In 1997, a Harris County jury sentenced Duane Buck to death for a double murder. During the sentencing phase of the trial, a psychologist testified Buck was more dangerous and likely to reoffend simply because he was black.
Buck’s lawyers’ appeals have reached the U.S. Supreme Court, which initially stayed his execution before deciding in November not to review the case. On Wednesday, his attorneys appealed the death sentence in Harris County, citing a study released the same day that shows minorities are more likely than whites to be sentenced to death in the county.
The study, by University of Maryland criminology professor Raymond Paternoster, found that from 1992 to 1999, Harris County prosecutors sought the death penalty for African-Americans more than three times as often as they did for whites with similar cases. Hispanics fared even worse—the DAs pushed for capital punishment four times as often for Hispanics as they did for whites.
Juries were slightly more even-handed, the study finds, but not by much—African-Americans were sentenced to death twice as often as whites, and Hispanics got the death penalty three times as often.
The psychologist who testified in Buck’s case, Dr. Walter Quijano, provided “expert” testimony in countless criminal cases in Texas at the time, and claimed race partly determined “dangerousness” in at least seven cases. While reviewing one of those cases in 2000, then-Attorney General John Cornyn recommended all seven offenders get a new sentencing hearing. Six of the cases got a do-over, and all those offenders (four Hispanics and two African-Americans) were re-sentenced to death.
Buck’s case never went up for a resentencing hearing. The state said his case was different from the others because the defense—not the prosecution—called Quijano to the stand. Most of the Supreme Court agreed. In a dissenting opinion, Justices Sonia Sotomayor and Elena Kagan argued that the prosecutor revisited the race factor “in a question specifically designed to persuade the jury that Buck’s race made him more dangerous and that, in part on this basis, he should be sentenced to death.”
The Supreme Court made its decision in Nov. 2011, but Buck’s legal team filed its appeal in Harris County’s 208th Criminal District Court on Wednesday.
“I think it’s important that race not play a factor at all in capital prosecution,” Kate Black, one of Buck’s attorneys, tells the Observer. “To have Dr. Quijano’s testimony in cases with black defendants such as Mr. Buck’s is problematic and it’s been corrected in the other six cases except for Mr. Buck’s.”
Harris County has executed more people than any other county in the U.S. Its 117 executions are more than any other state besides Texas. Blacks have accounted for 56 percent of its executions since 1984, though just 19 percent of the county’s population is African-American. Despite the Supreme Court’s refusal to hear the case, Buck’s attorneys think they have a good chance of getting him a new sentence.
For one thing, they have the study. They also have one of Buck’s former victims—who was injured during his fatal attack on his ex-girlfriend and a male acquaintance—asking the state to overturn the execution. Joining her is one of Buck’s former prosecutors, former Harris County Assistant District Attorney Linda Geffin.
Buck’s team will await the state court’s decision, but Black says they will appeal to the Supreme Court if they are denied.