Appeal dismissed in death row case with racial backdrop


The state’s highest criminal court Wednesday dismissed an appeal by death row inmate Duane Buck, who claims his sentence is improper because it was based, in part, on a psychologist’s finding that he presents a greater danger to society because he is black.

In a 6-3 ruling, the Court of Criminal Appeals said that Buck had already filed his one guaranteed appeal, known as a petition for writ of habeas corpus, in 1999 and wasn’t legally entitled to another.

But the court’s newest member, Judge Elsa Alcala, submitted a blistering dissent that said Buck had been ill-served by previous lawyers and the court system.

“The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness,” Alcala wrote in a dissenting statement joined by Judges Tom Price and Cheryl Johnson.

The upshot, Alcala said, is that no state or federal court has examined, let alone ruled on, Buck’s claim that his constitutional rights had been violated by the inclusion of inappropriate racial testimony and by the incompetence of previous lawyers.

“This cannot be what the Legislature intended when it (voted in 1995 to provide) capital habeas litigants ‘one full and fair opportunity to present all claims in a single, comprehensive post-conviction writ of habeas corpus,’” Alcala wrote.

Though there is no question about Buck’s guilt — he gunned down a former girlfriend and her male friend, shot his stepsister and targeted a fourth adult in Houston — his case has become a rallying point for judicial reformers and civil rights advocates, largely because of its racial overtones at trial.

The controversy centers on punishment-phase testimony by psychologist Walter Quijano, a defense expert who told jurors that Buck was less likely to pose a future danger — and therefore not eligible for the death penalty — because the crime wasn’t a random act of violence.

But Quijano also testified, unprompted, that “Hispanics and black people are overrepresented in the criminal justice system.” On cross-examination, a prosecutor followed up by asking Quijano if race, particularly being black, increases a defendant’s future dangerousness “for various complicated reasons.” Quijano replied, “Yes.”

Buck was sentenced to death in 1997.

Three years later, however, then-state Attorney General John Cornyn, now a U.S. senator, acknowledged that seven death penalty convictions — including Buck’s — had been improperly influenced by Quijano’s testimony linking race to dangerousness.

The attorney general’s office did not oppose new punishment trials for the other six inmates to cure the constitutional defect.

State lawyers later decided, however, to oppose a new trial for Buck, arguing that his case was “strikingly different” because Quijano was a defense expert whose questionable testimony was elicited by a defense lawyer. Instead, lawyers for Texas argued that Buck should have objected to the racial testimony in his 1999 habeas petition. Because he didn’t, Buck lost his chance to appeal the matter, they argued.

On Wednesday, the Court of Criminal Appeals agreed, dismissing Buck’s latest habeas petition as improper.

In her dissent, Alcala said she would have accepted the new petition because Buck’s 1999 appeal was so poorly done that it amounted to no defense at all, depriving a death row inmate of a full review of constitutional claims before his execution.

That observation led Alcala into pointed criticism of a Court of Criminal Appeals ruling in 2002, nine years before she joined the court, that said Texas inmates have no constitutional right to an effective lawyer on habeas petitions.

Critics have said that ruling has been used to justify clearly incompetent legal work in death penalty cases, much of which was detailed in an Austin American-Statesman investigation in 2006.

Alcala said it is time to revisit the ruling to allow a second appeal for inmates who can prove that an incompetent lawyer led “a substantial claim for relief” to be forfeited. To continue denying such a full review “jeopardizes both the integrity of the underlying conviction and of this court’s judicial processes,” she concluded.



Reader Comments ...


Next Up in Local

Valdez squeezes past White, faces big Abbott challenge next
Valdez squeezes past White, faces big Abbott challenge next

Lupe Valdez was beaming Tuesday night as she accepted the cheers of supporters at a downtown Dallas restaurant in her hometown for making history as the first Latina and the first lesbian to become the Democratic nominee for governor in Texas. “I am constantly hearing this is going to be such an uphill battle,” said Valdez, elected four...
Familiar name, black voters helped Cole win in House District 46
Familiar name, black voters helped Cole win in House District 46

With name recognition and a push to mobilize African-American and white women working to her advantage, Sheryl Cole narrowly defeated immigration attorney Jose “Chito” Vela III in the Texas House District 46 Democratic runoff Tuesday. Cole, a former Austin City Council member, earned 4,967 votes, or 50.9 percent, on Tuesday, 173...
Early Bird: Scooter company, license in hand, relaunches in Austin
Early Bird: Scooter company, license in hand, relaunches in Austin

Bird, once again, is the early bird. The Venice, Calif.-based scooter-rental company, which released its electric vehicles onto Austin streets in early April without city permission, scattered them about Central Austin on Wednesday after being granted a city license to operate. The company, and its chief competitor, Lime, had taken their stand-up electric...
Feds: Lockhart man ‘verbally harassed’ Sutherland Springs church members, said shooting was a hoax
Feds: Lockhart man ‘verbally harassed’ Sutherland Springs church members, said shooting was a hoax

A Lockhart man and his girlfriend went to First Baptist Church in Sutherland Springs in March and “verbally harassed” church members, saying that the Nov. 5, 2017, shooting that killed 26 people at the church was a hoax, the U.S. Department of Justice said Wednesday. Robert “Side Thorn” Ussery, 54, was charged Wednesday with...
Are there black bears in Central Texas?
Are there black bears in Central Texas?

If you’ve traveled to East Texas, you’re likely aware of the danger of black bears. But black bears in Austin are unheard of, right? Well, not exactly. According to Texas Hill Country, black bears used to be plentiful all across Texas, but over the years, populations have decreased. However, recent sightings may indicate they’re making...
More Stories