HUNTSVILLE, Texas — Lawyers for a black man set for execution Thursday are calling on Texas Gov. Rick Perry to halt the punishment because an expert witness told jurors that black criminals were more likely to pose a future danger to the public if they are released.
Perry, the frontrunner for the Republican presidential nomination, is an ardent supporter of capital punishment and 235 convicted killers have been put to death in Texas during his 11 years in office. But Duane Buck's case is one of six convictions that former Texas Attorney General John Cornyn — a political ally of Perry who is now a Republican U.S. senator — reviewed in 2000 and said needed to be reopened because of the racially-charged statements made during the sentencing phase of the trial.
Prosecutors repeated the sentencing hearings in the five other cases — with all five again being sentenced to death — but Buck's case was never reopened.
If courts continue to reject Buck's appeals, only Perry could delay the lethal injection by invoking his authority to issue a one-time 30-day reprieve for further review. Critics are watching what Perry will do after he said during a presidential debate that he has never been troubled by any of the executions he's overseen as governor.
Buck, 48, was convicted of gunning down ex-girlfriend Debra Gardner, 32, and Kenneth Butler, 33, outside Houston in July, 30, 1995, a week after Buck and Gardner broke up. Buck's guilt is not being questioned, but his lawyers say the jury was unfairly influenced and that he should receive a new sentencing hearing.
A third person, Buck's stepsister, Phyllis Taylor, also was wounded, though she has since forgiven Buck and sought for his death sentence to be commuted to life in prison.
Gardner's 14-year-old daughter and 11-year-old son were among those who witnessed the shootings. Officers testified that Buck was laughing during and after his arrest, saying that Gardner deserved what she got.
The Texas Board of Pardons and Paroles, all of whom are Perry appointees, denied Buck's clemency request Wednesday, and the 5th U.S. Circuit Court of Appeals subsequently rejected his appeal.
Buck's lawyers contend the case was "tainted by considerations of race" after a psychologist at his trial, Walter Quijano, testified in response to a question from lead prosecutor Joan Huffman that black criminals are more likely to be violent again in the future. Whether or not someone could be a continuing threat to society is one of three questions Texas jurors must consider when deciding on a death sentence.
Cornyn, who was then the attorney general, said in a news release in 2000 that a half-dozen capital case sentences, including Buck's, needed review because of Quijano's testimony at their trials.
A spokesman for Cornyn declined to comment.
Lucy Nashed, a spokeswoman for Perry, said that because the governor will be out of state, Lt. Gov. David Dewhurst will preside over the execution and declined to comment further on the case. That means any final order to delay it would technically come from Lt. Gov. David Dewhurst — though Dewhurst spokesman Mike Walz said the lieutenant governor does not comment on pending executions. However, Perry's office frequently points out that Perry remains the governor and in contact with Austin while traveling.
Prosecutors contend Buck's case was different from the others and that Quijano's racial reference was a small part of a larger testimony about the prison population.
Huffman, now a state senator and one of Perry's closest allies in the Legislature, defended asking Quijano the racially charged question, saying, "I have absolutely no concern whatsoever." She noted that Quijano was a defense witness, her question came in reference to a report he prepared for the defense and the issue was raised just once.
However, Huffman's assistant prosecutor in the case, Linda Geffin, has joined the call for a new sentencing hearing, saying Wednesday that "race should never be put in front of a jury in any case, particularly a death penalty case."
The execution would be the second this week and the 11th this year in Texas. Two more Texas prisoners are set to die next week.
Weissert reported from Austin.