Duane Buck Death Sentence Vacated Due to "Constitutionally Ineffective," Racist Suspect Appointed Defense Atty

From [HERE] Duane Buck whose controversial racially tainted death sentence was reversed by the U.S Supreme Court in February, has been resentenced to life in prison. In a plea deal entered in a Harris County (Houston) courtroom on October 3, Buck, who is 54, pled guilty to two new counts of attempted murder that each carried terms of 60 years in prison to be served concurrently with two life sentences imposed on his capital murder charges.

In a news release, District Attorney Kim Ogg said, "[a]fter reviewing the evidence and the law, I have concluded that, twenty-two years after his conviction, a Harris County jury would likely not return another death penalty conviction in a case that has forever been tainted by the indelible specter of race. Accordingly, in consideration for Buck pleading guilty to two additional counts of attempted murder we have chosen not to pursue the death penalty." 

After 20 years on death row and numerous appeals in which he was denied relief by the state and federal courts, the U.S. Supreme Court ruled in February that Buck's capital sentencing hearing had been unconstitutionally poisoned by his own lawyer's incompetentness.

Buck was charged with capital murder in Houston, Texas, in 1997. He was too poor to hire his own lawyer so the judge appointed two lawyers to defend him, one of whom has such an abysmal record in capital cases that the New York Times called him: “A Lawyer Known Best for Losing Capital Cases”. His performance in Mr Buck’s was consistent with this record.

In order for a death sentence to be imposed, Texas law requires the prosecutor to prove, and the jury to unanimously find, that the defendant is likely to be dangerous in the future. In Mr Buck’s case, future dangerousness was the central disputed issue at sentencing. The prosecutors did not have a strong case that Mr Buck would be a danger in the future. Indeed, the evidence showed that Mr Buck was not likely to not pose a danger while in prison. But the court-appointed defense lawyers, with Mr Buck’s life on the line, handed the prosecutors powerful evidence for sentencing him to death: Mr Buck was more likely to be dangerous because he is black.

That was the conclusion of a psychologist the defense lawyers retained as an expert. The psychologist prepared a report stating that being “black” is a “statistical factor” that created an “increased probability” that Mr Buck would commit criminal acts of violence in the future. The lawyers appointed to represent Mr Buck called the expert to the witness stand, elicited his testimony that Mr Buck was more likely to be dangerous because he is black, and moved the expert’s report into evidence.

On cross-examination, the prosecutor emphasized the relationship between race and future dangerousness, asking the psychologist if “the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?” “Yes,” the psychologist answered, confirming a pernicious – and false – stereotype about black men and criminality. The court-appointed lawyers did not object. The judge said nothing. The jurors, after lengthy deliberations, during which they asked for – and received – a copy of the psychologist’s report, found Mr Buck a future danger. He was sentenced to death.

The presentation of the psychologist’s expert testimony was egregious and inexcusable incompetence on the part of Mr Buck’s court-appointed lawyers. And it is the focus of Mr Buck’s claim before the supreme court that his “trial counsel was constitutionally ineffective”. The lawyers had the psychologist’s report mentioning race as a factor in their possession before they called him to testify. The psychologist had testified in other cases before Mr Buck’s trial that race increases the probability of future dangerousness.

The consideration of such evidence was so clearly wrong and prejudicial that John Cornyn, who was attorney general at the time and now represents Texas in the Senate, conceded that the evidence should not have been admitted in seven cases, including Mr Buck’s. Each of these cases received new sentencing hearings – except Mr Buck’s.

The incompetence of the court-appointed lawyers is undeniable. The danger of race influencing the capital sentencing decision has long been recognized. Competent defense lawyers take every precaution to prevent race from becoming a factor in the sentencing decision.

No competent defense lawyer would present the expert testimony of a psychologist who had repeatedly testified in other cases that race was a factor contributing to future dangerousness and was going to do so in Mr Buck’s case. It is unfathomable. And it could not have been more prejudicial.

Such testimony could only reinforce racial stereotypes that would increase the likelihood that Mr Buck would be sentenced to death. The supreme court should correct this grave miscarriage of justice by holding that Mr Buck was denied his right to a competent lawyer and setting aside his death sentence.[MORE]

Saying that the "law punishes people for what they do, not who they are," Chief Justice John Roberts said that the "particularly noxious" stereotyping of Buck as dangerous because he is a black man was toxic testimony that was "deadly" even "in small doses." "No competent defense attorney," Roberts wrote, "would introduce such evidence about his own client.”