A Texas appeals court declined to allow a new sentencing hearing Wednesday for an African American death row inmate whose initial hearing featured testimony by a psychologist that blacks are more likely to commit crimes. In 2000, when the psychologist’s comments were first reported, then-Texas Attorney General John Cornyn declared that the state would not stand in the way of a new sentencing. But while Duane Buck has since averted execution, Texas courts have denied several motions to reconsider his case, and he remains on death row.
The exchange came about as follows. Dr. Walter Quijano was testifying about Buck’s future dangerousness — a factor in determining whether a defendant will be sentenced to jail time or death. On cross-examination, the following exchange occurred:
PROSECUTOR: “You have determined that . . . the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?”
The prosecutor again invoked Quijano’s discriminatory testimony during closing argument to suggest that Buck should be sentenced to death. Other Texas inmates have been granted new sentencing hearings because of similar comments by Quijano.
This was not an isolated incident. Other evidence has since emerged showing that the the Harris County District Attorney’s office routinely engaged in racial discrimination. Almost half of the prisoners on Texas death row are from Harris County, and blacks are three times as likely as whites to be sentenced to death in the county during the period of Buck’s sentencing. From the NAACP Legal Defense Fund: “The District Attorney at the time of Mr. Buck’s case admitted that prosecutors routinely struck black jurors from service. Another Harris County District Attorney resigned after racist emails he sent and received on his work computer were discovered. This and other evidence reveals that a longstanding culture of racial bias existed in the Harris County D.A.’s office.”
This latest appeal asserted that Buck’s counsel was woefully inadequate, and failed to raise several crucial arguments. (Remarkably, it was Buck’s counsel who brought Quijano on as a witness, although the prosecution used his testimony on cross-examination.) Three dissenting judges agreed with this argument, and would have granted Buck a new trial. “The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment phase,” Judge Alcala wrote for the dissent.
The comments of Quijano are remarkably similar to those of federal appeals court judge Edith Jones, who is alleged to have said “racial groups like African-Americans and Hispanics are predisposed to crime,” are “prone to commit acts of violence,” and made similar comments in several Texas death penalty cases she was overseeing. U.S. Supreme Court Justice John Roberts initiated a rare formal ethics review into Jones as a result of the allegations.
Quijano is not the only expert witness whose discredited testimony has been used to sentence multiple Texas inmates to death. Another case making its way through the courts hinged on the testimony of Dr. George Denkowsi, who evaluated sixteen Texas death row inmates before he was formally reprimanded in 2011 and fined $5,500 due to complaints that he used scientifically invalid methods to evaluate these inmates.
Texas has accounted for 40 percent of U.S. executions since the U.S. Supreme Court lifted a moratorium on the punishment in 1976. And even within the state, death sentences and executions are isolated to just a few counties, adding to the argument that race and location are better predictors of death sentences than culpability.