November 11, 2011, 2:25 pm Duane Buck, Race and Capital Punishment
By ANDREW ROSENTHAL
One of the things I would like to do with this blog is provide a space to discuss issues with a level of detail that’s just not possible in a typical editorial, or perhaps issues that don’t lend themselves to formal editorials, but are still worth talking about. Such posts might get a little wonky at times, but I hope you find them worth your while.
This post is devoted to the Supreme Court’s declining this week to review the Texas death-penalty case of Duane Buck.
Based on the duelling short opinions from Justices Samuel Alito Jr. (who voted with the majority to deny) and Sonia Sotomayor (who filed a dissent to explain why she voted to hear the case), it seems that this life-and-death matter turned on a single fact: A freighted question that Mr. Buck’s lawyer asked 14 years ago.
Editorial board member Lincoln Caplan had this to say about the decision:
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.
The point is that the prosecutor zeroed in on race, and asked the jury to consider it as a factor in predicting Mr. Buck’s future dangerousness. It was that invitation that led the jury to impose what Justice Sotomayor calls “a death sentence marred by racial overtones.”
Given that a man’s life was at stake here, I think the Supreme Court justices could have gotten their heads out of minutiae and let Mr. Buck’s case have a rehearing.
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Duane Buck, Race and Capital Punishment Petra.,Sat Nov 12 04:19
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