Saturday, August 17, 2013

Because Guilt Is Only Part of the Story

As I said, I'm spending a few days this week at a capital defense seminar.  Late stage stuff.  Habeas.  A couple of hundred of us are hanging out, sitting in plenary sessions and break-outs.  The speakers share thoughts about how to benefit from good court decisions and how to try and avoid the worst consequences of bad ones.  We talk about investigating case, picking juries, dealing with our clients' mental health issues.  How to get back into court and seek relief when you've found serious evidence that the client is innocent.  And more.

Hovering over all that is the awful specter of race.

The thing is, it's not just the outright racists.  There's the subtle stuff, the winces the head turned away.  Crossing the street.  

And there's the official stuff.  The kind of thing Judge Scheindlin denounced New York City and its cops for doing.

There's also, and I'm getting to the point now, Duane Buck.

Duane Buck is the guy in Texas who sits on death row because . . . .  Hell, I'm not going to reinvent the wheel.  Here's the story as I've written it before.
Seven people in Texas were sent to death row in part because psychologist Walter Quijano told their juries that as blacks or Hispanics they were more likely to commit future violent crimes than if they had been white.
Quijano shouldn't have done that.  What he said is factually wrong; there is no basis for the conclusion that blacks and Hispanics are more violent than whites. What he said is morally offensive; it is racism in action, regardless of whether Quijano thinks so.  What he said, in the context of a trial, is legally improper; considerations of race have no place in the criminal justice system.  What he said, in the context of a trial, is unconstitutional; it made the sentences, at least in part, dependent on race in violation of the Equal Protection Clause of the Fourteenth Amendment.
Then Texas Attorney General John Cornyn (he's now a U.S. Senator) recognized that what Quijano did was inexcusable and its effect on the sentences unacceptable.  He supported vacating those sentences.  Of the seven people whose death sentences were infected by Quijano's claims, six had their death sentences vacated and received new sentencing hearings.  The seventh is Duane Buck.
Duane Buck has been through the court system.  At the end of the last round of litigation, the white-sheeted black-robed Supremes refused to hear his case.  

Justice Alito explained (and I'm paraphrasing) that what Quijano said was bizarre and objectionable and dammit, just wrong.  It would be wrong to execute a man under the circumstances.  But it would be even more wrong for us even to consider doing something about it, because then we'd be treating fairness and decency and morality and the Equal Protection Clause of the Constitution as more important than a procedural technicality.  (Scalia and Breyer signed on to that opinion.)

Justice Sotomayor also wrote.  (Again, this is paraphrase.)  It's a fucking outrage.  Alito and the boys are moral reprobates, racist pigs.  It's they who deserve to be executed.  (Kagan signed on to that.)

At the seminar this morning, Christina Swarms talked about the case.  Duane Buck is back in the Texas courts so they can decide whether to do the right thing and order a new sentencing hearing for him.  One that won't be infected by racism.  She told us the frankly amazing story of how his case got there.

In a couple of weeks, it'll be 50 years since Martin Luther King, Jr., told the world, and 300,000 or more people on the national mall, that he had a dream.

At the end of her talk this morning, Christina Swarms finished her talk.  Then she showed the video.  A couple of hundred capital defense attorneys - lone woves, hard as nails, seen it all.   Sat in silence.  And watched.  Some cried.


  1. Isn't the problem with the 14th Amendment EP theory the fact that it was the defendant's lawyer who elicited the racial comparison? Hard to make that into state action.

    On the other hand, an ineffective assistance claim seems pretty apt -- except that defendant may not be able to show prejudice.

    1. Of the six folks who got relief when Texas confessed error, two others had Quijano as a defense witness. And the state ran very hard with the racist claim.

      There are all sorts of arguments that can be made over this and have been. Many are legally foreclosed. But it remains that Texas promised relief to all these guys and then didn't deliver to Duane Buck.

  2. I read your "blawgs". I am so proud of you as a human being. You stick to your guns. You have an amazing talent in journalism as well. Who knows, if you weren't an attorney you could be writing for the Harold or the Times... You have personally given me a little glimmer of hope for the justice system again. If only all attorneys, prosecutors, judges ect. kept their morality like you. You make this world a better place. I hope that one day the world can be open to your wisdom. I wish you many, many blessings. I know that they are already coming your way...