Unless Gov. Rick Perry (R-TX) intervenes, Duane Edward Buck is set to be executed today, becoming the 236th person to be put to death during Perry’s tenure. On Tuesday, the Texas Board of Pardon and Paroles denied Buck clemency, refusing to commute his death sentence to life without parole. That’s despite the fact that Buck’s former prosecutor and now-Sen. John Cornyn (R-TX) have both called for a retrial because his case was so tainted by racist testimony:
[H]is lawyers are fighting to overturn his death sentence on the grounds that a psychologist told jurors at Buck’s 1997 trial that because Buck was black, he was more likely to be violent in the future, the Dallas Morning News reports.
A defendant is likelier to receive a death sentence if a jury determines that the defendant poses a future danger. It was improper to use Buck’s race as a factor in deciding whether he posed a future danger, his lawyers contend.
In 2001, Texas passed a law explicitly prohibiting the state from introducing evidence that a defendant’s race or ethnicity makes it likelier that he will commit a future act of violence.
Former Texas Attorney General John Cornyn (now a U.S. senator) wanted Buck’s case reviewed because of the sentencing testimony at issue. [...]
Buck also has on his side one of the Harris County prosecutors who helped secure Buck’s conviction. Last week the prosecutor, Linda Geffen, wrote a letter to Perry urging him to grant a retrial. When he was Texas Attorney General, Cornyn called for Buck and five others to receive a re-trial based on the racially-charged testimony that is now illegal. Over the last 10 years, Buck is the only one who hasn’t.
Cornyn admitted that all of the cases were tainted by a constitutional error — relying on race as a consideration for the death penalty violates the Due Process and Equal Protection clauses. But Buck’s case “has fallen through the cracks,” his lawyer says.
In a strange twist, the very same psychologist whose testimony is in question ultimately told jurors that he did not believe Buck presented a future danger to society.
One of Buck’s victims who survived, Phyllis Taylor, is also urging Texas to halt the execution. “This execution would only add to my pain, and it wouldn’t give me closure,” said Taylor. “I feel that he deserves a fair trial,” she added.
Perry has the power to grant a temporary stay of execution, which would give Buck additional time to push for a new sentencing hearing, but seems unlikely to do so.