of the defendants in the six cases.

As a result, five of the six defendants received new trials. Buck did not.

Despite Cornyn’s pledge, the state objected when Buck sought a new sentencing hearing. Prosecutors said Quijano had been called as a defense witness by Buck’s own lawyers, not by state prosecutors.

The error and any prejudice were a result of Buck’s own defense and no fault of the state’s.

The courts agreed with prosecutors and refused to grant Buck a new sentencing hearing.

In the most recent appeal, Buck’s lawyers claim that prosecutors misled the courts by suggesting that Buck’s case was different than the five others because Quijano had been called to testify by Buck’s lawyers.

In fact, Quijano testified in three of the cases for the prosecution and in three cases for the defense.

Buck’s lawyers say reasonable jurists could debate whether the state violated the constitutional guarantee of equal protection by inserting race into the trial by asking the question and eliciting the racial response from Quijano. They say he should be granted the same relief as the other defendants.

“The state of Texas should not condone any form of racial discrimination in the courtroom,” Ms. Black, one of Buck’s lawyers, said in her a letter to Governor Perry. “The use of race in sentencing poisons the legal process, undermines the reliability and fairness of the sentence, and breeds cynicism in the community.”

“Mr. Buck’s sentence offends not only the United States Constitution but also Texans’ shared commitment to racial equality and an equitable justice system,” Black wrote.