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Execution Assembly Line Gets Rolling

12 executions are currently scheduled through July

By Jordan Smith, Fri., March 29, 2013

Execution Assembly Line Gets Rolling

What originally looked like a sparse execution schedule for 2013 has spiked dramatically, with a total of 12 executions now scheduled through July; nine of those are slated to take place in April and May.

The schedule resumes April 3, with the planned execution of Kimberly McCarthy, previously stayed in order to allow time for the courts and Dallas District Attorney Craig Watkins to consider whether racial bias infected her case. Specifically at issue is whether Dallas County prosecutors unlawfully struck all but one minority potential juror from McCarthy's jury pool. At press time, McCarthy's appeal remained unresolved, yet her execution remains on the calendar; she would become the 494th inmate put to death since reinstatement, and only the fifth woman – and third black woman – executed in Texas since 1854.

The issue of racial bias is also central to the ongoing case of Duane Buck, sentenced to death in 1997 for the double murder of Debra Gardner, his former girlfriend, and Kenneth Butler in Houston; a third victim, Phyllis Taylor, survived the attack. Last week, 102 people – including Taylor, 10 members of the Legislature, one former governor, and a former Harris County prosecutor who helped to try his case – signed a letter imploring Harris County D.A. Mike Anderson to grant Buck a new punishment hearing, arguing that his original sentencing was marred by racial bias.

Buck's case is one of seven identified in 2000 by Texas' then-Attorney General John Cor­nyn as having been tainted at sentencing by racially-biased testimony from psychologist Walter Quijano; Buck is the only defendant not yet granted a new sentencing hearing. In his case, as in two others, Quijano was hired by the defense; he testified that Hispanics and blacks are overrepresented in the criminal justice system. On cross-examination, however, then-prosecutor, now state Sen. Joan Huffman, R-Houston, focused Quijano on the race issue: "[T]he race factor, black, increases the future dangerousness for various complicated reasons; is that correct?"

"Yes," Quijano replied.

Whether a person poses a future danger to others is among three questions jurors must consider before imposing a death sentence. In her closing, Huffman argued that jurors should consider Quijano's judgment as reliable. Buck was ultimately sentenced to death. Signatories to the letter in support of giving Buck a new sentencing hearing suggest that to allow him to die without remedying the tainted sentencing hearing would be to "condone" racial discrimination in the courtroom.

The latest push to get Buck a new hearing comes in anticipation that Anderson would soon seek a new date for Buck's execution. Anderson has said that he will not act – either to agree to a new hearing, or to push for an execution date – before the Court of Criminal Appeals weighs in on the most recent appeal of the case, filed earlier this month, that again seeks a new sentencing hearing. "We are waiting on a ruling and we will act accordingly," he said.

As in McCarthy's case, lawyers for Buck argue that his conviction and death sentence reflect a larger pattern of discrimination. McCarthy's lawyers point out that Dallas County had a long and documented history of rejecting minority jurors, and in Buck's case they cite new research that shows that in the 1990s at least, prosecutors in Harris County were three times more likely to seek death for black defendants than for white defendants. Ultimately, both cases reflect the ongoing specter of racial bias and discrimination that critics charge infect Texas' capital punishment system.

Pending legislation seeks to address that charge. Senate Bill 1270 by Sen. Royce West, D-Dallas, would let condemned inmates challenge their death sentences as being racially motivated. It would require a defendant to prove by a preponderance of evidence that, but for the racial bias, they would not have been sentenced to death. The bill is identical to North Carolina's Racial Justice Act, which, as of November 2012, had provided relief to four condemned inmates.

In a March 22 court filing, McCarthy seeks again to have her execution date withdrawn, citing the filing of SB 1270, "which would govern and vindicate precisely the circumstances and violations reflected in the claims" she's raised about her impermissibly rigged jury. The issues in McCarthy's case "are precisely the facts and issues that the recently introduced Tex­as Racial Justice Act is intended to redress," lawyer Maurie Levin wrote in last week's filing. "A stay of Ms. McCarthy's execution is necessary to permit a full presentation of these facts and the constitutional claims arising therefrom."

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