Former Prosecutors Seek New Hearing for Texas Man Sentenced to Die Because He is Black

The U.S. Supreme Court should grant a Texas inmate another sentencing hearing because his initial death sentence was based on racially-biased testimony, a group of former federal and state prosecutors argue in a friend-of-the-court brief filed on August 4.

“Prosecutors must seek justice, not just convictions, and that duty sometimes requires foregoing or overturning a conviction in order to protect a defendant’s constitutional rights.  Among the most important of those rights is the constitutional assurance that no defendant’s sentence will be determined based upon race,” the prosecutors’ brief asserts.  The brief was organized by TCP with pro bono assistance from Boies, Schiller & Flexner LLP.

The case involves Duane Buck, who was convicted in 1997 of murdering two people, including his estranged girlfriend, and sentenced to die.  Buck does not contest his guilt, and has expressed remorse for his actions.  The key issue now before the court relates to his death sentence.

At the sentencing hearing, his own attorney called an expert witness, Dr. Walter Quijano, who testified under questioning from the prosecutor that Buck was likely to be more dangerous in the future specifically because he was a black.  During her closing argument, the prosecutor stressed Quijano’s testimony about Buck’s future dangerousness based solely on his race, and the jury imposed the death penalty.

The prosecutors’ brief notes that the Texas attorney general found racially-biased testimony from Quijano in six other death penalty cases, and determined that the state would not oppose new hearings for all of the defendants, including Buck.  When a new attorney general took office, however, he reneged on this promise in Buck’s case.  All the other similarly-situated defendants received new sentencing hearings.

“The failure to live by such promises to a capital defendant, in particular, constitutes an extraordinary departure from the ethical conduct that the public expects and deserves,” the brief asserts.

Included among the more than 20 former federal and state prosecutors signing the brief are Mark White, a former Texas governor and state attorney general, and Linda S. Hood Geffin, one of the original trial prosecutors in the case.

The case is Buck v Davis (No. 15-8049); the Supreme Court has scheduled oral arguments for October 5.

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