On Thursday, attorneys for Duane Buck filed his Brief for Petitioner with the U.S. Supreme Court in Buck v. Davis, an extraordinary Texas death penalty case about racial bias and ineffective assistance of counsel.

Mr. Buck was sentenced to death after his own trial counsel knowingly introduced “expert” testimony that Mr. Buck was more likely to commit violent crimes in the future because he is Black.  Under Texas law—which requires a unanimous jury finding of future dangerousness for a death sentence to be imposed—this was tantamount to saying that Mr. Buck’s race meant he was more deserving of a death sentence.  Although Texas conceded error based on similar testimony by Dr. Walter Quijano in six other cases and promised to do so in Mr. Buck’s case, it reneged on its promise in Mr. Buck’s case alone.  Mr. Buck therefore is “the only prisoner in Texas to face execution pursuant to a death sentence that Texas had declared to be illegitimate.” (p. 58)

Oral argument in Buck v. Davis will be held on October 5, 2016. Counsel of record for Mr. Buck is Christina Swarns of NAACP Legal Defense and Educational Fund, Inc. and co-counsel are Kate Black and Kathryn Kase of Texas Defender Service and Sam Spital of Holland & Knight. 

Mr. Buck is asking the U.S. Supreme Court to review the federal courts’ refusal to consider his claim that his trial counsel was constitutionally ineffective for knowingly introducing the race-as-dangerousness testimony. Mr. Buck is ultimately seeking a new, fair, color-blind sentencing hearing.

Mr. Buck’s brief lists 11 “extraordinary circumstances” that demonstrate why the Fifth Circuit Court of Appeals erred when it refused to consider Mr. Buck’s appeal. These extraordinary circumstances include:

  • “Mr. Buck’s trial attorney knowingly presented expert testimony to the sentencing jury that Mr. Buck’s race made him more likely to be a future danger”; (p. 18)
  • “Mr. Buck’s state habeas counsel did not challenge trial counsel’s introduction of this false and offensive testimony—or Texas’s reliance on it—in Mr. Buck’s initial state habeas application”; (p. 19)
  • “The Texas Attorney General conceded constitutional error in Mr. Buck’s case and promised to ensure that he received a new sentencing, but reneged on that promise after deciding that the introduction of the offensive testimony was trial counsel’s fault; (p. 19)
  • “Mr. Buck’s case is the only one in which Texas has broken its promise to waive procedural defenses and concede error, leaving Mr. Buck as the only individual in Texas facing execution without having been afforded a fair and unbiased sentencing hearing”; and, (p. 20)  
  • Martinez and Trevino now allow for federal court review of ‘substantial,’ defaulted claims of trial counsel ineffectiveness.” (p. 20)

Background on Mr. Buck’s Trial and Ineffective Counsel

Duane Buck was condemned to death in 1997 after his own trial attorneys introduced testimony and a report from a psychologist, Dr. Walter Quijano, stating that Mr. Buck was more likely to be dangerous in the future because he is Black. Under Texas law, a death sentence can only be imposed if the prosecutor proves a probability of future dangerousness to the jury unanimously and beyond a reasonable doubt. In Mr. Buck’s case, the issue of future dangerousness was the “central disputed issue” in the sentencing hearing. (p. 5)

Shockingly, it was Mr. Buck’s own trial counsel that presented Dr. Quijano’s race-as-dangerousness opinion to the jury. And, his lawyers did not object when the prosecution exploited this race-as-dangerousness testimony on cross-examination: “You have determined that…the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?” “Yes,” answered Dr. Quijano.  During closing arguments, the prosecutor then urged jurors to listen to Dr. Quijano, who “had a lot of experience in the Texas Department of Corrections, who told you that there was a probability that [Mr. Buck] would commit future acts of violence.” (pp. 7-8)

Finally, the defense presented Dr. Quijano’s report—over the prosecution’s objection—into evidence.  That report reiterated Dr. Quijano’s opinion:  “Race.  Black.  Increased Probability” of future dangerousness.  During their lengthy deliberations, jurors sent out several notes requesting further information, including one asking to see the mental health reports, including Dr. Quijano’s.

After Mr. Buck was sentenced to death, his court-appointed state post-conviction counsel never challenged his trial counsel’s conduct. In fact, Mr. Buck’s counsel failed to raise the racial bias issue until two years after the state of Texas had already admitted error and promised to correct it. (p. 13)  But by then it was too late. Because of this succession of severely deficient lawyers, Mr. Buck’s current counsel argue that his Sixth Amendment right to the effective assistance of counsel at trial was violated and that he is entitled to a new, fair, color-blind sentencing trial. 

The Supreme Court Has the Power to Ensure the Racial Discrimination Infecting Mr. Buck’s Death Sentence is Properly Reviewed and Addressed

In 2012 and 2013, the U.S. Supreme Court held, in Martinez v. Ryan and Trevino v. Thaler, that prisoner claims that are waived or “procedurally defaulted” by deficient lawyering—like those in Mr. Buck’s case—can be heard in federal court. Prior to these rulings, the federal courts refused to review Mr. Buck’s ineffective assistance of counsel claim because it was procedurally defaulted.  And, in 2011, the U.S. Supreme Court denied certiorari review of Mr. Buck’s challenge to the prosecutor’s reliance on Dr. Quijano’s testimony.  Justice Alito, joined by Justices Scalia and Breyer issued a statement, accompanying a denial of certiorari), explaining that the “responsibility for the introduction of ‘bizarre and objectionable’ expert testimony linking Mr. Buck’s race to an increased likelihood of future dangerousness ‘lay squarely with the defense.’” (p. 16) 

After the Supreme Court announced Martinez and Trevino, Mr. Buck filed a motion to reopen the prior federal court decision denying his ineffective assistance of counsel claim.  Although the U.S. District Court for the Southern District of Texas found that Mr. Buck’s trial counsel “recklessly exposed his client to the risks of racial prejudice and introduced testimony that was contrary to his client’s interests,” it nonetheless concluded  that Mr. Buck’s case was not “extraordinary” enough to warrant reopening the judgment.  It also denied Mr. Buck a Certificate of Appealability or “COA,” which would have allowed Mr. Buck to appeal the decision to the Fifth Circuit Court of Appeals. The Brief for Petitioner argues that “[u]nder any standard of review, the lower courts’ denial of Mr. Buck’s Rule 60(b) motion was erroneous” (p. 23), and that Mr. Buck was entitled to a COA because he was only required to prove that his claims were “at least debatable among reasonable jurists” and he certainly met that burden. (p. 24)  

Mr. Buck’s case is an extraordinary instance of racial bias. Because the Supreme Court has now lifted the procedural barriers that previously stood in his way, the Supreme Court must ensure that Mr. Buck receives a new, fair sentencing hearing free of racial bias. State and federal judges who previously reviewed Mr. Buck’s case have recognized its fundamental unfairness, but were barred by procedural rules from correcting the injustice. However, as the brief explains, “as Texas itself previously recognized, this is the rare case in which the nature of the trial error…renders finality an insufficient ground upon which to justify reliance on procedural default.” (p. 52)    

Texas Confessed Constitutional Error in Mr. Buck’s Case and in Six Other Cases where Race was Considered in Capital Sentencing Hearings

In 2000, the U.S. Supreme Court remanded Saldaño v. State, which had also been tainted by the racially biased testimony of Dr. Quijano, to a lower court for review. In response to Mr. Saldaño’s petition for writ of certiorari, Texas acknowledged that the “infusion of race as a factor for the jury to weigh in making its determination violated [Mr. Saldaño’s] constitutional right to be sentenced without regard to the color of his skin.” (p. 10) Texas also stated that “[d]iscrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice,” and that “the use of race in Saldano’s sentencing seriously undermined the fairness, integrity, or public reputation of the judicial process.”  (p. 10) 

Then-Texas Attorney General (now U.S. Senator) John Cornyn issued a press release announcing that his office had done “a thorough audit of cases” (p. 11) and identified seven cases, including Mr. Buck’s, where — because of Dr. Quijano’s testimony — new, fair capital sentencing hearings were required.  Texas promised to admit error in each of these cases. The State kept its promise, ensuring new sentencing hearings for all the identified defendants, in every case — except Mr. Buck’s

Texas has never offered a valid explanation for its failure to keep its promise to Mr. Buck. Texas prosecutors have stated that notwithstanding their promise, Mr. Buck’s case is different from the other six because Dr. Quijano was a defense witness in Mr. Buck’s case. However, Dr. Quijano was also a defense witness in two of the other cases (Carl Henry Blue and John Avalos), and Texas kept its promise, conceded constitutional error and allowed new, fair sentencing trials for both of those defendants.  

The Special Risks of Racial Prejudice In Criminal Trials

For over a century, the U.S. courts have recognized that racial bias, when introduced at a criminal trial, is improper and deeply prejudicial. One example provided in the brief is that the Texas Court of Criminal Appeals found reversible error in a case when a prosecutor asked a single question tending to inflame race bias against the defendant, despite the fact that the question was objected to and never answered. (p. 37) As the brief notes, it is “well-settled that appeals to racial prejudice deprive the accused of his right to a fair trial decided by an impartial jury.” (p. 33)

Mr. Buck’s attorney exposed him to “a special risk of harm” (p. 28) by introducing and validating racial prejudice in his case. As the brief notes, “Race is an arbitrary, emotionally charged factor that has nothing to do with individual moral culpability.  Although it cannot be considered as an aggravating factor at capital sentencing, Dr. Quijano’s opinion urged jurors to do just that.” (p. 28) 

There is Widespread Support Across the Political Spectrum for a New, Fair Sentencing Hearing for Mr. Buck

One of Mr. Buck’s trial prosecutors, the surviving victim, a former Texas Governor and more than 100 civil rights leaders, elected officials, clergy, former prosecutors and judges, and past ABA presidents support a fair sentencing hearing for Mr. Buck. Former Harris County Assistant District Attorney Linda Geffin, has urged the State to agree to a new sentencing hearing, stating that “No individual should be executed without being afforded a fair trial, untainted by considerations of race.” The surviving victim, Phyllis Taylor, has forgiven Mr. Buck and does not want to see him executed. 

In sharp contrast to Dr. Quijano’s testimony about future dangerousness, Mr. Buck has been a model prisoner on death row with no disciplinary infractions in over twenty years.

A video about Mr. Buck’s case, “A Broken Promise in Texas: Race, the Death Penalty and the Duane Buck Case,” can be accessed here:

Click here for additional background on Mr. Buck’s case.

Brief of Amicus Curiae Lawyers’ Committee for Civil Rights Under Law

Brief of Amici Curiae National Association of Criminal Defense Lawyers

Brief of Constitutional Accountability Center 

Brief of Former Prosecutors

Brief for the National Black Law Students Association

Brief for Petitioner

Office of Attorney General News Release