The StandDown Texas Project

Arizona Governor Vetoes Death Penalty Expansion

The Arizona Daily Sun reports, "Brewer vetoes bill expanding reasons for death penalty."  It's by Howard Fischer of Capitol Media Services.

Calling it a serious threat to the state’s death penalty, Gov. Jan Brewer vetoed legislation Thursday that would have allowed more criminals to be executed.

HB2313 would have added more factors to the list of what jurors could use in deciding whether someone convicted of a capital crime should be sentenced to life behind bars or executed. That new list includes both causing a death while engaged in human smuggling as well as having been previously convicted of that offense.

And it also would put jurors in the position of determining if that person might commit future criminal acts.

And:

Arizona law says those convicted of first-degree murder can be put to death. But the law also says that there have to be “aggravating factors” beyond a simple premeditated murder.

These range from killing someone for money to committing the crime in “an especially heinous, cruel or depraved manner.”

HB2313 sought to add to that list the jury’s determination there was “a substantial likelihood that the defendant would commit criminal acts of violence that constitute a continuing threat to society.”

“The proposed additional language in the legislation broadens the scope of those eligible for the death penalty to the point where the constitutionality of Arizona’s death penalty statute likely would be challenged and potentially be declared to be unconstitutional,” Brewer wrote in her veto message.

"Governor signs laws, issues vetoes," is the Arizona Republic coverage by Alia Beard Rau.

Capital sentencing: House Bill 2313 would have included as aggravating factors in a death-penalty case human smuggling, as well as a substantial likelihood the defendant would be a continuing threat to society.

Earlier coverage of the Arizona legislation begins at the link.

Andrew Cohen on the Buck Ruling & Dissent

"In Texas, Prosecutors Add Twitter Insult to Capital Punishment," is Andrew Cohen's follow-up on the Texas Court of Criminal Appeals opinions in Duane Buck's case.  Here's the beginning of another Cohen must-read:

Twice, as we’ve recounted here at The Atlantic, Texas has deprived convicted murderer Duane Buck of his constitutional right to equal protection. The first time came in 1997 when a now-notorious expert unlawfully told jurors under prosecution questioning that Buck would be more dangerous in the future because he was black. "Future danger" was an "aggravating" factor Buck's jury had to consider in imposing the death penalty on him, which those jurors quickly did after that explosive testimony.

And:

There has indeed been a great deal of unprofessional conduct in the Duane Buck case. It started with that now-disgraced expert and, as the dissent says, terrible defense work at trial and on the initial appeal of Buck's conviction. It continued years later with a broken promise by Texas officials to Buck that, like the others similarly situated, he would get a new sentencing hearing void of unlawful racial undertones. And it continues to this day in the effort by state attorneys, and these six judges, to diminish the import of what happened to Buck by precluding even a review of his case on its merits.

This man—this indigent black man in Texas with a low IQ who received inadequate assistance of counsel and whose trial was rocked by racial prejudice— deserves a new sentencing hearing. If Texas had given him one in 2000, this case would be long over (the five other men tainted by that "expert" were re-sentenced to death).  It's not only unprofessional, it's unjust that Texas is fighting so hard to prevent that new sentencing trial from taking place. And I'd be willing to bet that at least a few justices in Washington agree.

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

The NAACP Legal Defense & Educational Fund has more information on Duane Buck's case.

More 50,000 people from Texas and around the country have signed a Change.org petition calling on Texas officials to grant Mr. Buck a new sentencing hearing.

Related posts are in the race category index.

NPR 'Hear & Now' to Feature Duane Buck Case

Today's edition of Here & Now, the WBUR produced NPR program, will feature a report on the Duane Buck Case.  On Austin's KUT-FM, the program airs at 1:00 pm (CST.)  You can listen live at the link, or check your local NPR station for broadcast time.

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

News Coverage of the Duane Buck Ruling & Dissent

The Texas Court of Criminal Appeals ruling in Ex Parte Buck is at the link.  Judge Alcala's Dissent was joined by Judges Price and Johnson.

The Austin American-Statesman report is, "Appeal dismissed in death row case with racial backdrop," by Chuck Lindell.

The state’s highest criminal court Wednesday dismissed an appeal by death row inmate Duane Buck, who claims his sentence is improper because it was based, in part, on a psychologist’s finding that he presents a greater danger to society because he is black.

In a 6-3 ruling, the Court of Criminal Appeals said that Buck had already filed his one guaranteed appeal, known as a petition for writ of habeas corpus, in 1999 and wasn’t legally entitled to another.

But the court’s newest member, Judge Elsa Alcala, submitted a blistering dissent that said Buck had been ill-served by previous lawyers and the court system.

“The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness,” Alcala wrote in a dissenting statement joined by Judges Tom Price and Cheryl Johnson.

The upshot, Alcala said, is that no state or federal court has examined, let alone ruled on, Buck’s claim that his constitutional rights had been violated by the inclusion of inappropriate racial testimony and by the incompetence of previous lawyers.

“This cannot be what the Legislature intended when it (voted in 1995 to provide) capital habeas litigants ‘one full and fair opportunity to present all claims in a single, comprehensive post-conviction writ of habeas corpus,’” Alcala wrote.

"CCA Dismisses Buck Appeal," by Jordan Smith for the Austin Chronicle.

A divided Court of Criminal Appeals this morning declined an appeal from condemned inmate Duane Buck, who has asked to have a sentencing hearing free from racially biased testimony.

The majority of the state's highest criminal court, six judges, issued an unsigned opinion, dismissing the appeal outright without any elucidation beyond stating that it failed to meet the criteria set out in statute for the consideration of a subsequent writ.

Nonetheless, two judges – Tom Price and Cheryl Johnson – joined a dissent filed by Judge Elsa Alcala, who argues at length that the record in Buck's case "reveals a chronicle of inadequate representation [by counsel] at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment phase," she wrote. Buck's initial habeas attorney was "so incompetent," she continued, that he did not assert any cognizable claim for the court to review. As a result, "no Court has ever considered the merits" of Buck's appeals for post-conviction relief – including that racially-biased testimony tainted his jury. "This cannot be what the Legislature intended" to happen under the state's habeas laws, she wrote.

"Appeals court denies hearing in death penalty case where race testimony questioned," by Mike Tolson in the Houston Chronicle.

Buck, 50, was one of six condemned killers whose trials in the 1990s were marked by the testimony of Walter Quijano, a psychologist who often referred to statistics on race when assessing the extent of potential future dangerousness, one of the questions asked of juries in capital cases. Unlike the others' cases however, Quijano appeared on Buck's behalf and testified that his personality and the nature of the crime, committed in rage, made him less likely to repeat his violence.

During cross-examination, a prosecutor asked him about racial statistics and violent crime, then asked whether those statistics indicated blacks would be more likely to be a danger in the future. Quijano answered affirmatively. Prosecutors referred to the testimony during closing arguments.

"Texas Court Rejects Condemned Inmate's Appeal," is the updated AP report by Michael Graczyk.  It's via ABC News.

Buck was within a six-hour period set for his execution on Sept. 15, 2011, when the Supreme Court gave him a reprieve. The high court decided months later not to review his case and lifted its reprieve.

He does not currently have an execution date.

AFP posts, "Texas rejects death penalty appeal that argued racial bias."

Neither Buck's attorneys nor prosecutors dispute his conviction for the double-murder, but they have argued that racial considerations factored into the sentencing phase of his trial.

During the 1997 hearing, psychologist Walter Quijano testified that blacks pose a greater risk of "future dangerousness" than whites. The prosecutor cited this testimony in asking for the death penalty.

The Supreme Court intervened just hours before Buck's execution on September 15, 2011, with justices Sonia Sotomayor and Elena Kagan arguing that the case needed to be reviewed because "our criminal justice system should not tolerate (a death sentence) marred by racial overtones."

But despite an outcry from some politicians, religious leaders, and judges calling for a new hearing, the nine justice-panel at Texas' highest criminal court rejected Buck's appeal.

"We are gravely disappointed," Buck's lawyers, Kate Black and Christina Swarns, said in a statement.

They said they will bring the case to the Supreme Court "and we are hopeful that the Supreme Court will intervene to right this unequivocal wrong."

Additional coverage includes:

"Texas court denies appeal to death sentence determined by race," by Natasha Lennard at Salon.

"Texas Court Rejects Appeal Of Death Row Inmate After Testimony That Blacks Are More Dangerous," by Nicole Flatow for Think Progress.

"Texas Man Denied New Trial Despite Evidence Of Racial Bias," by D.L. Chandler at News One.

"Texas Court of Criminal Appeals Denies Duane Buck a New Sentencing Hearing," by Dianna Wray in the Houston Press.

"Divided Court Denies Case Where Race Impacted Death Sentence," at the Orlando Advocate.

Earlier coverage of Duane Buck's case begins with initial news of the CCA ruling.

The NAACP Legal Defense & Educational Fund has more information on Duane Buck's case.

More 50,000 people from Texas and around the country have signed a Change.org petition calling on Texas officials to grant Mr. Buck a new sentencing hearing.

Related posts are in the race category index.

Split Texas CCA Denies Relief to Duane Buck in Racially Tinged Sentencing

The Texas Court of Criminal Appeals ruling in Ex Parte Buck is at the link.  Judge Alcala's Dissent was joined by Judges Price and Johnson.

"Split Texas court rejects condemned man's appeal," is Michael Graczyk's AP report, via KDFW-TV.

A divided Texas Court of Criminal Appeals has rejected an appeal from a convicted killer in a Houston case where supporters contend his death sentence unfairly was based on race.

The state's highest criminal court Wednesday refused an appeal from 50-year-old condemned inmate Duane Buck. Buck was convicted of the slaying of his ex-girlfriend and a man at her Houston apartment in July 1995.

During the punishment phase of his 1997 trial, a psychologist testifying for the defense said black people were more likely to commit violence. Advocates for Buck, who is black, say that unfairly influenced the jury, is grounds for a new sentencing hearing and should have been pursued vigorously by lawyers early in the appeals process.

Three of the nine appeals court judges joined in a dissent.

Duane Buck's attorneys have issued the following statement:

“We are gravely disappointed that the Texas Court of Criminal Appeals has dismissed Duane Buck’s appeal and failed to recognize that his death sentence is the unconstitutional product of racial discrimination. As noted by three members of the Court, ‘[t]he record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment stage.’  These judges recognized that this outcome ‘jeopardizes both the integrity of the underlying conviction and of this Court’s judicial processes’ and deprives Mr. Buck of ‘one full and fair opportunity to present his claims.’

“With today’s decision, Texas has once again reneged on its promise to ensure that Mr. Buck would not be executed pursuant to a death sentence that was the unfair product of a prosecutorial appeal to racial bias and stereotype. ,For this reason, more than one hundred civil rights leaders, clergy of various faiths, former judges, former prosecutors, and thousands of individuals in Texas and across the world, have joined our call for a new, fair, and colorblind sentencing for Duane Buck. We now urge the Harris County District Attorney’s Office to respect these calls and refrain from seeking an execution date for Mr. Buck. We will ask the U.S. Supreme Court to review the important due process and equal protection issues at stake in Mr. Buck’s case, and we are hopeful that the Supreme Court will intervene to right this unequivocal wrong.”

-- Attorneys Kate Black, Christina Swarns (Director of the Criminal Justice Practice at NAACP Legal Defense & Educational Fund), and Kathryn Kase (Executive Director of Texas Defender Service)

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

The NAACP Legal Defense & Educational Fund has more information on Duane Buck's case.

More 50,000 people from Texas and around the country have signed a Change.org petition calling on Texas officials to grant Mr. Buck a new sentencing hearing.

Related posts are in the race category index.

State-Specific Coverage of the ABA Symposium

Morris News Service writer Walter C. Jones filed three state-specific news reports on the Carter Center symposium.

The Florida Times-Union posted, "Steps suggested to protect innocent in capital cases."

Georgia prosecutors, police and defense attorneys need more rigorous procedures in order to safeguard the innocent in death penalty cases, according to a review by the American Bar Association featured Tuesday during a daylong conference.

The study was part of a series of examinations the association’s civil-rights section made of the 12 states that conduct 65 percent of the nation’s executions. Many of the authors have acknowledged personal opposition to capital punishment.

“The ABA takes no stance on the death penalty outright. But we insist that if jurisdictions use the death penalty, they implement it fairly, accurately and with due process,” said James Silkenat, ABA president at the start of the conference at the Carter Center. He notes that the number of U.S. executions has declined from 85 in 2000 to less than half that this year and that polls show Americans’ support for capital punishment — 60 percent — is at its lowest point since 1972.

“The truth is that, as shown over and over again in our state assessment reports, the death penalty is still applied unpredictably,” Silkenat said. “And, more often than not, capital cases are unduly influenced by factors that have nothing to do with the defendant or the crime.”

And:

“Georgia has long been ground zero in the legal debate over capital punishment,” he said. “Thus it is fitting that we are here today to begin a new discussion about the fairness of the death penalty in America.”

Georgia is the state that generated the U.S. Supreme Court decision that halted executions in the country in 1972 over racial disparity and the state that prompted the court to approve their resumption in 1976 after legal reforms.

"Bar Association study: Florida needs greater safeguards in death-penalty cases," is also in the Times-Union.

The study notes that Florida has released one person as innocent from Death Row for every three it has executed since 1973, the highest number of exonerations in the nation.

The specific advice for Florida calls for changing limits on how defense attorneys are compensated and boosting their qualifications for taking on a capital case. And it also objects to allowing juries that aren’t unanimous to deliver a death sentence or for judges to override the jury’s recommendations and order an execution. Plus, the Board of Executive Clemency should be more transparent, such as issuing a written statement every time it denies clemency.

The likelihood of these recommendations taking effect depends on the ability of activists to spur politicians to act, according to Stephen Bright, president of the Southern Center for Human Rights.

Most of the conference participants favor repeal of the death penalty, and they left with more ammunition to do so.

The Amarillo Globe-News reports, "Review: Texas needs better policies to protect innocents."

The chairwoman of the ABA team that examined the Texas system, University of Texas professor Jennifer Laurin, is optimistic the Texas Legislature will take the advice to heart.

“I feel confident that a number of the recommendations — some of which have been considered by the legislature before — will be considered again,” she said.

“With not only the research behind the report, but also longer time and experience with some of the financial as well as justice-related pitfalls of our criminal justice system, there’ll be more momentum for it.”

The specific advice for Texas includes requiring written procedures for police in dealing with eyewitness identifications, videotaping of all interrogations while in custody, amending the law to allow greater post-trial testing of DNA evidence and higher funding for state crime labs.

The authors also called for abandoning of the “future dangerousness” question that jurors use in deciding a death sentence since Texas is the only state that requires it.

Texas exoneree Anthony Graves also spoke at the symposium.

Earlier coverage of the ABA Carter Center symposium begins in the preceding post. You can also jump to coverage of the ABA Texas Assessment.

Daily Texas Editorial on ABA Assessment

"If Texas executes at all, it must do so fairly," is the editorial in today's Daily Texan, at the University of Texas at Austin.

In a speech before Parliament in 1868, the English political philosopher John Stuart Mill — an ardent supporter of capital punishment — pointed out the sole argument against it that gave him pause: “that if by an error of justice an innocent person is put to death, the mistake can never be corrected... The argument is invincible where the mode of criminal procedure is dangerous to the innocent, or where the Courts of Justice are not trusted.”

Nowhere in the United States is Mill’s warning of greater import than here in Texas, the state that consistently executes more prisoners than any other.

On Wednesday, Sept. 18, the American Bar Association released the results of a two-year study of the death penalty in Texas, which stated that Texas’ death penalty system “fell far short” of the necessary standards of proof for conviction and sentencing.

The ABA Texas Death Penalty Assessment is at the link; also available, more on the American Bar Association Death Penalty Due Process Project and other state death penalty assessments.

Earlier coverage of the ABA Texas report begins at the link.

Additional News Coverage of the Texas Assessment

The ABA Texas Death Penalty Assessment is at the link.

The updated AP report is, "Report heaps new criticism on state death penalty," by Paul J. Weber.  It's via the Longview News-Journal.

A man who spent 18 years on death row in Texas before being exonerated by DNA evidence joined former Gov. Mark White on Wednesday in presenting a report that calls for lawmakers to pursue reforms in the nation’s most active death penalty state.

The new report from the American Bar Association urges the state to strengthen standards for eyewitness identification and require video recordings of suspect interrogations. The 500-page report also recommends reducing barriers to post-conviction DNA testing.

White, who served as governor from 1983 to 1987, oversaw 19 executions during his term. He helped unveil the report along with Anthony Graves, who was wrongfully convicted in the slayings of six family members.

“It reminds us that ultimately the death penalty becomes a very, very personal situation,” White said.

Texas executed its 500th inmate this summer. It has accounted for nearly 40 percent of the more than 1,300 executions carried out since 1977, when a Utah inmate became the first U.S. prisoner executed following the Supreme Court’s clarification of death penalty laws. Virginia is a distant second, nearly 400 executions behind.

And:

The report does praise the state for making some “significant improvements” in capital punishment cases in recent years. The most well-known is the Michael Morton Act, named in honor of a Texas man who spent 25 years in prison for a crime he did not commit. The law signed by Gov. Rick Perry mandates that prosecutors statewide share case files that can help the defense.

But the report asks that the state do even more for inmates post-conviction. Among the recommendations are requiring the state Board of Pardons and Paroles to conduct public hearings in any case in which clemency is sought.

"Study cites flaws in Texas death penalty system," is by Chuck Lindell in the Austin American-Statesman.

An intensive two-year study of the death penalty in Texas, sponsored by the American Bar Association, found a system that is riddled with flaws and shortcomings, undermining confidence that innocent defendants will be spared lethal injection in the nation’s leading state for executions.

The almost 500-page report, distributed to state political leaders Wednesday, did not call for a moratorium on executions. Instead, it offered a long list of recommendations intended to improve fairness and accuracy in capital murder cases.

“What we found, time and time again, is Texas fell short,” said Paul Coggins, a former federal prosecutor from Dallas and a study team member. “We’re simply out of step with the better practices in other states.”

Texas is the 12th state to be examined by the bar association’s death penalty review project since 2006.

And:

Before a death sentence can be given, Texas jurors must determine that the convicted murderer poses a future danger to society — a process that opens the courtroom to junk science, speculation and racial bias, the report said.

“That’s totally reading tea leaves,” Coggins said. “It has no scientific basis, yet it’s powerful, powerful testimony.”

Texas should join most states in abandoning the question of future danger, or at the very least clarify the term for jurors who continue to struggle with its meaning, the report recommended.

The Dallas Morning News posts, "Report urges reform of Texas’ death penalty system," by Brittney Martin.

“What we found time and time again is that Texas fell short,” said team member and former U.S. Attorney Paul Coggins. “We’re simply out of step with the better practices in other states.”

Their 500-page report, released today, examines every step of the process from evidence gathering and testing to final clemency hearings. The team recommended changes at almost every level. Recommendations include ensuring all procedures are science-based, educating juries, recording interrogations, and increasing training for trial judges and attorneys.

Anthony Graves became the 12th death row inmate to be exonerated in Texas after 18 years in prison.

“We have a failed system from top to bottom,” Graves said. “I am your living flaw.”

"Report: Texas death penalty system needs overhaul," is YNN Austin coverage by LeAnn Wallace.  That is Time Warner Cable's 24-hour local news channel.  There is video at the link.

Formerly on death row, Anthony Graves calls himself living proof that the system is flawed.

"I had two execution dates,” Graves said. “I was almost murdered by the state of Texas. Had this been in place, you probably wouldn't even know my name today."

Graves spent 18 years in prison, 12 of which were spent on death row. He was exonerated after a fifth circuit court said the prosecutor intentionally withheld evidence that could have helped his case.

Since then, Graves has been working to prevent future cases like his.

"If you are serious about justice in our state, then you will read this and you will implement this and you will stand up for justice for us as a society," he said.

Texas public radio stations also covered the news conference.  All have audio at their respective links.  "Report: Texas Executions Conducted Under Broken System," is by Carrie Powell for Austin's KUT-FM.

“The report finds that Texas’s system not only falls short of [American Bar Association] benchmarks, but reflects outlier practices, rejection of best available science, and a significant absence of transparency to foster public confidence in the system’s fairness,” says Jennifer Laurin, committee chairwoman and law professor at UT-Austin.Specific problematic practices identified by the committee include:

• Confessions filmed without context or credibility
• Prosecutors not disclosing evidence that proves innocence
• Unerfunded and ill-equipped crime laboratories
• Refusal to allow new DNA testing of convicts following sentencing

The committee claims that these poor practices cause unnecessary harm to both the wrongfully accused and the general public. According to Paul Coggins, former U.S. Attorney for the Northern District of Texas, the state has paid out $60 million to wrongfully convicted individuals since 1992.

Dallas' KERA-FM posts, "Death Penalty System In Texas Needs Reform, Lawyer Group Says," by Eric Aasen.

The report is part of a six-year effort by the American Bar Association to examine how sates that offer the death penalty “ensure fairness and minimize the risk of executing the innocent.”

The association says it has conducted assessments of the death penalty systems in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Tennessee and Virginia.

"Study Finds Shortcomings In Texas Death Penalty System," by Pat Hernandez for KUHF-FM, Houston.

The Texas Capital Punishment Assessment team was made up of former judges, prosecutors, elected officials and legal scholars, like Professor Jennifer Laurin at the University of Texas School of Law. She chaired the team that prepared the report:
 
"The structural features of our system insulate and exacerbate predictable missteps at early stages."   

Since 1989, there have been 132 Texas executions overturned, including those of 12 people who were on death row, like Anthony Graves. He was exonerated and released in 2010 after spending 14 years on death row, for a crime he did not commit.

"There are many people in prison for many different reasons. Some because they're innocent and just couldn't afford a competent attorney to represent their rights during trial." 

Former Texas Gov. Mark White, was another member of the assessment team. 19 executions occurred during his term as governor. He said the goal of the report was not to call into question the use of the death penalty in Texas, but to ensure that it is implemented fairly.

Earlier coverage of the ABA Texas report begins with the preceding post.

The ABA Death Penalty Due Process Project has more information and links to other state assessments.

Harry Belafonte Calls for New Sentencing for Duane Buck

The North Dallas Gazette posts, "Harry Belafonte joins NAACP in calling for a new sentence hearing for Texas inmate Duane Buck."

Harry Belafonte, a renowned activist and musician, released a statement on his Facebook page calling for a new, fair sentencing hearing for NAACP LDF’s client, Duane Buck. Mr. Buck was sentenced to death by a jury that was told he was more likely to be dangerous because he is Black.

“I am proud to join the efforts of more than 100 civil rights leaders, elected officials, clergy, former prosecutors and judges, a former TX governor and others call for a NEW, FAIR sentencing for Duane Buck. Add your voice at Change.org,” Mr. Belafonte wrote.

And:

“We’re delighted that Harry Belafonte is among the many civil rights leaders, lawyers, activists, and elected officials who are calling for a new, fair sentencing hearing for our client Duane Buck” said Sherrilyn Ifill, LDF’s President and Director-Counsel. “Mr. Buck’s death sentence is the clear product of racial discrimination, of which there’s a long history in Texas’s capital punishment system.”

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

Charles Ogletree on the Duane Buck Case

"Condemned to Die Because He’s Black," is the title of Charles Ogletree's OpEd in today's New York Times.  He's a professor at Harvard Law and executive director of the Charles Hamilton Houston Institute for Race and Justice.  Here's the beginning:

NEARLY 50 years after the end of Jim Crow, African-Americans are still facing execution because of their race.

Duane Buck could end up being one of them. He was convicted in 1997 of the murders of two people in Harris County, Tex., home to the city of Houston. He does not deny his guilt in these terrible crimes, so there is no question that he must be punished. But what happened at Mr. Buck’s sentencing hearing is appalling, even for Texas, which was once among the handful of states that led the country in the lynching of African-American men and which is now the country’s most prolific executioner.

During the presentation of evidence at the penalty phase of Mr. Buck’s trial — when the jury was required to decide between the death penalty and a life sentence — the trial prosecutor elicited testimony from a psychologist for the defense indicating that Mr. Buck’s race made him more likely to be violent in the future.

The prosecutor asked, “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?”

“Yes,” the psychologist, Walter Quijano, answered.

Because a finding of future dangerousness is a prerequisite for a death sentence in Texas, the prosecutor then argued in closing that the jury should rely on that race-based expert testimony to find that Mr. Buck would pose a future danger. The jury accepted the prosecutor’s recommendation, and Mr. Buck was sentenced to death.

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

Duane Buck’s Bad Luck

That's the title of Matthew Fleischer's post at Take Part.  It's subtitled, "Convicted While Black in the Killing-est County in Texas."  Here's the beginning:

Since the death penalty was reinstated in 1976 by the U.S. Supreme Court, 1,341 executions have been carried out on American soil. Of that number, 502 took place in the state of Texas—which passed the dubious 500 execution milestone earlier this year.

More than 300 more individuals sit on Texas’s Death Row, awaiting execution.

In order to fulfill that volume of killing, one might assume Texas would have to be rather egalitarian in its approach to capital punishment.

It is not.

According to a recent analysis conducted by University of Maryland Professor Ray Paternoster, a history of racial discrimination in Texas’s capital punishment system dates back to the Civil War.

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

Bob Ray Sanders on the Duane Buck Case

Fort Worth Star-Telegram columnist Bob Ray Sanders' latest is, "‘Race’ in case stains Texas justice system."

Texas has so many stains on its criminal justice system that there is no societal detergent that could ever remove them all.

But there is one glaring spot of injustice that we can do something about, if only the Texas Court of Criminal Appeals has the will.

The case of Duane Buck, who was sentenced to death based on racially biased testimony, is before the state’s highest criminal court on a habeas corpus petition asking for a new sentencing trial.

The petition ought to be granted.

No one is questioning Buck’s guilt in the 1995 murder of his ex-girl-friend, Debra Gardner, and her friend, Kenneth Butler.

A third person, Phyllis Taylor, was also shot during the crime.

But it is what happened at his trial in Houston in 1997 that is cause for alarm, something that the former Texas attorney general, now U.S. Sen. John Cornyn, acknowledged was unfair and impermissible.

During the sentencing phase of the trial, psychologist Walter Quijano answered “yes” when the prosecutor asked if “the race factor, black” increased the future danger from a defendant if he were ever released from prison.

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

Anderson Cooper Examines Duane Buck Case

Last night's Anderson Cooper 360 on CNN examined Duane Buck's case.

"Inmate on death row because he's black?" is by Ed Lavandera.  It contains the first half of the archived video.

A Texas man named Duane Buck, convicted of murdering two people,  has been sentenced to die. He's asked an appeals court to grant him a new sentencing hearing.

Buck's appeal is supported by a broad coalition of individuals and organizations,  including a former Texas governor and one of the prosecutors who convicted him. They're not arguing for a new hearing because he's innocent – there are no doubts that he committed murder.

Instead, supporters argue that Buck is on death row because he's African American, and they point to testimony that jurors heard from an expert witness.

The second half of the archived video is, "Was race a factor in death sentence?"  Among others, it features legal analyst Jeffrey Toobin.

CNN has also posted a transcript of the program.  Here's a brief excerpt:

COOPER: Jeff, what they're saying in not granting a new hearing is that this guy was a defense witness, and that makes some sort of a difference?

TOOBIN: Not. The jury hears what the jury hears, regardless of who is putting forth the witness. The other factor here is Texas has an unusual death penalty law in that the issue of future dangerousness is very important. Unfortunately, that law leads to all sorts of quackery. The idea -- the legal system has a hard enough time telling people -- determining what happened in the past. The idea that you can put a psychologist on and predict future dangerousness is just absurd.

COOPER: It's like that movie about future crime, you know. You're fighting future crime.

TOOBIN: Exactly. And Quijano is not the only psychologist who's gotten in trouble here. There is a famous Dr. Death who has testified all the time, who gave similarly ridiculous testimony. But the whole idea of psychologists telling juries that they can predict who's dangerous is fraudulent in and of itself.

Earlier coverage of Duane Buck's case begins at the link.  The NAACP Legal Defense Fund maintains up to date information on the Buck case.

Related posts are in the race category index.

Duane Buck Case Featured on HuffPost Live Today

The Duane Buck case will be featured on Huffington Post Live today at 1:00 pm CDT (2:00 pm EDT).  NAACP LDF attorney Christina Swarns and former Texas Governor Mark White will discuss the case.

LDF has also released a new video on the case.  Here's more from the news release:

Today, the NAACP Legal Defense & Educational Fund, Inc. released a new video highlighting the racial discrimination in the Texas death penalty system and the shocking case of death-sentenced prisoner, Duane Buck.  Mr. Buck was sentenced to death in Harris County (Houston), Texas, after his trial prosecutor elicited testimony from a psychologist indicating that Mr. Buck was more likely to be dangerous because he is Black. The video was produced by award-winning documentary filmmakers Emily Kunstler and Sarah Kunstler.

The video is “A Broken Promise in Texas: Race, the Death Penalty and the Duane Buck Case.”

“A Broken Promise in Texas” contains powerful, never-before-seen interviews with Texas civil rights leaders, elected politicians, the surviving victim in the Buck case, one of Mr. Buck’s trial prosecutors and Mr. Buck’s family members, among others, calling for a new, fair sentencing hearing.  The video’s release comes at a critical juncture, as Mr. Buck may soon be at risk of execution:  the Texas Court of Criminal Appeals is currently considering Mr. Buck’s appeal for a new sentencing hearing free of racial bias and the Court is expected to rule in the coming weeks.
 
"Everyone who sees this powerful video will come away from it with the alarming realization that if Duane Buck can be sentenced to death - and possibly executed -- based on racial stereotypes, then our criminal justice system is broken not just for Mr. Buck, but for all of us," said Christina Swarns, Mr. Buck's attorney and Director of the NAACP Legal Defense & Educational Fund, Inc.'s Criminal Justice Project.  "A properly functioning criminal justice system does not condone the flagrant exploitation of racial fears and stereotypes to secure a death sentence.  It cannot countenance a racially biased and unfair execution."
 
Former Texas Governor Mark White, who oversaw the executions of 19 individuals, narrates the video and urges citizens to take action: “It’s unfair to have someone on death row if they are not supposed to be there … Don’t wait until it is too late … Join me and more than 100 civil rights leaders, clergy, former prosecutors, and judges in calling for a new and fair sentencing hearing for Mr. Buck. Tell Texas to keep its promise.” 
 
Over 50,000 people from Texas and around the country have signed a petition calling on Texas officials to grant Mr. Buck a new sentencing hearing. The newly released video exposes the injustice of Duane Buck’s case and encourages support for the petition for a new, fair sentencing.

As the video shows, at Mr. Buck’s 1997 capital sentencing hearing in Harris County, the trial prosecutor elicited testimony from a psychologist that Mr. Buck posed a future danger because he is black. The prosecutor relied on this testimony in arguing in favor of a death sentence. The jury then found Mr. Buck would be a future danger and sentenced him to death. 
 
Three years after Mr. Buck’s capital trial, in 2000, then-Texas Attorney General (now U.S. Senator) John Cornyn identified seven cases, including Mr. Buck’s, in which the State of Texas impermissibly relied on testimony linking race and dangerousness to secure a death sentence. The Attorney General promised to support new sentencing hearings for the seven identified defendants and kept its promise as to six of them. But Texas reneged on its promise to Mr. Buck and is now aggressively pursuing his execution.
 
“It is virtually unprecedented for a state official to confess error in a capital case. And in this situation, [the Attorney General] confessed error in six capital cases,” said Kathryn Kase, Executive Director of Texas Defender Service, in the video. 
 
Mr. Buck’s life was saved by the U.S. Supreme Court before his September 2011 scheduled execution. Two U.S. Supreme Court justices agreed that Mr. Buck’s death sentence requires review because “our criminal justice system should not tolerate” a death sentence “marred by racial overtones.”
 
“When we apply the death penalty and we seek criminal sentences, we have to do so in a color-blind manner. Allowing this kind of racial testimony in any capital sentence proceeding undermines the entire justice process,” said Kate Black, Mr. Buck’s attorney, in the video. 

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

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.

Lubbock Avalanche-Journal Series

The Lubbock Avalanche-Journal has published a series of articles under the heading, "Ultimate Punishment: The Death Penalty in Lubbock and the South Plains."  The series is written by Walt Nett.  There are infographics at the link.

"Four local inmates, linked by one three-digit number, waiting on Death Row."

They are four men from Lubbock, connected by a single three-digit number, who may think more than most people about how long they have to live.

The number Joe Garza Jr., Rosendo Rodriguez III, Vernon Ross and Michael Yowell have in common is 999 — the first three digits of a Texas death row inmate’s identification number since mid-1991.

"Movement apparent in local death penalty cases; Pace of verdicts slowing statewide."

Execution by lethal injection, the punishment Texas law allows a jury to recommend to deal with “the worst of the worst,” has quietly re-entered the South Plains legal environs.

It’s back, nearly five years after Lubbock County prosecutors last tried a death penalty case and four years after the last execution of a capital murder defendant from the South Plains.

It’s also arriving when fewer prosecutors across the state are asking jurors to recommend a death sentence, and more death penalty juries are choosing to sentence convicted capital murderers to life without possibility of parole.

"Courts granted relief for 7 men once condemned."

Since Texas resumed executions in 1982 — six years after the death penalty law was reinstated in the state — seven men won back a portion of their lives through successful appeals.

All had killed; none contested the verdict on appeal.

Instead, each successful appeal turned on some aspect of Texas’ capital murder law, and whether it had been applied properly during the punishment portion of their trials.

Six were commuted as a result of decisions in the Texas Court of Criminal Appeals, including three who said prosecutors had insufficient evidence for the jury to determine if the defendant would be a continuing threat to society.

The seventh commutation — also the most recent — arose from a spectacular “inadequate representation” ruling in U.S. District Court in Lubbock with a bizarre element.

Rather than going back for new punishment trials, six defendants accepted prosecutors’ offers of life in prison, while the seventh received a 55-year sentence.

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.

Retired Texas Court of Appeals Justice Calls for New Buck Sentencing

"Grant Duane Buck a new, race-free trial," is by retired Justice Michol O’Connor.  He served on the Texas First Court of Appeals in Houston. 

The use of race-based testimony in the capital sentencing of Duane Buck is a clear violation of his Constitutional right to a fair and unbiased trial. No one should be sentenced to death based on the kind of racially discriminatory testimony that tainted Mr. Buck’s trial, as Texas NAACP president Gary Bledsoe persuasively argues.

As a retired state appellate justice, it is hard for me to understand what interest the state of Texas is protecting in resisting the call for a new sentencing hearing. The state could easily provide Mr. Buck with a new hearing, as it did in the cases of the other men sentenced to death based on similar testimony from the same witness.

The state has wasted much judicial and prosecutorial time and effort in its costly attempt to deny Mr. Buck a new sentencing hearing. It should have agreed to a new hearing when Mr. Buck (along with the others) first became entitled to a new sentencing hearing free from racial considerations.

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

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.

Resentencing in Federal Death Penalty Case

"Death Penalty Sentence Overturned," is the title of the news release, via Business Wire.  It's datelined Chicago.

Almost 16 years after being sentenced to death following his conviction in a federal criminal case, Darryl Johnson was resentenced on Tuesday to life imprisonment.

U.S. District Court Judge Ruben Castillo remarked that the record of Johnson’s behavior over the past 16 years of incarceration shows that he is a changed man since his conviction and suggested the mandatory life sentence he was required to impose might well be too severe in light of Mr. Johnson’s demonstrated post-offense rehabilitation.

In 1997, Johnson was convicted of having been part of a large drug distribution conspiracy and having directed the murder of two gang members who he believed were cooperating with the government’s investigation of the Gangster Disciples street gang. Even though he was not the shooter, Johnson was sentenced to death for his involvement in those murders.

In December 2010, U.S. District Court Judge William Hibbler ruled that testimony at Johnson’s 1997 sentencing hearing from Bureau of Prisons Warden John Vanyur about Johnson’s supposed “future dangerousness” was false and misleading. Judge Hibbler concluded that had Warden Vanyur’s inaccurate testimony been corrected at the trial, Johnson would likely not have received the death penalty. Judge Hibbler vacated the death sentences and ordered a new sentencing for Johnson.

In fact, Johnson has been a model prisoner for the past 16 years. In an affidavit submitted by the government in response to a request by Judge Hibbler, a Bureau of Prisons Death Row Case Manager said that during his years in prison, Johnson has proven to be a well-adjusted, quiet and civil individual who has not caused problems for the prison staff. He has also maintained a close and loving relationship with his family throughout.

Terry Campbell, a partner at Cotsirilos, Tighe, Streicker, Poulos & Campbell who has represented Darryl Johnson since 1998, said, “In light of his record of conduct over the past 16 years, the government made the proper decision to not seek to re-impose the death penalty against Darryl Johnson, and I commend them for that decision. Darryl’s case is a lesson in how dangerous and unwise it is to allow juries to make irreversible, life-and-death decisions based on highly speculative guesswork – and in this case, entirely inaccurate guesswork – about what someone might do in the future.”

Felated posts are in the federal death penalty category index.

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.

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.

Duane Buck Case Live Chat Today at 12 Noon, CDT/1:00 PM, EDT

"Duane Buck case live chat: what's next for inmate sentenced by race?" will go live in just over an hour, at 12:00 noon (CDT), 1:00 pm (EDT).

Join Ed Pilkington and Christina Swarns, director of the NAACP Legal Defense and Educational Fund, to discuss Buck's case.

What does his case tell us about the way African Americans are treated generally in the application of the death penalty in America? Join Guardian reporter Ed Pilkington and Christina Swarns, director of the NAACP legal defence and educational fund, to discuss the case from 1 to 2pm ET Wednesday.

Other questions to consider:

• What is the current role of race in US capital punishment?

• Why do his advocates say Buck was sentenced to death because of his race?

• How did Buck's lawyer allow such evidence to be presented in court?

• What is the status of Buck's new sentencing hearing?

Guardian writer Pilkington also posts, "Texas convict's death row sentence challenged over claim of racial bias."

More than 100 prominent civil rights leaders, lawyers, politicians and clergy are calling on the state of Texas to provide a new fair sentencing hearing for Duane Buck, the African American man who was put on death row in 1997 after the jury was told he was a danger to society because he was black.

The Buck case is rapidly becoming a focal point for anxieties that the application of the death penalty across America is riddled with racial discrimination. Last week an appeal was filed in the Buck case that included new research showing that at the time of his sentence black defendants in Houston, Texas – the death penalty capital of the US – were three times more likely to be charged with a capital crime than whites.

The statement put out by 102 national and Texan leaders calls for a new fair sentencing hearing for Buck that would be free from racial bias. "The state of Texas cannot condone any form of racial discrimination in the courtroom. The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary," it says.

The signatories include Linda Geffin, who was one of the prosecutors in the original trial of Buck, as well as Phyllis Taylor who was shot by Buck but survived. The statement says that Taylor has "forgiven Mr Buck and does not wish to see him executed".

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

Maurice Chammah on the Case of David Lee Powell

Texas Tribune writer Maurice Chammah writes a long-form article for Guernica, "The Minority Report of David Powell: The story behind a defining case and the transformation of death penalty trials in the U.S.."  Here's a short excerpt from this must-read:

Facing pressure from the community, prosecutors began preparing for a lengthy trial, in which they would attempt to convince a jury to sentence Powell to death. The message needed to be sent that this kind of crime would be harshly punished.

They would succeed in this, but not cleanly: Powell would eventually sit through three trials for the same crime. Juries mulled over the question of whether he should be given a death sentence, as appeals courts rejected his convictions for various technical issues. He would become the longest serving death row inmate in Texas to ever be executed. The trials would span several decades and legal arguments in Powell’s case would encompass almost the history of the death penalty since the 1970’s in Texas, a state where retribution and the rights of defendants are often in conflict. The friction born of this conflict would produce a thicket of legal argument questioning the efficacy, morality, and methodology of the death penalty as it has come to be practiced in the United States today.

Six years before the murder, in 1972, the U.S. Supreme Court decided that the death penalty, as it was then practiced in Texas and numerous other states, was unconstitutional. In the decision Furman v. Georgia, several of the justices lamented that the system for determining who would be sentenced to death and who would not was unconstitutional because it was arbitrary. Justice Potter Stewart compared the likelihood of receiving a death sentence to that of being struck by lightning.

The next year, the Texas legislature met and drafted a new death penalty law. With various tweaks, it has lasted until today: In order to hand down a death sentence in Texas, a jury would first find the defendant guilty. Then, in a second part of the trial, the same jury would have to find that the defendant would be a “continuing threat to society” if spared execution.

Earlier coverage of David Lee Powell's case and execution 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.

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.

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.

Life Sentence in Angelina County Capital Trial

Today's Lufkin Daily News reports, "Jury sentences Saenz to life in prison for killing patients with bleach."  It's written by Jessica Cooley who has covered the month-long trial daily.

After being sentenced to life in prison without parole, Kimberly Saenz was addressed by family members of the DaVita Dialysis patients she killed by injecting them with bleach in April 2008.

And:

In the sentencing phase, jurors heard testimony from a series of character witnesses to help them determine if the 38-year-old Pollok woman should be sentenced to life in prison without parole or death by lethal injection. She leaned her head to one side, listening intently as criminal defense attorney consultant Frank Aubuchon outlined for the jury what prison life will be like for Saenz. Aubuchon, a 26-year Texas Department of Criminal Justice retiree, said she will become one of 28 women serving life in prison without parole. Defense attorney Steve Taylor said the only way Saenz is coming out of prison is in a box, as Aubuchon nodded in agreement.

As a highly supervised inmate on a maximum security unit, Saenz will share a cell with another woman serving at least 60 years. There are also restrictions on what type of prison job she can have, Aubuchon said, adding she can only work in the kitchen, laundry or industrial factory.

"Life in prison for ex-nurse in 5 bleach deaths," is the AP filing by Michael Graczyk.  It's via the Dallas Morning News.

"She's never getting out no matter what you do," Saenz's lawyer, Steve Taylor, said in his closing remarks, urging jurors to choose a life sentence. "Society is protected. You will never see her again."

Prosecutors failed to show Saenz would present a future danger for violence, one of the questions they must answer in deciding the death penalty, Taylor said. He reminded jurors she'd been free since her arrest and indictment and during trial.

"Kimberly Saenz has been out of jail for the last one, two, three, four years," Taylor said. "You've passed her on the stairs. ... If there was any possibility to create a future criminal act, the state would have her butt in jail. In the last four years, she has behaved herself."

Saenz's lead attorney, Ryan Deaton, indicated in court he would file for a new trial and seek appeals.

Earlier coverage of the case begins at the link.  Related posts are in the trial 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.

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.

 

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.

Supreme Court Stays Duane Buck Execution - UPDATED

The Supreme Court Order in Buck v. Thaler is available in Adobe .pdf format.  The Petition for Writ of Certiorari, upon which the Court acted, is also available in Adobe .pdf format.

UPDATE - Kate Black, Duane Buck's attorney, has issued the following statement:

 "We are relieved that the U.S. Supreme Court recognized the obvious injustice of allowing a defendant's race to factor into sentencing decisions and granted a stay of execution to Duane Buck. No one should be put to death based on the color of his or her skin. We are confident that the Court will agree that our client is entitled to a fair sentencing hearing that is untainted by considerations of his race."

"High court halts Duane Buck's Texas execution," is the AP report via CBS News.

The U.S. Supreme Court Thursday halted the execution of a black man convicted of a double murder in Texas 16 years ago after his lawyers contended his sentence was unfair because of a question asked about race during his trial.

Duane Buck, 48, was spared from lethal injection when the justices, without comment, said they would review an appeal in his case.

Two appeals, both related to a psychologist's testimony that black people were more likely to commit violence, were before the court. One was granted. The other denied.

"Praise the Lord!" Buck told Texas Department of Criminal Justice spokesman Jason Clark. "God is worthy to be praised. God's mercy triumphs over judgment. I feel good."

His lawyers called to tell Buck of the reprieve and the inmate was praying in his cell when Clark approached, Clark said.

The reprieve came nearly two hours into a six-hour window when Buck could have been taken to the death chamber. Texas officials, however, refused to move forward with the punishment while legal issues were pending.

A similar request for a reprieve was made to Texas Gov. Rick Perry. Perry is the Republican frontrunner for the GOP presidential nomination and his actions have now come under closer scrutiny. Perry, however, wasn't in the state Thursday and any decision on a reprieve from the governor's office would have fallen to Lt. Gov. David Dewhurst.

CBS Radio News senior legal analyst Andrew Cohen reports that the Supreme Court's move is a surprise because they rarely intervene in death penalty cases where the guilt of the defendant is not in doubt. The Justices were most likely concerned about the promises Texas had earlier made to defendants like Buck whose capital trials were tainted by racial testimony.

 The Supreme Court has only called for a stay in the execution. It has not yet given Buck a new sentencing trial, which is what his attorneys had sought after his first trial was tainted by unconstitutional testimony about his race. Even Texas had initially agreed his trial was unfair.

 Earlier coverage of Duane Buck's case begins at the link.  The Cert Petition and a Motion for Stay filed with the Supreme Court earlier today is available in Adobe .pdf format .

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. 

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.

BPP Rejects Clemency for Duane Buck

Duane Buck's attorney, Kate Black with Texas Defender Service, has issued a statement following the action by the Board of Pardons and Paroles:

“The Texas Board of Pardons and Paroles’ recommendation against granting clemency to Duane Buck fails to recognize what the highest legal officer in the State of Texas had acknowledged: No one should be executed based on a process tainted by considerations of race. A trial prosecutor and the surviving victim have asked state officials to halt the execution. The decision as to whether Mr. Buck’s execution will go forward now lies squarely with Governor Perry, who has the power to issue a thirty-day reprieve, and District Attorney Lykos, who has the power to ask for a withdrawal of the execution date. We urge Governor Perry to grant a temporary reprieve to allow all parties involved to work together to ensure that Mr. Buck receives a new and fair sentencing hearing untainted by race-based testimony.”

The Board's notification that it rejected a clemency recommendation is available in Adobe .pdf format.

Allan Turner posts, "Panel refuses to commute Houston killer's execution," at the Houston Chronicle.

Houston auto mechanic Duane Buck moved a step closer to execution today as the Texas Board of Pardons and Paroles rejected his bid to commute his death sentence to life without parole.

And:

Buck's lawyers had asked the pardons board to recommend commutation or the granting of a 120-day reprieve to Gov. Rick Perry, who would have made the final decision in the case.

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

You can read prosecutor Linda Geffin's letter to the Board of Pardons and Paroles. 

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.

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.

News Coverage of the Duane Buck Clemency Petition

Today's Austin American-Statesman reports, "Petition: Condemned man's sentence racially tinged."  It's written by Steven Kreytak.

In 2000, then-Texas Attorney General John Cornyn said seven death row inmates had been unfairly sentenced to death because improper racial testimony had been presented at their trials.

"It is inappropriate to allow race to be considered as a factor in our criminal justice system," Cornyn, now a U.S. senator, said at the time.

Six of those inmates later got new sentencing hearings. But a seventh — Duane Edward Buck, convicted of a 1995 Harris County double murder — did not. Buck, 48, is scheduled to die Sept. 15.

On Wednesday, Buck's lawyers petitioned the Texas Board of Pardons and Paroles and Gov. Rick Perry to stop the execution.

Buck's lawyers with the Texas Defender Service have also asked current Attorney General Greg Abbott and Harris County District Attorney Pat Lykos to agree to cancel the execution date, said Andrea Keilan, director of the service.

"It's very rare to see an attorney general concede error in a capital case, much less a series of capital cases," Keilan said. "It shouldn't be controversial, and yet no one has stepped forward" to give Buck a new sentencing trial.

The seven cases identified by Cornyn were all tainted by testimony by psychologist Walter Quijano, who regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic. He based his testimony on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state's general population.

His testimony was intended to inform the key decision by juries in assessing the death penalty in Texas: whether the defendant would be a likely future threat to society.

"Lawyers Seek Reprieve for Inmate Based on Race Testimony," by Brandi Grissom for the Texas Tribune.

When Duane Edward Buck was on trial for capital murder in Houston in 1997, Dr. Walter Quijano told jurors that the fact he was black meant Buck was more likely to be violent in the future.

The same psychologist gave similar testimony in six other death row cases. In each, the defendants were given new trials to determine their sentences.

Buck, though, has not received a retrial and is scheduled to die Sept. 15 for the 1995 shooting deaths of Debra Gardner and Kenneth Butler. Today, Buck's lawyers asked Gov. Rick Perry and the Texas Board of Pardons and Paroles to stop the scheduled execution to allow a new trial without racial references.

“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,” Kate Black, a lawyer for Buck, said in a statement.

In 2000, then-Attorney General John Cornyn admitted the state had erred in seven death row cases — including Buck's — in which prosecutors elicited testimony from Quijano indicating that their racial or ethnic background made them more inclined to commit more violent crimes.

And:

Cornyn’s office did not immediately respond to a request for comment on the Buck case.

Buck’s lawyers said that he has not received a new trial because of procedural stumbling blocks, and they asked Perry and the board to commute his sentence or grant a 120-day reprieve. “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 thiscase,” they wrote in the petition filed today.

Earlier coverage of Duane Buck's 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.

Duane Buck & Tainted Future Dangerousness Testimony

Once again, expert witness testimony about future dangerousness provided during the sentencing phase of a Texas capital murder trial is at issue.

Texas Defender Service has issued a news release, "Texas Set to Execute Man Despite Improper Racist Evidence, Presented by Prosecution at Trial.  Attorneys urge prosecutors, courts, and Governor Perry to halt execution in case in which prior Attorney General John Cornyn admitted error."

Today, attorneys for Duane Edward Buck filed a clemency petition with the Texas Board of Pardons and Paroles urging the Board and Governor Perry to intervene and halt the execution of Mr. Buck, scheduled for September 15, 2011.

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 wish to see him executed.

During Mr. Buck’s trial, psychologist Walter Quijano was called by the defense and 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 10, 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.  Mr. Cornyn identified Mr. Buck’s case as one of those six cases. Then-Attorney General (now Senator) Cornyn stated that Texas would not contest federal appeals in those six cases and that if the attorneys for the six identified defendants amended their appeals to include objections to Dr. Quijano’s testimony, the Attorney General would not object.

Then-Attorney General Cornyn first confessed error based on the testimony of Dr. Quijano in the case of Victor Saldaño. Attorney General Cornyn 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.”

The six cases in which the Attorney General conceded error were those of Gustavo Garcia, Eugene Broxton, John Alba, Michael Gonzales, Carl Blue, and Duane Buck.  In the other five cases, courts granted new sentencing trials to the inmates to allow them fair trials untainted by consideration of race.

Despite this concession, Mr. Buck’s case has slipped through the cracks.  For complicated reasons related to the intricate litigation process in post-conviction proceedings, the issue related to the improper racial testimony and arguments 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.  Mr. Buck now faces execution on September 15, 2011.

The clemency petition filed today 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.”

Lawyers for Mr. Buck are also asking the Harris County District Attorney’s Office and the Attorney General of Texas to intervene and withdraw Mr. Buck’s execution date.  “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 Kate Black, counsel for Mr. Buck. “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.”

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.

NPR Examines Use of Psychological Assessment Tool

The NPR report by Alix Spiegel is, "Can A Test Really Tell Who's A Psychopath?"  Here's an excerpt from this must-read: 

Canadian psychologist Robert Hare began studying psychopaths in the 1960s, and it's easy to forget now — in part because Hare's work has made the concept of the psychopath so commonplace — but a half-century ago, research on psychopaths was considered both obscure and largely irrelevant to understanding crime.

Back then, Hare says, there was a very clear consensus about where crime came from: Criminals were made, not born.

"In those days, social factors, environmental factors were the explanation for all crime," Hare says. "When you're born, you're a blank slate, and I can train you to be anything you want — a doctor, a dentist."

Hare, for one, didn't fully buy this. He thought inborn personality was important. He says that as a psychologist, when he looked at people, he just saw incredible differences in temperament: differences in impulsivity, differences in the capacity for empathy, for feeling guilt.

"We have individual differences in intelligence," Hare says. "Well, we should have individual differences in the personality traits that are responsible or related to crime."
Robert Hare, the psychologist who created the PCL-R test for psychopaths, at first resisted giving the checklist to people in the criminal justice system. But he ultimately agreed to publish the test officially so anyone could use it.

Hare set out to dissect the personality traits that might predispose people to criminality. To do this, he recruited the help of inmates at a prison some 30 miles down the road from his office at the University of British Columbia.

"The offenders in those days had hardly ever been studied," Hare says, "and they were very interested in what I was doing. They would all volunteer. And in fact, one of the head inmates there — the one at the top of the heap — actually held a public address (because in those days they could congregate in groups of four or five hundred) and said, 'Look, this sounds interesting, I'm in.' And then everybody else said, 'I'm in, too.' "

Hare set up a lab and started pumping out studies on the prisoners.

And:

Ultimately, this work led Hare to theorize that people with psychopathic personalities were essentially emotionally deaf. They simply did not have the capacity to feel, in a firsthand way, emotions like empathy and love and remorse.

"It's sort of like trying to explain to a colorblind person what the color red is," Hare says. "Can we teach a colorblind person how to see red, what red is? You can have all the dictionary definitions you want, but the person will never quite get it."

The NPR series is a topic of a post at  the Forensic Psychologist blog post, "PCL-R inventor wringing his hands over forensic misuse."

The first part of NPR's series on the psychopathy industry aired today and the transcript is now online (HERE), along with my sidebar essay on the cultural history of psychopathy (HERE). Most fascinating to me is recent efforts by Robert Hare, inventor of the popular Psychopathy Checklist-Revised (PCL-R), to distance himself from growing evidence of its misuse in forensic contexts:

    While Hare remains a strong believer that his test works well for the kind of basic scientific research that it was originally designed for, he and others have begun to wonder if it does as good a job outside the lab.

    "I'm very concerned about the inappropriate use of this instrument for purposes that have serious implications for individuals and for society," Hare says. "It shouldn't work that way."

    In fact, Hare says, he is so disturbed by some of what he has seen as he has traveled through America training psychologists in use of the PCL-R, that he sometimes has trouble focusing on the way his test could be affecting people's lives.

    "I think about this periodically, and I probably try to suppress it," Hare says. "I do disassociate myself from it. I mean, if I thought about every potential use or misuse of the instrument, I probably wouldn't sleep at all."

Hare goes even further in a series of interviews with journalist Jon Ronson, author of the new book, The Psychopath Test. Over late-night drinks at hotel bars, he tells the author that he is especially chagrined at the PCL-R’s use by poorly trained and biased evaluators in Sexually Violent Predator (SVP) cases in the United States:

    “ ‘I tried to train some of the people who administer it. They were sitting around, twiddling their thumbs, rolling their eyes, doodling, cutting their fingernails – these were people who were going to use it.’

NPR has also assembled, "Expert Panel: Weighing The Value Of A Test For Psychopaths," by Patrick Waters.

Many psychologists believe that psychopaths are almost bound by nature to commit crime. So if psychopaths can be accurately identified, their menace to society can be contained. That's the hope, at least.

But there is real debate about how to diagnose a psychopath and the usefulness of the tools available to do it. A test developed by psychologist Robert Hare called the Psychopathy Checklist-Revised, or PCL-R, is widely used in the criminal justice system -- before trial, during sentencing and even in parole and death-penalty decisions -- to evaluate a person's psychopathic tendencies.

Some psychologists believe the PCL-R is a critical tool in predicting which offenders pose the greatest risk. Others see the test as too vulnerable to human bias and question its place in the criminal justice system. We asked three experts in the field of forensic psychology to weigh in.

The individual essays are:

• Masking Bias With Science by Karen Franklin
• Identifying The Bad Apples by Henry Richards
• An Unreliable And Stigmatizing Tool by John Edens

Related posts are in the mental illness and expert witnesses indexes.

A San Antonio Case Ends

"Former death row inmate agrees to life without parole," is the San Antonio Express-News report written by Craig Kapitan.

A former youth pastor who spent three years on death row for the murder of his pregnant teen girlfriend was given a new sentence Thursday: life in prison without parole.

In exchange for prosecutors no longer seeking the death penalty, Adrian Estrada, 27, agreed to forgo all rights to appeal the case.

A jury sentenced Estrada to death in 2007 for the Dec. 12, 2005, stabbing and strangulation of Stephanie Sanchez, 17. He had been a youth pastor at El Sendero Assembly of God when he impregnated the teen several times, according to testimony from his trial.

But during the sentencing phase, an expert for the state accidentally gave misleading information to jurors on the danger Estrada could pose to society in the future, the Texas Court of Criminal Appeals ruled last year. The appellate court ordered the punishment phase retried.

Defense lawyer Brian Stull, a North Carolina-based staff attorney for the American Civil Liberties Union's Capital Punishment Project, appeared to struggle with emotion Thursday as he read aloud a letter his client had written to the victim's family.

“I understand my actions have caused many people tremendous amounts of pain,” Estrada wrote. “I regret many things I did, particularly the way I treated (Sanchez).”

Estrada was too nervous to read the letter himself, Stull said.

And:

Although he's the first, Estrada might not be the only death row inmate who gets a second chance at punishment because of the erroneous testimony of prison expert A.P. Merillat, said Stull of the ACLU.

Merillat told jurors in the Estrada case that after 10 years in prison, Estrada could potentially be given a lower, less restrictive inmate classification that might result in him being put in the prison's general population. To give the death penalty, jurors have to decide a defendant would be a future danger to society, including fellow prison inmates.

Jurors mentioned the testimony in a note to the judge while deliberating.

“He has made the same error in other cases,” Stull said of Merillat. “We think it could have wide-ranging ramifications. Each case has to play itself out in court.”

The ACLU Capital Punishment Project, which represented Estrada, issued a news release, "ACLU Client Agrees To Life In Prison After Death Sentence Thrown Out Because Of False Testimony.  Death Penalty System In Texas And Across Country Riddled With Flaws And Errors."

An American Civil Liberties Union client whose death sentence was thrown out last year after the highest criminal court in Texas ruled it was based on the false testimony of a state expert agreed today to a new sentence of life in prison.

Adrian Estrada’s death sentence was thrown out last June after the Texas Court of Criminal Appeals found that A.P. Merillat, who investigates prison crimes for Texas, wrongly testified that, if allowed to live, Estrada could receive a prisoner classification that would allow him to leave the prison grounds. This testimony led the jury to find that Estrada posed a future threat to society. Merillat, who has testified in numerous other death penalty cases in Texas, told prosecutors after Estrada’s sentence was thrown out, “I don’t know if my presence in your courthouses would serve you or your cases well.”

“Death sentences such as Mr. Estrada’s that are based on false or misleading testimony are just one of the many fatal flaws of the U.S. death penalty system,” said Brian Stull, an attorney with the ACLU Capital Punishment Project. “The nation’s death penalty system is riddled with error and death sentences are handed out in unfair and unjust manners. This case provides clear evidence of the urgent need for Texas and all other death penalty states to abolish capital punishment and replace it with the sentence of permanent imprisonment.”

Jurors in Estrada’s 2007 sentencing trial were incorrectly told by Merillat that if Estrada were given a sentence of life without parole instead of the death penalty, he could be eligible for a classification level that would allow him to leave the prison grounds after 10 years of imprisonment. Two juror notes strongly suggested that Merillat’s false testimony led to their decision to sentence Estrada to death.

In a 66-page ruling issued in June, Jude Barbara Hervey of the Texas Court of Criminal Appeals wrote, “This information, now properly before this court, demonstrates there is a fair probability that appellant’s death sentence was based upon incorrect testimony as evidenced by the jury’s notes. We believe that the Supreme Court would find this to be constitutionally intolerable.”

Estrada agreed to his new sentence before state District Court Judge Sid Harle in Bexar County, TX.

Earlier coverage of Adrian Estrada's case begins at the link.

Related posts are in the expert witnesses, mitigation, and sentencing indexes.