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HARRIS COUNTY SENDS 15 TIMES MORE BLACK MEN TO DEATH ROW THAN WHITE
 
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Michelle Pitcher
February 22, 2024
Texas Observer
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_ Texas’ largest county remains the state’s deadliest when it
comes to capital murder convictions, a new report says. _

1910 Harris County Courthouse, Wikimedia Commons, Sunny Sone

 

Of the 21 people from Harris County most recently sentenced to death,
all but one was a person of color, according to a report
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today by the nonprofit Texas Defender Service
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The report found that 15 death sentences were handed down to Black men
since December 2004—three of which have since been overturned. Four
were given to Hispanic men, one to Ali Irsan, a Jordanian immigrant,
and only one to a white man.

The county’s imposition of the death penalty in the 21st century is
dubbed both “arbitrary and capricious”, with staggering racial
disparities in sentence severity, in a report by TDS, a nonprofit
legal and advocacy group dedicated to stemming the flow of “mass
incarceration and excessive punishment.”

TDS released the report on the anniversary of the 2017 U.S. Supreme
Court decision that overturned the death penalty for Duane Buck, a
Black Harris County man who was condemned to die after jurors heard
racist testimony. 

Texas’ largest county also remains the state’s deadliest when it
comes to capital convictions. A quarter of all Texans sent to death
row since 1973 came from Harris County, the report found. If the
county were a state, it would rank only behind Texas in terms of
funneling people onto death row. 

Since the death penalty was reinstated here in 1976, nearly
three-quarters of the people Harris County courts sent to death row
were persons of color—and more than half were Black. Today, nearly
44 percent percent of Harris County residents are Hispanic, 27 percent
are white and only 20 percent are Black, according to data from the
U.S. Census Bureau. 

The bulk of the past 21 death sentences, the report found, were
imposed between 2004 and 2018. (The report looked only at standing
newly imposed death sentences, not at defendants who were resentenced
after appeals).

“As shown by our review of Harris County’s history and modern
practices, racism continues to impact the criminal legal system in
general—and the administration of the death penalty in
particular—in Harris County. This is unacceptable,” the report
states. 

Former Harris County District Attorney Charles “Chuck”
Rosenthal—who resigned in 2008 after a scandal that included
revelations that he had sent and received racist and sexually explicit
messages from his government email account—led the office from 2000
to 2008. (His predecessor, Johnny Holmes, was more than three times
more likely to seek the death penalty against a Black defendant than
“when a similarly situated defendant was white,” according to the
report.) 

Although Rosenthal kickstarted what the report’s authors call an
“unprecedented spree of obtaining death sentences exclusively
against people of color,” the two subsequent elected Republican DAs
followed a similar pattern. Patricia Lykos and Devon Anderson oversaw
cases that resulted in five death sentences, all involving nonwhite
defendants.

Current Harris County District Attorney Kim Ogg, who ended a 40-year
streak of Republican rule over the prosecutor’s office when she was
elected in 2016, vowed to abandon the path her predecessors charted.
Now in her second term, Ogg has overseen three new cases that resulted
in death sentences; a fourth during her tenure was handled by a
special prosecutor’s office. Of the three cases Ogg’s office
directly handled, one was against Lucky Ward, a Black man, and another
against Robert Solis, who is Hispanic. The third involved a white
defendant, Ronald Haskell.

Two Black men convicted in Harris County in the 1980s and
1990s—Robert Jennings and Arthur Brown Jr.—have been executed
during Ogg’s tenure. 

A spokesperson from Ogg’s office declined to comment on the racial
disparity over the past decades but said decisions about whether to
pursue the death penalty in Harris County are made by the capital
committee, a group of more than a dozen people from the prosecutor’s
office that meets weekly to consider arguments from trial prosecutors
and the defense attorneys before reaching a decision. Ogg still has
final say over whether to pursue death.

While pursuing death in multiple cases, Ogg’s office also opened an
investigation into the 2005 death sentence of Alfred Brown, a Black
man whose conviction had been overturned in 2014. Her office found
Brown was actually innocent in 2019. 

In 2017, after the Supreme Court returned Duane Buck’s case to
Harris County, Ogg opted not to pursue the death penalty against
Buck. 

Harris County prosecutors have sought the death penalty less often in
recent years, but the disparities in death sentences remain stark, the
report said.

“There’s still a lot to address, especially when it comes to the
legacy of racial discrimination,” said Estelle Hebron-Jones,
director of special projects for TDS. 

Racism can affect a criminal case at every stage, from how and why a
suspect is pursued by police to the verdict the jury foreperson
delivers at the trial’s end. But the report suggests it seems to be
a particular problem in Harris County’s jury selection process and
in the evidence presented during sentencing hearings.

The report’s authors noted that the county has a history of “using
peremptory strikes—strikes that a party’s counsel may make against
a potential juror for virtually any reason—to systematically exclude
Black individuals and other people of color from juries.” At least
13 death penalty defendants from the past 20 years have alleged in
appeals that the state used these strikes “in a discriminatory
fashion,” TDS found. 

Duane Buck’s case is one of the most infamous Harris County cases
involving racialized evidence and witness testimony. Buck had been
sentenced to death by a Harris County jury in 1997 after shooting and
killing his ex-girlfriend and her friend at her home, where her
children saw the whole thing, in July 1995. 

During the punishment phase, when the jury was deciding whether to opt
for the death penalty or life in prison for the defendant, Buck’s
own defense attorney called an expert witness to the stand to testify.
The psychologist, Dr. Walter Quijano, testified in front of the jury
that Buck was more likely to be violent in the future because he was
Black. The jury, after requesting to see Quijano’s report, chose
death. 

For years, Buck tried unsuccessfully to appeal his case, arguing that
his trial lawyers erred by allowing Quijano to testify. 

The U.S. Supreme Court had weighed in, overturning the death sentence
in another case in which Quijano testified that a Hispanic defendant
was more likely to be violent because of his race. In the wake of that
decision, Texas’ then-Attorney General John Cornyn led an audit that
flagged other cases where Quijano had provided race-based
dangerousness arguments as a prosecution witness. But the state
didn’t grant Buck relief because it was his own lawyers—not the
state’s—who had introduced the racialized testimony. 

It wasn’t until 2017 that the U.S. Supreme Court weighed to say it
didn’t matter which side introduced race into the equation or to
what extent it was explored—once it was in the record, it had a
corrosive effect regardless. 

“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,” wrote Chief Justice John Roberts in the opinion,
delivered February 2017. “Some toxins can be deadly in small
doses.”

Lee Kovarsky, a law professor at the University of Texas at Austin,
said the Buck decision made big waves in Harris County. “It was a
big deal atmospherically because it signaled that even minor
references to race could be very problematic,” he told the _Texas
Observer. _

The TDS report’s authors say there are critical changes needed in
Harris County to avoid racial discrimination in the application of the
death penalty moving forward, including judicial training, data
collection and sharing by the DA’s office, and statewide legislation
that empowers death row prisoners to challenge convictions they
believe were influenced by racism. 

Anthony Graves, who has lived in Harris County since his own
exoneration from Texas’ death row in 2010, said Texas lawmakers are
unlikely to budge unless pushed by changes to the national criminal
justice discussion.

“Texas does not want to acknowledge the deep-seated racism that
exists in our criminal justice system,” Graves told
the _Observer._ “Texas has this opinion that these are isolated
incidents, and we don’t operate in that way. But I was in the cheap
seats for 18 and half years, and I can say that Texas is no
different.” 

When asked whether he was surprised that TDS found that such a large
portion of recent death sentences were handed down to people of color,
Graves said, “It’s the South. …I guess I’m surprised that all
[of them] weren’t African American.”

_MICHELLE PITCHER is a staff writer at the Texas Observer, covering
criminal justice, housing, and education. She received her master’s
in journalism from the University of California, Berkeley and was part
of the team at The Marshall Project that won the Pulitzer Prize for
national reporting. Her reporting has been featured on NPR,
FiveThirtyEight, The Dallas Morning News, and more. Michelle was born
and raised in Dallas and is now based in Austin._

_Support the TEXAS OBSERVER. [[link removed]]
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* texas
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* criminal justice
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* Racism
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* Death Penalty
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