Texas’s 2016 Execution Tally Was the Lowest Since 1996 — Here's Why

Houston-based Texas Defender Services is trying to ensure the judicial system functions properly even in the most extreme circumstances.

By Adam Doster December 29, 2016 Published in the January 2017 issue of Houstonia Magazine

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A few weeks after a bad breakup, in 1995, Duane Buck stormed into the Houston home of his ex-girlfriend and murdered her while her three children watched. He also killed the man he thought she was sleeping with and shot his own stepsister, a bystander who survived. Though remorseful (and high at the time), Buck never disputed these facts. By the spring of 2011, when Kate Black first reviewed the resulting criminal case, the Harris County District Attorney’s office had already set Buck’s execution date. He had six months to live.

Black is a staff attorney at the Houston-based legal non-profit Texas Defender Services (TDS), charged with directing the impending clemency proceedings for death row inmates. The group is at the center of a small community of elite death-penalty defense practitioners in Texas, who try hard to ensure the judicial system functions properly even in the most extreme circumstances.

“We were doing the petition,” Black says, “and in the course of investigating it, we realized there was this huge issue that hadn’t been litigated.”

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Kathryn Kase in her TDS office

Texas allows death sentences only if prosecutors can show that a defendant poses a future danger to society. At Buck’s sentencing hearing, his initial court-appointed defense attorney, Jerry Guerinot, presented testimony from a psychiatrist named Walter Quijano. It was unlikely that Buck, an African-American with no prior violent convictions, would commit similar acts in the future, Quijano stated, but Buck’s race nonetheless “increased the probability.” The claim was scientifically inaccurate and morally bankrupt. The prosecution leaned on it heavily during closing arguments.

A decade later, when a pair of TDS interns read the transcript, they sprinted into Black’s office. “It was surreal,” she remembers. “It’s like, ‘Am I missing a page? What is the story you’re not telling me? This can’t be true!’” Former Texas Attorney General John Cornyn had already set new hearings for five other death row inmates whose trials Quijano tarnished, acknowledging that racial bias had slipped into those courtrooms. At the time of Cornyn’s admission, though, Buck’s appeal was still stuck under the jurisdiction of the local DA.

Eventually, it worked its way up the chain. By then, Cornyn had won a seat in the U.S. Senate. His successor, Greg Abbott, ignored the recommendation. Black, flummoxed, filed a prosecutorial misconduct claim, citing ineffective assistance of counsel, a violation of Buck’s Sixth Amendment rights. “I was confident that it was wrong that it had happened,” Black says. “I was not at all confident that the courts would do anything.”

TDS, a scrappy organization on Blodgett Street in the Third Ward, has labored in the death penalty trenches since 1996. Few have done more to guarantee that defendants like Buck, regardless of their crimes, are treated with a modicum of fairness, even in the so-called death penalty capital of the country.

When the non-profit opened up shop, during the height of Harris County’s execution boom, aggressive district attorneys consistently overmatched private court-appointed defense lawyers. It wasn’t even attractive (or lucrative) work in the first place. Jim Marcus, a TDS co-founder who now runs the Capital Punishment Clinic at the University of Texas School of Law, became a public defender after graduating from law school in 1993. “We would get threatening messages on our voicemail every night,” he remembers. “We had a bomb threat. It was a very hostile environment. People equated us with the acts of the clients.”

As part of its 1994 crime bill, the Clinton administration funded a series of statewide resource centers to help augment lawyering in capital cases, which are notoriously complicated and time-consuming. “Law-and-order” Republicans immediately defunded the program when they reclaimed control of Congress. Freshly unemployed, Marcus and two other young attorneys from the Texas branch set out on their own, trying to replicate the Clinton model in a makeshift office and on a much thinner budget. “It was a chaotic time,” Marcus says. “There was no way we could handle the volume and flow of all these cases, but we thought somebody should be there to at least provide some expertise.”'

Kathryn Kase joined TDS six years later, in 2002. Now the executive director, she oversees a staff of 20, relatively young and predominantly female, all of whom share the drive and dark sense of humor displayed by the organization’s founders. (When asked how she landed there in the first place, Black deadpans about her “inability to make good life choices.”) They work out of a two-story brick home a block from Highway 288, behind a wrought-iron fence. There’s absolutely no signage, which seems purposeful. A hose and some lawn furniture rest on an exterior balcony.

Black and three other attorneys make up TDS’s post-conviction team, which represents clients directly once death sentences have been handed down, particularly in cases involving race, mental illness, or intellectual disabilities. Their goal is to confirm that whoever worked a given trial initially exhausted all potential angles, and didn’t make any irreparable mistakes. (See: Guerinot and Quijano.)

TDS also consults with court-appointed lawyers during the trial phase itself, supplying manpower and institutional knowledge to stressed and overwhelmed attorneys, people who Kase says are “discouraged from being zealous.” Harris County judges limit payment to lawyers for 180 hours of work, even though national surveys show that a proper death penalty appeal requires a minimum of 500 billable hours.

Then there’s the policy arm, which conducts research and advocacy at the county and state levels. Even if TDS can’t argue every case, they want other lawyers to have the tools they need. TDS pushed hard for the Michael Morton Act, a 2013 reform that requires prosecutors to give defense attorneys any evidence that is relevant to the defendant’s guilt or punishment. Their reports also laid the groundwork for the creation of the Office of Capital Writs (OCW), an independent state-run public defender, in 2010. (Ben Wolff, OCW’s director, was hired away from TDS in 2015.) Because they’ve historically had their “finger on the pulse of a lot of cases,” Marcus says TDS is well positioned to identify and publicize the system’s weakest features.

TDS now operates in an environment dramatically different from the one in which Marcus and his team first entered. Statewide, the 2016 execution tally was its lowest since 1996. And in Harris County, not one person has received a new death sentence since 2014. Sinking crime rates and well-publicized exonerations have contributed, along with the state’s introduction of life without parole, in 2005.

So has more sophisticated lawyering. Texas Court of Criminal Appeals judges Larry Meyers and Elsa Alcala have cited improved defense as the main driver behind a rash of execution stays this past summer. “The defense lawyers are getting better and better,” Alcala wrote in one opinion. “They’re able to bring things forth that have never been brought forward before.”

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Duane Buck's legal team and supporters on the U.S. Supreme Court steps

That more juries are fully informed about the circumstances of a given crime and the background of the person charged has “dynamic consequences,” according to David Dow, founder of the University of Houston’s Texas Innocence Network. “That changes the economic calculation for the DA,” he says. “It’s one thing to spend $4 million pursuing a death sentence. It’s a different thing to spend that money seeking death and then not get it.”

This October, Black and Kase found themselves staring up at eight justices of the U.S. Supreme Court in Washington, D.C. After a stay of execution and five additional years of appeals, the court had agreed to hear Duane Buck’s argument. “You’re sitting practically under them,” says Kase. “You’re very close. You can feel the emotion in the room change from the bench very quickly.”

Along with co-counselors from the NAACP Legal Defense Fund, TDS had run through a million moot court presentations; there wasn’t a single question for which they hadn’t prepared. And the nation’s most prestigious judges seemed receptive to their argument. Guerinot’s conduct on behalf of Buck was “extraordinary” (Elena Kagan), “abysmal” (Ruth Bader Ginsburg), and “bizarre” (Samuel Alito). “We’re talking about the dangerousness of black men at the Supreme Court,” Black says. “That felt like such an important moment in time to be there.”

Analysts predict that Buck will receive a new sentencing trial when the Supreme Court announces its verdict sometime this year. For TDS, the decision might provide high-profile validation. Until then, Black and her colleagues will keep grinding away inside their unmarked house. “This is one of those jobs,” Black says, “that you’d love to be put out of.”

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