Racial Bias Got Duane Buck the Death Sentence; the Supreme Court Can Fix It

Duane Buck in 2011 
Courtesy of Attorneys for Duane Buck
Duane Buck in 2011
Courtesy of Attorneys for Duane Buck

The perceived criminality and dangerousness of black men in the United States has a long and storied history.

Black men are killed, become hashtags, and their names become etched into an American lexicon of atrocities against blackness.

Terence Crutcher.

Philando Castile.

John Crawford III.

Duane Buck could be next.

"Nobody in this room is unaware of the American stereotype of African-American men as being inclined to be dangerous. It is a stereotype that is deeply embedded in our nation’s history. It’s something that we fight against every day. The place where that stereotype does its most damage is in the criminal-justice system," Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, told a group of reporters at a press briefing in Washington, D.C., last week.


Ifill was referring to Buck, who has been, quite literally, sentenced to death because of his race. His case, in a sense, starkly relates to the context of the national conversation surrounding the systemic killing of black men.

The Supreme Court of the United States is scheduled to hear oral arguments in Buck’s case (Buck v. Davis) on Wednesday. Justices will have the opportunity to decide whether or not Buck’s sentencing—tainted by blatant racial bias—meets the criteria to warrant a reopening of judgment and thus set him up for new and fair sentencing.

The series of gross injustices against Buck started in 1997 during the sentencing phase of his trial. He was convicted of murdering his ex-girlfriend and another man. That is not up for question. He is guilty.

However, during the sentencing phase of his trial, his own defense team inexplicably called on “expert” witness Dr. Walter Qujiano, who testified that Buck was more likely to commit future acts of violence because he is black.


This point is important because in the state of Texas, the death sentence is only an option if the jury finds unanimously and beyond a reasonable doubt that the individual would continue to commit acts of violence.

When Buck’s defense team introduced the bogus, racist testimony, it freed up room for the prosecution to repeat the testimony during cross-examination, which prosecutors did, urging the jury to consider the “evidence.” After two days of grueling deliberation, the jury decided to sentence Buck to death.


The horror did not stop there. Buck tried to challenge his sentencing in a state habeas corpus proceeding, which is kind of like an appellate proceeding, and for which he got new, court-appointed counsel. That counsel, however, was not any more effective than his first round of lawyers, Buck's current attorneys say, making no mention of Quijano’s problematic testimony or the ineffective assistance of trial counsel with which Buck grappled.


It wasn’t until 2002 that the issue was even brought up, but by then, under Texas law, it was too late, with the Texas Court of Criminal Appeal stating that it did not have to consider the problematic testimony that resulted in Buck’s death sentence because the matter was not raised in the proper way.

Around that time, however, Buck did see a ray of hope. In 2000, then-Texas Attorney General John Cornyn, who is now a U.S. senator, acknowledged the pattern of racist testimony by Quijano and announced an audit of six cases, including Buck’s, which were tainted because of similar testimony and thus required new sentencing.


Texas promised to correct the errors and did so in all of the cases … except for Buck’s. Cornyn’s successor, Greg Abbott, who is now the governor of Texas, did not follow through on the original promise in Buck’s case.

Years later, in 2012 and 2013, the U.S. Supreme Court handed down a pair of rulings that stated that inmate claims that were “procedurally defaulted” because of ineffective counsel could be heard in federal court. Thus, the mistake of Buck’s second attorney would no longer prevent him from challenging the inadequacy of his first team.


Buck filed the motion to reopen the prior federal court decision, but the U.S. District Court for the Southern District of Texas ruled that Buck’s case was not “extraordinary” enough to warrant reopening the judgment, denying Buck permission to appeal the decision to the 5th U.S. Circuit Court of Appeals. The 5th Circuit followed up by also denying permission.

Luckily, the Supreme Court in June of this year granted Buck’s petition for writ of certiorari. A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. The Supreme Court uses certiorari to pick most of the cases it hears. And that is where his case stands now.


“If this is not an extraordinary case, there is no such thing as an extraordinary case," one of Buck’s attorney’s, Sam Spital of Holland & Knight, told reporters.

"You have such a combination of extraordinary circumstances demonstrating the ultimate injustice, not only to Buck, but the ultimate harm to the integrity of the courts and to the integrity of our democracy," he said.


Meanwhile, 19 out of Buck’s 20 years of incarceration have been spent on death row. What makes Buck’s case even more remarkable, another attorney, Kate Black with the Texas Defender Service, said, is that in those 20 years of imprisonment, Buck has had not a single disciplinary infraction.

“He has a spotless disciplinary record, and that’s really remarkable. On death row, inmates are routinely written up for trivial things like refusing to shave, having too many postage stamps, putting pictures of art or photos on the wall or windows, refusing to shower on a given day,” Black told reporters. “I think [this] speaks to how problematic Dr. Quijano’s testimony was, not only legally, but it was false. It turned out that it was an incorrect prediction.”


Buck, now 52, is a man who is deeply grounded in Christianity, spending his time in prison ministering to the young inmates and teaching them about remorse, reflection and redemption, Black said.

Because of Buck’s own remorse, the surviving victim of his 1995 attack, Phyllis Taylor, has forgiven him and joined with the multiple voices who have asked for a new, fair, colorblind sentencing, Black said. Other voices of support for new sentencing include former Harris County, Texas, Assistant District Attorney Linda Geffin, the prosecutor in Buck’s capital-murder case; former Texas Gov. Mark White, who oversaw more than 19 executions; and more than 100 civil rights leaders, elected officials, clergy, former prosecutors and judges, as well as others.


“I think essentially the point is that people of all political persuasions, faiths, racial and ethnic backgrounds have come together out of a great concern,” Black said. “They are united in their belief that in this country, one of our fundamental principles must be protected, and that principle is that race play[s] no role in our criminal-justice system, particularly when the ultimate punishment is at stake.”

Breanna Edwards is news editor at The Root. Follow her on Twitter.

Also on The Root: American Nightmare: Counsel of Record Christina Swarns Talks Buck v. Davis

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