Now that the Supreme Court has ordered a stay in Texas’ execution of Duane Buck, whose sentencing phase was tainted by the introduction of race when psychologist Walter Quijano responded to a prosecutor’s question that blacks were more likely to commit future violent crimes than white, we can all take a sigh of relief and sit back.  But there’s a big, no huge, gap that few have mentioned.  It’s time to talk about it.

Quijano, the evil psychologist who inserted his bizarre and unsupported theories of race and crime into the trial, was not called as a witness by the evil prosecutor.  The opening for the evil question on cross examination that put race into the mix wasn’t manufactured by the evil prosecutor or allowed by the evil judge. 

Here’s the sad, hard reality:  Walter Quijano was called as an expert witness by the defense.  On  direct examination by Buck’s lawyer when he “”solicited testimony from him regarding the use of race … for predicting future dangerousness,” the defense inserted race into the sentencing phase.  Knowing of Quijano’s theories about race and recidivism, the defense nonetheless used him as a witness.

In other words, this discussion about all the terrible things that happened to Duane Buck, the impropriety of inserting race into the decision to execute him, utterly omits one key factor: It all leads back to Duane Buck’s own lawyer. 

And who was Duane Buck’s lawyer?  Jerry Guerinot.

Does that name sound familiar?  It should.

A good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you.

Twenty of Mr. Guerinot’s clients have been sentenced to death. That is more people than are awaiting execution in about half of the 35 states that have the death penalty.

“People who are well represented at trial do not get the death penalty,” Justice Ruth Bader Ginsburg has said.

So what is Mr. Guerinot’s secret?

Enter Walter Quijano in this case.  A bad choice.  In other cases, other bad choices. 

“Basically, he’s an undertaker for the State of Texas.”

When the  New York Times told Buck’s story, of how the case went wrong, there was no mention of Jerry Guerinot, as if Buck had no lawyer at his trial.  The  Times editorial decried the use of race, without mention of what distinguished Buck’s case from the other five who were affected by Quijano. 

In  writing about this the other day, and without more complete information in the stories available, I made the terrible mistake of assuming facts not in evidence.  In a comment, Shawn McManus, who labored under the same mistaken assumption, asked :

If Quijano were an expert witness called by the defense, would that make a difference?

I don’t know if he was and I don’t think that it does make a difference as the prosecutor shouldn’t have followed the line of questioning anyway.

I responded :

No, provided he wasn’t a defense witness and the defense didn’t elicit or open the door to (though I can’t imagine how this could be possible, though I can envision a court saying it) the improper testimony.

Talk about being wrong.  I was soon informed just how badly colored by response was, and that my assumption that no defense lawyer could ever be so shockingly incompetent, foolish, dangerous as to not only introduce an outlier like Walter Quijano into the mix, but then open the door to bizarre racial theories that would help, if not assure, my client’s being sentenced to death, was completely wrong.

While some think I’m less than kind to the brethren, disinclined to conceal bad things done by lawyers and shift all blame to the players in the system who are acceptable villains to criminal defense lawyers, my assumption here still reflects my bias, that no criminal defense lawyer can be that bad.  Indeed, they can.

Duane Buck should no more be executed because the State of Texas assigned its undertaker, Jerry Guerinot, to be his lawyer than if his execution was the product solely of outrageous prosecutorial or judicial impropriety.  It implicates very different tests, particularly where, as here, Guerinot’s decision to put Quijano on the stand as the defense expert was tactical, though so obviously risky that it was beyond any possible sound judgment.  Yet, that a defendant’s unfair sentence came about at the hand of his own lawyer is a very different equation.

Had this not been pointed out to me, in fact my nose rubbed in it, it would never have been clear to me how this horrible sequence of events resulted in Buck’s death sentence.  These stories cannot, however, omit the crucial dots that need connecting, even when the missing dot turns out to be the criminal defense lawyer. 

All of us, and criminal defense lawyers more so than anyone else, need to remember that our failure can just as easily be the source of an execution as our adversaries.  Just because the media leaves that dot out of the tale doesn’t change how such outrageous errors happen.