Wednesday, September 14, 2011


"Buck's fate now is up to Gov. Perry, the man who has proudly overseen the executions of more death row inmates than any governor in American history, and to the federal appeals courts, which only rarely intercede on behalf of capital defendants. The eerie applause for capital punishment at last week's Republican debate tells Gov. Perry that executions are a "winning" issue for him, at least for now, so you can do the math. "

ANDREW COHEN: THE ATLANTIC; Andrew Cohen has served as chief legal analyst and legal editor for CBS News and won a Murrow Award as one of the nation's leading legal analysts and commentators.



This Blog adds its voice to those seeking a reprieve for Duane Buck. It's bad enough that he was sentenced to be executed because of the opinion of one man - a psychologist who supposedly was an expert in predicting future human behavior. (Far too dangerous to entrust an "expert" witness with such a life and death decision); But it's even worse that this opinion introduced unfounded racial factors into the court process. At this 11th hour Texas Governor Rick Perry must set politics aside and grant a temporary reprieve so that Mr. Buck can have the benefit of an untainted process. It's high time for the courts to review the use of this dangerous kind of expert testimony - and bar it from the court process - even when it occurs without the racial considerations.



"The federal trial judge in a case issues her vital ruling before the capital defendant's lawyers have completed their argument. A local prosecutor who helped convict the death row inmate now pleads with the state parole board to give the guy a new sentencing trial. Defense attorneys say that lawyers for the Attorney General's office are lying to the court. And the governor who can help stop this parade of horribles, Gov. Rick Perry, earns public cheers for his chillingly remorseless stand on capital punishment," the Atlantic column by Andrew Cohen published on September 13, 2011 under the heading, "Coming Thursday: Another Texas execution under Perry:

"Welcome to Texas, to its death penalty regime, and to the excruciating case of Duane Edward Buck," the column continues.

"Buck is scheduled to be executed Thursday in Huntsville for a double murder he committed in Houston in 1995. No one contests his guilt. Instead, his lawyers say that Texas owes him a new sentencing trial because his first one was unlawfully tainted by race. An expert witness at his trial in 1997 impermissibly told jurors that Buck would be more dangerous in the future because he is black. As I chronicled last week, the six other men in Texas whose trials were similarly tainted all got new sentencing hearings after then-Attorney General John Cornyn conceded the state's error in 2000. Buck, however, has not.

Texas now is opposed to Buck's request. It is squeezing him because it can and because it is politically expedient to do so. The state claims that Buck did not timely raise the issue on appeal in federal court. Even though each of the other men were subsequently re-sentenced to death -- and even though that would be a likely outcome in Buck's case -- Texas says the time for Buck's judicial relief has come and gone. Even though the state helped each of the other men vindicate their constitutional rights, it will not do so in Buck's case. At a time when other states are moving away from capital punishment, this is how far to the right Texas has come on the death penalty since 2000.

On Tuesday afternoon, the Texas Board of Pardons and Paroles denied Buck's clemency request. Here is the extent of the Board's findings and conclusions: "After a full and careful review of the application and any other information filed with the application, a majority of the Board has decided not to recommend a 120-day Reprieve and Commutation of Death Sentence to Lesser Penalty." That's it. The complete document is two pages long -- the cover letter is three short paragraphs ending with the salutation, "Sincerely," by Clemency Director Maria Ramirez.

Buck's fate now is up to Gov. Perry, the man who has proudly overseen the executions of more death row inmates than any governor in American history, and to the federal appeals courts, which only rarely intercede on behalf of capital defendants. The eerie applause for capital punishment at last week's Republican debate tells Gov. Perry that executions are a "winning" issue for him, at least for now, so you can do the math. It doesn't look likely, does it, that Texas will make good on that 11-year-old promise to Buck.

The Judge
Last Tuesday, September 6th, Buck's lawyers went to federal court in Houston to get a stay of their client's execution so the issue of his new sentencing trial could be properly evaluated on the merits. On Friday, to no one's surprise, attorneys for the state of Texas responded by objecting to Buck's motion. But on that very day, September 9th, just a few hours after Texas had filed its brief, and before Buck's attorneys even could reply to it, U.S. District Judge Vanessa Gilmore issued a nine-page ruling siding with the state and against Buck. The judge declared that Buck's arguments had been litigated before and that there were no new facts or legal issues that required her to change her mind.

It is customary in motions practice for the moving party -- here, Buck -- to have an opportunity to file a "reply" brief answering the "response" brief filed by the other side. This is certainly true in capital cases and especially when the judge is inclined to rule against the litigant who made the motion. Often, there are issues of fact or law which arise in the "response" brief which warrant further attention from the court. A "reply" brief keeps honest those drafting the "response" brief and judges typically allow for reply briefs because it is the moving party, after all, which has the burden of persuading the judge to do something (or to not do something).

With Buck's life on the line, none of that happened here. Instead, inexplicably, Judge Gilmore cranked out a nine-page order in a matter of hours without waiting to see whether any of the representations made by Texas were suspect or not -- without giving the condemned man a full chance to make all of his arguments. This is dubious behavior from a federal judge but perhaps not terribly surprising from Judge Gilmore, a 1994 appointee of President Bill Clinton. Over the years, she has earned the nickname "judicial diva" for her decidedly injudicious conduct on the bench.

David Lat, the respected legal blogger who coined the "diva" phrase in 2007, has helped chronicle the many ways in which Judge Gilmore has reportedly engaged in conduct unbecoming of a federal judge. And what did the federal jurist do in response to her new nickname? Why, she wrote a booklight-hearted offeringThis is the judge who was in such a rush to kick Buck's case out of her court last week that she didn't even wait for all of the arguments to come in before she issued her order. titled "You Can't Make This Stuff Up; Tales from a Judicial Diva." This followed her first book, which was a coloring book for the children of incarcerated inmates.

The State
The current Attorney General of the Lone Star State is a man named Greg Abbott, a former Justice of the Texas Supreme Court, who evidently figured he'd have more power and prestige as the state's lead attorney than he would have as one of its premier judges. And if the Attorney General thing doesn't work out for Abbott there's always the state house in Austin if Gov. Perry makes it to Washington. Six attorneys general in Texas' history have gone on to become governors.

It is Abbott, and not Gov. Perry, who is ultimately responsible for what state lawyers write and say to federal judges. And in the Buck case, the accuracy and fairness of what Texas said last week to Judge Gilmore, what its lawyers said to try to ensure that Buck is executed on Thursday, is very much in doubt. Buck's attorneys have filed a "Rule 11" motion, in which they seek court-imposed sanctions against the attorneys responsible for filing last week's response. They allege that:
The Assistant Attorney General [Georgette Oden] made factual contentions that are contrary to the evidence, and omitted necessary facts within her knowledge regarding the nature of the cases in which her office had previously confessed equal protection and due process violations.
Specifically, Buck's attorneys say that Texas tried to cover up to Judge Gilmore the facts and procedural history surrounding the similarities between the Buck case and the six other cases which Texas in 2000 conceded were impermissibly tainted by racial testimony. Today's state attorneys know full well how far Texas went back then to ensure that those other men got new trials, Buck's attorneys claim, and yet Texas' attorneys "completely" omitted some of that information when they filed their response in Judge Gilmore's court last week (all the more reason, of course, why good judges tend to wait for all the filings to come before rendering their rulings).

Are Abbott and Texas bound by the promises made by Cornyn? Are they bound by the fact that the other men received their due process? Should the state again be allowed to treat Buck differently after allowing his trial to be unconstitutionally tainted back in 1997? Should Texas' executive branch be "rewarded" with Buck's execution after allegedly making false statements to a federal judge? Did the federal courts ever fully adjudicate Buck's equal protection and due process claims? These are all still open questions less than two days before Buck is scheduled to be executed. Reasonable people may ask: Is this any way to run a death penalty regime?

The Prosecutor
In 1997, Linda Geffin was part of the state's prosecution team which convicted Buck. On Monday, she wrote a letter to the Texas Board of Pardons and Paroles, Gov. Perry, Attorney General Abbott, and to the prosecutor now in charge of the Buck matter, Harris County District Attorney Patricia Lykos (whose webpage says she has "dedicated her career to the pursuit of justice"). Geffin, who still works as an attorney for the state of Texas, wrote:
When I read about the clemency petition pending before the Board of Pardons and Paroles and Governor Perry, and about the motion in federal court recognizing that the Attorney General had previously acknowledged the improper injection of race in the sentencing hearing in Mr. Buck's case, I felt compelled to step forward. Mr. Buck committed a terrible crime, and he must be punished. But the Attorney General [John Cornyn in 2000] was right when he said that "it is inappropriate to allow race to be considered as a factor in our criminal justice system." It is regrettable that any race-based considerations were placed before Mr. Buck's jury. No individual should be executed without being afforded a fair trial, untainted by considerations of race.
Geffin took a courageous stand. Evidently it wasn't nearly enough. With the Board already having rejected Geffin's argument and Buck's request, Gov. Perry alone now controls Buck's fate, at least as far as Texas is concerned (the federal courts remember still may intervene). The governor could stay the execution for 30 days to allow Buck's attorneys to continue to confer with prosecutor Lykos about their client. Gov. Perry also may ask the district attorney to withdraw the pending execution date or Lykos may do so on her own authority. It all depends, I guess, upon where the district attorney wants her own "pursuit of justice" to take her.

I said it last week and I'll say it again: those who are now evaluating for the first time the presidential hew of candidate Perry would be advised to monitor closely how he handles these death penalty cases. They are indeed a true test, perhaps the truest test, of how a politician maneuvers between law and justice, crime and punishment, and those cornerstone constitutional mandates, like equal protection and due process, which can be as vital as they often are unpopular."

The column can be found at:
PUBLISHER'S NOTE: 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:

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

Harold Levy: Publisher; The Charles Smith Blog;;