Ineffective Lawyer Relies on Racial Bias and Stereotype During Texas Capital Sentencing
Yesterday, LDF, along with co-counsel, the Texas Defender Service and Holland & Knight LLP, filed a petition for certiorari with the U.S. Supreme Court on behalf of Duane Buck, an African-American man who was sentenced to death in Texas after his own lawyer introduced “expert” testimony and an “expert” report stating that Mr. Buck was more likely to be dangerous in the future because he is Black. If the Supreme Court does not grant Mr. Buck’s petition, he could face imminent execution based on a death sentence that is a direct product of flagrant racial bias and shockingly incompetent lawyering.
“It is incomprehensible that a lawyer charged with defending an African-American man facing the death penalty would present ‘expert’ testimony linking race to dangerousness,” said Christina Swarns, LDF’s Director of Litigation. “Because no competent lawyer would introduce such utterly false and deeply prejudicial evidence, the Supreme Court must ensure that Mr. Buck’s case receives the full and fair review that this extraordinary ineffectiveness demands.”
Mr. Buck’s Petition for Certiorari can be accessed here.
Mr. Buck’s case returns to the Supreme Court at a pivotal moment in history, when the United States is struggling to come to terms with the problem of racial bias in the criminal justice system. While Mr. Buck’s case stands as a stark example of the explicit racial bias that can, and does, infect the administration of criminal justice, it also offers the Supreme Court a clear and powerful opportunity to demonstrate that the American judicial system will not condone such injustice. If the Supreme Court agrees to review Mr. Buck’s case, it can serve as a vehicle for restoring trust and integrity to the system.
Mr. Buck was condemned to death 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 can prove to a jury that an individual is likely to be dangerous in the future. In Mr. Buck’s case, the prosecutor relied on this “defense evidence” to argue that the jury should find Mr. Buck a future danger. The jury agreed, and Mr. Buck was therefore sentenced to death. (pp. 4-6)
Shockingly, Mr. Buck’s trial counsel presented this “expert” testimony and “expert” report—stating that Mr. Buck’s race made him dangerous in the future—to the sentencing jury and never objected to the prosecutor’s questions or arguments about that testimony. And, Mr. Buck’s initial appellate counsel never challenged Mr. Buck’s trial counsel’s conduct on appeal. Because of this succession of severely deficient lawyers, LDF argues that Mr. Buck’s Sixth Amendment right to the effective assistance of counsel at trial was violated. Specifically:
“[T]he nature and consequence of trial counsel’s presentation of this ‘expert’ evidence is different in kind than the errors committed by counsel in almost any other ineffectiveness case. This is not a case where, for example, trial counsel failed to investigate mitigating evidence that might provide a basis for a sentence less than death… Instead, this is a case where, as the District Court found, Mr. Buck’s trial counsel ‘recklessly exposed his client to the risks of racial prejudice’ and ‘len[t] credence to any potential latent racial prejudice held by the jury.’ Because the injection of racial discrimination into the judicial process ‘poisons public confidence in the evenhanded administration of justice,’… the patently deficient performance of Mr. Buck’s trial counsel not only undermines confidence in Mr. Buck’s death sentence, it undermines confidence in the criminal justice system as a whole.” (pp. 19-20)
U.S. Supreme Court Has Power to Ensure 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 that received by Mr. Buck—can be heard in federal court.
Although the U.S. District Court for the Southern District of Texas concluded 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,” the court nonetheless found that Mr. Buck’s case was not “extraordinary” enough to warrant further review. The lower court’s recognition that racial prejudice can and does have a devastating impact on capital cases like Mr. Buck’s cannot be squared with its decision to let his tainted death sentence stand.
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, today’s petition argues that the Supreme Court must ensure that Mr. Buck’s claim to a new, fair sentencing hearing free of racial bias is heard.
State and federal judges who previously reviewed Mr. Buck’s case recognized its fundamental unfairness, but were barred by procedural technicalities from correcting the injustice. Texas Court of Criminal Appeals (CCA) Judge (and former Harris County prosecutor) Elsa Alcala (joined by two other CCA judges) wrote that Mr. Buck’s case:
“…reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment phase… As a result of prior habeas counsel’s errors and the combined force of state and federal procedural-default laws, no Court has ever considered the merits of [Mr. Buck’s] legitimate claims for post-conviction relief.” (p. 13)
Before the U.S. Supreme Court changed the law to remove procedural barriers to claims like Mr. Buck’s, Justice Alito called Dr. Quijano’s testimony–that Mr. Buck’s race made him more likely to be dangerous in the future–“bizarre and objectionable.” Justice Sotomayor wrote that Mr. Buck’s death sentence was “marred by racial overtones” that “our criminal justice system should not tolerate.” (pp. 12-13)
New Data: Fifth Circuit Court of Appeals is an Outlier in Consideration of Death Penalty Cases
Today’s petition to the U.S. Supreme Court appeals the Fifth Circuit Court of Appeals’ decision not to hear Mr. Buck’s case on its merits. Three Supreme Court Justices recently called the Fifth Circuit’s pattern of failing to follow Supreme Court precedent governing review of such appeals “troubling.” (Jordan v. Fisher) (p. 26)
Mr. Buck’s petition for certiorari presents new data demonstrating that the Fifth Circuit is fundamentally out of step with other jurisdictions when it comes to considering death penalty cases:
“…[A] review of capital § 2254 cases over the last five years shows that, in 59% of cases arising out the Fifth Circuit, a Certificate of Appealability (COA) was denied by both the district court and Court of Appeals on all claims. By contrast, during that same period, only 6.25% cases arising out of the Eleventh Circuit and 0% of cases arising out of the Fourth Circuit have had a COA denied on all claims.” (p. 21)
In other words, death row prisoners in other circuits have a far better chance to have their claims heard.
Texas’ Highest Legal Officer Confessed Constitutional Error in Mr. Buck’s Case and in Six Other Cases where Race was Considered in Capital Sentencing Hearings
In 2000, then-Texas Attorney General (now U.S. Senator) John Cornyn admitted that Dr. Quijano’s testimony linking race to dangerousness was unconstitutional. The Attorney General’s office identified six 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. (pp. 8-9)
Mr. Buck must receive the new sentencing hearing that he was promised and that all the other defendants, whose capital sentencing hearings were infected with racial prejudice, also received.
Widespread Support Across the Political Spectrum for a New, Fair Sentencing Hearing for Mr. Buck.
One of Mr. Buck’s trial prosecutors, former Harris County Assistant District Attorney Linda Geffin, has urged the state to agree to a new sentencing hearing for Mr. Buck, noting that: “No individual should be executed without being afforded a fair trial, untainted by considerations of race.”
Mr. Buck’s surviving victim, Phyllis Taylor, has forgiven Mr. Buck and does not want to see him executed.
Other supporters include a former Texas Governor and more than 100 civil rights leaders, elected officials, clergy, former prosecutors and judges, and past American Bar Association presidents. All agree that Mr. Buck is entitled to a new, fair sentencing hearing where race is not a factor.
The U.S. Supreme Court is now quite literally the court of last resort. It is up to the Supreme Court to ensure that Mr. Buck does not face a sentence of death based on his race.
To speak with Mr. Buck’s LDF attorneys, please contact Laura Burstein at 202-626-6868 (o); 202-669-3411(c); or by email at Laura.Burstein@squiresanders.com.
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Founded in 1940, the NAACP Legal Defense and Educational Fund, Inc. (LDF) is the nation’s first civil and human rights law organization and has been completely separate from the National Association for the Advancement of Colored People (NAACP) since 1957—although LDF was originally founded by the NAACP and shares its commitment to equal rights. In media attributions, please refer to us as the NAACP Legal Defense Fund or LDF.
