Duane Buck’s Lawyer Discusses How Future Dangerousness Taints Texas Death Penalty System

Thirty years ago, film­mak­er Errol Morris, who direct­ed the doc­u­men­tary ​“The Thin Blue Line,” helped to exon­er­ate Texas death-row pris­on­er Dale Adams, false­ly accused of mur­der­ing a police offi­cer. During the course of mak­ing the film, Morris met the noto­ri­ous Texas pros­e­cu­tion psy­chi­a­trist, Dr. James Grigson, who rou­tine­ly tes­ti­fied that cap­i­tal defen­dants — includ­ing the inno­cent Mr. Adams — posed a risk of future dangerousness. 

Morris recent­ly inter­viewed Christina Swarns (pic­tured, cen­ter), lit­i­ga­tion direc­tor for the NAACP Legal Defense and Education Fund, about the case of Duane Buck and the haz­ards of Texas’s con­tin­ued use of the con­cept of future dan­ger­ous­ness in sen­tenc­ing defen­dants to death. Swarns argued Buck v. Davis in the U.S. Supreme Court, a case taint­ed by the tes­ti­mo­ny of Dr. Walter Quijano, a psy­chol­o­gist who told the jury that Buck was more like­ly to com­mit future crimes because he was black. 

On February 22, 2017, the Supreme Court over­turned Buck’s death sen­tence, say­ing ​“Our law pun­ish­es peo­ple for what they do, not who they are.” Swarns said “[t]he intro­duc­tion of evi­dence link­ing race to dan­ger­ous­ness — like that which was pre­sent­ed in the Duane Buck case — was an inevitable prod­uct of future dan­ger­ous­ness in the cap­i­tal pun­ish­ment sys­tem in Texas.” With a death penal­ty sys­tem already ​“con­t­a­m­i­nat­ed and cor­rupt­ed by racial bias,” she said, Duane Buck’s death sen­tence ​“was a pre­dictable out­come of that mess.” 

Swarns called the future dan­ger­ous­ness require­ment ​“insane,” say­ing ​“The busi­ness of pre­dict­ing future dan­ger­ous­ness with­out becom­ing cor­rupt­ed by the var­i­ous fac­tors that are so tied to human func­tion­ing is impos­si­ble. It’s an absurd require­ment.” She added that Buck’s per­fect dis­ci­pli­nary record in his more than 20 years in prison is evi­dence that pre­dic­tions of future dan­ger­ous­ness are unreliable. 

On August 19, the Texas Court of Criminal Appeals grant­ed Jeffery Wood a stay of exe­cu­tion to lit­i­gate his claim that the tes­ti­mo­ny Dr. Grigson pre­sent­ed in his case claim­ing that Wood was cer­tain to pose a future dan­ger to soci­ety if he was not exe­cut­ed was false and sci­en­tif­i­cal­ly base­less. While the Supreme Court did not address the issue of future dan­ger­ous­ness deter­mi­na­tions in its Buck deci­sion, Chief Justice Roberts, writ­ing for the major­i­ty, sharply con­demned the racial­ly biased tes­ti­mo­ny from Buck’s tri­al. ​“When a jury hears expert tes­ti­mo­ny that express­ly makes a defendant’s race direct­ly per­ti­nent on the ques­tion of life or death, the impact of that evi­dence can­not be mea­sured sim­ply by how much air time it received at tri­al or how many pages it occu­pies in the record. Some tox­ins can be dead­ly in small dos­es,” Roberts wrote.