Coming Thursday: Another Texas Execution Under Perry

The governor and state justice system are denying due process to a death-row inmate whose sentencing hearing was tainted by racist testimony

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Duane Edward Buck was convicted in 1998 of murdering his ex-girlfriend / Texas Department of Criminal Justice

The federal trial judge in a case issues her vital ruling before the capital defendant's lawyers have completed their argument. A local prosecutor who helped convict the death row inmate now pleads with the state parole board to give the guy a new sentencing trial. Defense attorneys say that lawyers for the Attorney General's office are lying to the court. And the governor who can help stop this parade of horribles, Gov. Rick Perry, earns public cheers for his chillingly remorseless stand on capital punishment.

Welcome to Texas, to its death penalty regime, and to the excruciating case of Duane Edward Buck.

Buck is scheduled to be executed Thursday in Huntsville for a double murder he committed in Houston in 1995. No one contests his guilt. Instead, his lawyers say that Texas owes him a new sentencing trial because his first one was unlawfully tainted by race. An expert witness at his trial in 1997 impermissibly told jurors that Buck would be more dangerous in the future because he is black. As I chronicled last week, the six other men in Texas whose trials were similarly tainted all got new sentencing hearings after then-Attorney General John Cornyn conceded the state's error in 2000. Buck, however, has not.

Texas now is opposed to Buck's request. It is squeezing him because it can and because it is politically expedient to do so. The state claims that Buck did not timely raise the issue on appeal in federal court. Even though each of the other men were subsequently re-sentenced to death -- and even though that would be a likely outcome in Buck's case -- Texas says the time for Buck's judicial relief has come and gone. Even though the state helped each of the other men vindicate their constitutional rights, it will not do so in Buck's case. At a time when other states are moving away from capital punishment, this is how far to the right Texas has come on the death penalty since 2000.

On Tuesday afternoon, the Texas Board of Pardons and Paroles denied Buck's clemency request. Here is the extent of the Board's findings and conclusions: "After a full and careful review of the application and any other information filed with the application, a majority of the Board has decided not to recommend a 120-day Reprieve and Commutation of Death Sentence to Lesser Penalty." That's it. The complete document is two pages long -- the cover letter is three short paragraphs ending with the salutation, "Sincerely," by Clemency Director Maria Ramirez. 

Buck's fate now is up to Gov. Perry, the man who has proudly overseen the executions of more death row inmates than any governor in American history, and to the federal appeals courts, which only rarely intercede on behalf of capital defendants. The eerie applause for capital punishment at last week's Republican debate tells Gov. Perry that executions are a "winning" issue for him, at least for now, so you can do the math. It doesn't look likely, does it, that Texas will make good on that 11-year-old promise to Buck.   

The Judge 

Last Tuesday, September 6th, Buck's lawyers went to federal court in Houston to get a stay of their client's execution so the issue of his new sentencing trial could be properly evaluated on the merits. On Friday, to no one's surprise, attorneys for the state of Texas responded by objecting to Buck's motion. But on that very day, September 9th, just a few hours after Texas had filed its brief, and before Buck's attorneys even could reply to it, U.S. District Judge Vanessa Gilmore issued a nine-page ruling siding with the state and against Buck. The judge declared that Buck's arguments had been litigated before and that there were no new facts or legal issues that required her to change her mind.  

It is customary in motions practice for the moving party -- here, Buck -- to have an opportunity to file a "reply" brief answering the "response" brief filed by the other side. This is certainly true in capital cases and especially when the judge is inclined to rule against the litigant who made the motion. Often, there are issues of fact or law which arise in the "response" brief which warrant further attention from the court. A "reply" brief keeps honest those drafting the "response" brief and judges typically allow for reply briefs because it is the moving party, after all, which has the burden of persuading the judge to do something (or to not do something).

With Buck's life on the line, none of that happened here. Instead, inexplicably, Judge Gilmore cranked out a nine-page order in a matter of hours without waiting to see whether any of the representations made by Texas were suspect or not -- without giving the condemned man a full chance to make all of his arguments. This is dubious behavior from a federal judge but perhaps not terribly surprising from Judge Gilmore, a 1994 appointee of President Bill Clinton. Over the years, she has earned the nickname "judicial diva" for her decidedly injudicious conduct on the bench.

David Lat, the respected legal blogger who coined the "diva" phrase in 2007, has helped chronicle the many ways in which Judge Gilmore has reportedly engaged in conduct unbecoming of a federal judge. And what did the federal jurist do in response to her new nickname? Why, she wrote a book titled "You Can't Make This Stuff Up; Tales from a Judicial Diva." This light-hearted offering followed her first book, which was a coloring book for the children of incarcerated inmates. This is the judge who was in such a rush to kick Buck's case out of her court last week that she didn't even wait for all of the arguments to come in before she issued her order. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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