Stephen B Bright, president and senior counsel at the Southern Center for Human Rights and Harvey Karp Visiting Lecturer in Law
at Yale Law School.)
"Duane Buck would probably not be on death row had he been given a more competent lawyer. Will he receive justice from the US supreme court?"
GIST: "A deeply troubling truth about the death penalty is that it is often handed down not to people who commit the worst crimes, but on those assigned the worst lawyer to represent them. Buck v Davis, a Texas case that will be argued before the US supreme court on 5 October, offers an extreme example of just how deadly bad lawyering can be. Duane Buck was charged with capital murder in Houston, Texas, in 1997. He was too poor to hire his own lawyer so the judge appointed two lawyers to defend him, one of whom has such an abysmal record in capital cases that the New York Times called him: “A Lawyer Known Best for Losing Capital Cases”. His performance in Mr Buck’s was consistent with this record. In order for a death sentence to be imposed, Texas law requires the prosecutor to prove, and the jury to unanimously find, that the defendant is likely to be dangerous in the future. In Mr Buck’s case, future dangerousness was the central disputed issue at sentencing. The prosecutors did not have a strong case that Mr Buck would be a danger in the future. Indeed, the evidence showed that Mr Buck was not likely to not pose a danger while in prison. But the court-appointed defense lawyers, with Mr Buck’s life on the line, handed the prosecutors powerful evidence for sentencing him to death: Mr Buck was more likely to be dangerous because he is black. That was the conclusion of a psychologist the defense lawyers retained as an expert. The psychologist prepared a report stating that being “black” is a “statistical factor” that created an “increased probability” that Mr Buck would commit criminal acts of violence in the future. The lawyers appointed to represent Mr Buck called the expert to the witness stand, elicited his testimony that Mr Buck was more likely to be dangerous because he is black, and moved the expert’s report into evidence. On cross-examination, the prosecutor emphasized the relationship between race and future dangerousness, asking the psychologist if “the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?” “Yes,” the psychologist answered, confirming a pernicious – and false – stereotype about black men and criminality. The court-appointed lawyers did not object. The judge said nothing. The jurors, after lengthy deliberations, during which they asked for – and received – a copy of the psychologist’s report, found Mr Buck a future danger. He was sentenced to death. The presentation of the psychologist’s expert testimony was egregious and inexcusable incompetence on the part of Mr Buck’s court-appointed lawyers. And it is the focus of Mr Buck’s claim before the supreme court that his “trial counsel was constitutionally ineffective”. The lawyers had the psychologist’s report mentioning race as a factor in their possession before they called him to testify. The psychologist had testified in other cases before Mr Buck’s trial that race increases the probability of future dangerousness..........The incompetence of the court-appointed lawyers is undeniable. The danger of race influencing the capital sentencing decision has long been recognized. Competent defense lawyers take every precaution to prevent race from becoming a factor in the sentencing decision. No competent defense lawyer would present the expert testimony of a psychologist who had repeatedly testified in other cases that race was a factor contributing to future dangerousness and was going to do so in Mr Buck’s case. It is unfathomable. And it could not have been more prejudicial. Such testimony could only reinforce racial stereotypes that would increase the likelihood that Mr Buck would be sentenced to death. The supreme court should correct this grave miscarriage of justice by holding that Mr Buck was denied his right to a competent lawyer and setting aside his death sentence."
The entire commentary can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
Harold Levy. Publisher; The Charles Smith Blog.