Texas execution halted amid Supreme Court review

By Michael Graczyk

Associated Press

Published: Friday, Sept. 16 2011 6:50 a.m. MDT

HUNTSVILLE, Texas — A black man convicted of a double murder in Texas 16 years ago was at least temporarily spared from lethal injection when the U.S. Supreme Court agreed to review his lawyers' claims that race played an improper role in his sentencing.

The court on Thursday halted the execution for Duane Buck, 48, two hours into a six-hour window when he could have been taken to the death chamber. Texas officials, however, did not move forward with the punishment while legal issues were pending.

Buck was sentenced to death for the fatal shootings of his ex-girlfriend and a man in her apartment in July 1995. His attorneys had asked both the Supreme Court and Texas Gov. Rick Perry to halt the execution because of a psychologist's testimony that black people were more likely to commit violence. Buck's guilt is not being questioned, but his lawyers contend the testimony unfairly influenced the jury and Buck should receive a new sentencing hearing.

The nation's highest court, without extensive comment, said it would review an appeal related to that testimony. The decision meant Perry did not have to act on a request from Buck's lawyers that the governor use his authority to issue a one-time 30-day reprieve.

Buck's case is one of six that then-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 racially charged statements made during the sentencing phase. In the other five cases, new punishment hearings were held and each convict again was sentenced to die.

State attorneys contend Buck's case was different from the others and that the racial reference was a small part of larger testimony about prison populations. Jurors in Texas must decide on the future danger of an offender when they are considering a death sentence.

Perry is a capital punishment supporter and as frontrunner for the Republican presidential nomination his actions now are coming under closer scrutiny. During his 11 years in office, 235 convicted killers in Texas have been put to death. His office said he has chosen to halt just four executions, including one for a woman who later was executed.

Buck's lawyers called to tell Buck of the reprieve and the inmate was praying in his cell when Texas Department of Criminal Justice spokesman Jason Clark approached.

"Praise the Lord!" Buck told Clark. "God is worthy to be praised. God's mercy triumphs over judgment.

"I feel good."

In its one-paragraph decision, the court said it stopped the punishment so it could further look at Buck's request, known as a writ of certiori. If the court decided against the writ, the justices said the reprieve would be lifted, meaning Buck could receive a new execution date.

"No one should be put to death based on the color of his or her skin. We are confident that the court will agree that our client is entitled to a fair sentencing hearing that is untainted by considerations of his race," Kate Black, one of Buck's attorneys, said.

Buck was convicted of gunning down ex-girlfriend Debra Gardner, 32, and Kenneth Butler, 33, outside Houston on July, 30, 1995, a week after Buck and Gardner broke up. 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.

Buck's attorneys went to the Supreme Court after losing appeals in lower courts. A clemency request to the Texas Board of Pardons and Paroles, all of whom are Perry appointees, also failed.

Assistant Attorney General Edward Marshall had told the high court that Buck's appeals were attempts to relitigate claims that every court, including the Supreme Court, already rejected.

Perry was not in the state Thursday, meaning any final order to delay would have come from Lt. Gov. David Dewhurst. However, Perry's office frequently points out that he remains the governor and in contact with Austin while traveling.

Two more Texas prisoners are set to die next week.

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