Black Convict Facing Execution Because Texas Court Says His Race Means He'll Kill Again

An expert witness testified Duane Buck's skin color makes him dangerous.

A Texas appeals court has decided to deny Duane Buck's request for resentencing.

A Texas appeals court has decided to deny Duane Buck's request for resentencing. (Photo: Screen Grab/YouTube)

Matt Fleischer was awarded a Fund for Investigative Journalism grant for his series “Dangerous Jails.”

Texas courts have cleared the way for a convicted murderer to be executed, in part, for being black.

The state’s highest criminal appeals court denied inmate Duane Buck’s appeal for a death penalty resentencing in a 6-3 decision on Wednesday, allowing prosecutors to immediately request a date to have Buck killed by lethal injection.

Buck was convicted for the 1995 murder of his ex-girlfriend and another man in Houston and admits to being guilty. The problem with his case stems from testimony presented by a controversial expert named Walter Quijano during the sentencing phase of the trial. Asked during his testimony if “the race factor, black,” increased Buck’s risk of re-offending, Quijano answered, “Yes.” He went on to testify that being either African-American or Latino “increases the future dangerousness for various complicated reasons.”

In Texas, “future dangerousness” is a key factor in determining whether a person is eligible for capital punishment. By allowing Quijano’s testimony to stand, Harris County prosecutors established that race can be used as a significant justification for meting out the death penalty.

What Quijano didn't mention was that "the race factor, black," also greatly increases one's likelihood of being executed in Texas, where blacks are about three times more likely to get death penalty sentences for committing the same crimes as white people, according to University of Maryland professor Ray Paternoster.

Paternoster has studied the history of racial discrimination in Texas’ capital punishment system and finds that it dates to the Civil War. From 1875 to 1968, more than 76 percent of men executed for the crime of rape in Texas were black. Modern times don’t look that much better. From 1980 to 1986, not a single white person who murdered an African-American in Texas received the death penalty.

Texas’ race-guided approach to the death penalty appears to hold universal across the state. Still, one district holds the record for most uses of capital punishment: The metropolitan Houston criminal justice system of Harris County, where Buck's case was prosecuted, has had more than 100 executions.

In Buck's case, the family of one of his victims hasn't advocated for his execution in the past but says he has received unwarranted sympathy for killing innocent people. 

When the Houston Chronicle spoke to the older sister of Buck's slain ex-girlfriend, Debra Gardner, in 2011, she said the court should take into account the brutality of the murders and their impact on Gardner's children but stopped short of calling for the death penalty.

The night of the murders, Buck visited his former beau and went into a jealous rage, accusing Gardner of sleeping with her friend, Kenneth Butler. He shot and killed them both and also shot his sister in the chest, but she survived.

Gardner's daughter, Shennel, was 14 at the time of the killings and says she has flashbacks to the chaos of that night, when she tried to save her mom's life.

"I jumped on his back," Shennel Gardner told the newspaper. "I was begging Duane not to kill her. Duane knew what he was doing."

Yet she doesn't hate Buck, who had been a father figure in her life.

Buck's lawyer Christina Swarns says there is a "very real risk" of an execution date being set because prosecutors had previously said they planned to wait for the Texas Court of Criminal Appeals ruling that came Wednesday before moving forward.

“We don’t know what they will do now. We hope they will respect the appeals process, without inserting an execution date,” said Swarns, who is also director of Criminal Justice Practice at the NAACP Legal Defense and Educational Fund.

The court's decision has disheartened activists, including Kathryn Kase, executive director of Texas Defender Service, a nonprofit group trying to reform the Texas justice system.

“Mr. Buck’s death sentence is the unconstitutional product of racial discrimination," Kase said. "The message this sends to people of color in Texas is that the legal system is prepared to put people to death based on something they can’t control: their race.”

Swarns said all options are being considered, but Buck’s best and perhaps only hope of staving off execution may be to file an appeal to the U.S. Supreme Court on constitutional grounds. 

Swarns said she sees hope for the case moving forward, based on the vigorous 30-page dissent written by three judges in the Texas Court of Criminal Appeals ruling, who argued: “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.”

“That’s what we’ve been saying the entire time,” said Swarms. “We are navigating within a very deeply broken system. We are confident that what we are saying, and the errors we have described, will eventually be recognized and vindicated.”

In the meantime, we can only wait to see if that day comes before or after Buck is put to death.

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