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Death Watch: CCA Dismisses Buck Appeal

Ignores question of racial bias in defendant's trial

By Jordan Smith, 4:08PM, Wed. Nov. 20, 2013

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Death Watch: CCA Dismisses Buck Appeal
Death Watch: CCA Dismisses Buck Appeal
Illustration by Jason Stout

A divided Court of Criminal Appeals this morning declined an appeal from condemned inmate Duane Buck, who has asked to have a sentencing hearing free from racially biased testimony.

The majority of the state's highest criminal court, six judges, issued an unsigned opinion, dismissing the appeal outright without any elucidation beyond stating that it failed to meet the criteria set out in statute for the consideration of a subsequent writ.

Nonetheless, two judges – Tom Price and Cheryl Johnson – joined a dissent filed by Judge Elsa Alcala, who argues at length that the record in Buck's case "reveals a chronicle of inadequate representation [by counsel] 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," she wrote. Buck's initial habeas attorney was "so incompetent," she continued, that he did not assert any cognizable claim for the court to review. As a result, "no Court has ever considered the merits" of Buck's appeals for post-conviction relief – including that racially-biased testimony tainted his jury. "This cannot be what the Legislature intended" to happen under the state's habeas laws, she wrote.

Buck was sentenced to die in 1997 for the murder of Debra Gardner, his former girlfriend, and Kenneth Butler. A third victim, Phyllis Taylor, survived the attack. At Buck's sentencing hearing, a defense-hired psychologist, Walter Quijano, testified that several factors, including race, help to predict future dangerousness – along with whether there is evidence to mitigate a defendant's culpability, the question of a his future dangerousness (both inside and outside prison) is one jurors must consider in deciding whether an inmate should be sentenced to die.

Under cross examination, then-Harris County prosecutor Joan Huffman – now a state senator – asked Quijano more about the influence of race: "[T]he race factor, black, increases the future dangerousness for various complicated reasons; is that correct?"

"Yes," Quijano replied.

In closing arguments, Huffman urged jurors to consider Quijano's testimony. "What else do you know?" she asked jurors. "You heard from Dr. Quijano, who had a lot of experience in the Texas Department of Corrections, who told you that there was a probability that the man would commit future acts of violence.

Buck, who is black, was sentenced to die.

Three years later, Texas' then-Attorney General John Cornyn, now a U.S. senator, identified six cases where Quijano had provided race-based opinions, promising that those cases would be remedied. That happened in five of six cases, but not in Buck's.

Buck's defense argues that he should be given an opportunity for a new sentencing hearing free of the racially-biased testimony. So far, the courts (and the Harris County D.A.'s office) have declined to agree. Nonetheless, according to a report prepared by University of Maryland criminologist Raymond Paternoster, and included with the subsequent writ in Buck's case that was filed with the CCA in March, race appears to have had great influence, not only in Buck's case but in other cases where the Harris County prosecutors have sought death. In Paternoster's examination, in cases similar to Buck's, Houston prosecutors were more than three times more likely to seek death for black defendants than for white defendants; in sentencing those inmates, jurors condemned black inmates twice as often as they did whites, according to Paternoster's report.

This morning, however, the majority of the CCA declined to address the issue at all, dismissing the appeal without any discussion of the as-yet-unresolved issue.

In her dissent, Alcala did not conclude that Buck's case should be reviewed for racial bias, but instead argues, more broadly, that Buck's case should be scrutinized because of the lack of effective legal representation he has received – which would necessarily include the failure to raise the bias claim. Alcala notes that Buck's first habeas attorney failed to investigate his case at all and thus missed a raft of compelling mitigating information that, had it been presented to jurors, might have swayed them from sentencing him to death.

She charges that the court should revisit its 2002 opinion in the case of then-death row inmate Anthony Graves, wherein the court concluded that while a condemned inmate has a right to habeas counsel, the inmate is not constitutionally guaranteed that the lawyer will provide effective representation. That may be the case, but, Alcala reasons, state statute does require that inmates receive "minimally competent representation." The statute mandates that counsel "'shall investigate' factual and legal bases for relief," a low-bar standard that was not even reached in Buck's case. (Despite the clear indifference and patent inaction of the CCA, of which Alcala at the time was not a part –and with which both Price and Johnson disagreed– Graves was ultimately exonerated of any participation in the multiple murder that sent him to death row.)

In her opinion, Alcala points specifically to the mitigation evidence presented by defense counsel at Buck's trial, which suggested he was a "normal, mostly law-abiding person whose criminal acts in this case were totally unexpected and out of character," Alcala wrote, a picture unchallenged by his appellate counsel. In contrast, the evidence in Buck's subsequent appeal, offered by his present counsel, "describes [Buck] as a long-time drug addict who was high during the murders; an alcoholic who began drinking at the age of five and who was encouraged to drink by his father as a child; a victim of child abuse and a witness to frequent episodes of domestic violence; and a sufferer of Asperger's Syndrome," she wrote. "In particular, the evidence pertaining to applicant's exposure to physical abuse and domestic violence is the type of evidence that may be highly relevant to a jury's balancing of mitigation evidence."

Alcala concludes not only that Buck's claim of ineffective assistance of counsel should be reviewed, but also that the court should revisit its ruling in the Graves case, to make clear that habeas counsel must be at least minimally competent in performing their duties. "[W]hen an applicant's statutory entitlement to minimally competent assistance of habeas counsel has been denied, and where such denial has led to the forfeiture of a substantial claim for relief" – such as the claim that Buck's case was infected by racial bias – "this Court should declare the initial [writ] filing improper and adjudicate the claim on the merits."

Indeed, unless and until the CCA's erroneous decision in the Graves case can be addressed, it is unlikely that Buck will find relief, says Kate Black, who with the Texas Defender Service and the NAACP Legal Defense and Education Fund, is representing Buck. The lawyers will appeal the CCA Wednesday dismissal to the U.S. Supreme Court, she said. "Important claims like [Buck's racial bias claim] can't be heard under the court's current interpretation in Graves," she said. "And this is too important a claim to not be heard."

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