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TX: Duane Buck -Appeal dismissed in death row case
Thu Nov 21, 2013 16:12

Nov. 20, 2013


Appeal dismissed in death row case with racial backdrop

by Chuck Lindell

The state’s highest criminal court Wednesday dismissed an appeal by death row inmate Duane Buck, who claims his sentence is improper because it was based, in part, on a psychologist’s finding that he presents a greater danger to society because he is black.

In a 6-3 ruling, the Court of Criminal Appeals said that Buck had already filed his one guaranteed appeal, known as a petition for writ of habeas corpus, in 1999 and wasn’t legally entitled to another.

But the court’s newest member, Judge Elsa Alcala, submitted a blistering dissent that said Buck had been ill-served by previous lawyers and the court system.

“The record in this 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,” Alcala wrote in a dissenting statement joined by Judges Tom Price and Cheryl Johnson.

The upshot, Alcala said, is that no state or federal court has examined, let alone ruled on, Buck’s claim that his constitutional rights had been violated by the inclusion of inappropriate racial testimony and by the incompetence of previous lawyers.

“This cannot be what the Legislature intended when it (voted in 1995 to provide) capital habeas litigants ‘one full and fair opportunity to present all claims in a single, comprehensive post-conviction writ of habeas corpus,’” Alcala wrote.

Though there is no question about Buck’s guilt — he gunned down a former girlfriend and her male friend, shot his stepsister and targeted a fourth adult in Houston — his case has become a rallying point for judicial reformers and civil rights advocates, largely because of its racial overtones at trial.

The controversy centers on punishment-phase testimony by psychologist Walter Quijano, a defense expert who told jurors that Buck was less likely to pose a future danger — and therefore not eligible for the death penalty — because the crime wasn’t a random act of violence.

But Quijano also testified, unprompted, that “Hispanics and black people are overrepresented in the criminal justice system.” On cross-examination, a prosecutor followed up by asking Quijano if race, particularly being black, increases a defendant’s future dangerousness “for various complicated reasons.” Quijano replied, “Yes.”

Buck was sentenced to death in 1997.

Three years later, however, then-state Attorney General John Cornyn, now a U.S. senator, acknowledged that seven death penalty convictions — including Buck’s — had been improperly influenced by Quijano’s testimony linking race to dangerousness.

The attorney general’s office did not oppose new punishment trials for the other six inmates to cure the constitutional defect.

State lawyers later decided, however, to oppose a new trial for Buck, arguing that his case was “strikingly different” because Quijano was a defense expert whose questionable testimony was elicited by a defense lawyer. Instead, lawyers for Texas argued that Buck should have objected to the racial testimony in his 1999 habeas petition. Because he didn’t, Buck lost his chance to appeal the matter, they argued.

On Wednesday, the Court of Criminal Appeals agreed, dismissing Buck’s latest habeas petition as improper.

In her dissent, Alcala said she would have accepted the new petition because Buck’s 1999 appeal was so poorly done that it amounted to no defense at all, depriving a death row inmate of a full review of constitutional claims before his execution.

That observation led Alcala into pointed criticism of a Court of Criminal Appeals ruling in 2002, nine years before she joined the court, that said Texas inmates have no constitutional right to an effective lawyer on habeas petitions.

Critics have said that ruling has been used to justify clearly incompetent legal work in death penalty cases, much of which was detailed in an Austin American-Statesman investigation in 2006.

Alcala said it is time to revisit the ruling to allow a second appeal for inmates who can prove that an incompetent lawyer led “a substantial claim for relief” to be forfeited. To continue denying such a full review “jeopardizes both the integrity of the underlying conviction and of this court’s judicial processes,” she concluded.

  • TX: Duane Buck: what happens next?Petra, Sun Aug 11 12:37
    Duane Buck: what happens next? Duane Buck was granted a 30-day reprieve in Texas on Thursday night, but a series of legal obstacles remains before his execution is commuted to a life sentence Dominic ... more
    • Race and the Death Penalty in Texas By THE EDITORIAL BOARD - The New York Times APRIL 2, 2016 This month, the Supreme Court will consider whether to hear the appeal of Duane Buck, a black man from... more
      • Re: Duane Buck -Race and the Death Penalty in TexasDudley Sharp, Mon Apr 4 13:27
        Sent to the NYT Editorial Board and 15 NYT reporters. columnists In a message dated 4/3/2016 11:28:10 A.M. Central Daylight Time, writes: To: LETTERS How Irresponsible Can The NYT... more
        • DUANE BUCK TOOK A PLEA DEAL OF LIFE/WITH PAROLE TODAY (4.10.2017) Texas death row inmate Duane Buck has sentence reduced to life after Supreme Court orders retrial Duane Buck, whose death sentence in ... more
          • PetraPetra., Fri Oct 6 13:36
    • TX: Duane Buck -Appeal dismissed in death row case — Petra., Thu Nov 21 16:12
    • WEDNESDAY, NOV 20, 2013 08:51 PM CET Texas court denies appeal to death sentence determined by race Testimony from a psychologist in 1997 said Duane Buck posed a risk to society because he was black... more
      • Race no factorDudley Sharp, Fri Nov 22 05:54
        To show how much race was not a part of any of these cases, all six of those cases were given new punishment phase trials, all six returned with unanimous death penalties, requiring a 72-0 vote (12... more
      • Salon story completely falsedudley sharp, Fri Nov 22 05:36
        The story is ccompletely false. Buck was sentenced to death for two attempted capital murders and two capital murders, which were all premeditated, murdering his ex wife in front of their two... more
        • In a lengthy dissent, Judge Elsa Alcala, joined by Judges Tom Price and Cheryl Johnson, noted that Buck's case was not only infected by racial animus but also by deficient lawyering that failed to... more
          • Racial bias was addressed. Did you not read the opinion? Alcala writes: "As to (Buck's) second claim (based upon racism) , I conclude that (Buck) has failed to make out a prima facie case for... more
            • Do you know about the 3 reasons you've had to die for in Texas in a capital case ? At least one is, the court needs someone who tells the jury, the guy is a further dangerous for the society .... or? ... more
              • Why future danger should be bannedDudley Sharp, Thu Nov 28 14:05
                We know that all violent criminals have some probability of future danger. So what? Proving future danger is an added burden on the prosecutor and provides an additional avenue on appeal for the... more
                • Re: Why future danger should be bannedPetra., Thu Nov 28 14:18
                  Yes I know you want ban all a civil society sees as murder by the state - we call it lynching .... revenge --- just an eye for an eye because you can't handle a lost. You teach killing is ok,... more
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