Sept. 1

TEXAS----impending execution

Lawyers Seek Reprieve for Inmate Based on Race Testimony

When Duane Edward Buck was on trial for capital murder in Houston in 1997, Dr. Walter Quijano told jurors that the fact he was black meant Buck was more likely to be violent in the future.

The same psychologist gave similar testimony in 6 other death row cases. In each, the defendants were given new trials to determine their sentences.

Buck, though, has not received a retrial and is scheduled to die Sept. 15 for the 1995 shooting deaths of Debra Gardner and Kenneth Butler. Today, Buck's lawyers asked Gov. Rick Perry and the Texas Board of Pardons and Paroles to stop the scheduled execution to allow a new trial without racial references.

“If Mr. Buck is executed, not only will Texas have violated the constitution, it will have violated its citizens’ basic moral values by permitting an execution to be carried out that is based on an individual’s race,” Kate Black, a lawyer for Buck, said in a statement.

In 2000, then-Attorney General John Cornyn admitted the state had erred in seven death row cases — including Buck's — in which prosecutors elicited testimony from Quijano indicating that their racial or ethnic background made them more inclined to commit more violent crimes.

In the case of Victor Hugo Saldano, an Argentinian, Cornyn filed a petition with the U.S. Supreme Court in which he acknowledged the state’s mistake and agreed a new sentencing trial was needed. “Despite the fact that sufficient proper evidence was submitted to the jury to justify the finding of Saldano’s future dangerousness, the infusion of race as a factor for the jury to weigh in making its determination violated his constitutional right to be sentenced without regard to the color of his skin,” Cornyn wrote.

Saldano remains on death row after the Texas Court of Criminal Appeals reaffirmed his sentence. The other inmates — except one who has been executed — also remain on death row.

Cornyn’s office did not immediately respond to a request for comment on the Buck case.

Buck’s lawyers said that he has not received a new trial because of procedural stumbling blocks, and they asked Perry and the board to commute his sentence or grant a 120-day reprieve. “The State of Texas cannot and should not tolerate an execution on the basis of an individual’s race, particularly where this State’s highest legal officer has acknowledged the error, not only in similarly situated cases, but in thiscase,” they wrote in the petition filed today.

Buck’s lawyers also asked current Texas Attorney General Greg Abbott and the Harris County District Attorney’s office to intervene and withdraw the execution date.

Abbott’s office did not immediately provide comment, but Roe Wilson, an assistant district attorney in Harris County, said that office would not intervene. “We are proceeding with this case as we would normally with any case,” she said.

(source: Texas Tribune)


Petition: Condemned man's sentence racially tingedCommenting unavailable on some articles ---- As part of a technology change, commenting will not be available on some articles for a number of months. Read more about the change here.

In 2000, then-Texas Attorney General John Cornyn said 7 death row inmates had been unfairly sentenced to death because improper racial testimony had been presented at their trials.

"It is inappropriate to allow race to be considered as a factor in our criminal justice system," Cornyn, now a U.S. senator, said at the time.

6 of those inmates later got new sentencing hearings. But a 7th — Duane Edward Buck, convicted of a 1995 Harris County double murder — did not. Buck, 48, is scheduled to die Sept. 15.

On Wednesday, Buck's lawyers petitioned the Texas Board of Pardons and Paroles and Gov. Rick Perry to stop the execution.

Buck's lawyers with the Texas Defender Service have also asked current Attorney General Greg Abbott and Harris County District Attorney Pat Lykos to agree to cancel the execution date, said Andrea Keilan, director of the service.

"It's very rare to see an attorney general concede error in a capital case, much less a series of capital cases," Keilan said. "It shouldn't be controversial, and yet no one has stepped forward" to give Buck a new sentencing trial.

The seven cases identified by Cornyn were all tainted by testimony by psychologist Walter Quijano, who regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic. He based his testimony on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state's general population.

His testimony was intended to inform the key decision by juries in assessing the death penalty in Texas: whether the defendant would be a likely future threat to society.

On July 30, 1995, Buck fatally shot his ex-girlfriend Debra Gardner, 32, and her male houseguest Kenneth Ray Butler, 33, after returning to the home following an earlier argument. He also shot his sister Phyliss Taylor, 28, who survived.

In his petition, Buck's lawyers said he had a drug problem and was "severely intoxicated" that day.

At Buck's 1997 trial, Quijano was called by the defense and testified that he did not believe Buck would be dangerous.

On cross-examination, according to Buck's petition, a prosecutor asked Quijano whether "the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?" according to Buck's petition.

"Yes," Quijano said.

The prosecution raised that point again during closing arguments, the petition said.

In 2000, at Cornyn's urging, the U.S. Supreme Court halted the Collin County death sentence of Victor Hugo Saldaño because of race-tinged testimony given by Quijano and sent it back to Texas courts for reconsideration.

Saldaño was later granted a new trial and again sentenced to death. He remains on death row along with five other inmates who received new sentencing trials because of Quijano's testimony. One has been executed.

Soon after that Supreme Court ruling, Cornyn announced other cases, including Buck's, that he believed were tainted by Quijano's testimony. He said he notified prosecutors and defense appellate lawyers of his findings.

"The people of Texas want and deserve a system that affords the same fairness to everyone," Cornyn said in a June 2000 statement.

Buck's lawyers argued during his state appeal that his rights were violated by the use of race at his trial, but that application was refused on procedural grounds, according to his current lawyers.

A subsequent state petition, which did not mention Cornyn's statement about the case, was also denied, Keilan said.

"It's a mess procedurally," Keilan said, "but the bottom line is that this guy got death based on racist testimony."

(source: Austin American-Statesman)


Southeast Texas couple indicted in death of daughter, 4

A Southeast Texas grand jury has indicted a woman and her boyfriend on capital murder charges over the death of her 4-year-old daughter.

A Hardin County grand jury Tuesday indicted Amanda Guidry and Jason Delacerda, both of Kountze, who originally were charged with injury to a child.

District Attorney David Sheffield told KFDM-TV that he’s seeking the death penalty against the boyfriend.

(source: Associated press)


Bad Blood at the Dallas County Crime Lab----Attention, all convicted rapists and murderers. Start filing your appeals now.

No matter how easy it looks on prime-time television, putting bad guys in jail isn't as simple as slipping on a dark pair of sunglasses, coming up with a scathing quip, and having an invariably sexy forensic biologist deliver irrefutable evidence that eliminates all reasonable doubt. Forensic science is a lot messier than that.

It's so messy that, 6 years ago, Texas legislators created the Texas Forensic Science Commission. It was tasked with hearing complaints about faulty science, bad policy, and mismanagement in Texas crime labs, with an eye toward improving conviction integrity and ensuring the best possible practices in crime labs across the state.

The Dallas County Crime Lab-more formally called the Southwestern Institute of Forensic Sciences, or SWIFS-has yet to come under the commission's microscope. But Dr. Chris Nulf says a thorough review is long overdue. He worked at the lab as a forensic analyst in 2008 and 2009 and has been trying to get the commission to investigate Dallas' crime lab ever since. He is speaking openly for the 1st time about the problems he saw there during his tenure. Nulf says the lab practices poor quality control, training is sloppy, and management retaliates against employees who raise concerns. If Nulf is right and there are serious problems with the crime lab, every case that relies on physical evidence could be called into question. Imagine if every convicted rapist going back 5 years suddenly had a good reason to appeal his case. Similarly, sloppy lab work could send innocent people to jail.

"People's liberties are at stake here," Nulf says.

The Dallas County Crime Lab is currently accredited by the Texas Department of Public Safety and, as of 2003, by ASCLD/LAB, the multinational accreditation agency that crime labs pay to join. But Nulf says accreditation is only one part of the puzzle and that ASCLD/LAB has taken the lab at its word that its policies are sound. Essentially, the crime la is doing fine because it says it is.

Nulf earned a Ph.D. in molecular microbiology from UT Southwestern Medical Center in 2004 and was hired on at the crime lab in March 2008. In the 14 months Nulf spent in training as a forensic analyst, he says that using expired chemicals was a matter of practice, that he saw a box fan used to cool a room where microscopic evidence was handled, and that he was trained under managers and supervisors who had different, and loose, interpretations of lab protocol.

"You never knew what to believe when someone told you something," Nulf says of his training.

In the summer of 2008, Nulf informed his supervisor, Dr. Stacy McDonald, that a stock chemical, sodium perborate tetrahydrate, used in the serology lab-where blood and other bodily fluids are analyzed-had expired in 2005. The crime lab's procedural manual states that that chemical can be used for a maximum of 90 days after its expiration date. When Nulf's complaints were forwarded to ASCLD/LAB, the Dallas crime lab had an explanation. Management explained that sodium perborate is merely a component used to make complete "working solutions." As long as the working solutions made from the expired chemical passed quality control, that was good enough. In other words, the lab admitted that, yes, it was using spoiled meat, but the chili still tasted fine.

Nulf claims that analysts were trained to re-prepare working solutions until they got a quality control that worked. If an expired chemical failed quality control most of the time but analysts could get it to work some of the time, no one would be the wiser. This kind of information wasn't shared with ASCLD/LAB.

"They trained on preference, rather than protocol," Nulf says. (Dallas County medical examiner Dr. Jeffrey Barnard, who oversees the crime lab, was unavailable for comment as of press time.)

Nulf anonymously filed grievances with the Texas Forensic Science Commission in the spring of 2009, while still employed at the lab. "I knew they weren't following protocol," he says. "I knew they weren't being scientific."

Beyond the expired chemicals and the box fan-in their report to ASCLD/LAB, the crime lab said that the fan was used only temporarily and that it faced away from areas where evidence was handled-Nulf also says that, in the year he worked for the crime lab, he was never asked to submit his own DNA for an employee database used to investigate potential contaminations. An employee DNA database is standard procedure for all crime labs.

Nulf was fired in May 2009, in part because he insisted on making a notation in the lab's logbook that he had used an expired chemical. He was told that the notation was made "without direction from a supervisor and without sufficient documentation." He publicly attached his name to his previous complaints in a wrongful termination suit filed against Dallas County in October of that year. Local media jumped on the suit, as it contained powerful statements that accused the crime lab of a "total lack of professionalism" and that "the same evidence used to convict murderers and rapists may be used to put them back on the street." Nulf's suit couldn't go to trial because of a procedural technicality. He had failed to file his complaint with the county within seven days of his termination, as per policy. He and his lawyers filed a nonsuit, ending the litigation.

With no recourse in court, Nulf has waited two years to hear the state commission's response to his complaints. He has amassed a pile of documents via open-records requests to shore up his case. One of those documents is a "corrective action report," an internal memo created when problems are found in the lab. A report labeled CAR-07-007 details that "areas of the Trace Evidence Lab and office were contaminated with blood," on or about July 16, 2007, per Dr. Timothy Sliter, the lab's evidence section chief. The report itself, though, contains the signature of a crime lab employee, Karen Young, who didn't work for the lab in 2007. Nulf also noticed that the template used for the report looked different than others used in that year. The report lists a resolution date of November 25, 2008. It was not, then, created contemporaneously with the contamination discovery, but 16 months later.

Nulf believes Sliter withheld information about a widespread contamination for 16 months. He says that's the kind of information defense attorneys would have found very useful. With the prosecution, say, pointing to blood from the crime scene found on the accused's shirt, the defense could raise the question of whether the blood might have been transferred to his client's shirt as it was being analyzed in a contaminated lab.

When D Magazine contacted the Texas Forensic Science Commission to inquire about the status of Nulf's complaint-the commission's website still says a decision has been "abated" pending Nulf's civil litigation, which was terminated in July 2010-a commission rep said Nulf's complaint had been dismissed back in August 2010.

The dismissal didn't come as a surprise to Nulf, because he's never been notified by the commission about his case's status. Representatives for the commission claim they did notify Nulf and that the case was dismissed on the grounds that he did not tie his complaints to a particular criminal case, as is required by the commission's protocol. That protocol, however, wasn't adopted until January 2010-months after Nulf had filed his original complaint.

(source: D Magazine)


Death penalty a bigger issue for Obama than for Perry

As Texas governor, GOP presidential hopeful Rick Perry has presided over 234 executions. It's a record number, which, The Washington Post reported last week, bestows on Perry "a law-and-order credential that none of his competitors can match — even if they wanted to."

Watch how pundits will try to turn that statistic into a political negative — and paint Perry as the governor with blood on his spurs — even though American voters overwhelmingly support the death penalty.

The temptation to tout Texas' status as the state with the most executions will prove too seductive. It won't matter that, as the Post story points out, Perry has overseen more executions than any other governor in modern history because his state is the second-largest in the country and he has served as governor of that state for nearly 11 years or that the late Democratic Gov. Ann Richards oversaw 50 executions during her one term — and unlike Perry, she never commuted a death sentence.

The irony here, points out Kent Scheidegger of the pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif., is that Texas does not deserve its reputation as the most execution-prone state. Scheidegger crunched federal data from 1977 to 2009 and found that among the nation's 34 states with capital punishment, Texas falls below the mean of 16.5 death penalty sentences per 1,000 murders. Delaware and Oklahoma have higher rates when it comes to executions.

Of course, the other big factor is that Texas is not California. Hence, its sentences are not crushed under the heel of the 9th U.S. Circuit Court of Appeals. There is no federal judge in the Lone Star State who — fearful, lest a convicted murderer be put at risk of feeling any pain during lethal injection — issued an order that effectively stayed all state executions since February 2006, as happened in California. In Texas, a governor actually can carry out the law.

So, how do pundits turn that into a negative? Death penalty opponents suggest that Perry presided over the execution of an innocent man, Cameron Todd Willingham, in 2004, after Willingham was wrongfully convicted for the 1991 deaths of his 3 daughters, 2-year-old Amber and 1-year-old twins Karmon and Kameron.

Barry Scheck, co-director of the Innocence Project in New York, has argued that an innocent man was executed. Investigators' finding of arson was seriously flawed. A number of journalists agree.

On the compassionate conservative side, Perry has commuted three death sentences to life in prison. In 2007, on the advice of the Texas Board of Pardons and Paroles, Perry granted a reprieve to stop the lethal injection of Kenneth Foster because Foster drove the getaway car but was not the shooter in a 1996 robbery/homicide. Perry also signed the bill that created life without parole as an alternative to the death penalty. I think the death penalty could be a much bigger problem for President Obama as he seeks re-election. Obama says that he supports the death penalty, but his administration opposed Texas' scheduled execution of Humberto Leal — who was convicted in the 1994 murder/rape of a 16-year-old — because Leal, a Mexican national raised in San Antonio, had not been advised that he was entitled to consult with the Mexican Consulate. Perry would not oblige, and Leal was executed.

Also, under the Obama administration this year, the Drug Enforcement Administration seized the lethal injection drug sodium thiopental from Georgia, Kentucky and Tennessee on the grounds that the Food and Drug Administration has not approved drugs intended to execute convicted killers.

Yes, folks, those are your tax dollars at work in the Obama administration — funding federal law enforcement raids designed to undermine state laws.

It doesn't matter that the U.S. Supreme Court upheld lethal injection by a 7-2 margin in a 2008 ruling. If there is one way Democrats know how to use the federal government successfully, it is to sabotage state laws they don't like.

(source: Columnist; Debra J. Saunders is a columnist for the San Francisco Chronicle----Statesman Journal)
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