Defending a capital murder case is both difficult and stressful. Attorney/client communications, pretrial investigation and preparation, and presenting a plausible defense to the jury demand effective representation. The Constitution guarantees all criminal defendants the right to counsel and due process of law. The U.S. Supreme Court in Washington v. Strickland unequivocally held that inherent in the constitutional guarantee of counsel is a right to effective assistance by counsel.


Psych Report Stated Duane Buck More Likely to be Violent Because He is Black


A February 22, 2017 decision by the Supreme Court held that the State of Texas cannot execute Duane Buck, convicted of capital murder in 1997, because his trial attorneys provided ineffective representation that contributed to a jury finding that he should be sentenced to death.


The Buck case has a tortuous, protracted legal history that has indicted the fairness of the Texas death penalty scheme because of actions by current governor and then attorney general Greg Abbott.


That Buck killed his girlfriend and her companion in 1995 in Harris County has never been in serious dispute. The murders occurred in July of that year. The police arrested Buck at the scene. According to the arresting officers, Buck was laughing and remained “upbeat” and “happy” throughout the arrest process.


The case was a defense attorney’s worse nightmare. Buck had two attorneys. It can be assumed that they made a joint decision that there was no defense of innocence; that their defense efforts would be confined to trying to save Buck from a death penalty.


Factors for Death


At the time of Buck’s trial, Texas law, Code of Criminal Procedure Art. 37.071,§ 2(b)(1), required that the jury determine two issues before it could recommend a sentence: first, the issue of “future dangerousness” which required the jury to unanimously find that there was a “probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;” and, second,  the issue of whether mitigating circumstances warranted the imposition of a life sentence rather than the death penalty.


Psychologist Reports Blacks and Hispanics Pose Greater Risk of Violence


Buck’s attorneys launched a defense strategy through both lay and expert witnesses that Buck would not pose a future danger in the prison setting if he received a life sentence. One of their experts was a court-appointed psychologist named Dr. Walter Quijano who had a history of testifying for the prosecution in death penalty cases and frequently offered race-based opinions that blacks and Hispanics pose a greater risk of “future dangerousness” because of their race.


And that is precisely the testimony Dr. Quijano gave in Buck’s case while under cross-examination by the prosecutor leading the jury to conclude that Buck was more likely to commit future acts of violence in the prison setting because he is black and, therefore, not eligible for a life sentence.


Decision to Call Expert was Flawed


That tactical decision by Buck’s attorneys to call Dr. Quijano was flawed from the outset given the psychologist’s known history of linking race to future dangerousness.


In 2000, the U.S. Supreme Court accepted another Texas death penalty case for review that involved Dr. Quijano race-based testimony. U.S. Senator John Cornyn was Texas’s attorney general at the time. He “confessed error” to the Court resulting in the reversal of that prisoner’s death sentence. Cornyn then undertook an intensive review of the testimony Quijano had provided in some 100 death penalty cases. He identified six cases in which the psychologist unconstitutionally infused race into jury deliberations. In three of those cases, Quijano was called as a witness by defense attorneys and the other three cases involved testimony he gave as a prosecution witness.


Buck’s case was one of those six cases.


Attorney General Greg Abbot Seeks Death


Texas lived up to its promise in five of the cases by giving the condemned inmates new punishment hearings. In Buck’s case, however, newly-elected Attorney General Greg Abbott, now the state’s governor, reneged on the state’s promise. Ostensibly, the reason was that Buck’s attorneys had not properly preserved the Quijano issue for collateral review—what is known in the judiciary as having “procedurally defaulted” on the issue.,


This unfair decision by then Attorney General Abbott spawned another round of legal battles by Buck. His constitutional arguments gained traction in 2013 when the Supreme Court handed down a pair of decisions—Martinez and Trevino—that make it easier for a state prisoner in a federal habeas proceeding to overcome a procedurally defaulted constitutional claim.


The import of these two decisions, however, did not impress a local federal district court here in Harris County which, again, refused to hear Buck’s Quijano claim, saying that minimal harm was done by the psychologist’s testimony because he only mentioned race twice at Buck’s trial.


Besides, the court added, it is an “indisputable fact that African Americans and Latinos are overrepresented in the criminal justice system,” an obvious implication that they are somehow more dangerous than other criminal defendants. The court also concluded that there was other evidence independent of Quijano’s testimony that Buck is too “dangerous” to live, even in the prison setting.


District Court Denied Certificate of Appealability


The local federal court then effectively slammed the judicial door in Buck’s face by denying him what is called a “certificate of appealability”—a finding that the claims he raised were not constitutionally or legally significant enough to merit an appeal to the Fifth Circuit.


The Fifth Circuit agreed with the district court.


“Buck has not made even a minimal showing that his case is exceptional,” the appeals court concluded in August 2015. The court obliquely skirted Abbott’s reneging on the State’s promise of a new punishment hearing in a footnote observation: “Because it does not change the outcome of this appeal, we need not explore whether such a promise was made or how explicit it was.”


U.S. Supreme Court Agreed to Hear Case


And it was that summary dismissal of the Buck case by the Fifth Circuit that led the Supreme Court on October 5, 2016 to hear the case.


What makes the Buck case “extraordinary” is that one of the attorneys representing him, and who was responsible for calling Quijano as a witness, has a failed reputation in death penalty cases. Attorneys currently representing Buck told the Supreme Court that the attorney has a “history of providing inadequate representation to capitally charged clients”—a history documented in a May 2010 article in the New York Times. The newspaper, in fact, said that twenty of his clients had received the death penalty.


Thus, the real issue before the Supreme Court was whether Duane Buck should die because his attorneys allowed race-based testimony to go before the jury that he is “too dangerous to live” in the prison setting because he is a black man.


SCOTUS Orders New Sentencing Hearing


Fortunately, the Supreme Court did what Gov. Abbott did not do: the court ordered a new punishment hearing without the infection of race-based testimony.