Monday, March 25, 2013

How Is This America?

This actually happened, right here in the United States of America. In Texas, to be precise.
In 1997.
During Mr. Buck’s trial, Dr. Walter Quijano was called by the defense and testified that he did not believe Mr. Buck would be a future danger based on several factors, primarily that Mr. Buck had no violent criminal record and did not display violent tendencies. On cross-examination, the government elicited testimony from Dr. Quijano that blacks are more likely to commit future acts of violence:
Q: You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black increases the future dangerousness for various complicated reasons; is that correct?
A: Yes.
The government urged the jury in its closing argument to rely on Dr. Quijano’s testimony. The jury found that Mr. Buck would be a future danger, and he was sentenced to death.
That comes from the Texas Defender Service’s website. The emphasis is mine.
Duane Buck is a nasty dude. In 1995, he killed his ex-girlfriend and the guy she was spending time with, and in the process he also shot his step-sister, who survived. Apparently, he even joked about the crime afterwards. So if you believe in the death penalty – which, in the interest of full disclosure, I do not, ever, under any circumstances – Duane Buck is your poster child.
But even if you’re ravenously pro-death penalty, you’ve got to admit this much: The guy’s race shouldn’t have anything to do with the decision. Yet, that appears to be exactly what happened in Buck’s case: On cross examination, the defense’s expert, Dr. Walter Quijano, agreed with the District Attorney that being Black “increases the future dangerousness” of an offender like Duane Buck – a key factor in determining whether Mr. Buck should be sentenced to death. And the District Attorney urged the jury to consider that testimony in reaching its decision.
Shocking, right? So shocking, in fact, that the Republican Attorney General of Texas, John Cornyn (yes, that John Cornyn), stepped in:
[On June 9, 2000], the chief legal officer for the State of Texas, Attorney General John Cornyn, issued a press release in which he identified Mr. Buck’s and five other cases then pending in post-conviction proceedings as cases in which the government had unconstitutionally relied on testimony of psychologist Walter Quijano, that a defendant’s race should be considered in determining future dangerousness and, at least in Mr. Buck’s case, that being black was a factor that increased the likelihood of future dangerousness. The press release looked at a total of eight cases in which Dr. Quijano had been involved, but concluded that two cases did not have circumstances rising to a constitutional violation. Through mistake or inadvertence, however, and despite the Attorney General’s admission of constitutional error in Mr. Buck’s case, he would be the only one of the six whose racially-tainted death sentence was left intact.
So Duane Buck, unlike the other six defendants in cases tainted by Dr. Quijano’s racist testimony, never received a new sentencing hearing even though Texas’ Attorney General specifically identified Buck’s case as one meriting review.
Nonetheless, Buck’s lawyers filed an Petition for Writ of Habeas Corpus in the United States District Court in Houston, arguing that Buck’s death sentence should be vacated for a variety of reasons, including that the State of Texas admitted violating another defendant’s equal protection rights by relying on Dr. Quijano’s testimony under nearly identical circumstances. (See Buck’s Petition for Writ of Certiorari in the U.S. Supreme Court (.pdf file), pp. 4-6.) In that case, Saldaño v. Texas, 530 U.S. 1212 (2000), the United States Supreme Court vacated the death sentence based on Texas’ “confession of error.” 
Both the District Court and the United States Court of Appeals for the Fifth Circuit denied Buck habeas relief. (See Petition for Writ of Certiorari, pp. 2-3.) The Supreme Court stayed Buck’s execution (.pdf) on September 15, 2011, the day he was scheduled to die; but in the end it refused to hear Buck’s appeal. Denying his Petition for Certiorari, Justice Alito, joined by Justices Scalia and Breyer, issued a statement reading, in part:
The petition in this case concerns bizarre and objectionable testimony given by a “defense expert” at the penalty phase of Buck’s capital trial. The witness, Dr. Walter Quijano, testified that petitioner, if given a noncapital sentence, would not present a danger to society. But Dr. Quijano added that members of petitioner’s race (he is African-American) are statistically more likely than the average person to engage in crime.
Dr. Quijano’s testimony would provide a basis for reversal of petitioner’s sentence if the prosecution were responsible for presenting that testimony to the jury. But Dr. Quijano was a defense witness, and it was petitioner’s attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness.
Buck v. Thaler, No. 11-6391 (Sup. Ct. December 7, 2011), slip op. at 1-2 (Statement of Alito, J.) (emphasis supplied) (.pdf file).
That, apparently, was enough to refuse to hear Duane Buck’s appeal: That even though “Dr. Quijano’s testimony would provide a basis for reversal,” Dr. Quijano was called by Buck’s attorneys, not the state, and they opened the door to the state’s line of questioning regarding race and “future dangerousness.”  And so Duane Buck continues to sit on Texas’ death row, sentenced to die in part because the jury believed a doctor’s testimony to the effect that a Black man is more likely to be a future threat to the public than men of other races.
As the sands continue to run out of Duane Buck’s hourglass, he has filed another appeal based on a recent study conducted by criminologist Ray Paternoster. According to the Houston Chronicle:
His latest appeal focuses on race, suggesting that his case was pursued as a death case mostly because he is African-American. His lawyers claim the case is part of a pattern in which blacks and Hispanics accused of murder were more likely than whites to see their cases escalated to capital and be prosecuted for death.
A recent study by a Maryland criminologist supports their claim. Ray Paternoster concluded that race played a role in decision-making about which cases to seek a death sentence.
“There’s is reason to believe that Buck’s race played a role in the decision to advance his case to a penalty trial and impose a death sentence,” Paternoster said in a report to Buck’s attorneys. “Not every potentially capital case is charged as a capital crime, and prosecutors have the discretion not to charge an offense as a capital crime even if the facts of the case could justify such a charge.”
The NAACP Legal Defense Fund is working on Buck’s latest appeal.
At the same time, a group of “102 elected officials, civil rights leaders, faith leaders, legal professionals, past ABA presidents, a former governor and concerned citizens dedicated to protecting the integrity of the criminal justice system” have signed a statement (.pdf) urging the State of Texas to grant Buck a new sentencing hearing, and there are various online petitions seeking to accomplish the same thing. Equal Justice USA has one such petition, as does
The odds that a last minute appeal will be successful are slim. As for online petitions and the like, I’m less optimistic still that they will have an impact on the Harris County District Attorney’s actions – not that that stopped me from signing both. And so this could happen in America. In 2013. A man could be put to death because a jury believed that his race made him a greater future danger to the public, and people in a position to redress that wrong – from the District Attorney’s office all the way up to the United States Supreme Court – refuse to act.
Welcome to post-racial America.
[Cross-posted at Angry Black Lady Chronicles]


  1. Well, you gotta admit that he LOOKS blackguilty! And I'm pretty sure that he's smirkin', too. Darned uppity smirkin', ask me! /s

    It is Texas, after all, where everybody carries gunz and they have so few murderz (only about 1100 in 2011), so proving that gunz and the death penalty make people not kill people.

  2. Signed the EJUSA petition. For some reason, couldn't access the one - check the link, as I think something weird happened to the prefix.

    Count me in as someone absolutely opposed to the death penalty under any circumstances. While this case is a pretty severe miscarriage of justice across the board, I was especially taken aback by the fact that Quijano had been called as a defense witness. Since I'm not a lawyer - would there have been some way to permit him to say that regardless of his research he considered Buck not to be a future danger?

    (Not that that changes my feelings on the current situation, but this aspect, I admit, piques my curiosity.)

    1. I’ll double check the link – thanks for letting me know.

      Interestingly enough, apparently Dr. Quijano did testify to the effect that Buck wasn’t a future danger, but stated on cross-examination that there’s a correlation between race and being a future danger to society.

      In any event, I’m with you: I’m unapologetically anti-death penalty in all circumstances.

    2. I should've been clearer. I meant that having already entered into the record both opinions, would there have been some way for Quijano to reinforce the main point - i.e., that Buck was not a future danger regardless of his belief that race was correlated with danger to society?

      I ask because I'm not a lawyer, so I have no idea how that procedure would have been possible, if at all.

    3. Oh, I see. The confusion was mine. I don’t know exactly what happened in this case, but Buck’s lawyer should have had the opportunity to conduct a “re-direct” examination after the state cross-examined him, and in doing so he/she should have been able to reemphasize that point. It’s not clear that that happened.