Supreme Court Grants Death Row Inmate a Retrial Because of Racist Testimony
By Brian Rogers
Duane Buck -- wearing handcuffs, leg irons and the yellow jail uniform of a high-profile inmate -- doubled over in his courtroom chair and sobbed.
"I'm sorry," he said.
It was the last act of a decades-long battle to execute the 54-year-old convicted killer for a double murder, ending not with lethal injection but a plea deal in a Harris County court.
Buck's courthouse deal was the third Harris County death penalty case stemming from a successful appeal resolved with a plea bargain instead of a retrial under District Attorney Kim Ogg.
Buck, whose case went to the U.S. Supreme Court and was sent back to Houston for a retrial because of concerns about racist testimony in his 1997 trial, escaped death row by admitting guilt in the shooting rampage that killed two and injured two others.
The family of Buck's victims, however, were having none of his contrition.
"The boy is a cold-blooded murderer," Accie Smith told reporters after the brief hearing. "He is not a victim of racism. He's a cold-blood, calculating murderer."
Smith is one of the older sisters of Debra Gardner, Buck's girlfriend, whom he killed along with her friend Kenneth Butler.
After a night of drugs, alcohol and arguing with Gardner in July 1995, Buck broke into her home and shot four people. The victims included his sister, Phyliss Taylor, and his friend Harold Ebenezer, who both survived.
After Tuesday's plea, the slain woman's daughter recounted how she hung from Buck's back as a 13-year-old and tried to keep him from attacking her mother.
"You took my mom," said Shenell Gardner. "We both get to live with this. I know what I feel; you feel as well."
The battle to execute Buck began when he was sentenced to die for the slaying of his girlfriend and Butler.
After 20 years on death row and several appeals, the U.S. Supreme Court earlier this year granted Buck a new sentencing hearing because of testimony from an expert who told jurors that Buck was more likely to be dangerous in the future because he is black.
Gardner's family members, who are black, said they felt betrayed by the NAACP and black ministers who took up Buck's cause.
"They threw us under the bus. What happened today is a travesty and it's a disgrace," Smith, the victim's sister, said. "I will never understand why his life is more important than her life."
'Race is never evidence'
On Tuesday, Ogg said she did not believe prosecutors could secure the death penalty again.
The defense team would have shown that for 22 years, Buck has been a model prisoner, so he is unlikely to be a future danger. Also, his sister, whom he shot, has argued for leniency in his case.
Instead of going to trial, Ogg offered Buck the opportunity to admit guilt to two additional counts of attempted murder, hoping to stack the deck when the parole board reviews Buck's case in 2035.
"A Harris County jury would likely not return a death penalty conviction today in a case that's forever been tainted by the specter of race," she said.
The top prosecutor said she hopes the resolution of Buck's case will mark the end of race being used against defendants in capital cases.
"Race is never evidence," Ogg said.
The dilemma with Buck getting a life sentence, by either a jury trial or a plea deal, is that he is sentenced according to the law at the time of the crime.
Ogg said it was important to keep Buck behind bars for the rest of his life.
A sentence of "life without parole" is not an option, even if both sides agreed to it, because that punishment did not exist in 1995. Similar plea deals have been made to keep other death row inmates in prison instead of re-trying them years after their original trial was completed.
In June, Robert James Campbell pleaded guilty in exchange for life in prison in a similar deal for his 1992 conviction for the kidnapping, rape and murder of Alexandra Rendon, a 20-year-old bank teller he abducted while she was pumping gas.
The case came back to Harris County after the U.S. Supreme Court outlawed the execution of mentally disabled people. He was declared intellectually disabled by a mental health expert for the prosecution, which meant he would be sentenced to life in prison under the law at the time of the crime.
In April, Randolph Mansoor Greer, a North Carolina man who spent years on Texas' death row awaiting execution, was sentenced to four consecutive life sentences, a plea bargain that Harris County prosecutors hope will keep him behind bars for the rest of his life.
Greer was part of a wave of cases that were returned in 2011 by the U.S. Supreme Court, which handed down a ruling that meant he and dozens of other condemned inmates would get new sentencing hearings because of insufficient jury instructions.
Those cases were called Penry retrials because of the name of the defendant in the Supreme Court case. Some have successfully been retried as death penalty cases while others have gotten plea bargains with elaborately structured pleas to ensure the former death row inmates are never free.
More famously, Montgomery County District Attorney Brett Ligon last month eschewed the death penalty in exchange for a sentence of life without parole for Shannon Miles, who gunned down Harris County Deputy Darren Goforth. In Miles' case, he was eligible for life without parole and was not being re-tried. Ligon said he made the offer because that was what Goforth's widow wanted.
On Tuesday, Buck appeared before state District Judge Denise Collins, who signed off on the plea deal that had been worked out between prosecutors and defense attorneys.
In an unusual twist, Ogg said the parties also agreed that Buck would not try to profit from any books, movies or other enterprises connected to the crime. The judge acknowledged the "anti-murderabilia" agreement but said it was not enforceable in criminal court.
Buck's lawyers declined to comment at length after the sentencing hearing at which years of briefs, arguments and investigations finally paid off.
"Today is the day for others to have their voices heard," said Kate Black, senior attorney for the Texas Defender Service.
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