"The Supreme Court denied review yesterday, refusing to allow the parties to fully brief and argue the merits of Buck’s claims. (It takes four of the nine justices to vote to grant certiorari.) In a statement explaining the denial, Justice Alito (joined by Scalia and Breyer) acknowledged that ”bizarre and objectionable testimony” was given by a psychologist, who testified that Buck was likely to be more violent in the future because he is black.
“Bizarre and objectionable testimony” in a death penalty case, which was then relied upon by the prosecutor to urge the jury to impose death. But that is not enough to even warrant review by the Supreme Court."
ANDY LOVE; THE LA PROGRESSIVE;
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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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"After we we take a collective sigh of relief that Hank Skinner obtained a last minute stay so that his lawyers can once again seek to have key evidence DNA tested, we must then sigh in despair over the result of another Texas death penalty case," the "Progressive story" by Andrew Love published on November 8, 2011 under the heading, "Duane Buck: Tolerating racism in Supreme Court cases," begins.
"On September 15, Duane Buck came within hours of being executed by the State of Texas when the Supreme Court issued a stay to determine whether to review Buck’s claim that the prosecution should not have been able to rely on the defendant’s race as evidence that he would commit criminal acts of violence in the future," the story continues.
"Buck was one of seven to receive a death sentence based on such testimony, all from the same expert," the story continues.
"In 2000, then-Texas Attorney General John Cornyn (now a U.S. Senator) conceded that all seven men had been unfairly sentenced to death because of this improper racial testimony and called for new sentencing trials. He said at the time: “It is inappropriate to allow race to be considered as a factor in our criminal justice system.” The other six men received new sentencing hearings. Duane Buck did not.
The Supreme Court denied review yesterday, refusing to allow the parties to fully brief and argue the merits of Buck’s claims. (It takes four of the nine justices to vote to grant certiorari.) In a statement explaining the denial, Justice Alito (joined by Scalia and Breyer) acknowledged that ”bizarre and objectionable testimony” was given by a psychologist, who testified that Buck was likely to be more violent in the future because he is black.
“Bizarre and objectionable testimony” in a death penalty case, which was then relied upon by the prosecutor to urge the jury to impose death. But that is not enough to even warrant review by the Supreme Court.
Justice Sotomayor, joined by Justice Kagan, dissented from the denial of cert., undermining the majority’s reasoning, and concluding: “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.”
Indeed."
The story can be found at:http://www.laprogressive.com/law-and-the-justice-system/duane-buck/
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;
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;
