Ed Pilkington, The Guardian, October 4, 2016
Duane Buck attended in 1997 the sentencing hearing in Texas that would seal his fate. The jury was being asked to decide whether to have him executed for killing his former girlfriend, Debra Gardner, and her friend Kenneth Butler.
There was no disputing the conviction – Buck had carried out the brutal murders on 30 July 1995. Even so, he was still astonished by what he heard coming from the mouth of a so-called “expert” witness.
Walter Quijano, a then psychologist who was frequently called to testify in Texas capital trials, was asked to give his professional opinion with regards to a key issue concerning whether Buck should live or die. Under Texas law, in order to put him on death row the prosecution had to convince the jury that the prisoner posed such a danger of future violence that life imprisonment would be too risky – executing him was the only safe option.
The prosecutor put a blunt question to Quijano: “You have determined that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?”
“Yes,” the expert witness replied.
“It’s like he’s basically saying because you are black you need to die,” Buck told his lawyers a few years later, by now on the eve of his appointment with the death chamber. “I felt that was strange because my lawyer didn’t say nothing, and nobody else, you know, the prosecutor or the judge, nobody did. It was like it was an everyday thing in the courts.”
That question – whether it is acceptable in the United States in 2016 to put a prisoner to death because he is black – will be addressed by the US supreme court in oral arguments on Wednesday. Lawyers acting for Buck from the NAACP Legal Defense and Educational Fund and the Texas Defender Service will call on the nation’s highest court to reverse what they will argue was a flagrant case of racial discrimination, demanding a new and this time fair and colour-blind sentencing hearing.
Unless such an outcome is attained, the lawyers say in their appeal to the supreme court, the legitimacy of the criminal justice system will have been seriously undermined. “Such a racially tainted death sentence calls the rule of law itself into question.”
Amicus briefs submitted to the US supreme court in the case of Buck v Davislocate Quijano’s evidence that African Americans are statistically more likely to be a future risk of violence than white people within the long tradition of toxic racial unfairness that has permeated the judicial system since the days of slavery. In their submission, the Lawyers’ Committee for Civil Rights Under Law suggested the psychologist’s supposedly scientific testimony was “more reminiscent of the 1890s than modern America”.
“Given the long history of the stereotype of blacks as criminal,” the amicus brief continues, “it is not surprising that one of the strongest implicit racial biases is that between blackness and criminality, violence, aggression, and danger.”
That is not a purely academic viewpoint. Research by the University of Maryland criminologist Raymond Paternoster found that at the time of Buck’s sentencing, prosecutors in Harris County, the jurisdiction that tried him, asked for the death penalty for black defendants at three times the rate of whites.
One of the many remarkable features of the Buck case that the supreme court justices will be asked to consider is that Quijano was called upon to present his highly contentious evidence to the jury not by the prosecution but by his own defense lawyers. One of them, Jerry Guerinot, had a dubious reputation for losing death penalty cases on behalf of his defendant clients, having seen no fewer than 20 death sentences notched up against him.
Guerinot and his co-defense attorney Danny Easterling decided to call on Quijano to give evidence at Buck’s sentencing trial even though the psychologist had plainly stated in a pre-trial report seen by them that being black was a “statistical factor” that “increased the probability” the prisoner would commit further acts of criminal violence. “Race. Black. Increased probability” of future dangerousness, was how the “expert” pithily put it.
The defense counsel went on to request – against the objection of prosecutors – that the same report by Quijano be put into the record and thus made available to the jury as they deliberated their sentence. In the course of two days of deliberations, the jury asked to see files that included the psychologist’s report, before duly sentencing Buck to death.
Buck’s lawyers will argue in front of the US supreme court that the decision of the defense attorneys to present Quijano to the jury amounted to an astonishingly glaring example of ineffective counsel. “Mr Buck’s lawyers not only injected racial bias into his capital trial, they appealed to the uniquely pernicious stereotype that ‘blacks are violence prone’,” the petition says.
As a further twist in the case, a few years after Buck was assigned the death penalty, the then attorney general of Texas, John Cornyn (now a US senator for the state), publicly admitted that a breach of constitutional law had occurred in seven separate cases. In each of them, Quijano had been called upon to present his racially discriminatory view that being black was an indicator of potential violence.
Cornyn promised that the state would allow re-sentencing hearings in each of the seven cases. The state of Texas honored that promise in all the cases bar one: that of Buck.
“The people of Texas want and deserve a system that affords the same fairness to everyone,” Cornyn said at the time he revealed that racial prejudice had infected the judicial process. On Wednesday, the eight justices of the US supreme court will be invited to state that they wholeheartedly agree.