The case of Duane Edward Buck, convicted in Harris County, Texas for a double murder in 1995, raises questions about the American justice system, defendants’ access to effective defense counsel and race. That Buck committed the murders of ex-girlfriend Debra Gardner and her friend Kenneth Butler is seemingly in no doubt. Nor does it seem doubtful that he shot and almost killed his own sister, Phyllis Taylor, during the commission of the murders. But his case doesn’t highlight issues of guilt or innocence, but issues of effective legal representation, inflexible laws regarding the timely filing of appeals, the testimony of supposedly expert witnesses, the fairness (or lack thereof) of sentencing hearings and race.

duaneedwardbuck

Particularly race.

In July, 1997 he went to trial. Buck’s trial lawyer committed an especially epic blunder, one that the prosecution were quick to capitalize on. He included as an expert witness one Dr. Walter Quijano, a psychologist with an unfortunate habit of suggesting that African-Americans are statistically more likely to re-offend after already committing violent crime. That Buck had committed the crime was effectively proven in court, that Quijano testified that he presented a continuing threat to society in a Texas court (Texas being a State where being a considered a lasting threat to society is one extra reason to vote for a death sentence rather than life without parole) may well have unlocked the Death House door for Duane Buck. Not forgetting, of course, that he is indeed guilty of two murders and of attempting a third.

Having secured Quijano’s testimony under cross-examination, prosecutors made full use of it during their summation to the jury whose job it was to decide whether to impose the death sentence the District Attorney wanted. The DA asked and the jury duly delivered. Having first been convicted Duane Buck now stood condemned and facing a lethal injection at the notorious Texas Death House. Texas being the epicentre of executions in the Western world, his chances of survival were decidedly poor.

Discredited psychologist Walter Quijano

Discredited psychologist Walter Quijano

The US Constitution in theory guarantees defendants the right to effective assistance of counsel. In theory, if you can’t afford a lawyer or find one prepared to take your case, then the State will appoint one for you. This is meant to give you a defense where previously you might have had none.

In practise you’ll get a Public Defender or other court-appointed lawyer, probably with a massive caseload already, with minimal funds to research and investigate your case and quite possibly with little or no experience of fighting a capital case, let alone actually winning one. For instance, Louisiana will only appoint lawyers to defend capital cases if they have a minimum of five years experience in practising law. Sound reassuring? Not when you consider that they mean any kind of law. If you can’t afford a top-flight, million-dollar defense team in Louisiana then you may very well be served up with one single lawyer who’s spent their entire legal career in, say, tax law, contract law, real estate or some other area utterly unrelated to saving you from the clutches of ‘Sam Jones’, the alias traditionally adopted by Louisiana’s executioner and the name of the Governor when Louisiana switched (no pun intended) from hanging to the electric chair (which also had a nickname, ‘Gruesome Gertie.’

While ‘Gertie’ might now while away her time as a museum piece after several decades of loyal service, ‘Sam Jones’ doesn’t. He just uses a needle instead of a switch.

So does the State of Texas, with great enthusiasm and frightening regularity.

Quijano has since been thoroughly and comprehensively discredited. His evidence in Buck’s and seven other cases was examined by former Texas Attorney General (and now Senator) John Cornyn. Cornyn’s investigation not only blasted his testimony in Buck’s trial, but in five of the other seven cases Cornyn examined. To quote Cornyn’s own press release from the year 2000:

“It is inappropriate to allow race to be considered as a factor in our criminal justice system.”

Unfortunately, while the other five defendants were granted new sentencing hearings, Duane Buck wasn’t.

Others have gone far further. Supreme Court Justices Alito and Sotomayor also blasted Quijano. In Sotomayor’s opinion Buck’s case was:

“Marred with racial overtones.”

Alito was similarly unhappy, stating bluntly that, in his opinion, Quijano’s testimony was:

“Bizarre and objectionable.”

You might think that, in the interest of justice, that Buck’s appellate lawyers (who are markedly superior to his trial lawyers) would have no difficulty in filing a successful appeal. Right to effective assistance of counsel is guaranteed under the Sixth Amendment and racial profiling is no longer tolerated in the US courts. So, theoretically, Buck’s lawyers should have been granted a new sentencing hearing some years ago. Right?

WRONG.

Other Supreme Court rulings bar lawyers from using points of appeal unless they are filed in a timely fashion, which in practise means you could unearth evidence of innocence that, filed too late, would simply be ignored and the appeal dismissed. Which, for Buck and many other condemned appellants, mean that unless exculpatory evidence is found by expensive teams of private investigators and argued by the top-flight, million-dollar legal teams they don’t usually have, then it’s simply so much waste paper.

Making the Death House door open considerably wider.

Judge Elsa Alcala.

Judge Elsa Alcala.

The State courts have been no help to Buck, either. Instead of being able to hear this new evidence and, in all likelihood, grant a new sentencing hearing, they’ve been forced to quote precedent leading Texas Court of Criminal Appeal Judge Elsa Alcala to state that Buck’s case reveals:

“A chronicle of inadequate representation at every stage of the proceedings”

Regarding the testimony of the now-widely discredited Walter Quijano, Alcala describe it as:

“Racist nd inflammatory testimony from an expert witness.”

Even Linda Geffin who, as Harris County’s Assistant District Attorney helped prosecute Buck’s case, has joined the lobby in favour of a new sentencing hearing, stating that:

“No individual should be executed without being afforded a fair trial, untainted by considerations of race.”

Implying, seemingly, that the trial of Duane Buck was unfair and that it did contain considerations of race. Sometimes, it’s in what a lawyer doesn’t say.

The NAACP have also thrown their immense weight behind his case, while the American Bar Association have supported him, stating unambiguously that:

“The ABA urges that Buck receive a new and fair sentencing hearing free of racial prejudice.”

Buck’s third victim Phyllis Taylor has also, generously and perhaps surprisingly under the circumstances, thrown her weight behind him. She has argued not only in favour of a new sentencing hearing, but also in favour of his not being executed, period. Which, under the circumstances, is not only extraordinarily magnanimous, but also strongly in his favour. As is another of his weighty supporters, former Texas State Governor Mark White who has also spoken out against race being a reasonable criteria in sentencing, especially in capital cases.

So what are Buck’s avenues? And what are his chances?

The US Supreme Court is currently deliberating on his petition for a hearing and will rule on it at their own convenience. They can deny it without comment, in which case the Texas Department of Criminal Justice can set a new date of execution. They might deny it, but grant leave to appeal back to lower courts which haven’t been any help to him previously. They could be a stalemate as, with the recent death of Justice Antonin Scalia, there are currently eight Justices instead of the usual nine. Although the new appointee (whoever that eventually is) would have a casting vote in the event of their being appointed and Buck’s case reaching the Supreme Court again. Regardless of the number of sitting Justices, any vote in Buck’s favour would see his execution automatically stayed pending the hearing.

The Texas State Governor can’t act without the recommendation of the Texas Board of Pardons and Paroles. Back in the 1920’s a previous Governor was caught selling pardons to condemned inmates and lifers (truly the best justice money can buy) and, in response, the Texas legislature removed the Governor’s right to commute or pardon inmates without the Board’s recommendation. No recommendation, no pardon or commutation. And the execution chamber door opens wide.

Buck’s absolute last resort if all else fails is an appeal for a Presidential pardon or commutation. The chances of his getting one are very, very slim. Presidents routinely commute sentences in non-capital cases, but usually fight shy of interfering with State justice in death penalty cases to avoid being seen as overbearing and offending both States and their voters. The last Death Row inmate to receive a Presidential commutation was one David Ronald Chandler, who was the very first inmate to be held at the then-brand new Federal Death Row at Terre Haute in Indiana.

President Clinton was the last President to personally commute a death sentence.

President Clinton was the last President to personally commute a death sentence.

President Clinton commuted his sentence only hours before leaving office because he wanted to avoid the wrath of voters and because Chandler’s conviction rested entirely on the testimony of the actual murderer, one Charles Ray Jarrell, who recanted his testimony after Chandler’s conviction having made it only to get a plea bargain. It was lucky for Chandler that Clinton’s interest in his case coincided with his being able to make the decision without first considering his approval rating. Although, and this may sound harsh, it’s a shame for Arkansas killer Ricky Ray Rector that Clinton (then Governor of Arkansas) was running for the Presidency at the time of his own execution. An execution that, despite Rector being so mentally damaged that he left part of his last meal thinking he’d be coming back for it later, Clinton did nothing to stop.

Prior to Clinton’s intervention in the Chandler case a President hadn’t commuted a death sentence since President Eisenhower conditionally commuted the death sentence of US Army Master Sergeant Maurice Schick in 1960. Schick, murderer of an eight-year old girl while deployed in Japan, only had his sentence (passed at a military court-martial) commuted on the condition that he serve hard labor for life without parole. The constitutionality of whole-life sentences was decided by the Supreme Court in 1974, after the historic ruling striking down States’ death penalty laws in 1972 (Furman vs Georgia) but before the restoration of capital punishment in the ruling on Gregg vs Georgia of 1974. The Gregg ruling, incidentally, struck down the death penalty for rape (a penalty very often imposed on racist grounds) while, ironically, Greg himself avoided execution as a result thereof.

Woodrow Wilson and Franklin Delano Roosevelt also commuted death sentences, Wilson’s being one Robert Stroud (the legendary ‘Birdman of Alcatraz’), but it’s highly unlikely that President Obama will feel bound to do the same, especially considering his current battle to get his nominee to replace Justice Scalia past Republican opposition at the moment. Ironically, this might just work in Duane Buck’s favour, along with other inmates appealing on similar grounds.

Buck’s case, in short, sums up all that is legal.

And little that seems just.