What's Next for Duane Buck on Death Row?

The Supreme Court has declined to review his racially tainted case. Now it may be up to Rick Perry.

While his presidential campaign is a disaster -- and great fodder for late-night jokesters -- Texas Gov. Rick Perry still receives hearty ovations when he brags about the number of executions he has presided over during his tenure: 235 and counting.

He is probably salivating at the chance to add Duane Buck to his body count, since the U.S. Supreme Court turned down Buck's appeal Monday, paving the way for the Dallas prosecutor to set a new execution date.

Many people, and apparently many Bible-thumping Perry fans, cannot get past the fact that Buck committed the crimes for which he was tried. Frankly, however, that is often the case in so many of these death-penalty situations.

What they forget is that ours is a system of laws built in large measure on the Constitution -- specifically Amendment 14, guaranteeing due process, and Amendment 8, protecting against cruel and unusual punishment. We Americans are not the "Vengeance is mine" types -- at least that is what our most sacred democratic documents tell us.

The most recent execution under Perry's watch took place in September, that of Lawrence Russell Brewer, a white supremacist who participated in the 1998 lynching of a black man, James Byrd. His execution drew no mass protest, unlike that of Troy Davis, who was executed in Georgia the same September night despite appeals from local activists, national civil rights leaders and even the pope. You see: In Davis' case, there were huge questions about his guilt in the 1989 murder of a police officer. 

In Buck's case, there is no dispute over what happened more than 16 years ago. "We never contested his guilt," Kate Black, from the Texas Defender Service, told The Root about the client she has had since April.

In the decision handed down Monday, Supreme Court Justice Samuel Alito summarized the crime thusly: "One morning in July 1995, petitioner Duane E. Buck went to his ex-girlfriend's house with a rifle and a shotgun. After killing one person and wounding another, Buck chased his ex-girlfriend outside. Her children followed and witnessed Buck shoot and kill their mother as she attempted to flee. An arresting officer testified that Buck was laughing when he was arrested and said 'the bitch deserved what she got.' "

Buck is not someone I would invite home to Sunday dinner; nor is he someone to whom I would send care packages. He is no hero by any means, despite the fact that his lawyer from the Texas Defender Service says that he is remorseful. This is the thing: His case was tainted by racial evidence pressed upon the jury by the prosecutor.

Prominent Texans -- lawyers (including one who prosecuted him), a former governor, members of the clergy, civil libertarians -- are asking the district attorney, Patricia Lykos, to delay setting an execution date and to schedule a new sentencing hearing for Buck. "The State of Texas cannot condone any form of racial discrimination in the courtroom," these leaders wrote to Lykos. "The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary."

The NAACP is among the national organizations involved in Buck's case. "We believe that racism is still rampant in how the death penalty is administered," said Steven Hawkins, an executive vice president of the NAACP and the organization's leading expert on capital punishment.

By the way, Buck is not looking to go home; he knows that he belongs behind bars for life. "He realizes he needs to do time for his crime," Black said. "He is incredibly sorry and remorseful."

In putting the kibosh on Buck's appeal, Alito, with whom Justices Antonin Scalia and Stephen Breyer agreed, pretty much took a too-bad, so-sad approach. Buck's defense lawyer for the sentencing phase of his 1997 trial called a psychologist as a witness to testify about whether Buck posed a future danger to society or even to his fellow inmates. In Texas that's something to consider when deciding between a life sentence and the death penalty.

The defense witness did OK by Buck until he was cross-examined by the prosecution. That's when he essentially provided the prosecution with the ultimately successful argument that black men were prone to violence and thus likely to pose future danger. That spelled the death penalty for Buck.

Alito said he would have decided differently if the psychologist had been the prosecutor's witness and introduced race on the topic of "future dangerousness." But, he said, the defense -- Buck's lawyers -- opened the door to that issue. And the prosecutors barged right through.

Disagreeing, Justices Sonia Sotomayor and Elena Kagan said that this case -- "a death sentence marred by racial overtones and a record compromised by misleading remarks and omissions made by the State of Texas" -- is so messed up that the Supreme Court should give it full consideration and allow Buck alternatives to execution.

"We are weighing our options in terms of litigation and hoping the district attorney will work with us," said the Texas Defender Service's Black. The case did not rev up until the summer, when college students interning for the organization came in with idealism and energy, much as I did as an intern working on capital cases more than 30 years ago in Georgia. They crafted the new arguments to the Supreme Court. That kind of enthusiasm and dedication, which has already led to the release of wrongly convicted men on Texas' death row, will turn up more instances of injustice.

Their idealism will cause them heartbreak, but hopefully their efforts will encourage the indifferent majority to make a greater commitment to justice over vengeance. Or politics. You see: After the negotiations over whether or when a new execution date is set and whether or when a new sentencing hearing is scheduled, this case may ultimately come before Perry.

E.R. Shipp, a Pulitzer Prize-winning journalist, is a frequent contributor to The Root.

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