(CREDIT: AP Photo/Pat Sullivan, File)

Count the failures of justice in Duane Buck’s case.

By Ian Millhiser and Carimah Townes

52-year-old Duane Buck is a model prisoner.

As a devout Christian, he spends much of his time praying and atoning for his past sins. For two decades, he’s encouraged young people around him to self-reflect and better themselves. All the while, Buck has maintained a clean disciplinary record — always doing what is asked of him and never stepping out of line.

And he’s done it all on while awaiting his execution.

“On Death Row, inmates are routinely written up for trivial things like refusing to shave, having too many postage stamps, putting up art or photos on the wall or windows, refusing to shower on a given day,” Kate Black, a staff attorney for the Texas Defender Service who works closely with Buck, told reporters last week. “So for Mr. Buck to have existed for over 20 years in these circumstances, and to not have been written up one time, it’s really remarkable.”

Black also spoke of Buck’s unrelenting faith, which has become an integral part of his character growth in the decades he’s spent behind bars.

“Mr. Buck is a deeply faithful man, and he spends most of his time in prayer,” she said. “Not just prayer for people who are on his side — for his lawyers, his legal team — but also for people we would see as our adversaries. He spends time praying for the district attorney, for the attorney general, for the solicitor general.”

A case about errors

If Buck’s life was not at stake in Buck v. Davis, and if his case did not raise grave questions about the reliability of our justice system, then the parade of errors that the case brings to the Supreme Court would almost be comic.

There’s a good chance that he is there because of two sets of incompetent lawyers, a psychologist’s racist testimony, a bait-and-switch perpetrated by Texas’s current governor, and an opinion authored by one of the most dismissively ideological judges on the federal bench.

As ThinkProgress previously explained, Buck is “not simply a case of ineffective assistance of counsel, this is a case of ineffective assistance of counsel aggravated by even more ineffective assistance of counsel.” And that is only part of the story.

Duane Buck (CREDIT: NAACP Legal Defense Fund)

Buck was convicted of murdering his girlfriend and a man he believed to be his girlfriend’s lover. At trial, he was represented by Jerry Guerinot, an attorney widely viewed as one of the worst, if not the worst, capital defense attorneys in the nation. Guerinot represented nearly three dozen people facing the death penalty and never won a case. Twenty were sentenced to die. As the New York Times’ Adam Liptak wrote, “a good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you.”

During the sentencing phase of Buck’s trial, the phase that determined whether or not Buck would receive a death sentence, Guerinot and his co-counsel introduced testimony from Dr. Walter Quijano, a psychologist with a history of racist testimony in capital cases. At Buck’s trial, Quijano testified that African Americans and Hispanics are especially likely to be dangerous as they are “over represented in the Criminal Justice System.” Buck is African American.

Quijano’s testimony matters because Texas law requires the prosecution to show that a capital defendant is likely to be dangerous in the future before that defendant may be sentenced to die. Moreover, as Buck’s current legal team explains in their brief to the Supreme Court, it is likely that Guerinot’s decision to introduce Quijano’s testimony violates the Constitution.

“This information was presented in an expert report. It was elicited during Dr. Quijano’s testimony. It was referred to by the prosecutor that directed the jury to pay attention to that testimony,” Sherrilyn Ifill, the NAACP Legal Defense Fund’s president and director of counsel, said during a press briefing last week.

Under the Supreme Court’s decision in Strickland v. Washington, a criminal defendant receives unconstitutionally ineffective assistance of counsel when their lawyers’ incompetence prejudices the outcome of the trial. This prejudice does not need to be shown with certainty. Rather, a defendant who received ineffective assistance should prevail when there is a “probability sufficient to undermine confidence in the outcome” of the trial that attorney incompetence impacted the trial’s result.

In Buck’s case, his Supreme Court legal team explains, “it took two days for jurors to reach a decision about the special issues” in the case, one of which was whether Buck was likely to be dangerous in the future. Over the course of this time, they sent a note to the judge asking “can we talk about parole with a life imprisonment?” and another requesting the very same psychological report where Quijano said that Buck’s race “meant an ‘Increased probability’ of future dangerousness.”

In other words, the jury was conflicted over whether Buck deserved the death penalty. And there is a reasonable likelihood that they would have reached a different result if not presented with Quijano’s racist conclusions.

“This was not a case where it was clear to the jury what the right conclusion was,” Sam Spital, one of Buck’s attorneys, told reporters. “If this is not an extraordinary case, there is no such thing as an extraordinary case.”

But that bring us to the next round of errors in Mr. Buck’s case. In 1999, some time after Buck was sentenced to die, he was appointed a new lawyer to help him challenge his sentence during what are know as “habeas” proceedings. This lawyer had his own history of poor representation of capital clients. And he failed to challenge the first legal team’s decision to introduce the racist testimony. That error had lasting and disastrous consequences for Buck, as a federal judge later ruled that Buck lost his ability to assert this claim forever because it was “procedurally defaulted.”

Since then, however, Buck did receive two pieces of good news. The first was a 2000 announcement by then-Texas Attorney General John Cornyn (R) (now U.S. Senator) that Quijano’s pattern of offering racist testimony was not acceptable and that the state “will not object” if the inmates sentenced to die “seek to overturn the death sentences based on Mr. Quijano’s testimony.” But this good news proved short lived, as Cornyn’s successor, Texas’s current Gov. Greg Abbott (R), did not honor Cornyn’s promise after Buck sought relief from his death sentence.

The second piece of good news was a pair of Supreme Court cases establishing a “narrow exception” to the previously existing rule that “an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” The incompetence of Buck’s second legal team, in other words, no longer absolutely precludes him from challenging the incompetence of his first legal team.

So that’s where Buck’s case stands right now as it awaits its day in the Supreme Court. Buck has faced an avalanche of incompetence mixed with racism mixed with broken promises. He’s also faced extraordinarily conservative judges in the courts below. The question before the justices is whether they are able to weave a path through the maze of errors that led him to this point.

The context

This maze arises as protesters across the country demand more police accountability and an end to racist enforcement of the the law. The issue at the heart of Buck’s case — whether or not race can be the basis for an execution — are indelibly linked to the larger, national discussion about the way race informs the administration of justice inside and outside the court system. If the highest legal authorities in the country rule that race can be a factor in determining that someone must be killed, there’s no telling what other members of law enforcement will do with that information.

“Even though this case is 20 years old, even though this is a capital case, even though Mr. Buck has been found guilty of committing a heinous crime, this case, in many ways, speaks to the moment we find ourselves in, in this country,” Ifill said. “We think it’s important that [the] context be understood, as this case is argued and deliberated[.]”

Leading up to the oral argument, hundreds of supporters have rallied behind Buck and collectively said that race cannot be the basis on which the criminal justice system operates.

Among those calling for a new sentencing hearing are Phyllis Taylor, who survived Buck’s gunshots, and Linda Geffin, a prosecutor on his case. A bipartisan group of politicians, civil rights leaders, and legal experts — prosecutors, judges, and previous American Bar Association presidents — has also lent its support, according to Black.

“They are united in their belief that, in this country, one of our fundamental principles has to be protected,” she said. “And that principle is that race plays no role in our criminal justice system, particularly when the ultimate punishment is at stake.”

Last June, racial profiling was at the forefront of a debate between Justice Sonia Sotomayor and several of her more conservative colleagues in Utah v. Strieff, a case holding that police may arrest someone for an outstanding warrant, even if they initially stopped the person for unlawful reasons.

“We must not pretend that the countless people who are routinely targeted by police are ‘isolated,’” Justice Sonia Sotomayor wrote in a scathing dissent. “They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.”

She added that police overreach has bred a culture of fear in communities of color. “For generations, black and brown parents have given their children ‘the talk,’” Sotomayor wrote. “Instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

But with the capital punishment case on the table, race is front and center once again. As was the case in Strieff, the question is once again whether the Court will hold that a defendant’s prior bad actions renders them less worthy of protection under the Constitution.

“It’s lovely when we’re talking about innocence,” said Spital. “It’s easier in some ways. But the challenge for our legal system is: even for the guilty, do we allow racism and racial discrimination to infect the process?”