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.
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).