11th-hour Supreme Court execution stay for Texas inmate whose race was a factor in trial

Liz Goodwin
The Lookout

The U.S. Supreme Court issued a rare motion to stay the execution of a Texas Death Row inmate who had already eaten his last meal and was prepared to be lethally injected Wednesday night.

What makes the highest court's 11th-hour intervention even more unusual is that convicted murderer Duane Buck's lawyers aren't arguing that he's innocent. They just want their client, who's spent 15 years in jail waiting to die, to receive a new sentencing trial for his crimes. Buck's original trial, his attorneys argue, was tainted by claims that his race makes him inherently more "dangerous" than a white criminal would be.

Buck is one of six Texas convicts who contend that their trials were marred by the testimony of psychologist Walter Quijano. Quijano argued that black and Hispanic criminals are statistically more likely to commit acts of violence in the future.

Texas conceded in 2000 that the consideration of race in the trials violated the Constitution and was unfair. Then-Attorney General John Cornyn (now a U.S. senator) asked that the trials of all six men be reviewed, and said they should be given an opportunity for new sentencing, without racial testimony. Five of the six men were re-sentenced to death in new hearings.

But Buck's case had not yet reached federal court in 2000--and by the time it did in 2004, Texas state officials had changed their tune. Greg Abbott, Cornyn's successor as attorney general, argued that Buck's case was fundamentally different from the other five, because Quijano was called as a witness by the defense, not the prosecution.

Buck's pro-bono lawyers discovered earlier this year that two of the five men who received a re-sentencing had also called Quijano as a defense witness, contradicting Texas' argument against Buck.

The Texas Board of Pardons and Appeals--which is made up largely of appointees named by Gov. Rick Perry--rejected Buck's request for clemency on Wednesday, saying his lawyers should have filed the appeal earlier. The 5th U.S. Circuit Court of Appeals subsequently denied Buck's appeal.

Buck's lawyers argued to the Supreme Court that his sentence was "based in part on an odious stereotype that African Americans are inherently more dangerous than whites." Letting his execution go through would "do irreparable harm to the criminal justice system in general," by suggesting that race can be a factor in whether someone should be executed, they wrote in their appeal.

The Supreme Court's decision came two hours into the six-hour window during which Buck could have been executed last night. He had already eaten his last meal. "Praise the Lord," he said, according to The Houston Chronicle. "God is worthy of praise. God's mercy trumps judgment. I feel good."

But the Supreme Court hasn't granted Buck a new sentencing; it's only said that it needs more time to hear the merits of his appeal.

According to the executive director of the Death Penalty Information Center, Richard Dieter, such last-minute stays are very rare, especially in cases where the prisoner's innocence is not in question. He said the Texas government's decision to fight Buck's efforts to get a new sentencing is also unusual. "Texas admits it made mistakes and yet still didn't grant him relief," Dieter told The Lookout.

One of Buck's attorneys, Kate Black from the Texas Defenders, told The Lookout that Buck's appeal was delayed because his team needed to find proof that Buck's case was not fundamentally different from the other five cases, as the attorney general's office claimed.

Buck was convicted in 1995 of killing his ex-girlfriend, Debra Gardner, together with a male friend of Gardner's, and then shooting his own step-sister in the chest. (She survived the wound and has since become an advocate for saving her brother's life.) According to the Texas prison system, Gardner's young children witnessed the shootings, and he was seen laughing after the killings.

Joan Huffman, who prosecuted Buck's case and is now a state senator closely allied with Gov. Rick Perry, told CBS that she does not regret asking Quijano whether Buck's race had any bearing on his future potential to be dangerous. "I have absolutely no concern whatsoever," she said. But her then-assistant prosecutor, Linda Geffin, disagreed, saying "race should never be put in front of a jury in any case, particularly a death penalty case."

Gov. Perry's hard-line stance on executions has earned him praise among conservatives. The audience at the Republican presidential candidate debate earlier this week heartily applauded at the mention of Perry's authorization of 234 executions as governor.

But Perry has also faced controversy: Evidence has mounted that Cameron Todd Willingham was wrongly put to death for the murder of his family on the basis of testimony from discredited experts on arson. Perry also has faced criticism for dismissing three members of a state panel who were going to look into the case for Willingham's innocence.

Five death row inmates have been exonerated under Perry's tenure, and Perry supported a bill that compensates exonerated prisoners for the time they were wrongly imprisoned. Perry has held up the exonerations as an example of the system "working," since the state uncovered serious judicial errors before putting the prisoners in question to death.

"I was exonerated from the very same system that he is boasting about," one exonerated prisoner, Anthony Graves, told ABC. "He's a politician, but I'm an exoneree and I think I know more about the subject."