Duane Edward Buck
Last Wednesday, lawyers for Duane Buck filed a clemency petition with the Texas Board of Pardons and Paroles seeking to have the Board and Gov. Perry halt Buck's execution, now scheduled for September 15th. They do not claim that Buck is innocent. They do not seek to have him released from prison. Instead, they seek either to have his sentence commuted to life in prison without the possibility of parole or to have his execution stayed so that the courts can grant him a new sentencing trial. The lawyers claim that Buck, who was convicted of murdering two people in Harris County, Texas in 1995, has been prejudiced not once but twice by Texas' justice system.
The first time, they say, occurred when an expert witness at Buck's 1997 murder trial told jurors that Buck's race -- he is black -- "increased the likelihood of his being dangerous in the future," a patently unconstitutional bit of testimony that should have immediately halted the trial proceedings. The second time Buck got the shaft from Texas justice, the lawyers say, is when he alone was treated differently from a group of five other convicted murderers whose trials were similarly tainted by the expert's racial testimony. It's an equal protection violation on top of an equal protection violation and Gov. Perry has an opportunity to fix it.
There is more to the Buck story. His lawyers did not raise the "future dangerousness" issue in their initial appeal -- which was denied. But in June 2000, Texas Attorney General, John Cornyn (now the junior senator of the Lone Star State) conceded after an investigation that Buck's case and those five others had been unconstitutionally tainted by the racial testimony of the expert, a psychologist named Walter Quijano. Over the next few years, to its credit, the Texas AG's office repeatedly confessed its error in those cases and helped ensure that each of the men would get a new sentencing trial, each of the men but Buck, that is.
All five of those other men were subsequently sentenced to death in Texas without the racially impermissible testimony. And it is quite likely that Buck would be, too, were he afforded the opportunity to have a sentencing trial free from the prejudicial impact of Quijano's statements. If Perry gives Buck the chance for that new sentencing trial, he will be following Cornyn's praiseworthy practice, following constitutional precedent, and making good on Texas's 11-year-old promise to put to right the trials the impacted defendants.
On the other hand, if Gov. Perry does not step in, if he allows Buck to be executed on September 15th, he will be going back on Cornyn's word, shunning precedent, and relying upon legal technicalities that would likely have made Bush and Gonzales blush. And that's saying something. Is America ready for a president who makes John Cornyn look like Sister Helen Prejean when it comes to capital punishment? Is it ready for a president who would countenance such an evident (and conceded) violation of due process and equal protection principles?