ANDREW COHEN; THE ATLANTIC; 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. More
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BACKGROUND: Duane Buck was convicted of murder in 1997. He is African American. At the sentencing phase of his trial, an expert witness named Walter Quijano said “yes” when asked if “the race factor, black,” increased the chances that Mr. Buck would do something dangerous again. In Texas, this is a pivotal issue: if the state does not prove “future dangerousness” beyond a reasonable doubt, it cannot sentence a convict to death. The prosecution got the answer it wanted. The jury sentenced Mr. Buck to death. In 2000, John Cornyn, then the attorney general of Texas and now a U.S. Senator, called for six death row inmates in the state to have new hearings because race was improperly used as a factor in sentencing each of them. “It is inappropriate to allow race to be considered as a factor in our criminal justice system,” he said. Mr. Buck was the only one of the six who did not get a new hearing. Mr. Cornyn’s successor as attorney general treated Mr. Buck’s case differently because Mr. Buck, “not the state, offered” the testimony in which race figured prominently. Justice Alito agreed. It was Mr. Buck’s lawyer, he wrote, who elicited “the race-related testimony on direct examination.” That is accurate, and a majority of Supreme Court justices found this logic convincing, but it is also misleading. As Justice Sotomayor explained (and I’m lifting from her written dissent here), during the penalty phase of Mr. Buck’s trial, the defense called a psychologist, Walter Quijano, as a witness. Mr. Quijano testified that there were several “statistical factors we know to predict future dangerousness,” including past crimes, age, sex, race, socioeconomic status, employment stability, and substance abuse history. Mr. Quijano also said: “It’s a sad commentary that minorities, Hispanics and black people, are over represented in the Criminal Justice System.” But when the defense asked Mr. Quijano whether Mr. Buck was likely to commit violent criminal acts if he were sentenced to life imprisonment, Mr. Quijano replied, “The probability of that happening in prison would be low.” Only during cross-examination did the fact of Mr. Buck’s race truly become linked with the possibility that he would commit another crime. After inquiring about how past crimes and age might (statistically) indicate future dangerousness in Mr. Buck’s case, the prosecutor said: “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?” Mr. Quijano answered, “Yes.” Later, the prosecutor argued to the jury that Mr. Quijano “told you that there was a probability that [Buck] would commit future acts of violence.” The jury returned a verdict of death. Lincoln Caplan: New York Times); (The Supreme Court issued a stay of execution but, in a decision issued in November, 2011 declined to order a new hearing.)
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"The reason there is such a gap between the realities of capital punishment in America and the media coverage of those realities isn't hard to figure or explain," Andrew Cohen's commentary published in The Atlantic on November 7, 2011 under the heading, "In the end, Supreme Court says no to Duane Buck," and the sub-heading, "Public interest in death penalty cases waxes and wanes, but the bad faith that infects so many prosecutions is here to stay," begins.
"The nation's attention span is notoriously scattered and short. It takes fidelity to the long view -- and a great deal of patience and attention to detail -- to grasp the many ways in which the modern death penalty "experiment" has failed so many people on so many different levels for so many reasons," the commentary continues.
Today the Court denies review of a death sentence marred by racial overtones and a record compromised by misleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance -- especially in a capital case -- I dissent and vote to grant the petition...Justices Sotomayor and Kagan said it was still unclear why Texas has chosen to treat Buck differently from the other capital defendants whose sentencing trials were tainted by the testimony. "What we do know," Justice Sotomayor wrote, "is that the State justified its assertion of a procedural defense in the District Court based on statements and omissions that were misleading." How the rest of the Court could countenance such pronounced mischief, in a capital case, is a story that won't get nearly as much play as did the Court's initial decision to halt Buck's execution. Yet it is far more important, isn't it? September's news, after all, merely maintained the status quo. Monday's news all but ends Buck's life. Actually, I misspoke. We do know a little about what the Court was thinking. Justices Samuel Alito, Antonin Scalia, and Stephen Breyer wrote to answer the dissenting justices. In their view, Texas did not trick any of the judges into denying relief for Buck and his sentencing trial was distinguishable from the other tainted trials because it was his attorneys (and not prosecutors) who elicited the prejudiced testimony from the state's expert. To these justices, the expert's racist testimony was "bizarre and objectionable" but evidently not objectionable enough to warrant giving Buck a new sentencing trial after Texas promised him one. Got that? That's the big story that merits the millions of page views and comments. But we both know that isn't going to happen today or anytime soon. Buck looks to be doomed. There is no reason to believe that Texas officials, including Gov. Rick Perry, will be any more willing this time around to give Buck the fair justice he deserves. After all, it took the state until just last month to stop employing the "expert," Walter Quijano, who fouled up all these capital cases more than a decade ago. There is no remorse in Austin. There is no acknowledgement or acceptance there of the promises former Texas Attorney General John Cornyn made to the men a decade ago. And from Cornyn, of course, there is no succor. The junior senator from Texas already has moved on. In the meantime, amid the rubble that is the Buck case, another dubious execution looms in Texas. Hank Skinner was scheduled to die on Wednesday without having had his DNA tested to ensure the reliability and accuracy of his conviction or of the ultimate punishment he is going to receive. This despite a new state law that allows for such testing and despite repeated attempts by Skinner's lawyers to get him the test. On Monday afternoon, to the surprise of some, a state appellate court stayed the Skinner execution to look a little closer at the relationship between Skinner's case and the new statute. So you'll likely hear all about that over the next few days before you and all the reporters inevitably move on to something else."
The story can be found at:
http://www.theatlantic.com/national/archive/2011/11/in-the-end-supreme-court-says-no-to-duane-buck/248031/
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:
http://www.thestar.com/topic/charlessmith
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
