Friday is a day of reckoning for Duane Buck.
That’s the day the Supreme Court will determine whether to hear his appeal for a new sentencing hearing. Buck is on Death Row in Texas.
It is important to emphasize that he is not seeking a new trial. There’s no question of Buck’s guilt in the 1995 shooting deaths of his ex-girlfriend, Debra Gardner, her friend, Kenneth Butler, and Buck’s stepsister, Phyllis Taylor. No, all he’s asking is to be re-sentenced for the crime.
There is, you see, a law in Texas that says you can’t be sentenced to death unless a jury finds that you represent a future danger, i.e., that you are likely to hurt someone else if left alive. In Buck’s case, psychologist Walter Quijano, a supposed expert testifying for the defense, no less, told jurors Buck represented just such a danger.
Because he is black.
If any of this rings a bell, it’s because I wrote about the case three years ago. If you read that column, you may recall that one of the researchers on whose writings Quijano based his testimony says his work supports no such conclusion. Indeed, Quijano’s claim was so outrageous that even Buck’s surviving victim and one of his prosecutors think he should get a new hearing. In 2000, Sen. John Cornyn, who was then Texas’ attorney general, conceded the state was wrong in allowing race to be used as factor in sentencing.
Quijano had given similar testimony in six cases. The other five defendants, all black or Hispanic, got new hearings. Buck was denied, based on a flimsy legalism. Namely that the offending testimony came not on “cross,” but on direct examination. In other words, it was first elicited by the defense.
People keep telling me I’m wrong to believe the justice system is riddled with racial bias. They tell me the system has nothing against people of color, and that it is only evidence of their own native criminality that such people are stopped, frisked, arrested, tried and incarcerated in wildly disproportionate numbers. People keep promising me the system is just.
And I keep being sickened by stories like this. I keep finding studies like the 2012 report by University of Maryland criminology professor Raymond Paternoster, which said that at the time of Buck’s sentencing, the local DA was three times more likely to seek death for a black defendant than for a white one.
It’s worth noting, by the way, that these predictions of future dangerousness are not exactly unerring. The Texas Defender Service, a nonprofit law firm specializing in capital cases, studied the records of 155 Death Row inmates and found that only 5 percent went on to commit assaults serious enough to warrant more than a Band-Aid. In a place where you can get written up for saving a seat in the cafeteria or having too many postage stamps, Buck has a clean disciplinary record dating back to 1998.
So Quijano’s testimony was not only racist, but also — pardon the redundancy — wrong.
Look, I don’t like the death penalty. If you know me, you already know that. But even if I did, I would want to be sure this severest of sanctions was imposed fairly. Plainly, it is not.
And the fact that it is not cannot help but undermine the credibility of the entire system. If we countenance bias at this extremity, what confidence can anyone have in the system’s fairness at any level, down to and including parking tickets?
The racism here is not subtle. To the contrary, it is neon. To deny Buck a new sentencing hearing untainted by bizarre suppositions about the future danger he poses because of his skin color would shred even the pretense of equality before the law. So let us hope the Court does what it should.
Because, yes, Friday is a day of reckoning for Duane Buck. But it’s a day of reckoning for justice, too.