Texas death penalty case shows that details of fairness are crucial
Posted Sunday, Sep. 18, 2011

Texas Death Row inmate Duane Edward Buck had eaten his last meal Thursday evening and was praying when news came at around 7:40 p.m. that the U.S. Supreme Court had issued a stay to stop his execution.

Lawyers for Buck had been working for weeks to prevent his death because the punishment phase of his trial was tainted by racially biased testimony. Their petition, however, was received unsympathetically by high state officials, including the governor, and the 5th U.S. Circuit Court of Appeals.

Buck, who was found guilty of killing two people in Houston in 1995, should get a new sentencing hearing to fairly determine his punishment for those murders. Even a former Texas attorney general has said as much.

During Buck's 1997 trial, his lawyers called psychologist Walter Quijano to testify that he did not believe, based on several factors, that Buck would be dangerous in the future. On cross-examination, however, the prosecution asked if the fact that Buck is African-American increased the likelihood he would be more dangerous in the future. The psychologist said it did.

In final arguments, the state implored jurors to find that Buck posed a future threat and should receive a death sentence rather than life in prison.

In Texas, future dangerousness is a key factor in whether a convicted killer receives the death penalty.

Quijano, as it turned out, was a star "expert" witness in several capital cases, using his race-based theory as the determination of a defendant's potential future danger.

One of those cases, in which Victor Hugo Saldano was sentenced to death, was appealed to the Supreme Court. At the time, in 2000, then-state Attorney General John Cornyn (now a U.S. senator) sided with the accused's argument that the race-based testimony was improper.

Cornyn said: "As I explained in a filing before the United States Supreme Court ... it is inappropriate to allow race to be considered as a factor in our criminal justice system. ... The people of Texas want and deserve a system that affords the same fairness to everyone. I will continue to do everything I can to assure Texans of our commitment to an equitable criminal justice system."

Cornyn remained mum throughout the attempts to halt Buck's execution. But 11 years ago, he said his office had audited eight other cases in which Quijano had testified.

Six of the eight, including Buck's, were similar to Saldano's, Cornyn said.

Five of those defendants got new hearings, all resulting in death sentences. Buck did not get a new punishment trial because, his lawyer Kate Black told the Texas Tribune, his case was in state court when Cornyn's findings were announced. That meant that the district attorney, rather than the attorney general, had jurisdiction.

It is worth noting that recently a former Harris County assistant district attorney who was a prosecutor in Buck's case, as well as a surviving victim of the crime, joined in calling for clemency for him.

The Star- Telegram Editorial Board has repeatedly said that, because capital punishment is irreversible, the process that leads to it must always be as fair, thorough and constitutionally errorless as possible.

No system is perfect, and it would be unrealistic to assume that it would be, even in cases calling for the death penalty. That makes it all the more important that when it is obvious a mistake has been made that could determine life or death, we do all in our power to correct it.

A clear error occurred in Buck's case when improper testimony was included. A new sentencing hearing could correct it. And Texas and other states that continue to use the death penalty should continue working to make the process fair and error-free.

Read more: http://www.star-telegram.com/2011/09/18/3377299/texas-death-penalty-case-shows.html#ixzz1YNKcXg6Y