The StandDown Texas Project

DSM-5 News & Commentary Roundup

ReutersLegal posts, "Psychiatrists unveil their long-awaited diagnostic 'bible'," by Sharon Begley.  It's an excellent overview of the debate raging over the new publication.

The long-awaited, controversial new edition of the bible of psychiatry can be characterized by many numbers: its 947 pages, its $199 price tag, its more than 300 maladies (from "dependent personality disorder" and "voyeuristic disorder" to "delayed ejaculation," "kleptomania" and "intermittent explosive disorder"), each limning the potential woes of being human.

But to the psychiatrist who shepherded the tortuous creation of the "Diagnostic and Statistical Manual of Mental Disorders," perhaps the single most important number is the "5" in its title: This is the DSM-5, not the DSM-V.

That may seem like a cosmetic change, but the American Psychiatric Association, which will release the book on Saturday at its annual meeting, decided to use Arabic instead of Roman numerals because "we want it to be a living document," said Dr David Kupfer of the University of Pittsburgh, the chairman of the task force that produced the DSM-5. Rather than waiting another generation to revise the manual - the DSM-IV was published in 1994 - psychiatrists will regularly update it with, for example, findings from genetics and neuroscience, labeling the revisions DSM-5.1 and DSM-5.2 and so on.

"We used '5' because V.0 and V.1 just don't look good," said Kupfer.

The fact that the world's most powerful psychiatrists (their decisions determine what counts as a mental disorder, and thus what insurers cover and which children receive special services in school) are already building in ways to change the manual is commendable, even its critics say.

"Lawyers worry new measure of mental retardation could prompt more executions," by Elizabeth Dilts is also from ReutersLegal.

Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms, such as bathing regularly or maintaining work. Based on that IQ benchmark, the U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that it is illegal to execute a mentally handicapped person.

But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual's behavior to determine if he or she meets the developmental standards.

Making the definition of mental retardation more subjective could prompt more courts to subvert Atkins, said David Dow, a death penalty lawyer in Houston whose client Marvin Wilson was executed in Texas last summer despite his IQ score of 61.

"There are a lot of courts that are hostile to the basic legal doctrine the Atkins case established," Dow said. "When you replace a test that is one part objective, one part subjective with a solely subjective test, it becomes easier for courts that are hostile to the constitutional principle of Atkins to evade that criterion."

The Sunday New York Times Week in Review published the OpEd, "Why the Fuss Over the D.S.M.-5?"  It's by Sally L. Satel, M.D.

LATER this month, the American Psychiatric Association will unveil the fifth edition of its handbook of diagnoses, the Diagnostic and Statistical Manual of Mental Disorders. Fourteen years in the making, the D.S.M.-5 has been the subject of seemingly endless discussion.

The charges are familiar: the manual medicalizes garden-variety distress, leads doctors to prescribe unnecessary medications, serves as a cash cow for the association, and so forth.

But many critics overlook a surprising fact about the new D.S.M.: how little attention practicing psychiatrists will give to it.

There are dozens of revisions in the D.S.M. — among them, the elimination of a “bereavement exclusion” from major depressive disorder and the creation of binge eating disorder — but they won’t alter clinical practice much, if at all.

This is because psychiatrists tend to treat according to symptoms.

So why the fuss over D.S.M.-5? Because of the unwarranted clout that its diagnoses carry with the rest of society: They are the passports to insurance coverage, the keys to special educational and behavioral services in school and the tickets to disability benefits.

 

The New York Times also has news coverage, "Psychiatry’s Guide Is Out of Touch With Science, Experts Say," reported by Pam Belluck and Benedict Carey.

Just weeks before the long-awaited publication of a new edition of the so-called bible of mental disorders, the federal government’s most prominent psychiatric expert has said the book suffers from a scientific “lack of validity.”

The expert, Dr. Thomas R. Insel, director of the National Institute of Mental Health, said in an interview Monday that his goal was to reshape the direction of psychiatric research to focus on biology, genetics and neuroscience so that scientists can define disorders by their causes, rather than their symptoms.

While the Diagnostic and Statistical Manual of Mental Disorders, or D.S.M., is the best tool now available for clinicians treating patients and should not be tossed out, he said, it does not reflect the complexity of many disorders, and its way of categorizing mental illnesses should not guide research.

“As long as the research community takes the D.S.M. to be a bible, we’ll never make progress,” Dr. Insel said, adding, “People think that everything has to match D.S.M. criteria, but you know what? Biology never read that book.”

The revision, known as the D.S.M.-5, is the first major reissue since 1994. It has stirred unprecedented questioning from the public, patient groups and, most fundamentally, senior figures in psychiatry who have challenged not only decisions about specific diagnoses but the scientific basis of the entire enterprise. Basic research into the biology of mental disorders and treatment has stalled, they say, confounded by the labyrinth of the brain.

"DSM, NIMH on mental illness: both miss relational, historical context of being human," is by Claudia M Gold for the oston Globe Child in Mind blog.

It seems that the National Institute of Mental Health (NIMH) may have dealt a death blow to the recently published Diagnostic and Statistical Manual of Mental Disorders (DSM 5) when the organization declared they would no longer fund research based on the DSM system of diagnosis. The views of NIMH director Thomas Insel were referenced in the recent New York Times article on the subject.

And:

I am no fan of the DSM system, which reduces complex experience to lists of symptoms; focusing on the "what" rather than the "why."  However, the NIMH model has limits as well. There seems to be a wish to study mental illness in the same way we study cancer or diabetes. While I certainly have great respect for the complexity of the pancreas, or the process of malignant transformation of cells, trying to understand the brain/mind in an analogous way seems to be an unnecessary and even undesirable reduction of  human experience.

What is missing from both paradigms is recognition of the relational and historical context of being human.

Earlier coverage of the DSM-5 begins at the link.

Racism in a Texas Death Case

That's the title of a New York Times editorial on the case of Duane Buck.  It appeared in the Saturday edition.

In the annals of racism in the Texas criminal justice system, seven death penalty cases are in a class by themselves. In 2000, after the Supreme Court ordered a new sentencing hearing in one of them, Senator John Cornyn, who was then the state attorney general, called for new sentencing hearings in the other cases for the same reason: because race was improperly and explicitly considered as a factor in determining the sentence.

Duane Buck, who was convicted of two murders, is the only one among the defendants who was not granted a new sentencing hearing. His post-conviction lawyers have uncovered a lot of mitigating evidence that his trial counsel did not present to the jury that sentenced him to death. He is seeking life without parole and is awaiting a decision on this matter by the Texas Court of Criminal Appeals.

Texas has long fought his request for resentencing because it insists that Mr. Buck is responsible for introducing race into his case.

And:

The racial bias in this case reflects a wide and disturbing pattern in death penalty prosecutions in Harris County, Tex., where Mr. Buck was tried. A recent study found that from 1992 to 1999 the county prosecutor was three times as likely to seek the death penalty for blacks in murder cases as they were for whites, and juries were twice as likely to impose capital punishment. The Buck case is yet more evidence that capital punishment should be abolished.

Earlier coverage of the case of Duane Buck begins at the link.

Leonard Pitts on the Duane Buck Case

"Texas case exposes racial bias in death penalty for Duane Buck," is the title of Leonard Pitts's latest syndicated column.  It's via his home paper, the Miami Herald.  Here's the beginning:

If the state of Texas executes Duane Buck, it’ll be because he is black.

Well, mainly it will be because in 1995, he shot his ex-girlfriend, Debra Gardner, and her friend, Kenneth Butler, to death at Gardner’s Houston home, and also wounded his own stepsister, Phyllis Taylor. But it will also be because he’s black.

In Texas, they have this rule: a jury contemplating the death penalty must evaluate the likelihood a defendant poses a future danger to the community. Jurors in Buck’s trial were told he poses said danger because he is a black man.

Mind you, this came from a defense witness, whose ultimate finding was that Buck himself represented little danger. But, said psychologist Dr. Walter Quijano, “It’s a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system.”

When asked by the prosecutor whether “the race factor, black, increases the future dangerousness,” Quijano answered, “Yes.”

So Buck sits on death row awaiting an appeals court ruling on his bid for a new sentencing hearing. Not a new trial, you understand. No one disputes his guilt — or the monstrousness of his crime. But about the sentence, there is plenty dispute, enough that his surviving victim and Linda Geffen, a prosecutor who helped convict him, both think he should get a new hearing.

Earlier coverage of Duane Buck's case begins at the link.

Gary Bledsoe on the Buck Case - TxRJA Proposal Gets Hearing

Today's Dallas Morning News publishes the OpEd, "Turn the page on racism in Texas death penalty," by Gary Bledsoe.  He's the President of the NAACP of Texas, and a former Texas Assistant Attorney General.  Here's the beginning of this must-read:

When I was about 10 years old, growing up in Odessa, I got picked up by the police because a car had been stolen the night before. I didn’t know how to drive. In fact, I didn’t even know how to put a key in the ignition. I was late to school that day for no reason.

Actually, there was a reason, just not a good one. I was picked up because I am black. The same thing happened to my friends and members of my family.

That was the early 1960s. A lot has changed for the better since then. Even so, there are still wrongs from our state’s history with racism that haven’t been made right.

Duane Buck was convicted of murder in Harris County in 1997. At his sentencing hearing, the prosecutor relied on testimony from a psychologist who said that Buck would be more dangerous in the future because he is black. The jury agreed that Buck posed a future danger and sentenced him to the ultimate punishment.

People have different views on the death penalty. But we can all agree that we must have compassion for all victims, and also that no one should be sentenced to death because of the color of his skin.

Racial discrimination, or at least the appearance of it, was prevalent among some in the district attorney’s office at the time of Buck’s case. We might add that the perceived bias is historical and not just isolated to one point in time, as we are aware that one DA resigned in recent years after circulating racist emails with his subordinates.

There is also additional video coverage of the Buck case.  HuffPost Live streamed, "Killing Duane Buck," hosted by Marc Lamont Hill.  Houston ABC affiliate's KTRK-TV News program "Crossroads," hosted by Melanie Lawson, also provided coverage of the case.

Today, the House Criminal Jurisprudence Committee will hear Senfronia Thompson's HB 2458.  The Committee agenda is available in Adobe .pdf format.  The Committee will convene upon adjournment of the House.  You can watch streaming video of the meeting at the link.  Be aware that bills may be brought up out of order of the printed agenda.

NAACP LDF has issued a news release, "Former Governor, Former Prosecutor, Civil Rights Leaders, and Other Prominent Individuals Offer Testimony in Favor of Texas Racial Justice Act.  Testimony: Duane Buck’s Case, Whose Sentencing Hearing Was Poisoned With Racial Discrimination, Shows That Texas Needs The Racial Justice Act." 

Here's the beginning of the release:

Several prominent Texans submitted testimony to the House of Representatives Criminal Jurisprudence Committee today in support of the Racial Justice Act, which seeks to prohibit the imposition of a death sentence or execution under any judgment that was sought or obtained on the basis of race.  The Harris County, Texas, death penalty case of Duane Buck was cited as a clear example of how racial discrimination corrupts Texas’ death penalty system. Mr. Buck, an African American man, was condemned to death in 1997 after his sentencing jury was told that he posed a future danger because he is Black. 

The Criminal Jurisprudence Committee is hearing testimony today on House Bill 2458, Texas Racial Justice Act, sponsored by Representative Senfronia Thompson, who represents District 141, which includes part of Harris County.

Those offering testimony in favor of the Racial Justice Act include: Mark White, Texas Governor (1983-1987); Linda Geffin, former Harris County Assistant District Attorney who served as a prosecutor in Mr. Buck’s case; and Yannis Banks, Texas NAACP Legislative Liaison.

“The way we determine punishment in the United States is with a fair trial and sentencing. Duane Buck did not receive that. His case, and other cases, shows how racial discrimination can infect Texas’ courtrooms. We cannot condone any form of racial discrimination in our criminal justice system and we must act to end it,” said Governor White in testimony submitted to the Committee. Governor White and more than 100 civil rights leaders, clergy, elected officials, past ABA Presidents and former judges and prosecutors delivered a letter to Harris County District Attorney Mike Anderson urging a new, fair sentencing hearing for Mr. Buck.

Earlier coverage of the Duane Buck case begins at the link.

New Trial Recommended for Manuel Velez

"Retrial closer for convicted killer," is the Brownsville Herald report written by Mark Reagan.

State District Judge Elia Cornejo Lopez has recommended Brownsville resident Manuel Velez, who was convicted of murdering a toddler, get a new trial. Lopez issued the order Tuesday.

Velez had been convicted of killing 1-year-old Angel Gabriel Moreno in October 2008. He received the death sentence.

“After a thorough and critical review of the evidence presented, Judge Lopez found that Mr. Velez’s trial counsel was ineffective for, among other reasons, failing to investigate and present medical evidence exculpating Mr. Velez,” said pro bono attorney Tami Goodlette. “She further concluded that this and other failures undermine confidence in the jury’s verdict.”

Velez was convicted and sentenced to death, but the Texas Court of Criminal Appeals threw out the sentence last June because expert witness testimony on future dangerousness of the defendant was deemed inaccurate.

In Lopez’s ruling, she wrote that a new trial should be granted because of ineffective assistance of counsel.

“Mr. Velez has now shown that, at the time of his 2008 trial, compelling medical evidence was available to refute the theory on which he was convicted,” Lopez wrote in her finding. “His trial counsel, Hector Villarreal and O. Rene Flores, inexplicably failed to develop and present to the jury this exculpating evidence. These failures were not the result of sound trial strategy.”

In December, Velez appeared before Lopez for an evidentiary hearing to determine whether Lopez would or wouldn’t recommend a new trial for him.

During that hearing, pro bono attorneys said there is no evidence that Velez struck the child and said new medical evidence shows the child sustained the injuries that killed him while Velez was out of town, working in Memphis, Tenn.

The Court of Criminal Appeals will rule on Judge Cornejo's recommendation.

Earlier coverage of  Manuel Velez' case begins at the link.  Related posts are in the forensics and expert witnesses category indexes.

Democracy Now Examines Duane Buck Case

"Prosecutor Seeks Stay of Execution for Texas Prisoner Duane Buck, Sentenced to Death for Being Black," is the Democracy Now report with Amy Goodman.  There is audio at the link.

Although Duane Buck’s guilt is not in question for the 1995 murder of his former girlfriend Debra Gardner and her friend Kenneth Butler, critics say jurors in his case were led to choose a death sentence over life without parole based on testimony of a state psychologist who argued that African-American criminals are more likely to pose a future danger to the public. We’re joined by two guests: Linda Geffin, the second-chair prosecutor who helped win Buck’s death sentence in 1997, but now opposes his execution, and Christina Swarns, an attorney with Duane Buck’s legal defense team and director of the NAACP Legal Defense Fund’s Criminal Justice Project.

Here's an excerpt from the interview:

For more, we go to Houston, where we’re joined by Linda Geffin, second-chair prosecutor who helped win the death sentence for Duane Buck in '97. She now opposes his execution. She is currently senior assistant prosecutor in Harris County attorney's office. And here in New York, we’re joined by Christina Swarns, attorney who’s part of Duane Buck’s legal defense team. She is the director of the NAACP Legal Defense Fund’s Criminal Justice Project.

We welcome you both to Democracy Now! Linda Geffin, let’s go to you. You helped convict Duane Buck. He ended up with the death penalty, being sentenced to death. Why have you changed your view on his case right now?

LINDA GEFFIN: Fourteen years after the trial, I saw on the Internet the offensive testimony in black and white. And when I had the opportunity to read it and to really absorb what it was saying, it was so—I had so much clarity that it was racially offensive, it was egregious, and it was error. So I emailed Mr. Buck’s lawyer and asked how I could help.

AMY GOODMAN: Talk about what that quote was. I’ll read a comment Dr. Quijano made to The New York Times. He said, quote, "I was asked a question whether there is a relationship between race and violence or dangerousness. The literature suggests that there is a correlation. So I had to say yes." He added, "It’s not because of the blackness of the person that is causing the violence. It is what goes with it. Poverty, the exposure to lack of education, exposure to criminal elements." Let’s go to our guest right here in New York, Christina Swarns. Your response to that?

CHRISTINA SWARNS: Well, I think Dr. Quijano made quite clear that what he believed and what the state was looking for him to say was that because Mr. Buck was and is African American, he posed a future danger to society. And the prosecution, in cross-examination, elicited that testimony. They then went on to argue specifically that point during closing argument. What the prosecutor said in closing was: Dr. Quijano testified that he would pose a future danger, and that—on that basis, you should find that he is a future danger, and he should be sentenced to death. I would go on to say that, as The New York Times reported, Dr. Quijano’s opinion, of course, about this is false: There isn’t a real connection to support a future dangerousness finding.

Earlier coverage of Duane Buck's case begins at the link.  Related posts are in the race category index.

Victim and Prosecutor Back Death Row Inmate’s Bid for Resentencing

That's the title of Manny Fernandez' report in today's New York Times on the case of Duane Buck.

One morning in July 1995, Phyllis Taylor stood inside her best friend’s house here, face to face with her stepbrother. He was holding a .22-caliber rifle, his eyes bloodshot red. Then he pulled the trigger.

Ms. Taylor survived — the bullet came within one inch of her heart and lodged in her right shoulder. More than 17 years later, a scar the size of a nickel remains on her chest, but her anger has faded: She has forgiven her stepbrother, Duane E. Buck, 49, and has been trying to secure his release from Texas’ death row.

“This is not an easy thing,” said Ms. Taylor, 46, who visited him last month at the prison that houses death row in Livingston, Tex. “It’s very hard. I still have moments. But I know that I’m doing the right thing. The Bible says that I have to forgive, and that’s just my key to my everyday living.”

Ms. Taylor is part of an unusual network of supporters who have been trying to halt Mr. Buck’s execution. His advocates include leaders of the N.A.A.C.P., one of the lawyers who prosecuted him and a former governor of Texas. While many contested death-row cases center on guilt or innocence, Mr. Buck’s case is different — his guilt has never been disputed, but the testimony of a psychologist has raised questions about the role that race played in the jury’s decision to sentence him to die by lethal injection.

And:

Last week, a statement calling for a new sentencing hearing for Mr. Buck that was signed by Ms. Taylor and dozens of others — including another of the prosecutors who had helped convict him, Linda Geffin — was delivered to the Harris County district attorney, Mike Anderson. It was handed to him by Mark W. White Jr., a governor of Texas in the 1980s.

Mr. White and Mr. Buck’s lawyers said that they believed his death sentence was a product of racial discrimination, and that Dr. Quijano’s testimony — and the prosecutor’s emphasis on that testimony — made the color of Mr. Buck’s skin a factor in the jury’s deliberations, violating his constitutional rights. In addition to their claims of racial bias, they said Texas was failing to follow through on a promise it had made to Mr. Buck.

In 2000, the attorney general at the time, John Cornyn, identified six capital cases in which Dr. Quijano had presented race-based testimony. Mr. Cornyn, now a United States senator from Texas, admitted that the state had erred in relying on such testimony in those and other cases, and that it was “inappropriate to allow race to be considered as a factor in our criminal justice system.”

Mr. Buck’s case was among the six. But he is the only defendant who has not been granted a new sentencing hearing. The others had all been on death row, and were ultimately resentenced to death after their new hearings. The state has opposed Mr. Buck’s attempts to receive a new hearing, but did not oppose the requests for new hearings made by the five other defendants.

Earlier coverage of Duane Buck's case begins at the link.

Duane Buck Case Update

Arise America TV has an interview with NAACP LDF attorney Christina Swarns and former Buck prosecutor Linda Geffin.  You can view the archived video; Duane Buck coverage starts at 16:45 into the streaming video.

Jordan Smith writes, "Execution Assembly Line Gets Rolling; 12 executions are currently scheduled through July," for the current edition of the Austin Chronicle.  Part of the article focuses on the Buck case.

The issue of racial bias is also central to the ongoing case of Duane Buck, sentenced to death in 1997 for the double murder of Debra Gardner, his former girlfriend, and Kenneth Butler in Houston; a third victim, Phyllis Taylor, survived the attack. Last week, 102 people – including Taylor, 10 members of the Legislature, one former governor, and a former Harris County prosecutor who helped to try his case – signed a letter imploring Harris County D.A. Mike Anderson to grant Buck a new punishment hearing, arguing that his original sentencing was marred by racial bias.

Buck's case is one of seven identified in 2000 by Texas' then-Attorney General John Cor­nyn as having been tainted at sentencing by racially-biased testimony from psychologist Walter Quijano; Buck is the only defendant not yet granted a new sentencing hearing. In his case, as in two others, Quijano was hired by the defense; he testified that Hispanics and blacks are overrepresented in the criminal justice system. On cross-examination, however, then-prosecutor, now state Sen. Joan Huffman, R-Houston, focused Quijano on the race issue: "[T]he race factor, black, increases the future dangerousness for various complicated reasons; is that correct?"

"Yes," Quijano replied.

Whether a person poses a future danger to others is among three questions jurors must consider before imposing a death sentence. In her closing, Huffman argued that jurors should consider Quijano's judgment as reliable. Buck was ultimately sentenced to death. Signatories to the letter in support of giving Buck a new sentencing hearing suggest that to allow him to die without remedying the tainted sentencing hearing would be to "condone" racial discrimination in the courtroom.

The latest push to get Buck a new hearing comes in anticipation that Anderson would soon seek a new date for Buck's execution. Anderson has said that he will not act – either to agree to a new hearing, or to push for an execution date – before the Court of Criminal Appeals weighs in on the most recent appeal of the case, filed earlier this month, that again seeks a new sentencing hearing. "We are waiting on a ruling and we will act accordingly," he said.

"Texas Officials Pressed for New Sentencing Hearing for Buck," is the South Florida Times report.

Some 102 prominent persons from Texas and  around the country have called on Texas officials to provide a new, fair sentencing hearing for Duane Buck, an African American condemned to death even though after his sentencing jury was told that he posed a future danger because of his race.

“The State of Texas cannot condone any form of racial discrimination in the courtroom,” their statement says. “The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary. No execution should be carried out until the courts have a meaningful opportunity to address the evidence of fundamental injustice in Mr. Buck’s case. A new, fair sentencing hearing for Mr. Buck is absolutely necessary to restore public confidence in the criminal justice system.”

Those calling for the new hearing include Benjamin Todd Jealous, NAACP President and CEO; Mark White, former governor of Texas; 10 members of the Texas Legislature; 17 former prosecutors and judges from Texas and across the county, including former Harris County Assistant District Attorney Linda Geffin, who served as a prosecutor in the case; American Bar Association President Laurel Bellows and past presidents Philip Anderson, William Ide, Carolyn Lamm and Roberta Ramo; Archbishop Joseph A. Fiorenza of the Galveston-Houston Archdiocese; and several pastors, including the Rev. William A. Lawson of Wheeler Avenue Baptist Church in Houston.

“The diverse chorus of voices calling for a new, fair sentencing hearing for Duane Buck reflects how Texas’s disturbing appeal to racial bias fundamentally undermines the integrity of the entire criminal justice system and makes each of us less safe,” said Sherrilyn Ifill, director counsel for the NAACP Legal Defense & Educational Fund Inc. which represents Buck, along with the Texas Defender Service and attorney Kate Black.  “For anyone to trust the criminal justice system, it must be fair to everyone.”

Linda Geffin, one of the Harris County Assistant District Attorneys who prosecuted Duane Buck has started a Change.org petition calling for a new sentencing trial.

At Duane Buck's 1997 capital sentencing hearing in Harris County (Houston), the trial prosecutor elicited testimony from a psychologist that Mr. Buck posted a future danger because he is black. A significant new study finding racial bias in Harris County’s death penalty system was released in an appeal filed by Mr. Buck earlier this month.  Mr. Buck challenges his death sentence as an unconstitutional product of racial discrimination and presents research showing that at the time of his 1997 capital trial, the Harris County District Attorney’s Office was over three times more likely to seek the death penalty against African American defendants like himself, than against similarly-situated white defendants.  The research also shows that Harris County juries were more than twice as likely to impose death sentences on African American defendants in cases like Mr. Buck’s, than on similarly situated white defendants.

The NAACP Legal Defense Fund maintains up to date information on the Buck case.

Earlier coverage begins at the link.  Related posts are in the race category index.

Race and the Death Sentence

That's the title of an editorial in today's Houston Chronicle on the case of Duane Buck.  It's subtitled, "Keep race out of death sentence hearings to help ensure that justice is equal for all."

Whenever Texas juries sentence a criminal to death, they have to find beyond a reasonable doubt that the convicted is a continuing threat to society. When Duane Buck was sentenced to death, prosecutors relied on his race to help prove this point. As a black man, the jury heard, Buck was more likely to pose a future criminal threat.

There is no doubt that Buck is guilty of murder. There is also no doubt that his death sentence is tarnished by racial considerations.

The Texas Court of Criminal Appeals is currently considering an appeal arguing that Buck deserves a new sentencing hearing. Our state needs to show our criminal justice system is free of racial discrimination, and it can start by granting Buck a clean, unbiased hearing.

And:

Our state criminal justice system does not have a sterling reputation for race-blind procedure. Juries in Harris County are twice as likely to sentence black criminals with the death penalty than they are white criminals, according to a recent study by University of Maryland criminologist Ray Paternoster.

Texas has to prove that everyone, no matter how cruel or evil, receives proper due process in our courts, free of immoral and now illegal racial bias. And we can do so by granting Duane Buck a new sentencing.

Earlier coverage of the case of Duane Buck begins at the link.  Related posts are in the race category index.

Reasonable Doubt: The Manuel Velez Case

That's the title of Pamela Colloff's latest article for Texas Monthly.  Here's the sub-head: A Brownsville construction worker named Manuel Velez was sent to death row in 2008 after he was convicted of killing his girlfriend’s baby. Five years later, new testimony from a number of forensic experts suggests that the medical evidence against Velez was deeply flawed. 

Colloff's 2010 TM article, "Innocence Lost," brought critical attention to the case of Anthony Graves.  He was exonerated shortly after her article appeared.

Here's the beginning of her reporting on Manuel Velez:

When a child dies from suspected abuse or assault, law enforcement officers typically focus their investigation on the last person who was with the victim. This is logical reasoning; but recent developments in forensics have shown that a child’s fatal injuries could actually have been inflicted hours, days, or even weeks before he or she is rushed to the emergency room. The evolving science of head trauma, for example, has upended long-held beliefs about “shaken baby syndrome” and has recently resulted in a number of exonerations of people convicted of murdering children.

At least three women in Texas have had their cases thrown out or convictions reversed when misinterpreted medical evidence was re-evaluated. And the case of Manuel Velez is now drawing attention for the same reasons.

Earlier coverage of Manuel Velez' case begins at the link.  Related posts are in the forensics and expert witnesses category indexes.

Editorial Roundup - Florida & Georgia Newspapers Speak Up

In Florida the Lakeland Ledger publsihes the editorial, "Florida's Death Penalty: Fix It, Don't Rush It."  It's also available at the Florida News Chief.

The fact that some Florida death sentences take decades to carry out is surely frustrating for families of murder victims.

In December, Florida executed Manuel Pardo for committing nine murders during a 1986 crime spree. He accepted blame for most of the killings and even asked for the death penalty.

So why take 26 years to carry out the sentence in a clear-cut case?

There are plenty of other examples of wrongful convictions that result in death sentences.

When the state executes the wrong person, there's no making up for the mistake.

That's why there is reason to be wary of state Rep. Matt Gaetz's call to speed up executions. Gaetz, a Fort Walton Beach Republican who chairs the House Criminal Justice Subcommittee, has said that long delays in carrying out executions show that Florida has a broken death-penalty system.

He's right about the system being broken — but not only in the way that he suggests.

Last year, Florida ranked No. 1 in death sentences imposed. The state also has the dubious distinction of exonerating more death-sentenced inmates than any other state since 1973, reports the Death Penalty Information Center.

Georgia's Athens Banner-Herald publishes, "State death penalty law needs change."  It was originally published by the Savannah Morning News.

Georgia is the only state in the nation that requires death penalty defendants to prove they are mentally disabled beyond a reasonable doubt to avoid execution.

In theory, this legal standard prevents stone-cold killers from faking disabilities to escape justice under Georgia law. That sounds logical.

But in practice, it can put the courts and mental health professionals in unenviable positions that a King Solomon couldn’t properly adjudicate.

That’s why state lawmakers should take a look at this law — and the ongoing case of Warren Lee Hill — and consider changing it.

Hill, 52, literally got a last-minute stay of execution Feb. 19 by the 11th U.S. Circuit Court of Appeals. He was being prepared for lethal injection when two of three federal judges said further review is needed of recent affidavits by doctors who changed their minds about Hill’s mental capacity.

And:

The root of the problem is that psychiatric diagnoses are subject to a degree of uncertainty. Existing Georgia law refuses to recognize this reality.

Legally speaking, this law stands up to scrutiny. State and federal courts have upheld it. But practically speaking, it leaves no wiggle room for cases that seem borderline.

Earlier coverage from Florida and earlier coverage of Warren Hill's case begins at the links.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

Supreme Court to Review Kansas Case

"U.S. Supreme Court to hear 2nd Kansas death penalty appeal," is the Wichita Eagle report by Hurst Laviana.

For the second time since the state’s capital murder law was reinstated in 1994, the United States Supreme Court has agreed to hear the appeal of a death sentence that was overturned by the Kansas Supreme Court.

Kansas Attorney General Derek Schmidt said the nation’s highest court will decide whether the state Supreme Court acted properly when it overturned the death sentence imposed on Scott Cheever, who was convicted of the 2005 murder of Greenwood County Sheriff Matt Samuels.

The state court overturned Cheever’s conviction in August, ruling that prosecutors violated his right against self-incrimination when they allowed an expert witness to testify about the results of a mental exam that Cheever was required by a judge to take.

The Fifth Amendment does not prevent a judge from ordering a defendant to submit to a mental exam, the state court ruling said, but it does prevent the state from using the exam against the defendant at trial.

When he announced in September that he was appealing that ruling, Schmidt said he didn’t think the state court ruling correctly reflected the requirements of the Fifth Amendment.

The case is Kansas v. Cheever (12-609.)

The AP filing is, "High court to review Kansas sheriff's killing," via the Seattle Times.

The Supreme Court has agreed to consider reinstating the conviction and death sentence of a man who said he was high on meth when he killed a Kansas sheriff.

The justices on Monday said they will review a state Supreme Court ruling that granted a new trial to Scott Cheever, who admitted to shooting Greenwood County Sheriff Matt Samuels.

The Kansas court said Cheever's rights were violated during his trial because a psychiatrist was allowed to testify about Cheever's psychological records without his consent.

"U.S. justices agree to weigh defendant's self-incrimination claim," is the Reuters' post by Lawrence Hurley, via the Chicago Tribune.

The U.S. Supreme Court agreed on Monday to consider whether a criminal defendant's right against self-incrimination is violated when a psychiatrist who examined him testifies about his mental state.

And:

The legal question is whether Cheever's Fifth Amendment right against self-incrimination was violated when the state called a psychiatrist who had examined Cheever to testify in order to rebut the claim that the defendant was incapable of rational thought.

The psychiatrist's testimony was based in part on what Cheever had said to him during the evaluation. The Kansas Supreme Court ruled in Cheever's favor.

Oral argument and a decision are expected in the U.S. Supreme Court's next term, which begins in October and runs until June 2014.

Courthouse News Service posts, "Justices to Look at Meth User's Competency Exam," by Barbara Leonard.

On Monday, the U.S. Supreme Court agreed to resolve two issues related to the case:

"1. When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant's methamphetamine use, does the state violate the defendant's Fifth Amendment privilege against self-incrimination by rebutting the defendant's mental state defense with evidence from a court-ordered mental evaluation of the defendant?

"2. When a criminal defendant testifies in his own defense, does the State violate the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant?"

Earlier coverage of Scott Cheever's case begins at the link.  Thanks to Donna Schneweis for circulating.

Jordan Smith on the Case of Larry Swearingen

"Death Row Prisoner Larry Swearingen May Be Innocent. Do Texas Courts Care?" is Jordan Smith's report in the March 11-18 edition of the Nation.  It's an excellent recap for those who have not followed the case.

Just over a year ago, in January 2012, Texas Governor Rick Perry marked a gruesome milestone: with 239 executions under his belt, he had officially overseen half of all executions carried out in that state since the reinstatement of the death penalty. Since then, Texas has killed fourteen inmates, solidifying Perry’s position as the governor who has presided over the most executions in history. To date, 492 prisoners have been put to death since the state’s death chamber roared back to life in 1982. By the time this issue of The Nation hits newsstands, the number will likely be 493.

Amid so much state-sanctioned killing there is scant official acknowledgment that the state’s capital punishment system is fraught with problems. As the body count rises, nagging evidence points to the possibility that Texas has executed at least one innocent person, and may be poised to kill more. The arson-murder case of Cameron Todd Willingham, killed in 2004, is the best known, but there are many other cases that raise serious questions about the guilt of people on Texas’ death row.

As it moves down the roster of executions scheduled for this year, the state is perilously close to adding another name to its list of potential innocents: Larry Swearingen, whose case highlights a growing tension in Texas between science and the law. Add to that conflict the all-too-familiar problems of prosecutorial bias and tough-on-crime politics, and you’ve got a recipe for wrongful conviction that, when death is involved, can’t ever be remedied.

Earlier coverage of Larry Swearingen's case begins at the link.

An Update on the Case of Duane Buck

The Texas Tribune posts, "Call for a New Execution Date Revives Race Debate."  It's written by Maurice Chammah. 

The Harris County district attorney's office agreed Monday morning at a hearing in a state district court to give attorneys for death row inmate Duane Buck 30 days to file with an application, asking the Texas Court of Criminal Appeals to review his sentencing trial. The application, said Kate Black, one of Buck's attorneys, will include arguments that Buck was unfairly sentenced to death after testimony suggested that he was more likely to be dangerous because he is black. If the state's highest criminal court rejects the application, the district attorney's office will again move to set an execution date.

"Buck is a very faithful person," Black said of her client's reaction to the news, adding that he was concerned for the well-being of the victims' families as the controversy continues. "He doesn't want to put any additional stress on the victims' families."

During Duane Buck's 1997 capital murder trial, a defense witness, psychologist Dr. Walter Quijano, told the jury, “It’s a sad commentary that minorities, Hispanics and black people, are over represented in the criminal justice system.”

Sixteen years later, those words and their effect on Buck's death sentence have been fiercely debated in appeals courts and in the U.S. Supreme Court and by lawyers, lawmakers and scholars.

Earlier coverage of Duane Buck's case begins at the link.

Related posts are in the race category index.

Texas Arson Case Review; First Case Gets New Trial Recommendation

The Waco Tribune reports on the case of Ed Graf, "Judge's OK puts Graf 1 step closer to new trial in murder," written by Cindy V. Culp.

A Waco judge is recommending a Hewitt man convicted 25 years ago of burning his stepsons alive be given a new trial, but stopped short of saying he should be declared innocent.

The final say about Ed Graf’s fate will come from the Texas Court of Criminal Appeals. It can adopt the recommendation announced Thursday by retired State District Judge George Allen. It also could rule that Graf must continue to serve his life sentence, or alternately, find him innocent and order his release.

But even if a new trial is ordered, it is possible Graf could go free without having to defend himself in court a second time.

A decision about whether to re-try the arson murder case would be up to McLennan County District Attorney Abel Reyna, who did not commit to a specific course of action at Thursday’s hearing.

Reyna said his office will “investigate and reinvestigate” the case “from square one.” He noted that he was not district attorney at the time of the 1986 fire that killed Graf’s stepsons or during Graf’s 1988 trial.

And:

During Thursday’s hearing, Reyna’s office told the judge it supports the idea of Graf getting a new trial because of advances in fire science that have occurred in recent years. Some of the evidence used against him was unquestionably flawed, prosecutor Alex Bell said.

But Bell said the district attorney’s office could not support a recommendation to the appeals court saying Graf is innocent because of other evidence in the case. It included Graf buying life insurance policies on the boys shortly before their deaths and his behavior before and after the fire, which family members characterized as suspicious.

“There is still strong circumstantial evidence that Mr. Graf did commit this crime and cause the deaths of these two children,” Bell said.

Graf’s attorney, Walter M. Reaves Jr. of Waco, dismissed the importance of the circumstantial evidence. If Graf is given a new trial, he said, he is confident the case will either be dismissed for lack of evidence or that jurors will find his client not guilty.

"Arson Reviewers Expect Small Number of Problem Cases," is the Texas Tribune report by Maurice Chammah.

At the height of the controversy surrounding the fire investigation that led to the arson murder conviction and death sentence of Cameron Todd Willingham, Dr. Gerald Hurst, one of the country's pre-eminent fire investigators, told a reporter for ABC News, "The Willingham case is like a hundred other cases I've seen, except that they executed him. The others are rotting away in prison."

But attorneys with the Innocence Project of Texas, who have been conducting a massive review of arson convictions in Texas, told the Texas Forensic Science Commission at its meeting Friday that the number of cases in which arson investigations may have led to wrongful convictions will turn out to be quite small. Nick Vilbas, executive director of the Innocence Project of Texas, said he expects the final number of cases that are sent for review to the state fire marshal to be six to eight.

And:

Although many of the cases that may be sent for additional review are not yet public, one is currently in court. Today, McLennan County state district Judge George Allen ruled that Ed Graf, whose arson conviction is being studied by the project, is entitled to a new trial. Graf, who is now 60 years old, was convicted in 1988 of locking his two young stepsons in a storage shed at their home outside of Waco and setting it on fire, killing the boys. A prosecutor in the case has said that the fire science used in the original investigation was questionable, but he added that the McLennan County district attorney's office is not convinced that Graf is innocent because of other evidence in the case. A final determination of whether Graf is entitled to a new trial will be made by the Court of Criminal Appeals.

Vilbas said that of 33 cases the Innocence Project selected for intensive screening, 18 have been initially analyzed and only two of those will go on to be reviewed by a panel of fire experts, set up by Texas Fire Marshal Chris Connealy. The rest of the cases, 15 in all, will be studied in the coming months.

“There are only a handful of convictions that are really in question,” said Mike Ware, another attorney with the Innocence Project.

Earlier coverage of the Texas arson case review begins at the link.

Texas Arson Conviction Reviews

"Duty to correct bad arson cases," is the Dallas Morning News editorial.

Breakthroughs take time in criminal justice reform, and they get messy, but they are no less impressive when they happen.

Just this week in Houston, the state fire marshal’s office sat down with outside experts to pore over a short list of old arson cases suspected of using junk science to put someone behind bars. One of those suspect cases, from the Central Texas town of Hewitt, is on a separate review track in McLennan County. The district attorney there has cited “serious and complex issues” involving arson forensics in the murder conviction of Ed Graf, who will get a hearing Friday on a writ to reopen his 26-year-old case.

All this traces back to the noisy early days of the Texas Forensic Science Commission and its first case, the arson-murder conviction of Cameron Todd Willingham, executed in 2004. Critics were prone to calling reformers out of bounds, grandstanders who were out to undermine Texans’ support of the death penalty.

Those critics need to take a look today. The fight was a righteous one and has yielded a kind of systematic re-examination of the science in arson convictions that is unprecedented in the nation.

As a fledgling agency, the Forensic Science Commission took heat for stretching its authority in 2008 and accepting the Willingham case for review. This newspaper is glad it did, even though the law creating the commission didn’t expressly list arson as a forensic science under its purview.

Today's Los Angeles Times reports, "Texas judge to examine old arson case amid statewide review," by Molly Hennessy-Fiske.  Here's an extended excerpt:

A Texas judge is expected to consider Friday whether to grant a new trial for a man serving a life sentence for murdering his two stepsons by arson, or even to declare him innocent.

Ed Graf, 60, was convicted in 1988 of locking his 8- and 9-year-old stepsons in a backyard storage shed in Hewitt, Texas, just outside Waco, and setting the shed afire.

Graf’s is among a handful of arson cases under review by the Lubbock-based Innocence Project of Texas and an expert state fire panel, an unprecedented investigation of closed cases recommended by the state’s Forensic Science Commission. The expert panel includes the leader of the science commission.

Innocence Project officials hope the review will help overturn wrongful convictions that relied on so-called “junk science,” discredited approaches of determining whether fires were intentionally set.

Earlier this week, the officials brought their findings to the fire panel assembled by Texas Fire Marshal Chris Connealy in Houston.

The panel convened after a report last year by the Forensic Science Commission found that unreliable science helped lead to Cameron Todd Willingham's conviction for murder by arson in 1992. Willingham, 24, had been convicted in the deaths of his three children in a 1991 fire at their home in Corsicana, about 55 miles south of Dallas, and was executed in 2004.

Last year’s science commission report did not draw conclusions about Willingham's guilt, instead recommending the arson review currently underway.

Innocence Project staff found about 30 problematic arson cases they want to investigate, and brought them to the six-member state fire panel when it met for the first time Tuesday.

One case involved weak evidence about how a house fire started. Another concerned questionable arson evidence from a fire in the 1980s in Pasadena, about 15 miles east of Houston. The person convicted in the latter case is serving a 75-year sentence.

Connealy, a former fire chief working in the field since 1978, said the expert panel reviewed five questionable cases, including Graf’s. He declined to identify the other cases, since he said the panel had yet to notify the officials who originally handled them.

"Experts to testify in Ed Graf arson murder case from 1980s," is a December 2012 report from the Waco Tribune with background information on the Graf case.  It's written by Cindy V. Culp.

Two of the nation’s leading fire science experts are scheduled to come to Waco next month for a hearing that will help decide the fate of a Hewitt man who claims he was wrongfully convicted of arson murder.

But the hearing could have implications far beyond Ed Graf’s case, said Jeff Blackburn, chief counsel for the Innocence Project of Texas.He said the state’s criminal justice system is starting to come to terms with the idea that junk science contributed to a number of wrongful convictions in recent decades.

But the state’s highest criminal court has not yet developed a uniform and fair way of handling such injustice, he said.

The hearing in Graf’s case, scheduled for Jan. 11, will be the first post-conviction hearing in Texas where attorneys will present evidence to show faulty fire science was used to secure an arson conviction, Blackburn said.

If he and Waco attorney Walter M. Reaves Jr. are able to provide the level of proof they think they can, Graf’s case could well be the one that finally causes the Texas Court of Criminal Appeals to set a precedent that offers appropriate relief to people ensnared by bad science, he said.

“The law in this area is complicated and generally terrible, but the facts of Ed Graf’s case are not,” Blackburn said. “It shows the stark possibilities of the way science can be misused and abused in a courtroom. The guy shouldn’t have been convicted and deserves a new trial.”

Earlier coverage of the systematic review of Texas arson cases begins at the link.  This is also a good opportunity to point readers to Dave Mann's enterprise reporting on questionable arson convictions in the Texas Observer, including his 2009 reporting on Ed Graf's case.

Problems With Mississippi Forensics

Today's New York Times reports, "Questions Left for Mississippi Over Doctor’s Autopsies."  It's written by Campbell Robertson.

For a long time, if a body turned up in Mississippi it had a four-in-five chance of ending up in front of Dr. Steven T. Hayne.

Between the late 1980s and the late 2000s, Dr. Hayne had the field of forensic pathology in Mississippi almost to himself, performing thousands of autopsies and delivering his findings around the state as an expert witness in civil and criminal cases. For most of that time, Dr. Hayne performed about 1,700 autopsies annually, more than four for every day of the year and nearly seven times the maximum caseload recommended by the National Association of Medical Examiners.

During the past several months, in courthouses around Mississippi, four new petitions have been quietly submitted on behalf of people in prison arguing that they were wrongfully convicted on the basis of Dr. Hayne’s testimony. Around 10 more are expected in the coming weeks, including three by inmates on death row.

The filings, based on new information obtained as part of a lawsuit settled last spring, charge that Dr. Hayne made “numerous misrepresentations” about his qualifications as a forensic pathologist. They say that he proposed theories in his testimony that lie far outside standard forensic science. And they suggest that Mississippi officials ignored these problems, instead supporting Dr. Hayne’s prolific business.

For many around the state, the Hayne era is considered to be over and any problems fixed. In 2008, amid growing controversy, the state severed ties with Dr. Hayne, who to this day insists that he was treated unfairly. Mississippi officials have since shown almost no inclination to review his past cases.

The recent lawsuits suggest that in only a limited number of cases did a verdict most likely hinge on Dr. Hayne’s testimony. But without any systematic review, it remains a question as to what that number may be.

Related posts are in the forensics category index.

South Dakota Death Sentenced Reversed

The South Dakota Supreme Court ruling in South Dakota v. Berget is available in Adobe .pdf format.

"South Dakota Supreme Court overturns death penalty for man convicted in prison guard's killing," is the AP report filed by Dirk Lammers.  It's via the Minneapolis StarTribune.

The South Dakota Supreme Court has overturned a state prison inmate's death sentence for the killing of a prison guard nearly two years ago.

In an opinion released Thursday, the justices said Rodney Berget, 50, must get a new sentencing hearing because the circuit judge who sentenced him to die improperly considered a statement Berget made to a psychiatrist.

The high court said it could not conclude that the use of the statement, in which Berget said he deserves the death penalty for taking Ronald "R.J" Johnson's life and destroying a family, was harmless beyond a reasonable doubt.

"This statement, while expressing Berget's belief that he deserves the death penalty, does not touch on his motivation for pleading guilty," Chief Justice David Gilbertson wrote.

Berget pleaded guilty to killing Johnson on April 12, 2011 — the prison guard's 63rd birthday — at the South Dakota State Penitentiary in Sioux Falls. Circuit Judge Bradley Zell of Sioux Falls sentenced Berget to death, and he appealed the sentence but not the conviction.

Eric Robert, who also pleaded guilty in Johnson's death, was sentenced to death and executed by lethal injection in October. A third inmate, Michael Nordman, was given a life sentence for providing materials used in the slaying.

The high court said the circuit judge improperly considered the statement Berget made to Dr. David Bean during a competency evaluation, which was a violation of Berget's right to be free from self-incrimination.

Related posts are in the expert witnesses index.

Manuel Velez Post-Conviction Hearing Concludes

"Velez hearing comes to end," is Mark Reagan's Brownsville Herald report.

Judge Elia C. Lopez in 30 to 60 days will tell the Texas Court of Criminal Appeals whether she thinks convicted murderer Manuel Velez should have another day in court.

Velez was convicted in October 2008 of killing 1-year-old Angel Gabriel Moreno. He was sentenced to death, but the Texas Court of Criminal Appeals threw out the sentence in June because expert witness testimony on future dangerousness was deemed inaccurate.

The child’s mother, Acela Moreno, pleaded guilty to striking Angel Gabriel Moreno on or about Oct. 31. She served five years of a 10-year sentence and testified against Velez during the trial. She received a plea deal and pleaded guilty to injury of a child.

Lopez listened to five days of testimony detailing what Velez’s pro bono habeas counsel said were critical mistakes by his defense attorney, Hector Villarreal, that included not exploring medical evidence or failing to call witnesses who might have cast doubt as to whether Velez was responsible for the child’s death.

Brian Stull of the ACLU Capital Punishment Project has blogged the hearing.  "Velez Hearing Day 4: Plight of Victim’s Family Shows That Death Penalty is the Wrong Priority," is his post at the ACLU Blog of Rights.

Day 4 of the Manuel Velez innocence hearing on Friday in Brownsville, Texas, brought into focus the plight of the poor, depressed, and overwhelmed young mother of the child victim who died -- a mother who desperately needed help but never found it.

At a 2008 trial, Manuel was convicted and sentenced to death for killing 11-month-old Angel Moreno.  Before Friday’s testimony, most of this hearing’s evidence has been the testimony of experts who showed that the child’s injuries were caused at a time when Manuel was not involved with the family and had no access to the child.

Witnesses Friday described the months leading up to the boy’s death, and the struggles his mother, Acela Moreno, faced.  A friend testified that troubles started when Moreno came to her home at 3:00 a.m., with one of her three children in her arms.  Moreno asked for money so she could flee the home of Juan Chavez, the father of the victim in this case, who was abusing her.  The friend had provided money to Moreno in the past.  On another occasion, the friend drove Moreno to a battered women’s shelter.

"Velez Hearing Day 3: A Portrait of Constitutionally Inadequate Counsel," is Stull's earlier post.

In Day 3 of the Velez hearing in Brownsville, Texas, I want to take a moment to explain the legal context – the rule of constitutional law – that will entitle Manuel Velez to relief if the judge, the Hon. Elia Cornejo Lopez, credits the facts presented.

The legal journey starts 50 years back with the U.S. Supreme Court’s landmark ruling in Gideon v. Wainwright.  There, the court held that the Constitution entitles poor people facing possible imprisonment counsel appointed at the state’s expense.  In later decisions, the court clarified that a poor person’s right to appointed counsel is a right to effective counsel.

So how does an appellate court, after a conviction, test whether the prisoner had effective counsel?  The law gives a two-step test.  First, counsel’s alleged mistakes must be serious errors, not Monday-morning complaints that a different strategy would have worked better. Second, the prisoner has to show that the trial attorney’s mistakes or omissions made a difference in the trial’s outcome – in legal parlance, “a reasonable probability of a different outcome.”

A typical winning claim looks like this. Counsel failed to present readily available evidence of the prisoner’s innocence.  And, had that innocence evidence been shown at trial, it likely would have made a difference in the jury’s decision.

The task in this hearing for Manuel’s counsel, a dedicated team of lawyers from the firms Carrington Coleman and Rothgerber, Johnson, and Lyons, has been to demonstrate counsel’s failures to show that the child victim had been injured long before Manuel had access to him.  Much of the hearing evidence is medical evidence of the child’s injuries that counsel failed to explore in the 2008 trial, which led to Manuel’s capital murder conviction and death sentence.

"Day 2 of Velez Hearing: State’s Witness Dismantles State’s Timeline Theory."

We’re in day 2 of the Manuel Velez innocence hearing in Brownsville, Texas.  As we’ve previously explained, this case posed a dilemma because two adults were in a Brownsville home on Halloween 2005 when 11-month- old Angel Moreno was taken to the hospital unable to breathe. Both adults, Manuel Velez and Acela Moreno, the boy’s mother, pointed the finger at one another as the perpetrator.  But no witness, physical, forensic, or other evidence suggests Manuel ever hurt this or any other child.

Nevertheless, to prove Manuel was the perpetrator – and convince a jury to sentence him to death – the state claimed that Manuel must have killed the child because the child only began showing evidence of injuries and abuse during the two weeks in which he (and his mother) lived with Manuel. Those two weeks ran up to the day the child was hospitalized.

Earlier coverage of Manuel Velez' case begins at the link.

The Case of Manuel Velez

"Lawyers: Man wrongfully convicted of killing baby," is the San Antonio Express-News report written by Lynn Brezosky.

New lawyers for a man sent to death row after being convicted of murdering his girlfriend's infant son are set to argue today that evidence that wasn't presented would exonerate him.

“The technical claim is ineffective assistance of counsel,” said Neil Burger, one of a team of attorneys working pro bono on the case. “At the first trial, the medical evidence went undisputed by defense trial counsel. We're going to show that it is highly disputed and was readily available.”

A Cameron County jury in 2008 convicted Manuel Velez of inflicting the wounds that killed Angel Gabriel Moreno on Oct. 31, 2005, the day before the child's first birthday.

But the new lawyers say medical evidence shows the baby had brain injuries that led to his death and that would have been inflicted while Velez was working in Memphis, Tenn.

And:

While an appellate court already has overturned the death sentence, the decision was based on prosecution witness A.P. Merillat's testimony during the penalty phase. The court determined that he mischaracterized prison conditions for convicts serving life sentences for capital murder by saying they'd be eligible for outside work details.

The proceedings beginning today are about the conviction itself.

“It goes to guilt or innocence as opposed to what punishment he should get,” attorney Tami Goodlette said.

The Cameron County district attorney's office stands by the prosecution's case, citing the “State's compelling interest in the finality of its hard-won conviction” in its 169-page response to Velez's petition to rehear the case.

Brian Stull of the ACLU Capital Punishment Project posts, "Could Manuel Velez be the 13th Prisoner Exonerated from Texas’s Death Row?" at the ACLU Blog of Rights.  Here's the beginning:

Imagine you are caring for a toddler and suddenly he stops breathing.  You quickly get him medical aid, but it’s too late: the child dies at the hospital where medical personnel were unable to revive him.  That would be a horrific nightmare for anyone, but things got even worse for Manuel Velez when this happened to him in Brownsville, Texas, on Halloween in 2005.

In a tiny home in a poor section of Brownsville, Manuel was watching two other small children and 11-month-old Angel Moreno for about 20 minutes when Manuel discovered Angel in distress.  He awoke Angel’s mother, Acela Moreno, who was napping but who herself had been alone with the child only 20 minutes earlier. The two rushed to a neighbor’s home to call 911. Angel died at the hospital. Both Acela Moreno and Manuel Velez were charged with his murder.

Earlier coverage of Manuel Velez' case begins at the link.

Texas CCA Orders New Trial in Cathy Lynn Henderson Case

The Court of Criminal Appeals ruling in Ex Parte Henderson is available in Adobe .pdf format, as are concurring and dissenting opinons.

"Henderson Granted New Trial," is by Jordan Smith for the Austin Chronicle.

In an opinion delivered this morning, the Texas Court of Criminal Appeals says Cathy Lynn Henderson should be granted a new trial in the 1994 Travis County murder of three-month-old Brandon Baugh. Henderson was convicted and sentenced to die for Baugh's murder. Henderson was babysitting Baugh at her Pflugerville-area home when the baby died. Instead of calling for help, Henderson took off with Baugh's body and buried him in a field in Bell County before fleeing to her native Missouri.

Her April 2007 execution was postponed by Judge Jon Wisser in order to give her defense a chance to prepare an appeal arguing that "new" science demonstrated that the head injury suffered by Baugh could easily have been an accident. Indeed, at an evidentiary hearing former Travis County Medical Examiner Roberto Bayardo testified that the science had changed and that although he had previously testified, at Henderson's trial, that Baugh's injury could not have been the result of an accident there was now no way to say with any medical certainty that was the case.

At the close of the hearing Wisser recommended that Henderson be granted a new trial.

Now the CCA has agreed, deferring to Wisser's determination that the new scientific evidence was exculpatory in nature. "Although we need not accept the trial court's conclusions concerning actual innocence, we accept the court's recommendation to grant relieve and remand for a new trial," the court wrote.

"Henderson granted new trial in baby’s 1994 death," is by Chuck Lindell for the Austin American-Statesman.

Cathy Lynn Henderson, once two days from execution for the 1994 death of an infant she was baby-sitting, was granted a new trial Wednesday by the state’s highest criminal court.

The Court of Criminal Appeals deferred to the findings of Travis County District Judge Jon Wisser, who said last May that no reasonable juror would convict Henderson if they were presented with new scientific discoveries into the causes of head trauma similar to the injury suffered by 3-month-old Brandon Baugh.

In recommending that the appeals court grant Henderson a new trial, Wisser also noted a change of heart from the prosecution’s star witness, former medical examiner Roberto Bayardo.

Bayardo testified at Henderson’s trial that it was “impossible” to attribute the boy’s extensive head injury to an accidental fall. Later, Bayardo said advancements in the understanding of pediatric head injuries indicate that relatively short falls onto a hard surface could produce injuries similar to those he discovered during Brandon’s 1994 autopsy.

The Court of Criminal Appeals ruling was unsigned but accompanied by concurring opinions from five judges. Three judges dissented and one did not participate.

Earlier coverage of Cathy Lynn Henderson's case begins at the link.

State Case Roundup

Kansas' Topeka Capital-Journal reports, "Schmidt appeals decision to overturn death penalty."

Kansas Attorney General Derek Schmidt on Thursday announced he is appealing a decision by the Kansas Supreme Court to overturn a death penalty conviction.

The court in August ordered a new trial for Scott Cheever, who was convicted in the 2005 murder of Greenwood County Sheriff Matt Samuels.

Cheever received the death sentence in October 2007. The state’s high court said Cheever’s 5th Amendment right against self-incrimination was violated by the testimony of a state psychiatrist, reversing the capital murder conviction, as well as four other convictions of attempted capital murder on four other law officers involved in Cheever’s arrest.

Schmidt’s appeal to uphold both the convictions and death sentence is to the U.S. Supreme Court.

From Colorado, "Sources: Aurora theater shooting suspect injured self by ramming head into cell wall," is Jessica Fender's Denver Post report.

Defense attorneys for suspected theater shooter James Holmes said their client was sent to the hospital Tuesday and needed to postpone a court hearing, but did not provide additional details about his condition.

However, sources said Holmes injured himself by ramming his head into a wall at the Arapahoe County jail.

Over objections from prosecutors, Arapahoe County District Court Judge William Sylvester moved a hearing scheduled for Thursday to Dec. 10. That is when lawyers will discuss how information about the package Holmes mailed to his psychiatrist was released to media, as well as other matters.

Citing concerns that divulging Holmes' "medical or psychiatric information" would waive right to keep other personal details out of the courtroom, public defender Tamara Brady declined to state his ailment or whether he was still hospitalized.

Earlier coverage of the Kansas and Colorado cases begins at the links.

Post-Conviction Atkins Relief in Texas

"Katrina evacuee on Texas death row gets life term," is the AP report, via the CT Post.

A Louisiana man's death sentence in Texas has been reduced to life in prison without parole in the killing of a woman who helped him when he relocated after Hurricane Katrina.

Attorneys for 50-year-old Roosevelt Smith Jr. contended he's mentally impaired and ineligible for execution under Supreme Court guidelines.

A state-appointed psychologist determined Smith was impaired. The Texas Court of Criminal Appeals on Wednesday agreed.

The Texas Court of Criminal Appeals ruling in Ex Parte Smith is available in Adobe .pdf format.

The case involved expert witness testimony by disgraced Texas psychologist George Denkowski; past coverage of Denkowski begins at the link.  Earlier coverage of Texas' application of Atkins is also available.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation index. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Connecticut Racial Bias Trial Temporarily on Hold

"Death Penalty Bias Case Put On Hold," is Alaine Griffin's report in today's Hartford Courant.

The landmark case that challenges the death sentences of five of Connecticut's 10 death-row inmates based on racial and geographic bias was put on hold Wednesday because one of the expert witnesses is scheduled to travel out of the country.

Judge Samuel J. Sferrazza halted testimony in the trial's 13th day, saying evidence would resume later this month with additional witnesses and again in November when Stanford Law School Professor John J. Donohue III is expected to return from Italy.

Last month, Donohue – the inmates' key witness – testified that there are "strikingly large" disparities along racial and geographic lines when it comes to death penalty prosecutions in Connecticut. Attorneys for the inmates are planning to bring Donohue back to the witness stand.

The hiatus in the trial means the convicted killers - Sedrick Cobb, Todd Rizzo, Daniel Webb, Robert Breton Sr. and Richard Reynolds – may not know Sferrazza's decision on whether their death sentences should be overturned until the end of the year or early next year.

Battling experts' complex testimony – accompanied by numerical charts and tables – is at the heart of the case, which dates back two decades when Cobb first raised racial bias claims after he was sentenced to death for the 1989 rape and murder of 23-year-old Julia Ashe of Watertown.

And:

The trial began last month in an improvised courtroom in a prison dayroom at Northern Correctional Institution in Somers, where death row is housed. The inmates, with their wrists and ankles shackled, sat with their attorneys during testimony.

Most of the testimony has come from Donohue and the state's expert, Stephan Michelson.

Donohue used his analysis of 4,700 murders in the state from 1973 to 2007 to bolster the inmates' claims that death sentences are influenced by race and geography instead of solely on the egregiousness of the crime and the culpability of the defendant.

Earlier coverage of the Connecticut racial bias trial begins at the line.

Prison-Crime Witness Now on the Defensive

That's the title of a report in the Texas edition of the New York Times, by Maurice Chammah of the Texas Tribune.  "Death Penalty Witness Condemned by Courts," is posted at the Tribune.

A. P. Merillat has spent two decades investigating crimes in Texas prisons, and his testimony about the violence that inmates serving life sentences can inflict has helped send at least 15 murderers to death row.

Now the credibility of Mr. Merillat — a go-to expert for prosecutors seeking the death penalty — has been condemned by the state’s highest criminal court, after judges determined that Mr. Merillat gave false testimony. Two death sentences were reversed to life sentences, the most recent in June. Mr. Merillat said he was close to being devastated by those decisions. “A guilty capital murderer was removed from the punishment a jury, according to proof beyond a reasonable doubt, determined he deserved,” Mr. Merillat said.

Mr. Merillat says he believes the court has unfairly jeopardized his standing and that he is facing an uphill battle to repair it.

“I am currently attempting to rebuild my reputation for honor and integrity that was so unjustifiably destroyed by our own Court of Criminal Appeals,” he said.

Mr. Merillat, 56, began his career as a police officer in Huntsville and Houston, and for years, he said, he assumed that anyone who committed a “heinous capital murder” would be closely watched by the prison.

“I was very mistaken,” he said.

For the last 20 years, Mr. Merillat has been an investigator with the Special Prosecution Unit, an independent agency financed by the governor’s office to investigate and prosecute crimes that occur in prison.

And:

For a Texas jury to sentence a murderer to death, it must find that he or she will be a continuing threat to society. For decades, prosecutors relied on psychiatrists to testify that the accused would commit violent crimes again if given a sentence less than death.

Many of those psychiatric experts, like James Grigson (popularly known as Dr. Death), Richard Coons and George Denkowski, have since been discredited for their predictions of future likelihood of causing harm. Instead, prosecutors have turned to prison experts for testimony about the opportunities for violence behind bars — but outside death row.

Also:

But in 2010, the Texas’ Court of Criminal Appeals threw out the death sentence of Adrian Estrada for the 2005 stabbing of 17-year-old Stephanie Sanchez. Judge Barbara Hervey found Mr. Merillat erred by testifying that a convicted capital murderer would have more freedom in prison than would ever be possible.

Then, earlier this year, the court threw out the death sentence of Manuel Velez, a death row inmate convicted of killing his girlfriend’s infant son, after his lawyers found Mr. Merillat had given similar testimony in his Cameron County trial.

Earlier coverage of Manuel Velez' case and Adrian Estrada begins at the links.

Related posts are in the expert witnesses and future dangerousness catagory indexes; also available, coverage of George Denkowski.

MRI's in the Criminal Justice System

"Debate on brain scans as lie detectors highlighted in Maryland murder trial," is the Washington Post report by Michael Laris.

Gary Smith says he didn’t kill his roommate. Montgomery County prosecutors say otherwise.

Can brain scans show whether he’s lying?

Smith is about to go on trial in the 2006 shooting death of fellow Army Ranger Michael McQueen. He has long said that McQueen committed suicide, but now he says he has cutting-edge science to back that up.

While technicians watched his brain during an MRI, Smith answered a series of questions, including: “Did you kill Michael McQueen?”

It may sound like science fiction. But some of the nation’s leading neuroscientists, who are using the same technology to study Alzheimer’s disease and memory, say it also can show — at least in the low-stakes environment of a laboratory — when someone is being deceptive.

Many experts doubt whether the technology is ready for the real world, and judges have kept it out of the courtroom.

Over three days, Montgomery County Circuit Court Judge Eric M. Johnson allowed pretrial testimony about what he called the “absolutely fascinating” issues involved, from the minutiae of brain analysis to the nature of truth and lies. But he decided jurors can’t see Smith’s MRI testing.

“There have been some discoveries that deception may be able to be detected,” Johnson said, but he added that there’s no consensus that the results can be trusted. “These are brilliant people, and they don’t agree.”

Still, researchers and legal experts say they can envision a time when such brain scans are used as lie detectors. Standard polygraphs are generally not admitted in trials because some consider them deeply flawed. During his police interrogation, Smith said he would submit himself to a polygraph, but Johnson said such results would not be allowed as evidence.

Smith’s attorney, Andrew V. Jezic, argued in court that the MRI test should be allowed, and neuroscientists sparred over the credibility and usefulness in a jury trial.

Related posts are in the forensics and neuroscience indexes.

Reed and Swearingen Evidence in Question

That's the title of Jordan Smith's latest Austin Chronicle report.  It's subtitled, "Two more death penalty cases under appeal scrutiny."

This week we have updates on two capital cases. Each has spent years pending in post-conviction appeals, and in each case, forensic testimony plays a key role – but how the courts will evaluate the science in resolving them remains uncertain.

Attorneys for Rodney Reed, convicted of the 1996 rape and murder of Stacey Stites, have filed in federal court a brief containing explosive new evidence that they say bolsters Reed's claim of actual innocence. According to former Travis County Medic­al Examiner Roberto Bayardo, his testimony at Reed's 1998 trial was misconstrued by prosecutors to suggest a firm timeline for Stites' death, and to prove that Reed had raped her not long before her death. In a declaration filed Aug. 13, Bayardo says that although he originally concluded that Stites was a victim of both vaginal and anal rape, he now says the evidence only reflects that Stites was raped anally – an assault likely committed with a "rod-like instrument, such as a police baton." That conclusion strongly suggests that someone other than Reed assaulted Stites, his defenders say; at the time of her murder, Stites was engaged to then-Giddings Police Officer Jimmy Fen­nell, who is now in prison for the kidnapping and sexual assault of a woman while on duty as a Georgetown cop in 2007.

And:

Larry Swearingen was sentenced to death for the 1998 kidnapping and murder of 19-year-old Melissa Trotter. Prosecutors said last week that they have gotten word from district Judge Fred Edwards that he will side with them and rule against Swearingen's bid to receive a new trial.

At issue here is whether histological samples of Trotter's heart, lungs, and vasculature prove that she was murdered approximately a week before she was found in the Sam Houston National Forest on Jan. 2, 1999. If that's the case, then Swearingen, who had been in jail since early December, just days after Trotter disappeared from the campus of Montgomery College, could not have been responsible for her death. The Court of Criminal Appeals last summer ordered an evidentiary hearing, which was held over two weeks beginning in late February 2012.

Although the lengthy hearing delved into the details of a handful of scientific disciplines – pathology, histology, entomology, taphonomy, anthropology – Edwards, who presided over Swearingen's trial, has apparently already decided that the evidence favors the state, even though the official transcripts of the proceeding have not yet been filed, and neither side has had the opportunity to review them, or to file their official "findings of fact and conclusions of law" brief, which each side is required by law to do, says James Rytting, Swearingen's lead attorney.

Earlier coverage of the Rodney Reed and Larry Swearingen cases begins at the links.  Related posts are in the forensics index.

Looking Back at a Federal Death Penalty Prosecution

"Costs questioned in failed death-penalty case," is by Bill Rankin for the Atlanta Journal-Constitution.  Greg Bluestein contributed to the article.

The Justice Department doesn't often seek the death penalty, but this case appeared to be as close to a slam dunk as a prosecutor could get.

Brian Richardson, his shaved head covered in tattoos, was already serving the rest of his life in prison for armed robberies. While in lockup, he splashed bleach in a guard's face, stabbed other inmates and was accused of talking a troubled inmate into committing suicide.

Now Richardson had methodically killed his cellmate at the U.S. Penitentiary in Atlanta. After repeatedly stabbing and then strangling the 60-year-old man, Richardson decided to shave. He then alerted guards and told them to take the body away.

But the government didn't get the death penalty for Brian Richardson. His jury, after a nine-week trial this spring, could not reach a unanimous verdict on his sentence. By law, he was sentenced to life without parole.

In the meantime, Richardson's case required more than 20 lawyers and consumed thousands of hours of their time. It cost hundreds of thousands of dollars in fees from expert witnesses, some who cost the government $1,900 an hour but were never allowed to testify. And it derailed the careers of two federal prosecutors — one accused of defying a court order, the other caught making outrageous comments to a snitch on a recorded phone call.

"This was a colossal waste of taxpayer money," Brian Mendelsohn, one of Richardson's lawyers, said. "Brian was willing to plead guilty in exchange for a life sentence from day one. This entire episode could have been avoided."

U.S. Attorney Sally Yates said her office stands by its decision and holds firm to the belief Richardson will kill again. "I don't have any trepidation or second thoughts as to whether it was appropriate to seek death in this case."

Yates declined to provide records detailing the cost of the prosecution.

But among the costs to taxpayers was more than $150,000 billed by mental health experts who planned to testify against Richardson but were prohibited from doing so. U.S. District Judge Clarence Cooper barred the testimony after finding prosecutors misled him as to how the government's experts would conduct Richardson's evaluation.

The prosecutors no longer work for the U.S. Attorney's Office in Atlanta and are being investigated by the Justice Department's Office of Professional Responsibility for that foul-up and other alleged transgressions.

And:

Before trial, a key thrust of Richardson's defense was to present testimony from experts who believed Richardson suffered from schizophrenia, which could be managed with proper medication.

To rebut that evidence, the U.S. Attorney's Office hired The Forensic Panel. The New York practice was founded by forensic psychiatrist Michael Welner, who has testified in numerous high-profile cases.

The article also notes:

The Forensic Panel billed more than $150,000 to the government, Yates estimated.

Welner charged $475 an hour for his time and for the time of each of his peer-review panel experts. This meant that when Welner and his three experts had a conference call, it cost $1,900 an hour.

Earlier coverage of the Richardson death penalty trial begins at the links.  Related posts are in the cost, expert witness, and federal death penalty category indexes.

CCA Overturns Two Death Sentences

The Texas Court of Criminal Appeals rulings in Velez v. State and Ex Parte Alexander are available in Adobe .pdf format.

The AP filing is, "2 death row inmates win new punishment trials," by Michael Graczyk.  It's via the Houston Chronicle.

The state's highest criminal court reversed the death sentences of two convicted Texas killers Wednesday and narrowly rejected an appeal from a third death row inmate.

The Texas Court of Criminal Appeals ruled that testimony from a prison expert during the punishment phase of Manuel Velez's capital murder trial in Cameron County was improper, meaning the 47-year-old construction worker is entitled to a new punishment trial.

Velez was convicted of killing his girlfriend's son, Angel Moreno, a day before the boy's first birthday in February 2005 at their Brownsville home. Evidence showed he either hit the boy's head on a surface or struck him in the head with an undetermined object.

The court agreed with Velez's attorneys that prison expert A.P. Merillat was wrong when he testified about the security level classification of Texas inmates who serve life without parole. Velez's jury had the task of deciding between a death sentence and life without parole. Merillat and prosecutors who called him to testify as an expert witness on prisons and inmate violence should have known the testimony was incorrect, the court ruled.

And:

In the second case, the Court of Criminal Appeals unanimously agreed Guy Stephen Alexander, 52, should get a new punishment hearing because jurors had no way in 1989 to properly consider mitigating evidence in his case.

Alexander was arrested for killing Wilma Jewel Wofford, 75, of Houston, during a January 1989 robbery. Wofford was beaten with a brick and strangled. Alexander, a 29-year-old mechanic at the time, fled to Mississippi, where he was found driving Wofford's car and arrested.

He later gave police a written confession, and evidence at the scene of the killing was linked to him.

His trial was held during a time when trial rules for Texas capital cases were evolving, particularly in the area of mitigating evidence and how it should be applied to punishment. The U.S. Supreme Court has visited the issue several times, refining trial procedures through its rulings, and several cases of that era have been returned to trial courts for new punishment hearings.

"Death Sentence Thrown Out in 2005 Murder Case," is Shefali Luthra's post at Texas Tribune.

The Texas Court of Criminal Appeals on Wednesday threw out the death sentence of Manuel Velez, who was convicted of killing his girlfriend’s infant son in 2005. The decision was based on what the court said was the use of inaccurate expert testimony during Velez’s sentencing.

Velez, who was convicted by a Cameron County jury, will be taken off death row, though he has not been cleared of his conviction. Velez has already filed an appeal of his conviction, said Brian Stull, a senior staff attorney at the American Civil Liberties Union Capital Punishment Project.

Velez’s death sentence was based on testimony from state expert A.P. Merillat, who gave the jury incorrect information about what freedoms Velez would have if not sentenced to death, according to Wednesday's ruling.

And:

Velez will be represented by lawyers from two private law firms when he appeals his sentence, though Stull said he will be available to Velez as well.

The lawyers have uncovered evidence that injuries to the baby were sustained before Velez lived with him and while Velez was out of the state, Stull said.

Related posts are in the Texas Court of Criminal Appeals category index. 

Problems with Texas' jury charge in death penalty cases were first ruled unconstitutional by the Supreme Court in the 1989 case, Penry v. Lynaugh.  That ruling was more fully applied following the 2007 case, Abdul-Kabir v. Quarterman; more on both cases via Oyez. Juries must be able to consider all mitigating evidence that might lead them to issue a life sentence rather than a death sentence.  Texas' 1975 death penalty law did not allow jurors to do that.

More on the Cathy Lynn Henderson Case

"Engineer enlisted scientific advances to aid Texas woman on death row," is the title of Chuck Lindell's report for the Sunday edition of the Austin American-Statesman.  It's a must-read for its reporting on advances in scientific analysis of this and other cases.

Cathy Lynn Henderson was out of appeals and seven weeks from an April 2007 execution date when an unexpected phone call from a retired mechanical engineer changed everything, offering the former Travis County resident a potential path off death row.

Engineer Edwin Newberg was troubled when the Kansas City Star, serving Henderson's former hometown, published a front-page story about her capital murder conviction for the death of an infant in her care, 3-month-old Brandon Baugh.

Prosecution experts said Brandon's head injuries were too extensive to support Henderson's claim that she accidentally dropped the child about 4½ feet onto the concrete and tile floor of her Pflugerville-area home in 1994.

Newberg tracked down the defense lawyer quoted in the story, George Cumming of San Francisco, to explain that Henderson's alibi could be reinforced by biomechanics, an emerging field of study that measures the effect outside forces have on the human body.

"From an engineering viewpoint and from the damage that I heard about," it seemed possible that Henderson was not a murderer, Newberg recalled recently.

Intrigued, Cumming and the rest of Henderson's legal team — assembled by Sister Helen Prejean of "Dead Man Walking" fame and working without charge — found a leading expert in biomechanics and secured a hastily prepared affidavit asserting that even short falls can be fatal to infants.

The information prompted state District Judge Jon Wisser to delay Henderson's execution by 60 days to give defense lawyers time to more fully explore biomechanics for a new appeal, which they filed three weeks before the June 13, 2007, execution date.

With two days to spare — just as Brandon Baugh's parents were packing to witness the execution, hoping for closure — the state's highest criminal court stayed Henderson's lethal injection and directed Wisser to examine the new claims.

And:

But last month, more than three years after the last hearing, Wisser sent his findings to the Court of Criminal Appeals, recommending that Henderson's conviction be thrown out and a new trial be ordered. Deprived of Bayardo's emphatic testimony that the boy had been murdered, no reasonable juror would have voted to convict Henderson of capital murder, Wisser said.

In essence, Wisser determined that prosecutors at Henderson's 1995 trial had an unfair advantage, presenting credible evidence that could not then be refuted — but could be challenged today because scientific advances have produced a deeper understanding of pediatric head injuries.

Like other recent cases of reconsidered science, biomechanics cannot prove Henderson's innocence.

Earlier coverage of Cathy Lynn Henderson's case begins at the link.  Related posts are in the forensics index.

Trial Judge Recommends Reversal of Cathy Lynn Henderson Convcition

Today's Austin American-Statesman reports, "Judge: New evidence should overturn Henderson's capital murder conviction."  It's by Chuck Lindell.

The state's highest criminal court should overturn the capital murder conviction of Cathy Lynn Henderson, once two days from execution for the 1994 death of an infant she was baby-sitting, a Travis County judge has recommended.

District Judge Jon Wisser said scientific discoveries into the causes of head trauma similar to the injury suffered by 3-month-old Brandon Baugh — and a change of heart from the prosecution's star witness, former medical examiner Roberto Bayardo — mean no reasonable juror would convict Henderson if presented with the new evidence at trial.

"Testimony of the state's chief experts was, at bottom, scientifically flawed," Wisser wrote in findings dated May 14 and delivered Tuesday to the Court of Criminal Appeals.

After reviewing evidence via testimony and briefs, Wisser recommended that the appeals court dismiss Henderson's conviction and return her case to Travis County, where she may face "any indictment or charges" that prosecutors choose to pursue in the child's death.

The appeals court will determine whether to accept Wisser's recommendation. It can rule on his submission, request further briefing or schedule oral arguments. A decision on Henderson's fate is likely to be months away.

And:

Henderson, 55, had claimed that Brandon died after slipping from her arms and falling about four feet to the concrete floor of her Pflugerville-area home. She said she panicked, then buried the boy's body in a Bell County field before fleeing to Missouri, where she was found and arrested 11 days later.

The search for the boy's body and hunt for Henderson dominated headlines in February 1994.

At Henderson's trial a year later, Bayardo testified that it was "impossible" to attribute the boy's extensive head injury to an accidental fall. The only explanation, he said, was a deliberate and forceful blow struck by Henderson, adding that Brandon would have had to fall from "higher than a two-story building" to sustain a similar injury.

But in an affidavit included in Henderson's 2007 appeal, Bayardo said advancements in the understanding of pediatric head injuries indicate that relatively short falls onto a hard surface could produce injuries similar to those he discovered during Brandon's 1994 autopsy.

"I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an intentional act or an accidental fall," Bayardo said.

Dr. John Plunkett, one of five defense experts to testify before Wisser, said doctors were commonly taught that short falls could not cause serious injury or death in infants. However, scientific studies since 2001 have shown that falls of less than four feet can be lethal, producing complex skull fractures and other damage, said Plunkett, a Minnesota forensic pathologist who studied fatal playground accidents.

Plunkett concluded that no expert could prove that Brandon's death was an accident. "However, because of the new scientific information and analysis now available ... neither may anyone prove that Ms. Henderson intentionally caused it," he said in an affidavit to Wisser.

Also:

Henderson was two days from a June 13, 2007 execution date when the Court of Criminal Appeals ruled 5-3 to halt proceedings — directing Wisser, who had presided over Henderson's trial, to examine testimony from defense experts and Bayardo's recantation.

It is unclear how Wisser's conclusions will be received by the appeals court, an all-Republican nine-member body known as a tough venue for defense lawyers.

Three judges would not have delayed Henderson's execution in 2007— Sharon Keller, Barbara Hervey and Michael Keasler — saying defense lawyers did not meet criteria for a second appeal.

The AP filing is, "Judge: Condemned woman should have verdict nixed," by Nomaan Merchant.  It's via the Fort Worth Star-Telegram.

Henderson maintained that she accidentally dropped the boy onto a concrete floor in her home in Pflugerville, north of Austin. During her trial, the chief medical examiner in Travis County argued that the boy could not have been so badly injured in a short fall. Dr. Roberto Bayardo said Brandon would have had to fall from a height taller than a two-story building.

But Bayardo, now retired, changed his mind more than a decade later. He submitted an affidavit in 2007, saying new information about pediatric head trauma showed that his conclusion was incorrect and that a short fall could have caused the boy's injuries.

The Texas Court of Criminal Appeals halted Henderson's execution that June, two days before she was scheduled to die. She has remained on death row ever since.

And:

"The court finds that if Dr. Bayardo's re-evaluation had been presented to the jury in 1995, no rational juror could have or would have convicted (Henderson) of capital murder beyond a reasonable doubt in light of this new evidence," Wisser wrote.

Earlier coverage of the Cathy Lynn Henderson case begins at the link.  Related posts are in the forensics index.  Several notable older posts include:

• Autopsy Errors One More Troubling Trend
• Yamil Berard's Five-Part Medical Examiner Series Concludes
• Yamil Berard on Texas Autopsy Controversies
• The Case of Cynthia Case - More Bad Forensics

The Long, Questionable History of George Denkowski

"Death Sentence Reviews Leave Unsettled Issues," is the title of Brandi Grissom's report in the Texas edition of the Sunday New York Times.  It also appears at the Texas Tribune.

Stanley Schneider was shocked last year when Texas’ highest criminal court sent his death row client an early Christmas gift of sorts, ordering the trial court to re-examine evidence from a psychologist who had decided that John Reyes Matamoros was mentally fit to face execution.

“We were hopeful their sending it back would mean something,” Mr. Schneider said.

But his hope flagged in March when, he said, two Harris County state district judges virtually rubber-stamped Dr. George Denkowski’s findings in the cases of Mr. Matamoros and a fellow death row inmate, Steven Butler. Dr. Denkowski, the psychologist who testified in the cases of 14 current Texas death row inmates that the convicted men were mentally fit for execution, was reprimanded last year after other psychologists and defense lawyers filed a complaint alleging that he had used discredited evaluation methods.

Lawyers for Mr. Matamoros and Mr. Butler, who have filed objections with the Texas Court of Criminal Appeals, say any findings by Dr. Denkowski should be disregarded. They said that the trial court judges — who are husband and wife — simply adopted Dr. Denkowski’s conclusions instead of examining reams of evidence from other psychologists that they said proved their clients were mentally retarded and ineligible for the death penalty.

“This is a perfect example of the state taking science and trying to prostitute it,” Mr. Schneider said, adding, “The role of the courts is to protect us from junk science.”

And:

The Supreme Court of the United States ruled in 2002 that states could not execute people who were mentally retarded. The court allowed states to decide on guidelines for determining whether a person was mentally retarded. Texas courts have adopted a three-part definition that requires the convicted inmate to have below-average intellectual function, to lack adaptive behavior skills and to have had these problems since an early age.

Dr. Denkowski conducted tests to determine whether defendants who might face the death penalty aligned with those definitions. But other psychologists and defense lawyers complained that he artificially inflated intelligence scores to make defendants eligible for the death penalty. (Dr. Denkowski’s lawyer has said that he vigorously denies having violated any psychology board rules and that he used his best clinical judgment in making forensic evaluations.)

Last year, the Texas Board of Examiners of Psychologists agreed to a settlement with Dr. Denkowski in which it reprimanded him, but he did not admit guilt. He agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints.

Since that reprimand, the Texas Court of Criminal Appeals has asked trial courts to review at least six cases that included Dr. Denkowski’s work to determine what effect it had had on the case.

Defense lawyers argue that Dr. Denkowski’s conclusions should be completely excluded from those reviews.

“You can talk all day long about how you don’t want junk science used in these cases, but when you’re confronted with it, you have to take active steps to make sure it hasn’t contaminated the case,” said Kathryn Kase, executive director of the Texas Defender Service, which represents death row inmates.

The Butler and Matamoros cases are the first to be returned to the Court of Appeals.

Earlier coverage of George Denkowski and the Butler and Matamoros cases begins at the link.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.  Related posts are in the mental retardation index.

Commentary on the Buck & Skinner Cases

"Duane Buck, Race and Capital Punishment," is the title of Andrew Rosenthal's Loyal Opposition blog post at the New York Times.

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.

And:

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.

"Hank Skinner case must be reviewed," is the Fort Worth Star-Telegram editorial from the Saturday paper.

Skinner's appellate attorneys noted that a law passed by the Legislature in May, based partly on this case, gives an inmate the right to request that the convicting court order testing of biological material for DNA even if the items were not entered into evidence during the original trial.

The criminal appeals court said in its order, "Because the DNA statute has changed, and because some of those changes were because of this case, we find that it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case."

It was an investigation in 1999 and 2000 by students at Northwestern's Medill School of Journalism that unearthed some of the disturbing facts now being used in Skinner's appeal. Since then, an arduous legal process has prevented an execution while his legal team tries to force the justice system to do all it can to discover the truth.

That should be the state's ultimate goal in any case, but especially one in which a man has been sentenced to die.

Earlier coverage of the cases of Duane Buck and Hank Skinner at the links.

Walter Quijano and the Duane Buck Case

Today's Houston Chronicle carries the editorial, "Texas Youth Commission made a bad hire."

Psychologist Walter Quijano has become notorious for testifying as a prosecution witness in Texas capital murder trials that black defendants are more likely to commit future violence than other ethnic groups. Now it turns out that he has also been on the payroll of the Texas Youth Commission for years, evaluating youthful offenders at TYC facilities in East Texas.

State Sen. John Whitmire, the Houston Democrat who chairs the Senate Criminal Justice Committee, says he was tipped off by members of the justice advocacy group Texas Appleseed that Quijano worked for the TYC. Whitmire, who has led the fight to reform the scandal-plagued Texas juvenile justice system, says Quijano's views on race should disqualify him from working with troubled youth.

"If someone had not brought that to my eyes, I would not have known that at this point in time they're still using this guy," said Whitmire. He wonders how TYC officials missed the controversy that erupted two months ago over Quijano's racially tinged testimony in convict Duane Buck's trial. It led the U.S. Supreme Court to temporarily stay Buck's execution before rejecting his appeal.

And:

We share Sen. Whitmire's exasperation that TYC officials approved contracts with a psychologist whose race-related court statements have triggered legal controversies as long ago as 2000. Then-Texas Attorney General and current U.S. Sen. John Cornyn denounced Quijano's testimony for improperly injecting race into numerous criminal justice proceedings.

The Root carries journalist E.R. Shipp posts, "What's Next for Duane Buck on Death Row?"

Buck is not someone I would invite home to Sunday dinner; nor is he someone to whom I would send care packages. He is no hero by any means, despite the fact that his lawyer from the Texas Defender Service says that he is remorseful. This is the thing: His case was tainted by racial evidence pressed upon the jury by the prosecutor.

Prominent Texans -- lawyers (including one who prosecuted him), a former governor, members of the clergy, civil libertarians -- are asking the district attorney, Patricia Lykos, to delay setting an execution date and to schedule a new sentencing hearing for Buck. "The State of Texas cannot condone any form of racial discrimination in the courtroom," these leaders wrote to Lykos. "The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary."

The NAACP is among the national organizations involved in Buck's case. "We believe that racism is still rampant in how the death penalty is administered," said Steven Hawkins, an executive vice president of the NAACP and the organization's leading expert on capital punishment.

By the way, Buck is not looking to go home; he knows that he belongs behind bars for life. "He realizes he needs to do time for his crime," Black said. "He is incredibly sorry and remorseful."

Earlier coverage of Duane Buck's case begins at the link; also, it includes more on Quijano's TYC work.

News Coverage & Analysis of the Buck Cert Denial

"Buck case involved a terrible crime but a flawed capital sentencing process," is the editorial in today's Fort Worth Star-Telegram.

The U.S. Supreme Court delayed the execution of Texas Death Row inmate Duane Buck on Sept. 15 to review his request for a new punishment hearing, but on Monday the justices announced they wouldn't look further into his constitutional claims.

Two separate opinions showed what took so long.

It appears the justices were wrestling over which side injected racially tinged testimony at Buck's sentencing and whether the answer to that question essentially sealed his fate.

But the court seems to have missed the point: Race shouldn't sway a jury's decision about whether a convicted killer receives the death penalty, and the possibility that it might have in Buck's case justifies a new hearing.

This isn't a matter of sympathy but of fairness.

And:

Buck's crime was terrible. But his sentencing was flawed -- a former attorney general even said so. If the death penalty is to have credibility, procedures must be as fair and error-free as possible. A Supreme Court mandate isn't required for Texas to correct this mistake.

Andrew Cohen posts, "In The End, Supreme Court Says No to Duane Buck," at the Atlantic.

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. 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.

An individual story -- like the saga of Troy Davis which ended in September -- occasionally floods the national conscience. Millions of people get involved, on either side of the debate, and the scholars, advocates and tribunes who inhabit the world of capital punishment get to pronounce their points to an interested audience. But then that audience moves on to the next thing (the media either leading or following the hordes) without ever staying around long enough to bring meaningful change to state death penalty regimes.

And:

Here is the piece I wrote in September about how Texas officials, including Gov. Rick Perry, had blown off Buck's request for equal protection under law. And here is the piece I wrote about him shortly thereafter when the Supreme Court, to the surprise of many, temporarily stayed his execution. Now that stay is over, it won't be long before Buck gets a new execution date. If, as a news consumer, you tuned in only to September's news about Buck you might think that justice was done in the case -- after all, the Supreme Court halted the execution, didn't it? But if you still think that today you would be wrong.

"Supreme Court Denies Duane Buck Appeal," by Brandi Grissom for the Texas Tribune.

The high court stayed Buck's execution in September to consider his appeal. His lawyers argued that because psychologist Dr. Walter Quijano told jurors that the fact Buck is black meant he was more likely to be violent in the future, he ought to be granted a new trial without race-related testimony.

The same psychologist gave similar testimony in six other death row cases. And in 2000, then-Attorney General John Cornyn admitted the state erred in allowing the race-related testimony in Buck's case and the others. In each case, except Buck's, the defendants were given new trials to determine their sentences. They all were re-sentenced to the death penalty.

"Supreme Court refuse to review role race played in Texas sentence," is the AP filing via the Washington Post.

Justice Samuel Alito said that might have been enough for a reversal if Dr. Walter Quijano had been a prosecution witness.

“But Dr. Quijano was a defense witness, and it was petitioner’s attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness,” said Alito, who was joined by Justices Antonin Scalia and Stephen Breyer in his statement.

Justices Sonia Sotomayor and Elena Kagan said they wanted the court to hear the appeal, saying the death sentence was “marred by racial overtones and a record compromised by misleading remarks and omissions.”

“Because our criminal justice system should not tolerate either circumstance — especially in a capital case — I dissent and would vote to grant the petition,” Sotomayor said.

"Supreme Court Declines Duane Buck Death Row Case," by Nina Totenberg for NPR.

In 1995, Buck, who is African-American, was convicted of killing two people and shooting a third. During the sentencing phase of his trial, psychologist Walter Quijano was called by the defense. Although Quijano testified that Buck would not pose a continuing threat to society if incarcerated, he also testified that blacks and Hispanics are statistically more likely than whites to commit future crimes.

When the prosecutor cross-examined Quijano, the psychologist testified that being black "increases the future dangerousness for various complicated reasons." Buck was ultimately sentenced to death by lethal injection.

"Supreme Court Denies Cert in Capital Case with ‘Racial Overtones’; Dueling Opinions Issued," at ABA Journal by Debra Cassens Weiss.

The Christian Science Monitor has "Was race a factor in Texas death sentence? Supreme Court declines case," by Warren Richey.

"Race-Tainted Death Sentence: Appeal Denied," by Jenée Desmond-Harris at the Root.

Mike Sacks writes, "Supreme Court Punts Death Penalty Case: Sotomayor, Alito Square Off On Decision Not To Hear Argument," at Huffington Post.

The Statement on Denial of Cert by Justice Alito and the Dissent by Justice Sotomayor are available in Adobe .pdf format.

Earlier coverage of Duane Buck's case begins with yesterday's post.

Community Leaders Call on DA to Address Buck Sentence

The letter from community leaders to Harris County District Attorney Pat Lykos is available in Adobe .pdf format.  Attorneys for Duane Buck issued a news release announcing the letter, "More than 60 Civil Rights and Faith Leaders, Elected Officials, Former Prosecutors, and Past ABA Presidents Call On Harris County D.A. To Provide Remedy in Case of Duane Buck."

Prominent individuals from Texas and across the country are calling on Harris County District Attorney Patricia Lykos to remedy the sentence in a death penalty case involving the government’s reliance on the defendant’s race at sentencing. Duane Buck was scheduled to be executed on September 15, 2011, when the U.S. Supreme Court intervened. Today, the Court denied Mr. Buck’s petition for writ of certiorari.

At Mr. Buck’s capital murder trial in 1997, the State relied upon evidence that African-Americans are more likely to be dangerous as a basis for asking his jury to sentence him to death. District Attorney Lykos now has the discretion to remedy this error.
 
Prominent Texans calling for District Attorney Lykos to provide a remedy include seven members of the Texas Legislature; former Texas Governor Mark White; former Bexar County District Attorney Sam Millsap and Harris County Assistant District Attorney Linda Geffin (who served as a prosecutor in Mr. Buck’s case); seven Past Presidents of the Harris County Criminal Lawyers Association and current President Earl Musick; President of the Texas NAACP Gary Bledsoe; Archbishop Joseph A. Fiorenza of the Galveston-Houston Archdiocese; Pastor James Nash of Houston Ministers Against Crime; and Southwest Regional Director of the Anti-Defamation League Martin B. Cominsky.
 
In a letter delivered to District Attorney Lykos on September 28, 2011, the signatories wrote: “We write to you today, as elected officials, civil rights leaders, faith leaders, legal professionals, past ABA presidents, a former governor, and concerned citizens dedicated to protecting the integrity of the criminal justice system, to request that you refrain from seeking an execution date in Duane Buck’s case until the parties and courts have been given adequate opportunity and time to address the troubling issues in Mr. Buck’s case. We believe that no one should be executed whose death sentence was based on racially-biased evidence.”
 
Other distinguished signatories include John Payton, Director-Counsel of NAACP Legal Defense & Educational Fund, Inc.; Wade Henderson, President and CEO of The Leadership Conference on Civil and Human Rights; Deborah Lauter, National Civil Rights Director of the Anti-Defamation League; and past American Bar Association Presidents Philip Anderson, William Ide, Carolyn Lamm, and Roberta Ramo.

On May 5, 1997, Mr. Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. A third person, Phyllis Taylor, was shot but survived her wound. Ms. Taylor is also a signatory to the attached letter. She has forgiven Mr. Buck and does not wish to see him executed.
 
During Mr. Buck’s trial, the prosecutor relied on evidence from psychologist Walter Quijano that being an African-American increased the likelihood one would be dangerous in the future. In its closing argument, the government vouched for the credibility of Dr. Quijano’s opinion and urged the jury to rely on it to find that Mr. Buck would be dangerous. The jury found him to be a future danger and he was sentenced to death.  As Justice Sotomayor noted in her dissent from the denial of certiorari, “the prosecution invited the jury to consider race as a factor in sentencing.”
 
On June 9, 2000, while Mr. Buck’s case was pending on appeal, then-Attorney General of Texas John Cornyn issued a press release acknowledging error in the cases of six individuals whose death sentences had been unconstitutionally based on the government’s reliance on race as a factor in sentencing. The Attorney General identified Mr. Buck’s case as one of those six cases. He further stated that Texas would not contest federal appeals in those cases, and stated that if the attorneys for the identified defendants raised claims challenging the government’s reliance on race at sentencing, the Attorney General would waive all procedural defenses available to it.
 
Despite this concession, Mr. Buck is the only defendant of the six identified by Mr. Cornyn who has not been granted a new sentencing trial free from the government’s reliance on his race as a basis for requesting a death sentence.
 
“The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary,” the letter to District Attorney Lykos reads. “Refraining from setting an execution date for Mr. Buck until the courts have a meaningful opportunity to address the fundamental injustice in his case will help restore public confidence in the criminal justice system.”

Earlier coverage of the Supreme Court's denial of Buck's request for  a review of his case is at the link and begins earlier coverage of his case.  In the next post, I'll link to extensive news coverage of the Court's action.

Supreme Court Rejects Appeal by Duane Buck

The U.S. Supreme Court this morning rejected the petition of Duane Buck.  The statement by Justice Alito is available in Adobe .pdf format, as is a dissent by Justice Sotomayor.

Texas Defender Service has issued a "Statement from Attorney for Duane Buck in Response to Today's Denial of his Appeal to the U.S. Supreme Court."   Kate Black is Buck's attorney:

 “We are disappointed that the U.S. Supreme Court has for now declined to review Duane Buck’s case and will not be considering whether the reliance on Mr. Buck’s race as a basis for asking the jury to sentence him to death violated the Constitution. It is now up to the State of Texas to ensure that Mr. Buck receives a sentencing hearing that is not impacted by the color of his skin.

ABC News has posted, "Supreme Court Denies Appeal on Race Tainted Death Penalty Case," by Ariane de Vogue.

 The U.S Supreme Court declined today to grant the appeal of a Texas death row inmate who claims race was improperly taken into consideration during the sentencing phase of his trial.

Duane Buck’s guilt for the death of his former girlfriend was never at issue, but Buck sought a new sentencing hearing because of testimony that contended that he posed a greater danger because he is black.

On Sept. 15, the court had halted Buck’s scheduled execution in order to review his case. But today, over the dissent of at least two justices, the court declined to rule in Buck’s favor.

Several justices took the rare step of publishing their reasoning in the case.

Buck’s lawyers had argued in the lower court that he should not be executed because Texas relied on improper racial testimony that was a basis for his capital sentence. At trial, psychologist Dr. Walter Quijano testified that Buck was African American and his race increased the likelihood of his being dangerous in the future.

And:

The case was complicated by the fact that other inmates in other cases had been granted new sentencing hearings by the State of Texas because of similar testimony by Quijano. But Alito, Scalia and Breyer said, “The fact remains that this case is different from all the rest.”  The justices said, “This is the only case in which it can be said that the responsibility for eliciting the offensive testimony lay squarely with the defense.”

Justice Sonia Sotomayor, joined by Justice Elena Kagan, issued a written statement objecting to the court’s denial of Buck’s appeal. “Today the court denies review of a death sentenced marred by racial overtones,” Sotomayor wrote. She said that while the defense had called Quijano as a witness, the context of the prosecutions questions were “markedly different.”

On direct examination Sotomayor wrote, “Quijano referred to race as a part of his overall opinion that Buck would pose a low threat to society were he imprisoned.”

But the prosecutor revisited the issue, Sotomayor said, “in a question specifically designed to persuade the jury that Buck’s race made him more dangerous and that, in part on this basis, he should be sentenced to death.” Kate Black, and attorney for Duane Buck, who works for the Texas Defender Service released a statement after the Supreme Court’s decision.

Earlier coverage of Duane Buck's case begins at the link; there's also more on Walter Quijano, who provided the testimony on future dangerousness at Buck's trial.

 

An Update on Walter Quijano

The Texas Tribune posts, "Texas Ends Deal With Psychiatrist Over Race Testimony," this afternoon.  It's by Brandi Grissom.

The Texas Youth Commission terminated its contract Friday with a psychiatrist who testified repeatedly in death penalty cases that Hispanic and black men were more likely to be dangerous in the future. The termination followed a Texas Tribune inquiry into the agency's six-year agreement with the doctor.

Despite more than a decade of court controversy in six death penalty cases, including one that was stayed by the U.S. Supreme Court last month because of the testimony Walter Quijano provided, the TYC began using the psychiatrist in 2005. The Tribune obtained the contracts under public information laws. The TYC most recently renewed its agreement with Quijano last month, just days before the high court stayed the execution of Duane Buck because of Quijano's testimony.

Upon receiving a public information request from the Tribune regarding the Quijano contracts, TYC officials said Wednesday that they had recently learned of Quijano’s testimony and that the agency was "reviewing its agreements for Dr. Quijano’s services.”

State Sen. John Whitmire, D-Houston, wrote the agency a letter Friday demanding that the TYC stop using Quijano's services. And he urged TYC officials to review every case Quijano was involved with.

“I find it extremely alarming that someone with Mr. Quijano’s bias has had any control over their health care and well-being,” wrote Whitmire, who is chairman of the Senate Criminal Justice Committee.

And:

Starting as early as 1991, Quijano provided testimony during the punishment phase in six death penalty cases. He told jurors about factors that could make a person more likely to be a danger to society in the future. Quijano explained that African American and Hispanic men were more likely to be violent again.

In 2000, then-Texas Attorney General John Cornyn admitted the state had erred in the 1996 trial of Victor Hugo Saldana, along with six other death penalty cases, in which Quijano testified regarding race and future dangerousness.

"Because the use of race in Saldano's sentencing seriously undermined the fairness, integrity, or public reputation of the judicial process, Texas confesses error," Cornyn wrote in a court filing.

Earlier coverage of Quijano's work in death penalty cases begins at the link.

Fairness in the Justice System

That's the title of an editorial in today's Austin American-Statesman on the Duane Buck case.

Once again, the most avid supporters of capital punishment in Texas should be pleased that a scheduled execution has been stopped, at least temporarily.

And:

Buck had consumed his last meal and was praying when prison officials notified him at about 7:40 p.m. Thursday that the Supreme Court had stopped his execution. The high court now must decide whether to review an appeal of the case. We see no reason why it should not.

"Praise the Lord!" Buck told the prison official who brought the news. "God is worthy to be praised. God's mercy triumphs over judgment. I feel good."

It is indeed difficult to feel good about what makes a murderer feel good. But all Texans — perhaps especially those who support capital punishment — should feel good about this decision. Those who favor the death penalty — a penalty we oppose because of the fallibility of our justice system and the humans who act within it — should live in fear of the execution of an innocent person or anything that inflicts noxious racial overtones.

What Cornyn said in 2000 rings just as true today:

"The people of Texas want and deserve a system that affords the same fairness to everyone."

Earlier coverage of Duane Buck's case and stay of execution begins at the link.

Editorial Comment on the Buck Stay

"Stay of Execution," is the title of the New York Times editorial.

After granting a stay of execution to Duane Buck just hours before he was to be put to death in Texas on Thursday, the Supreme Court must now review the case or, at the very least, order a lower federal court to consider Mr. Buck’s plea for a new sentencing hearing. It cannot allow a terrible injustice to stand.

Mr. Buck, an African-American, was convicted of murder in 1997. At the sentencing phase of his trial, a psychologist who was an expert witness 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 question: 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 and urged the jury to rely on this testimony. The jury sentenced Mr. Buck to death.

And:

The gross racism in Mr. Buck’s case is proof again that the death penalty is cruel and unusual because it is arbitrary and discriminatory, as well as barbaric, and must be abolished.

The Fort Worth Star-Telegram editorial is, "Texas death penalty case shows that details of fairness are crucial."

The Star- Telegram Editorial Board has repeatedly said that, because capital punishment is irreversible, the process that leads to it must always be as fair, thorough and constitutionally errorless as possible.

No system is perfect, and it would be unrealistic to assume that it would be, even in cases calling for the death penalty. That makes it all the more important that when it is obvious a mistake has been made that could determine life or death, we do all in our power to correct it.

A clear error occurred in Buck's case when improper testimony was included. A new sentencing hearing could correct it. And Texas and other states that continue to use the death penalty should continue working to make the process fair and error-free.

Earlier coverage of George Buck's flawed death sentence begins at the link.  I'll be posting a roundup of news coverage, tomorrow.

A Countdown for Duane Buck

Duane Buck's attorneys have filed a Cert Petition and a Motion for Stay with the U.S.Supreme Court.

With his execution scheduled to take place in just over an hour, there is still commentary being posted on the case for a halt.

Andrew Cohen posted, "Perry Fundraises in Iowa as Tonight's Prisoner Execution in Texas Moves Forward," at Atlantic three hours ago.

Twice in the past 20 hours the courts (state and federal) have rejected arguments to stop the execution. Buck's attorneys now have filed papers with the United States Supreme Court seeking relief from the justices. Emergency jurisdiction over matters emanating from the 5th Circuit are initially handed by Justice Antonin Scalia. He is the "circuit judge" for that judicial circuit. He will presumably pass around Buck's petition to his colleagues to see if there are enough votes for a stay. It is rare, but not unheard of, for the justices to intervene in Texas death penalty cases. They did so in 2009 in the case of Hank Skinner, a case involving DNA evidence, a matter which is still pending after the Supreme Court's ruling earlier this year in Skinner's favor.

Although the Texas clemency process has a disgraceful history -- again, I urge you to read Alan Berlow's memorable 2003 piece in The Atlantic on how Alberto Gonzales and George W. Bush fouled things up -- Gov. Perry and his colleagues have fought against making the vital process more transparent.

The updated AP report by Michael Graczyk is, "US Supreme Court asked to halt Texas execution amid questions about racial reference at trial," via the Washington Post.

Buck’s attorneys went to the Supreme Court after losing appeals in lower courts. A clemency request to the Texas Board of Pardons and Paroles, all of whom are Perry appointees, also failed.

Assistant Attorney General Edward Marshall told the Supreme Court Buck’s appeals were attempts to relitigate claims that every court, including the Supreme Court, already rejected.

“The record in Buck’s case reveals that no constitutional violation occurred during his sentencing trial,” he told the justices.

Perry was not in the state Thursday, meaning any final order to delay would technically come from Lt. Gov. David Dewhurst. However, Perry’s office frequently points out that he remains the governor and in contact with Austin while traveling.

Mike Walz, communications director for Dewhurst, said Thursday he would not comment “while any legal actions are still pending.” Perry generally has adhered to the same policy.

Also, this afternoon, the Washington Post has posted, "A victim’s plea for clemency for Duane Buck,"
by Phyllis Taylor, at its On Faith blog.  It's a must-read.  Here's an extended excerpt:

From the moment the crime happened, Duane has been deeply remorseful and taken full responsibility for the suffering he caused. Anyone who knows Duane understands that he was not himself on that terrible day in July 1995 when, under the influence of drugs and alcohol, he shot me and Debra Gardner and Kenneth Butler, who tragically did not survive.

Duane has been like a brother to me since well before the crime occurred. We spoke right after I was released from the hospital following the shooting.  Duane expressed profound sorrow and disbelief at his actions. My Christian faith has taught me to forgive even the most horrible transgressions, and so I did just that. I forgave Duane that very day.

Last week in Austin, Texas, I shared my story of forgiveness with Governor Rick Perry’s legal counsel. I asked Governor Perry to listen to my call for mercy and halt Duane’s September 15 execution. Duane must be held accountable, but he does not need to be executed for justice to be served.

While in prison, Duane has been a model prisoner who has not had one single disciplinary problem. He has spent his days reflecting, atoning, and deepening his faith in God.

Turning to God has also helped me deal with my own grief – grief that will only be worsened if Duane’s execution goes forward. My faith teaches me that we must love one another and honor all life. I hope that Governor Perry, himself a man of faith, follows these lessons and stops the cycle of violence from continuing.

Duane’s execution would be particularly unjust because Duane’s race played a role in why he was sentenced to death. The prosecution presented evidence to the jury that Duane would be a future danger because he is African-American. Indeed, Duane’s trial prosecutor also recently appealed to Governor Perry to halt the execution to ensure that Duane receives a fair sentence.

Earlier coverage of the Duane Buck case begins at the link.

If Buck's execution procedes, it would be Texas' 11th execution of the year.  It would be the state's 475th post-Furman execution since 1982.

Tonight's execution would be the 236th conducted under the administration of Rick Perry.  He became Governor of Texas upon the resignation of George W. Bush in December 2000.  152 men and women were executed in five years under Governor Bush's tenure.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.

To date, there have been 33 executions in the nation this year; 1,267 post-Furman executions since 1977. 

Reprieve Request Filed For Duane Buck; Perry Out of State

The letter requesting a 30-day reprieve for Duane Buck is available in Adobe .pdf.

The updated AP report is, "Inmate's lawyers ask Perry to halt Texas execution."  It by Will Weissert, via CBS News.

If courts continue to reject Buck's appeals, only Perry could delay the lethal injection by invoking his authority to issue a one-time 30-day reprieve for further review. Perry's actions are being closely watched, particularly by death penalty opponents, after he said during a presidential debate that he has never been troubled by any of the executions he's overseen as governor.

"Perry won't preside over scheduled Texas execution," is the Los Angeles Times post by Molly Hennessy-Fiske reporting in Houston.

Texas Gov. Rick Perry apparently will not be the one to preside over Thursday's scheduled execution of an African American man who was sentenced to die after jurors were told that blacks are more likely to pose a future danger to the public.

Duane Edward Buck, 48, was convicted of fatally shooting two people near Houston in 1995. His attorney says he is entitled to a new sentencing hearing based on the racially charged testimony, but unless a final appeal attempt is successful, Buck will become the 11th inmate executed in Texas this year,  the Houston Chronicle reports.

Buck's stepsister, Phyllis Taylor, who was wounded in the shooting, has reportedly forgiven him and wants his death sentence commuted to life in prison. She met with staffers from Perry's office last week, according to Buck's attorney.

"We still are hopeful the governor will grant a 30-day reprieve to allow state officials time to work together to ensure that Mr. Buck receives a sentencing hearing untainted by issues of race,” said Kate Black, Buck's Houston-based attorney, in an interview with The Times. She is representing the inmate pro bono through the nonprofit Texas Defenders Service.

During last week's GOP presidential debate, Perry responded to a question about Texas'  234 executions during his tenure as governor by saying that he "never struggled" with the issue because "the state of Texas has a very thoughtful, very clear process in place."

But Perry will not be presiding over Buck's execution, according to Lucy Nashed, a Perry spokeswoman.

Perry is out of state, so the responsibility falls to Lt. Gov. David Dewhurst, a Republican campaigning for the seat being vacated by longtime Republican Sen. Kay Bailey Hutchison, Nashed told The Times.

Dewhurst has presided over previous executions in the governor's absence, according to spokesman Mike Walz. Dewhurst declined to comment about the Buck case late Wednesday, Walz said.

The LA Times also has, "Texas Gov. Rick Perry Is Asked To Halt Execution," by David G. Savage.

Texas Gov. Rick Perry is being asked to stop Thursday's scheduled execution of an African American murderer who was sentenced to die after jurors were told that blacks are more likely to pose a future danger to the public.

Duane Edward Buck faces execution for shooting two people near Houston in 1995 while under the influence of drugs, but his attorneys say the racially charged testimony calls for a new sentencing hearing.

"No one should be executed based on a process tainted by considerations of race," Kate Black, a lawyer for Buck, said Tuesday. "The decision as to whether Mr. Buck's execution will go forward now lies squarely with Gov. Perry, who has the power to issue a 30-day reprieve."

Journalist Renee Feltz, who spent years in Texas, writes, "Will the Next Man Rick Perry Executes Die Because He's Black?"  It's at the Nation.

Harris County prosecutor Linda Geffin was working late last week when she took a break and saw a Facebook post from a Texas death row attorney whose client, Duane Buck, faced imminent execution. Geffin had been part of the team that helped send Buck to death row; it was the only capital case she'd ever worked on, and as she recalls, it “left a big impression on me.” More than a decade had passed since the case, so she decided to re-read the court transcripts, including a hundred or so pages of testimony from state psychologist Walter Quijano. Then she came across this passage:

    Q. 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?

    A. Yes.

Geffin thought, “that's pretty clearly inappropriate, not to mention morally and ethically wrong." Indeed, Buck's attorney was trying to save his life based on his unequal treatment on the basis of race. On September 9, Geffin wrote a letter [1] to Governor Rick Perry and the Texas Board of Pardons and Paroles calling for Buck’s execution to be halted. "No individual should be executed without being afforded a fair trial, untainted by considerations of race," she wrote.

On Tuesday, September 13, the Board of Pardons and Paroles rejected Buck's appeals for clemency. He is now scheduled to die on Thursday, September 15 unless Perry grants him a 30-day reprieve. It will be the 236th execution overseen by Perry during his tenure as governor.

There is also fresh commentary on the case. "Race-Based Execution: Rick Perry on the Spot," is by Jenee Desmond-Harris at the Root.

Perry, who is seeking the Republican presidential nomination, was asked during a GOP debate last week about Texas' 234 executions during his nearly 11 years as governor. He said he "never struggled" with the issue because "the state of Texas has a very thoughtful, very clear process in place." It's hard to imagine how he could possibly have to struggle to see that the process he admires so much has gone outrageously wrong in this case.

"Man To Die Thursday Partially Due To Race," by Deborah Mathis at Black America Web.

Unless Justice swoops down from the heavens like a Texas tornado, the Lone Star state is going to kill again tomorrow.

Unless Gov. Rick Perry can put his presidential travels on hold long enough to sign a sheet of paper that will stay the executioner's hand, this will be Duane Buck's last day on Earth.

Duane Buck was convicted in the 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Ray Butler, in Houston. Buck also shot his sister that morning, but she survived. His lawyers said he was out of his mind on drugs when he pulled the trigger.

Apparently, Buck's conviction is the only bottom line that matters to the Texans that hold his fate in their hands. How he landed on death row doesn't matter to them.

But it matters to the U.S. Constitution, which Perry and his Tea Party pals claim to love first and foremost. If there is one tie that binds the eclectic devotees of the Tea Party, it is their worship of the Constitution.

In Buck's case, as in others, one has to wonder whether Perry has ever read it or if he understands it because the Constitution has something to sobering to say about how Buck was sentenced to death. The Fourteenth Amendment guarantees equal protection and due process - rights that Buck clearly did not enjoy in that Harris County, Texas courtroom years ago.

In Texas, jurors may consider a defendant's potential for "future dangerousness," an assessment that, in itself, seems constitutionally iffy, since it is based on speculation and punishes people for what a group of strangers think - not know - will happen.

"Duane Buck, Rick Perry and the politics of death," by Alexander Cockburn is at First Post.

What mostly has people marveling is Quijano's career stint in the 1990s as an "expert witness". Buck's was the only case where he was called by the defence. Expert witnessing is a trade – often a very profitable one - in which by far the most desirable characteristic is predictability. A truly expert witness for the defence would have regarded it as his first duty to reassure the jury of Buck's lamb-like character, utterly inconsistent with possibly lethal recidivism.

"Expert" covers many a bizarre resume. One famous expert witness unearthed a few years back by the Chicago Tribune had made it her costly speciality to identify nose and lip prints – a forensic skill which apparently lacked any reliable foundation.

Juries like a well-spoken expert witness, flourishing forensic data. The popularity of shows like CSI has enhanced the reputation of forensic "experts", even though much forensic testimony, up to and including finger-prints, is disfigured by mishandled evidence, mendacity and incompetence.

Earlier coverage of the Duane Buck case begins at the link.

Andrew Cohen on the Buck Case - and What It Means

The noted legal analyst posts, "Coming Thursday: Another Texas Execution Under Perry," at the Atlantic.  As usual, it's a must-read.  Here's an excerpt from the beginning:

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.

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

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.

Earlier coverage of Duane Buck's case begins at the link.

More on the Duane Buck Case

There is additional coverage today on prosecutor Linda Geffin's call for a halt to Duane Buck's execution, in a letter to the Board of Pardons and Paroles.

Allan Turner writes, "Houston killer should be spared, prosecutor says," for the Houston Chronicle.

With killer Duane Buck just days away from execution, a prosecutor who helped send the Houston auto mechanic to death row has joined clergymen, lawyers and one of Buck's shooting victims in demanding that his life be spared.

Linda Geffin, now chief of the Harris County Attorney's special prosecutions unit, was one of two assistant district attorneys who successfully argued against Buck in his 1997 trial. Buck, 48, was convicted for the July 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck is to be put to death Thursday.

In a letter to the Texas Board of Pardons and Paroles, which is considering a petition to recommend to Gov. Rick Perry that Buck's death sentence be commuted to life in prison, Geffin said she "felt compelled to step forward."

Geffin cited a 2000 press release from then-Texas Attorney General John Cornyn stating Buck's case was among six that may have been tainted by punishment-phase testimony from psychologist Walter Quijano. Federal appeals courts ordered new punishment hearings for five of them because the expert witness made inappropriate assertions about race.

All ultimately were again sentenced to death and one has been executed.

At the time, Buck's case was still in state court and was never granted a new hearing.

"Mr. Buck committed a terrible crime and he must be punished," Geffin wrote in the Friday letter. "But the attorney general was right when he said that it is 'inappropriate to allow race to be considered as a factor in our criminal justice system.'"

"Duane Buck Prosecutor Urges Clemency," is the title of Brandi Grissom's Texas Tribune post.

"When a defendant’s race is introduced as a factor in guilt or sentencing – even inadvertently – the integrity of the case is compromised," said Mark MacDougall, a pro bono lawyer at Akin Gump, who often works with indigent defendants in death penalty cases. "The only remedy is a new trial. This is never more critical than in a capital murder case."

As his execution date approaches, Buck's lawyers are calling on the Texas Board of Pardons and Paroles and Gov. Rick Perry to grant clemency and allow a new trial to determine his sentence. Last week, one of Buck's surviving victims urged clemency on his behalf.

Today, Linda Geffin, who served as second chair during the initial Buck prosecution, wrote a letter calling on Perry and the parole board to halt the execution and allow for a new trial untainted by racial questions.

"It is regrettable that any race-based considerations were placed before Mr. Buck's jury," she wrote. "No individual should be executed without being afforded a fair trial, untainted by considerations of race."

Earlier coverage of Duane Buck's race-tinted sentence begins with yesterday's post.

Buck Prosecutor Calls for Execution Halt

The prosecutor's letter to the Board of Pardons and Paroles is available in Adobe .pdf format.

Texas Defender Service has issued a news release, "Prosecutor in Case Where Government Relied on Race Testimony at Trial Urges Texas Officials to Stop Duane Buck's Execution."

Houston, Texas, September 12, 2011 - Today, a former Harris County Assistant District Attorney who prosecuted Duane Buck is urging state officials to halt Mr. Buck's execution next week because "[n]o individual should be executed without being afforded a fair trial, untainted by considerations of race." Linda Geffin, who served as second-chair prosecutor in the State of Texas vs. Duane Buck in 1997, sent a letter this morning to Governor Rick Perry, the Texas Board of Pardons and Paroles, Attorney General Greg Abbott, and Harris County District Attorney Patricia Lykos, urging them to intervene and stop Mr. Buck?s September 15 execution.

In her letter, Ms. Geffin says she "felt compelled to step forward" after reading about the clemency petition and a motion in federal court recognizing that former Attorney General John Cornyn had previously acknowledged the "improper injection of race in the sentencing hearing in Mr. Buck's case."

On May 5, 1997, Mr. Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. A third person, Phyllis Taylor, was also shot, but survived her wound. Ms. Taylor has forgiven Mr. Buck and does not want him executed.

During Mr. Buck's trial, psychologist Walter Quijano testified, based on several factors, that he did not believe Mr. Buck would be dangerous in the future. On cross-examination, the prosecutor elicited improper testimony from Dr. Quijano that the fact that Mr. Buck was African-American increased the likelihood of his being dangerous in the future. The State urged the jury in its closing argument to rely on Dr. Quijano's testimony. The jury did so, found that Mr. Buck would be a future danger, and he was sentenced to death.

After Mr. Buck's trial, but while his case was pending on appeal, on June 9, 2000, in a highly-unusual move, then-Attorney General John Cornyn issued a press release calling for the retrial of six individuals who had been sentenced to death based on improper introduction of, and reliance on, race as a factor in sentencing. The Attorney General identified Mr. Buck's case as one of those six cases, stated that Texas would not contest federal appeals in those six cases, and that if the attorneys for the six identified defendants raised claims challenging the government's reliance on race at sentencing, the Attorney General would not object.

Then-Attorney General Cornyn first confessed error based on the government's reliance on Dr. Quijano's testimony in the case of Victor Saldaño. The Attorney General stated: "As I explained in a filing before the United States Supreme Court...it is inappropriate to allow race to be considered as a factor in our criminal justice system....[T]he United States Supreme Court agreed. The people of Texas want and deserve a system that affords the same fairness to everyone."

Despite this concession, the improper racial testimony in Mr. Buck's case has not been redressed.  Mr. Buck is the only one of the six death row inmates identified by the Attorney General who was not granted an opportunity to have a colorblind sentencing.

The clemency petition, which was filed on August 31, asks the Texas Board of Pardons and Paroles and Governor Perry to intervene.  In it, attorneys for Mr. Buck state: "Five out of the six cases in which Attorney General John Cornyn conceded error resulted in new sentencing hearings. Mr. Buck has not received the same corrective process. The State of Texas cannot and should not tolerate an execution on the basis of an individual?s race, particularly where this State?s highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case."

Ms. Geffin?s letter concludes: "I now join Phyllis Taylor, the surviving victim, in asking for the intervention of the Board of Pardons and Paroles, Governor Rick Perry, Attorney General Greg Abbott and Harris County District Attorney Patricia Lykos. All of these parties should be motivated, as I am, to do everything within their power to ensure that our justice system is not tainted by unconstitutional considerations of race."
- - - - -
 
The clemency petition and an interview with surviving victim Phyllis Taylor can both be viewed.at: 

Steven Kreytak posts, "Harris County prosecutor asks for halt to execution," for the Austin American-Statesman.

A prosecutor who worked to secure the death sentence against a Harris County killer scheduled to be executed on Thursday is asking officials to stop the execution.

Linda Geffin, who was the second chair prosecutor in the 1997 prosecution of Duane Buck and is now a supervisor in the Harris County Attorney’s office, has joined Buck’s lawyers in declaring that his sentencing hearing was unfair because of racially tinged testimony.

Buck was one of seven state death row inmates who then-Texas Attorney General John Cornyn in 2000 said received unfair sentencing trials because of the testimony of psychologist Walter Quijano. Quijano regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic, testimony he based on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state’s general population.

Six defendants identified by Cornyn as having their trials tainted by Quijano’s testimony have since received new sentencing trials. Each was once again sentenced to death. Buck, who killed two people, including his ex girlfriend, in 1995, has not received a new sentencing hearing.

Buck’s lawyers with the Texas Defender Service have filed a clemency petition with the Texas Board of Pardons and Paroles and have asked Gov. Rick Perry, current Attorney General Greg Abbott and Harris County District Attorney Pat Lykos to intervene and stop the execution. They have also asked a federal judge to intervene.

"Former prosecutor in Duane Buck case asks state to halt execution," is the title of Sommer Ingram's Dallas Morning News post.

A former prosecutor in death-row inmate Duane Buck's case is urging state officials to stop the execution scheduled for Thursday.

Linda Geffin, former Harris County District Attorney who served as second-chair prosecutor in Buck's case, this morning sent a letter to state officials saying that Buck's execution cannot go forward because of the racially-tainted testimony that was a part of his trial.

"No individual should be executed without being afforded a fair trial, untainted by considerations of race," Geffin wrote in the letter addressed to Gov. Rick Perry , the Texas Board of Pardons and Paroles, Attorney General Greg Abbott and current Harris County District Attorney Patricia Lykos.

Buck fatally shot two people and injured another in 1995. During his trial in 1997, psychologist Walter Quijano told jurors that Buck was more likely to be violent in the future because he was black. His case was one of seven that former Texas Attorney General John Cornyn wanted reviewed because of the state's unconstitutional reliance on race.

New punishment hearings were ordered for all six other cases, but Buck's slipped through the cracks in what his attorneys call another mishandling of the death penalty in Texas. They argue that Buck can't be put to death when being black is part of what secured his sentence.

Earlier coverage of Duane Buck's case begins with the preceding post.

More Commentary on the Duane Buck Case

Houston Chronicle columnist Patti Kilday Hart writes, "Where's justice in the execution process?"

Yet testimony about the "future dangerousness" of death penalty defendants still keeps the gears of Texas' execution machine turning. This week, Houstonian Duane Buck is scheduled for execution, partly based on testimony by Conroe psychologist Dr. Walter Quijano.

Ironically, Quijano was called to the witness stand by defense attorneys for Buck. Though he was found guilty of a deadly shooting rampage, his attorneys hoped to prove the tragedy, in which Buck's estranged girlfriend and another man were killed, was an act of rage not likely to be repeated.

But under cross-examination, Quijano acknowledged to prosecutors that certain factors are associated with violent crime. For instance, the prosecutor asked, "The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?"

"Yes," Quijano replied.

The jury concluded that Buck, a black man, would continue to be violent, and sentenced him to death.

And:

Last week, Buck's appellate attorneys filed a motion for clemency with the Texas Board of Pardons and Paroles, which could recommend that Gov. Rick Perry commute Buck's sentence to life without parole.

The case exposes structural flaws in our death penalty law. Testimony involving "junk science" regarding arson has been allowed, as demonstrated in the Cameron Todd Willingham case. There is mounting evidence that eyewitness testimony is unreliable.

Today's Chronicle also carries an OpEd by Thurgood Marshall School of Law prof Lupe Salinas, a former criminal district court judge in Harris County who assessed three death sentences. It's titled, "Race factors taint death case."

Our state could be on the verge of gaining the dubious distinction of executing a person based on the color of his skin. On Thursday, Texas is poised to execute Duane Buck unless the courts or state officials, including Gov. Rick Perry, intervene.

"The race factor, black … increases the future dangerousness for various complicated reasons." That is what a psychologist told a jury of 12 Texans at the capital murder trial of Buck. Such blatant racial prejudice may read like a relic of the past - but Buck faces execution in a matter of days, despite the racism that infected his case.

And:

Lawyers for Buck have asked Gov. Perry, the Harris County District Attorney's Office and the Office of the Attorney General of Texas to intervene.

All of these parties should act to ensure that an execution in Texas is not tainted by racism. It is important to guarantee that capital punishment is not applied in a discriminatory manner.

Attorney General Cornyn said it best: "The people of Texas want and deserve a system that affords the same fairness to everyone." Let us hope that our state officials and the courts act with these sentiments in mind and halt Duane Buck's execution.

Earlier coverage of Duane Buck's case begins at the link.

Halt Execution Where Race Tainted Judgment

That's the title of an editorial in today's Houston Chronicle. regarding the Duane Buck case.

The case poses a test of leadership for Texas governor and Republican presidential candidate Rick Perry. Will he do the right thing and stop the execution, either through clemency or a reprieve, or will he take the politically expedient course and let a judicial miscarriage roll forward?

Buck's guilt in the shooting deaths of his ex-girlfriend and her boyfriend is not in doubt. In Texas, however, homicides resulting from crimes of passion often result in life or lengthy sentences rather than the death penalty. A key issue in such death sentence cases is the likelihood of the defendant committing future violent acts, and it is on that point that Buck's sentence is irrevocably flawed.

Buck was one of six Lone Star capital murder defendants sent to death row using testimony from former Texas jail system chief psychologist Walter Quijano that blacks and Hispanics were more likely to become repeat offenders. In Buck's case, Quijano had initially testified that he would likely not pose a future danger to society. But under aggressive cross-examination by the prosecutor, he agreed that being African-American enhanced the possibility of future violence.

After the Texas Court of Criminal Appeals ruled that there was no fundamental error in admitting race-based testimony, John Cornyn, the Texas attorney general at the time and now a U.S. senator, filed a brief with the U.S. Supreme Court on behalf of defendant Victor Hugo Saldano. Cornyn argued, "It is inappropriate to allow race to be considered as a factor in our criminal justice system." The high court agreed, and the convict and four of the other defendants received new punishment hearings. In a legal oversight, Buck did not.

And:

As Cornyn said back in 2000, "The people of Texas want and deserve a system that affords the same fairness to everyone. "

We hope Gov. Perry shares those sentiments.

Earlier coverage of Duane Buck's case begins with the preceding post.

News Coverage of Duane Buck News Conference

Today's Dallas Morning News carries, "Lawyers fight racially based Texas death sentence."  It's written by Sommer Ingram.

Attorneys for a Texas man who was sentenced to death after a state witness relied on race in his testimony are fighting to get his sentence changed, or at least get him a new hearing.

When Duane Edward Buck was on trial for capital murder in 1997, a psychologist told jurors that because Buck was black, he was more likely to be violent in the future.

His case was one of seven that former state Attorney General John Cornyn wanted reviewed because of the state’s unconstitutional reliance on race.

New punishment hearings were ordered for the other cases, which were at the federal appellate stage. But because Buck’s case was still in state court, it slipped through the cracks.

He was never given a retrial and is scheduled to die Sept. 15 for the murders of Debra Gardner and Kenneth Butler.

He also shot Phyllis Taylor, who survived and is now asking for Buck’s life to be spared.

Attorneys for Buck call his case another in a series of chronic mishandlings of the death penalty in Texas, the nation’s busiest death penalty state.

“This case is an affront to justice,” Kate Black, a lawyer for Buck, said at a Capitol news conference Wednesday. “This is just another shocking example of the fundamental flaws in the Texas death penalty. Racism played an intolerable role in a life-or-death decision.”

And:

Anthony Graves, a Texas exoneree who spent 18 years behind bars for murders he didn’t commit, is speaking out in Buck’s favor.

“I am the perfect example of our flawed system in Texas,” Graves said. “This is a case of basic racial profiling, and I’m asking everyone who can to jump up and scream that this is enough.”

"Lawyers, Victim Seek Clemency for Death Row Inmate," is the title of Lara Lapin's Texas Tribune report.

Phyllis Taylor survived the 1995 shooting spree that ended with two others dead and Duane Buck on death row. Buck is scheduled to be executed on Sept. 15. Today, Taylor urged the Texas Board of Pardons and Paroles, Gov. Rick Perry, Attorney General Greg Abbott and Harris County District Attorney Patricia Lykos to halt the execution.

“This execution would only add to my pain, and it wouldn’t give me closure," said Taylor, who survived a shot in the chest. "I would ask that Duane Buck’s life be spared. I feel that he deserves a fair trial.”

Buck was convicted in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. During his 1997 trial, psychologist Walter Quijano testified that because Buck was black, he was more likely to be a violent threat in the future. Quijano gave similar testimony in six other death row cases.

In 2000, then-Attorney General John Cornyn admitted that all of the cases, including Buck’s, were tainted by constitutional error because the government relied on race as a consideration for the death sentence.

Cornyn said it was “inappropriate to allow race to be considered as a factor in our criminal justice system,” and promised to “continue to do everything [he could] to assure Texans of [the Office of the Attorney General’s] commitment to an equitable criminal system,” according to court documents.

And:

Buck’s lawyers asked Perry, Abbott, Lykos and the board to commute his sentence or grant a 120-day reprieve to allow time for the parties to work together.

Abbott’s office did not immediately provide comment. The Harris County district attorney’s office has said it would not intervene.

In the next post, the Houston Chronicle calls for justice in the case.  Earlier coverage of Duane Buck's case begins at the link. 

The clemency petition for Duane Edward Buck is available via Sribd.  Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Duane Buck Seeks Relief in Federal Court

Texas News Service reports, "New Filings in "Racially Biased" TX Execution Case."  It's written by PeterMalof.

Attorneys for a Texas man scheduled for execution in eight days are asking a federal judge to order a new sentencing trial, contending that Duane Buck's 1997 sentencing was unconstitutional.

Buck's was one of seven death-penalty cases that then-Attorney General John Cornyn wanted reviewed for what he called an "egregious error": An expert witness told juries that certain races were more likely to be dangerous in the future. While the other six eventually received new trials, Buck, who is African-American, "slipped through the procedural cracks," according to Andrea Keilen, executive director of the Texas Defender Service.

"The bottom line is that his trial was tainted by this racist evidence. So we're asking that he have a fair opportunity, in front of a jury that's not biased by this sort of thing, to argue for his life."

She says the Buck case highlights how the death penalty is sometimes applied unfairly, even after the question of guilt or innocence has been settled.

"Days from death house, killer seeks clemency," by Allan Turner in the Houston Chronicle.

In the summer of 2000, then-Texas Attorney General John Cornyn made an astounding admission: A psychiatrist's testimony in six capital murder cases - including that of Houston defendant Duane Edward Buck - wrongly had introduced race as a factor for consideration in the trials' punishment phases.

New punishment hearings were ordered for five of the men whose cases were on appeal in federal courts. But Buck, scheduled to be executed Sept. 15 for the July 1995 murders of his ex-girlfriend Debra Gardner and her friend Kenneth Butler, never got a new punishment hearing in what his lawyers contend was an oversight.

Now, Buck's Texas Defender Service Lawyers are asking the state Board of Pardons and Paroles to recommend that Gov. Rick Perry spare his life.

"The state of Texas cannot and should not tolerate an execution on the basis of an individual's race, particularly where this state's highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case," the clemency petition, by lawyers David Dow and Katherine Black, argues.

Alternately, the petition asks for a 120-day reprieve to pursue a new sentencing hearing. Although the other five killers received new hearings, all again were sentenced to death. One has been executed.

The problem in Buck's case arose when Dr. Walter Quijano, a defense psychiatrist, testified that the killer would not likely pose a future danger to society if imprisoned. "Future danger" is a key question jurors must consider before assessing a death sentence.

On cross-examination, however, the doctor agreed to a prosecutor's assertion that being African-American enhanced chances for future violence. That comment became a key factor in the state's push for execution.

Today's federal court filing is available via Sribd.

Earlier coverage of Duane Buck's case begins at the link. 

The clemency petition for Duane Edward Buck is available via Sribd.  Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Bob Ray Sanders on the Buck Case

Fort Worth Star-Telegram columnist Bob Ray Sanders writes, "Not a place for considering a person's race."

There is no question that Duane Edward Buck killed two people and wounded a third victim in a 1995 shooting in Houston.

But there are two nagging questions concerning Buck's case that we must ask:

1) Should he have received the death penalty for his crimes?

2) Would he have been sentenced to death had his race not become a major factor in the trial's punishment phase?

Buck, 48, is scheduled to be executed Sept. 15 in the Texas death chamber in Huntsville.

His is a unique case, one in which former Texas Attorney General John Cornyn (now a U.S. senator) supported a retrial on punishment because of the unfair testimony of a psychologist.

And:

Buck's lawyers also are asking that the Harris County district attorney's office and Texas Attorney General Greg Abbott intervene to have Buck's execution date withdrawn.

"This case represents an obvious injustice that must be remedied by prosecutors, the courts or by Governor Perry and the Board of Pardons and Paroles," said attorney Kate Black. "If Mr. Buck is executed, not only will Texas have violated the Constitution, it will have violated its citizens' basic moral values by permitting an execution to be carried out that is based on an individual's race."

Surely the state will not let this execution proceed.

Earlier coverage of the Duane Buck case begins at the link.  The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.