Texas court bars inmate’s claim that he was sentenced to death because he is black

Sunday, November 24, 2013

Good morning:

By a vote of 6-3, the Texas Court of Criminal Appeals has rejected Duane Bucks’s request to vacate his death sentence and remand his case to the trial court for a new sentencing hearing. Mr. Buck was sentenced to death by a Harris County jury for the 1995 murder of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. He has admitted that he shot them to death in a jealous rage and does not challenge the conviction.

Mr. Buck challenges the death sentence because of the testimony of the prosecution’s controversial expert witness, Walter Quijano, regarding future dangerousness, a factor that the jury was instructed to consider in determining whether to sentence him to death.

Matthew Fleisher has the story:

Asked during his testimony if “the race factor, black,” increased Buck’s risk of re-offending, Quijano answered, “Yes.” He went on to testify that being either African-American or Latino “increases the future dangerousness for various complicated reasons.”


What Quijano didn’t mention was that “the race factor, black,” also greatly increases one’s likelihood of being executed in Texas, where blacks are about three times more likely to get death penalty sentences for committing the same crimes as white people, according to University of Maryland professor Ray Paternoster.

Harris County, Texas, in which Houston is located, leads the state in executions with 100.

Because Mr. Buck asserted his claim in his second application for a writ of habeas corpus in violation of the rule that limits inmates to one application, the six-judge majority dismissed his appeal without considering the merits of his argument.

Judge Alcala, joined by judges Price and Johnson wrote a stinging 30-page dissent in which he said,

I respectfully dissent from the Court’s dismissal of applicant’s second subsequent application for a writ of habeas corpus. 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 at the punishment phase. Applicant’s initial habeas counsel was so incompetent as to assert not even one arguably legitimate claim in the initial 11.071 application, which was summarily denied by this Court for raising only record-based or frivolous claims. As a result of prior habeas counsel’s errors and the combined force of state and federal procedural-default laws, no Court has ever considered the merits of applicant’s legitimate claims for post-conviction relief. This cannot be what the Legislature intended when it enacted Article 11.071 to provide capital habeas litigants “one full and fair opportunity to present all [] claims in a single, comprehensive post-conviction writ of habeas corpus[.]” See Ex parte Graves, 70 S.W.3d 103, 117 (Tex. Crim. App. 2002).

Since expert witnesses who predict that an inmate will be a danger to others, if released, are wrong 95% of the time, I would ban consideration of future dangerousness in all sentencings.

Whores like Quijano should be in prison instead of masquerading as experts in predicting future dangerousness.

The author of the article, Matthew Fleischer, was awarded a Fund for Investigative Journalism grant for his series “Dangerous Jails.”

If you believe Duane Buck should get a new sentencing, please sign this petition that was started by Linda Geffin, a former prosecutor who tried his case.

27 Responses to Texas court bars inmate’s claim that he was sentenced to death because he is black

  1. dianetrotter says:

    I have thought about this and am really conflicted. While I don’t think he should be given the death sentence because “black people are prone to violence” or whatever the statement was, I keep thinking that he violently killed two people. I wonder what anger would have caused him to do this? Did the girlfriend stop seeing him because he was violent? Bottom line, does he deserve the death penalty for killing two people.

    I realize the expert’s statements were racist. Would this guy have been given the death sentence anyway?

    Maybe I am over-thinking this?

    • You aren’t over-thinking the issue, but don’t forget that he’s only asking for a new sentencing hearing.

      Even Alito and Scalia (2 of the most conservative judges on the SCOTUS) agreed that a resentencing was necessary in the 5 other cases where Dr. Quijano testified as a prosecution expert on future dangerousness. The only reason that they reached a different conclusion in Duane Buck’s case was because his lawyer called him as a defense expert.

      Therefore, the narrow legal issue is:

      Given the same constitutional violation causing prejudicial harm to a defendant by the same expert witness in 5 other cases that were remanded for new sentencing hearings, does it make any sense to make an exception in Buck’s case just because his own lawyer caused the harm by calling the witness?

      Don’t forget that the prosecution confessed error (i.e., admitted they were wrong) in those 5 cases.

  2. bettykath says:

    Interesting analysis here of fogen. What I found the most interesting is the diagram of RaTL where fogen’s walking path is down RVC to the back gate, around the last houses and meeting up with Trayvon near Trayvon’s home.


    • Xena says:


      What I found the most interesting is the diagram of RaTL where fogen’s walking path is down RVC to the back gate, around the last houses and meeting up with Trayvon near Trayvon’s home.

      Thanks so much for sharing this. Remember when Dave Knechel did the video of the walk at Retreat View Circle” It was then that I could “see” GZ’s REAL route. Since trying to get others to “see” it was difficult because I’m not an east, west, north, south descriptive person, I did the video below in June.

      Bernie mentioned that route during closing arguments, but he failed to point out how Zimmerman’s statements and Rachel’s testimony lead to this most logical conclusion.

      It explains why Trayvon said at one point that he saw the creepy guy again. Zimmerman was walking towards Trayvon as Trayvon turned the corner to enter the front of the house on RVC. It also explains why Zimmerman said “when I walked back towards him” and then interrupted himself saying, “I saw him coming towards me.”

      That route also explains why Trayvon subsequently told Rachel that the guy was behind him. Simple enough. Trayvon had turned around and walked back to the back of the house, with Zimmerman following him around the corner.

      Had the prosecution pointed out that Trayvon had no keys on him, they could have established that Trayvon’s entry point would have been on RVC. Thus, when Trayvon ran from the creepy guy, his plan was to run down the T where no vehicle could come, and “run from the back” [of the house] to the front after being sure no vehicles were coming down Twin Trees Lane.

  3. colin black says:

    Im not following you just walking the exact same route at a slow pace wich keeps you within my sight.

  4. Xena says:

    Dr. Walter Quijano is a bigotvoyant.

  5. Brandy says:

    This is OT but for those interested SNL did an awesome skit on Zimmerman last nite at beginning of Show. It was during the Pierce Morgan skit. They slammed him good. also Shellie Zimmerman gave another interview last Thurs or Friday on Katie Couric talk show. I would post for you all but have probs with copy and paste.

    Hope everyone is having a great Sunday!

  6. I signed a petition from prosecutor Linda Geffin. She states:

    “Duane Buck, sentenced to death because he’s Black, may be one step closer to execution today. On November 20, 2013, a Texas court denied Mr. Buck’s appeal for a new sentencing hearing. The Harris County District Attorney’s Office could seek an execution date at any time.

    In 1997, a jury in Harris County, Texas, sentenced Duane Buck to death. I know because I was one of the prosecutors.

    I am speaking out against his execution because the Texas criminal justice system cannot allow considerations of race to be placed in front of the jury, as it was in this case.

    I started my petition in the hopes that the District Attorney’s Office will keep the promise made by the former Texas Attorney General to make sure Duane Buck receives a new, color-blind sentencing. The color of a person’s skin should never influence how we punish them in this country. I hope you will join me and tens of thousands of others in asking the Harris County District Attorney to allow a new, fair sentencing hearing for Duane Buck.

    The jury was told that Mr. Buck was more likely to pose a future danger to society because he is African American. This inappropriate and offensive reliance on race was so improper that in 2000, the Texas Attorney General said that all seven defendants who had racially inappropriate evidence presented against them were entitled to new, fair, and color-blind sentencing hearings. Mr. Buck is the only one of the seven defendants who has not received a resentencing.”


  7. Drew says:

    Scary and pathetic.

  8. Two sides to a story says:

    Texas and Florida seem to march to the same drummer.

  9. Dudley Sharp says:

    No racial bias in Duane Buck’s case

    BOLD my emphasis. “Quotes” from denial of certiorari, US Supreme Court:

    “The witness, Dr. Walter Quijano, testified that (Buck), if given a noncapital sentence, WOULD NOT PRESENT A DANGER TO SOCIETY.” (1).


    Never was it presented to the jury that because Buck was black and/or male, that he was more likely to re offend because of that. All of the evidence, for Buck, was to the contrary.

    “In this case, first on direct examination by the defense, Dr. Quijano merely identified race as one statistical factor and pointed out that African-Americans were over represented in the criminal justice system; (Quijano) DID NOT STATE A CAUSAL RELATIONSHIP (BY RACE OR GENDER), NOR DID HE LINK THIS STATISTIC TO BUCK AS AN INDIVIDUAL.”(1).


    “Although the dissent suggests that the District Court may have been misled by the State’s inaccurate statements, the District Court, in denying petitioner’s motion under Rule 60 of the Federal Rules of Civil Procedure, was fully aware of what had occurred in all of these cases. It is for these reasons that I conclude that certiorari should be denied.” (1).

    There were six other death penalty cases, wherein Dr. Quijano testified, that some minorities and males were more likely to be a future danger.

    In those 6 re sentencing trials, all received the death penalty, again, a solid rebuttal to any claim that race/gender testimony, in any of the cases, was a factor in the prior jury decisions to give death.

    Just as with Buck, it was the nature of the crimes and other non racial/gender factors which convinced 156 jurors in those 13 trials to, unanimously, award the death penalty.

    “Moreover, the prosecutor did not revisit the race-related testimony in closing or ask the jury to find future dangerousness based on Buck’s race.” (1).


    Quijano responded affirmatively and truthfully, to the prosecutor’s question, regarding that both blacks and males were more likely to be violent and re offend.

    “And, on redirect, defense counsel mentioned race ONLY TO MITIGATE the effect on the jury of Dr. Quijano’s prior identification of race as an immutable factor increasing a defendant’s likelihood of future dangerousness.” (1).

    When the prosecution presented Buck’s probability of future dangerousness, IT WAS NEVER IN THE CONTEXT OF BUCK’S RACE OR GENDER.

    1) From the denial of certiorari, US Supreme Court


    majority http://www.supremecourt.gov/opinions/11pdf/11-6391alito.pdf
    dissent http://www.supremecourt.gov/opinions/11pdf/11-6391Sotomayor.pdf

    • I disagree with everything you said.

      There is no question that the error occurred and it was prejudicial.

      You misread Justice Alito’s statement in support of the denial of the petition for certiorari in Buck v. Thaler, 132 S.Ct. 32 (2011). He said,

      Buck was tried for capital murder, and a jury convicted. He was sentenced to death based on the jury’s finding that the State had proved Buck’s future dangerousness to society.


      Dr. Quijano’s testimony would provide a basis for reversal of petitioner’s sentence if the prosecution were responsible for presenting that testimony to the jury. But Dr. Quijano was a defense witness, and it was petitioner’s attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness.


      Thus, this is the only case in which it can be said that the responsibility for eliciting the offensive testimony lay squarely with the defense.

      That is why he voted to deny cert. Justices Scalia and Breyer joined him.

      Now, let’s take a look at the dissent written by Justice Sotomayor, joined by Justice Kagan.

      She said, in pertinent part

      This was not the first time that Quijano had testified in a Texas capital case, or in which the prosecution asked him questions regarding the relationship between race and future dangerousness. State prosecutors had elicited comparable testimony from Quijano in several other cases. In four of them, the prosecution called Quijano as a witness. See Gonzales v. Cockrell, Civ. Action No. 99-72 (WD Tex., Dec. 19, 2002); Broxton v. Johnson, Civ. Action No. 00-1034 (SD Tex., Mar. 28, 2001); Garcia v. Johnson, Civ. Action No. 99-134 (ED Tex., Sept. 7, 2000); Saldano v. Texas, 530 U.S. 1212, 120 S.Ct. 2214, 147 L.Ed.2d 246 (2000). In two, the defense called Quijano, but the prosecution was the first to elicit race-related testimony from him. See Alba v. Johnson, 232 F.3d 208 (C.A.5 2000) (Table); Blue v. Johnson, Civ. Action No. 99-0350 (SD Tex., Sept. 29, 2000). In each case, as in Buck’s, however, the salient fact was that the prosecution invited the jury to consider race as a factor in sentencing. And in each case, the defendant was sentenced to death.

      When one of those defendants, Victor Hugo Saldano, petitioned for this Court’s review, the State of Texas confessed error. It acknowledged that “the use of race in Saldano’s sentencing seriously undermined the fairness, integrity, or public reputation of the judicial process.” Response to Pet. for Cert. in Saldano v. Texas, O.T.1999, No. 99-8119, p. 7. The State continued, “[T]he infusion of race as a factor for the jury to weigh in making its determination violated [Saldano’s] constitutional right to be sentenced without regard to the color of his skin.” Id., at 8. We granted Saldano’s petition, vacated the judgment, and remanded. Saldano v. Texas, 530 U.S. 1212, 120 S.Ct. 2214, 147 L.Ed.2d 246.

      As you can see, the then-attorney general of Texas identified 6 other similar cases, including Buck’s, that presented the same issue and confessed error in all of them except Buck’s, which is the only case in which the State of Texas asserted a procedural bar; namely, that a habeas petitioner is limited to one petition and cannot file a successive petition. But for defense counsel calling Quijano as its own witness and eliciting the improper race-based-opinion testimony, the AG would have confessed error in Buck’s case.

      However, as Justice Sotomayor noted, the jury nevertheless heard and considered the prejudicial evidence and that cannot be brushed aside and ignored.

      She concluded,

      The then-attorney general of Texas recognized that “it is inappropriate to allow race to be considered as a factor in our criminal justice system.” Record, Doc. 27-5, at 30 (internal quotation marks omitted). Whether the District Court would accord any weight to the State’s purported distinctions between Buck’s case and the others is a question which that court should decide in the first instance, based on an unobscured record. Especially in light of the capital nature of this case and the express recognition by a Texas attorney general that the relevant testimony was inappropriately race-charged, Buck has presented issues that “deserve encouragement to proceed further.” Miller-El, 537 U.S., at 327, 123 S.Ct. 1029.

      Buck’s lawyers returned to state court, presented their claim and lost. They appealed to the Texas State Court of Criminal Appeals, which issued its opinion a few days ago.

  10. This is consistent with prosecutors in any given Texas death case it seems, where they have demonstrated competence in making shit up, to support their outrageous bigotry.

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