The Texas Court of Criminal Appeals ruling in Ex Parte Buck is at the link. Judge Alcala's Dissent was joined by Judges Price and Johnson.
The Austin American-Statesman report is, "Appeal dismissed in death row case with racial backdrop," by Chuck Lindell.
The state’s highest criminal court Wednesday dismissed an appeal by death row inmate Duane Buck, who claims his sentence is improper because it was based, in part, on a psychologist’s finding that he presents a greater danger to society because he is black.
In a 6-3 ruling, the Court of Criminal Appeals said that Buck had already filed his one guaranteed appeal, known as a petition for writ of habeas corpus, in 1999 and wasn’t legally entitled to another.
But the court’s newest member, Judge Elsa Alcala, submitted a blistering dissent that said Buck had been ill-served by previous lawyers and the court system.
“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,” Alcala wrote in a dissenting statement joined by Judges Tom Price and Cheryl Johnson.
The upshot, Alcala said, is that no state or federal court has examined, let alone ruled on, Buck’s claim that his constitutional rights had been violated by the inclusion of inappropriate racial testimony and by the incompetence of previous lawyers.
“This cannot be what the Legislature intended when it (voted in 1995 to provide) capital habeas litigants ‘one full and fair opportunity to present all claims in a single, comprehensive post-conviction writ of habeas corpus,’” Alcala wrote.
"CCA Dismisses Buck Appeal," by Jordan Smith for the Austin Chronicle.
A divided Court of Criminal Appeals this morning declined an appeal from condemned inmate Duane Buck, who has asked to have a sentencing hearing free from racially biased testimony.
The majority of the state's highest criminal court, six judges, issued an unsigned opinion, dismissing the appeal outright without any elucidation beyond stating that it failed to meet the criteria set out in statute for the consideration of a subsequent writ.
Nonetheless, two judges – Tom Price and Cheryl Johnson – joined a dissent filed by Judge Elsa Alcala, who argues at length that the record in Buck's case "reveals a chronicle of inadequate representation [by counsel] 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," she wrote. Buck's initial habeas attorney was "so incompetent," she continued, that he did not assert any cognizable claim for the court to review. As a result, "no Court has ever considered the merits" of Buck's appeals for post-conviction relief – including that racially-biased testimony tainted his jury. "This cannot be what the Legislature intended" to happen under the state's habeas laws, she wrote.
"Appeals court denies hearing in death penalty case where race testimony questioned," by Mike Tolson in the Houston Chronicle.
Buck, 50, was one of six condemned killers whose trials in the 1990s were marked by the testimony of Walter Quijano, a psychologist who often referred to statistics on race when assessing the extent of potential future dangerousness, one of the questions asked of juries in capital cases. Unlike the others' cases however, Quijano appeared on Buck's behalf and testified that his personality and the nature of the crime, committed in rage, made him less likely to repeat his violence.
During cross-examination, a prosecutor asked him about racial statistics and violent crime, then asked whether those statistics indicated blacks would be more likely to be a danger in the future. Quijano answered affirmatively. Prosecutors referred to the testimony during closing arguments.
"Texas Court Rejects Condemned Inmate's Appeal," is the updated AP report by Michael Graczyk. It's via ABC News.
Buck was within a six-hour period set for his execution on Sept. 15, 2011, when the Supreme Court gave him a reprieve. The high court decided months later not to review his case and lifted its reprieve.
He does not currently have an execution date.
AFP posts, "Texas rejects death penalty appeal that argued racial bias."
Neither Buck's attorneys nor prosecutors dispute his conviction for the double-murder, but they have argued that racial considerations factored into the sentencing phase of his trial.
During the 1997 hearing, psychologist Walter Quijano testified that blacks pose a greater risk of "future dangerousness" than whites. The prosecutor cited this testimony in asking for the death penalty.
The Supreme Court intervened just hours before Buck's execution on September 15, 2011, with justices Sonia Sotomayor and Elena Kagan arguing that the case needed to be reviewed because "our criminal justice system should not tolerate (a death sentence) marred by racial overtones."
But despite an outcry from some politicians, religious leaders, and judges calling for a new hearing, the nine justice-panel at Texas' highest criminal court rejected Buck's appeal.
"We are gravely disappointed," Buck's lawyers, Kate Black and Christina Swarns, said in a statement.
They said they will bring the case to the Supreme Court "and we are hopeful that the Supreme Court will intervene to right this unequivocal wrong."
Additional coverage includes:
"Texas court denies appeal to death sentence determined by race," by Natasha Lennard at Salon.
"Texas Court Rejects Appeal Of Death Row Inmate After Testimony That Blacks Are More Dangerous," by Nicole Flatow for Think Progress.
"Texas Man Denied New Trial Despite Evidence Of Racial Bias," by D.L. Chandler at News One.
"Texas Court of Criminal Appeals Denies Duane Buck a New Sentencing Hearing," by Dianna Wray in the Houston Press.
"Divided Court Denies Case Where Race Impacted Death Sentence," at the Orlando Advocate.
Earlier coverage of Duane Buck's case begins with initial news of the CCA ruling.
The NAACP Legal Defense & Educational Fund has more information on Duane Buck's case.
More 50,000 people from Texas and around the country have signed a Change.org petition calling on Texas officials to grant Mr. Buck a new sentencing hearing.
Related posts are in the race category index.
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