Duane Buck was sentenced to death because he is Black. Buck had been convicted of murder. His own attorney called the expert witness who testified that Blacks were more likely to commit future acts of violence. So, Buck should die.
Last week, the U.S. Supreme Court found his attorney incompetent, and reversed Buck’s death sentence.
Duane Buck was convicted of killing Debra Gardner and Kenneth Butler. He had a Sixth Amendment right to assistance of counsel. But, the law also requires that that he receive effective assistance of counsel.
In Buck’s case, his attorney, Jerry Guerniot, called a psychologist, Dr. Walter Quijano, to testify and give a report on Buck’s future dangerousness to the jury. This is key to deciding if Buck will live or die. His report stated Buck was statistically more likely to be violent in the future because of his race.
“The report read, in relevant part: “Race. Black: Increased probability.” The Court found that Buck’s lawyer called Dr. Quijano to the witness stand fully aware that he would testify that race is a factor “know[n] to predict future dangerousness.”
During jury deliberations, jurors requested Quijano’s report. Then, they returned a sentence of death. Buck appealed his death sentence arguing his Sixth Amendment right to effective assistance of counsel was violated. He claimed that calling Quijano to testify and submitting his report into evidence was evidence his lawyer was ineffective. The Supreme Court agreed.
Buck’s case was not the first time Quijano had testified against the interests of the defendant who hired him. Quijano testified in Saldano v. Texas that the defendant’s Hispanic heritage made him more likely to be violent.
When lawyers appealed the cases based on racial and ethnic bias, the Texas Attorney General John Cornyn conceded issuing a public statement and dismissing the death sentence. Six of Quijano’s death cases were given a chance for new sentences.
Buck’s death sentence was not dismissed. Due to a procedural technicality, he was still set to die based on Quijano’s theory that Blacks were probably more dangerous. Buck lost his appeal in the conservative Fifth Circuit. It is difficult to prove an attorney is ineffective. Buck must show that but for the incompetence of his lawyer the outcome would have been different. But, the Supreme Court found that “No competent defense attorney would introduce evidence that his client is liable to be a future danger because of his race.” The Court stated Buck’s attorney knew Quijano’s believed Buck’s “race predisposed him to violent conduct.” Only in capital murder cases does the jury decide if a defendant will be executed. That decision is based on future dangerousness. Buck’s attorney called Quijano to the stand and knowing his theory specifically asked him to tell the jury about the connection between race and future violence.
Due to the shocking facts in this case, it is important that the Court’s ruled against equating violence with race.
In 1995, Duane Buck shot his former girlfriend, Debra Gardner, in front of her children. He shot Phyllis Taylor, his stepsister, and then shot Gardner’s friend Kenneth Butler. Gardner and Butler died. Taylor survived.
Buck laughed as police arrested him. His actions must not be equated with his race. Buck will receive a new sentencing hearing.
Gloria J. Browne- Marshall is an associate professor of constitutional law at John Jay College (CUNY). She is the legal correspondent for AANIC (African-American News & Information Consortium), author of the recent book “The Voting Rights War: The NAACP and the Ongoing Struggle for Justice,” and a playwright.