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University of Maryland Professor Ray Paternoster released a study on Wednesday demonstrating that between 1992 and 1999, the Harris County DA’s Office was over three times more likely to seek the death penalty against African American defendants and four times more likely to seek the death penalty against Hispanic defendants than against similarly situated white defendants.

The study was included in an appeal filed by condemned prisoner, Duane Buck, in Harris County’s 208th Criminal District Court.

Examining 504 Harris County capital cases, Prof. Paternoster found that the DA’s office advanced 129 cases to the penalty phase of a capital trial, of which 98 ended in a death sentence. Prof. Paternoster wanted to examine the probability that cases which were characteristically similar to the case of Duane Buck would advance to trial.

Using a set of 21 variables, Prof. Paternoster created a statistical model of probability. He found that most of the 504 cases were less likely to go to trial because they were deemed less serious than other cases. Prof. Paternoster located the corresponding propensity score for Duane Buck’s case and then examined the next ten cases with a higher propensity than Buck’s and the next ten cases with a lower propensity than Buck’s for a total comparison of 21 cases. Of all the cases in the sample size, these 20 were most like Mr. Buck’s in seriousness.

What Prof. Paternoster found when he examined these 21 cases was that prosecutors only took 20% of cases involving white defendants to the penalty phase of a trial, but advanced 70% of black defendants and 80% of Hispanic defendants cases. When Prof. Paternoster expanded the range of comparison cases to include 31 cases either side of Duane Buck’s, the results held steady.

Mr. Buck is seeking a new sentencing hearing in his appeal because the trial prosecutor elicited testimony from a psychologist that Mr. Buck posed a future danger to society because he is black. The prosecutor relied on this testimony in arguing in favor of a death sentence. He told the jury:

You heard from Dr. Quijano, who had a lot of experience in the Texas Department of Corrections, who told you that there was a probability that the man would commit future acts of violence.
 

– State’s Closing Argument, Cause No. 699684, Reporter’s Record, Volume 28, p. 260 (1997).

Three years later, then-Texas Attorney General (now U.S. Senator) John Cornyn acknowledged that reliance on testimony connecting race to dangerousness was wholly unacceptable and promised that the Attorney General’s Office would seek new, fair sentencing hearings for seven people, including Mr. Buck, whose cases were tainted by such testimony.

The State kept its word in every case – except for Mr. Buck’s.

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