From Warren McCleskey to Duane Buck

 I. Warren McCleskey

Warren McCleskey was on death row in Georgia.  His claim before the Supreme Court, when you cut to the chase, was that Georgia's death penalty system was infected with racial bias.  The claim wasn't merely anecdotal.  Justice Lewis Powell wrote for a 5-4 majority in McCleskey v. Kemp.

In support of his claim, McCleskey proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970's. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants.

Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims.  Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims. 

Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.

Powell accepted the Baldus study as reliable and then said that it didn't matter.   There were two basic problems. (I'm oversimplifying a lot; but for purposes of this post that's not significant.)

First, the statistics didn't prove that McCleskey himself was sentenced to die because he was black and had killed whites.  The Baldus study may have demonstrated that race impermissibly affected the death penalty system in Georgia but it didn't show that consideration of race was responsible for McCleskey's death sentence, that it was a factor in his particular case. 

Second, if the Court were to acknowledge that racism so fucked up the death penalty system that it was fundamentally unfair, then the Court would have to admit that the same was true of the entire criminal justice system.  And beyond racism, the system is improperly affected by all sorts of considerations.  If McCleskey won, the whole damned arbitrary and discriminatory criminal justice system would collapse.  The system was rotten to the core.  Either we accepted it that way or we'd have to fix it.  And really, it was beyond repair.

Powell didn't put it that way, of course.  Instead, he said this (footnotes omitted).

McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties.  Solem v. Helm,  463 U. S. 277, 289-290 (1983); see Rummel v. Estelle, 445 U. S. 263, 293 (1980) (POWELL, J., dissenting). Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant's facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey.

The building that houses the United States Supreme Court is a majestic marble palace.  Atop the steps, above the bronze doors and the Corinthian columns, over the main entrance (through which you can't enter or the terrorists will win, so sayeth John Roberts), it says 

EQUAL JUSTICE UNDER LAW

Which is a noble sentiment.

Warren McCleskey was killed.

Racism survived.

II. Victor Saldaño

Victor Saldaño was on death row in Texas.  He was there, at least in part, because of psychologist Walter Quijano.  Here's how it happened.

Under Texas law, when it's deciding whether to impose a death sentence, a jury is required to decide whether the person it found guilty of capital murder will, if not killed, pose a threat of further criminal violence.  That is, will the killer likely do it again?

Predicting future dangerousness is, mostly, kind of like throwing darts blindfolded.  It's pretty much random guesswork.  Psychiatrists and psychologists aren't much better, if better at all, than the rest of us at it.  But they have those degrees.  They're experts.  They sound authoritative.  And in Texas they try to answer the question.  Juries like that.  

(Consider Dr. James Grigson, who claimed he never made a mistake in finding that everyone he ever examined would kill again - not even when he testified that Randall Dale Adams, who turned out to be factually innocent and hadn't killed before, would surely kill again.  It was bullshit, pure and unalduterated.  And juries ate it up.  He explained that he made jurors feel good about imposing death sentences.)

Quijano was one of the psycho whores.  Steven Kraytak blogging for the Austin American-Statesman:

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.

Quijano did that in Victor Saldaño's case.  And when his case went up on appeal, something quite extraordinary happened.  John Cornyn, then Texas Attorney-General (now United States Senator), said that it was wrong. Quijano's testimony unfairly and improperly injected race into the sentencing proceedings.  And that made the sentencing unfair.  Saldaño should get another crack at it.

And not just Saldaño.  Cornyn identified six others on death row whose sentences were similarly infected by Quijano.  They should all, he said, get new sentencing hearings.

Saldaño and five of the others did.

Duane Buck did not.

He is scheduled to be murdered by the people of Texas on Thursday.

III. Linda Geffin

Duane Buck was tried and sentenced to die in 1997 in Harris County, Texas.  Second chair prosecutor in that case was Linda Geffin.  Monday, she sent a letter to the Board of Pardons and Paroles, to Governor ("I've never struggled with [the possibility of killing innocent folks] at all") Perry, to Texas Attorney General Greg Abbott, and to Harris County District Attorney Pat Lykos.

From time to time it is necessary to praise someone who works on the dark side.  This is such a time.

Linda Geffin didn't say she's now opposed to the death penalty.  She didn't say Duane Buck shouldn't be punished.  She didn't even say he shouldn't be killed.  She said he should have a fair sentencing.  One that isn't infected by unconstitutional considerations of race.  If he can't have that, he shouldn't be killed.

Mr. Buck committed a terrible crime, and he must be punished. 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." It is· regrettable that any race-based considerations were placed before Mr. Buck's jury. No individual should be executed without being afforded a fair trial, untainted by considerations of race.

Take that Lewis Powell.

IV. Duane Buck

Texas plans to kill Duane Buck on Thursday.  We'll see.

Linda Geffin Letter

H/t StandDown Texas Project

But Hey, Who Cares?

It was my plan to write about Billy Wayne Coble, more precisely, to write about the opinion in Billy Wayne Coble v. The State of Texas issued this morning by the Texas Court of Criminal Appeals.  More precisely still, I was going to write about what the CCA had to say about psychiatrist Richard Coons who testified for Texas.

Quick back-up.  In 1990, Coble was convicted of capital murder and sentenced to death for the killing of his wife's mother, father, and brother.  In 2007, the Fifth Circuit affirmed his conviction but reversed his death sentence and ordered a new sentencing proceeding.  In 2008, Coble was again sentenced to be killed.

Now, and here's where Coons comes into the story, in deciding whether someone convicted of capital murder should be killed, the jury in Texas is required to say

whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

Put aside the oddness of the phrasing.  Ignore to the fact that absent theoretical impossibility, there is no such thing as a probability of zero so that the technical answer will always be yes, there is some probability, however remote.  What the jury is being asked to decide is whether this guy (or gal) will pose a continuing threat if not killed.  Oh, and although if sentenced to life the person will, by law, never be out on the street again, the jury may answer "yes" on the theory that while harmless behind bars, the person might be violent if released.

It's a silly question not just because of how it seems to work but because, as even the CCA acknowledges, we really have no way of predicting.

Still, predict we do.  The jury may rely solely on the facts of the crime.  (Gee, it was awful, so yes.)  But typically - at least in a decently tried case - there will be more.  The defense may put on a psychiatrist or psychologist to explain that using various standard risk-assessment scales, the person is remarkably unlikely to hurt anyone.  In Coble's second sentencing proceeding the defense did that.  The defense also put on evidence that during 18 years in prison, he was a terrific prisoner.  He didn't just stay out of trouble.  He was a positive influence.  Lots of good stuff.  The state put on its own expert (Coons, see, we get to him) who said, and I'm oversimplifying but not a lot,

I've examined lots of people.  I've testified in 50 capital cases.  Coble will be dangerous.  I don't have any actual studies to back up my system for figuring this out, and other psychiatrists would disagree with me, and certainly I just made up the system I use for predictions and I've never bothered to check and see if my predictions are accurate, but I am a psychiatrist so of course I know what I'm talking about.

That's my paraphrase.  Here's part of what the CCA wrote.

All of these factors overlap and blend, but Dr. Coons knows of no book or article that discusses these factors or their overlap. He is not aware of any studies in psychiatric journals regarding the accuracy of long-term predictions into future violence in capital murder prosecutions or of any error rates concerning such predictions. Nor is he aware of any psychiatric studies which support the making of these predictions. Dr. Coons has never gone back and obtained records to try to check the accuracy of the “future dangerousness” predictions he has made in the past. He cannot tell what his accuracy rate is.
On redirect, the prosecutor asked Dr. Coons to read from a legal brief containing the names and titles of some articles on future dangerousness that had been filed in a different case, but Dr. Coons was not familiar with any of those articles.

Texas juries have been sentencing men and women to die for over 30 years based on this sort of testimony.  To say that it's worthless is to give it far too much credit.

For years, Texas relied on Dr. James Grigson (Dr. Death, we called him).  Before he was kicked out of the American Psychiatric Association, he went around explaining that he could tell who would kill again.  He was, he said, never wrong.  Evidence to the contrary was meaningless, he said.  He was a compelling, if horrific, witness.  But what he did, he explained to a reporter, was make the jurors feel good about their decision to sentence to die.  So with Coons.

But now, as of this morning, maybe no more with Coons.  Here's the CCA again (I'm omitting footnotes).

Here, there is no question that Dr. Coons is a genuine forensic psychiatrist with a lengthy medical career, but the issue under Rule 702 is whether his “future dangerousness” testimony is based upon the scientific principles of forensic psychiatry. 
From this record, we cannot tell what principles of forensic psychiatry Dr. Coons might have relied upon because he cited no books, articles, journals, or even other forensic psychiatrists who practice in this area. There is no objective source material in this record to substantiate Dr. Coons’s methodology as one that is appropriate in the practice of forensic psychiatry. He asserted that his testimony properly relied upon and utilized the principles involved in the field of psychiatry, but this is simply the ipse dixit of the witness. Dr. Coons agreed that his methodology is idiosyncratic and one that he has developed and used on his own for the past twenty to thirty years. Although there is a significant body of literature concerning the empirical accuracy of clinical predictions versus actuarial and risk assessment predictions, Dr. Coons did not cite or rely upon any of these studies and was unfamiliar with the journal articles given to him by the prosecution.
Dr. Coons stated that he relies upon a specific set of factors: history of violence, attitude toward violence, the crime itself, personality and general behavior, conscience, and where the person will be (i.e., the free community, prison, or death row). These factors sound like common-sense ones that the jury would consider on its own, but are they ones that the forensic psychiatric community accepts as valid? Have these factors been empirically validated as appropriate ones by forensic psychiatrists? And have the predictions based upon those factors been verified as accurate over time? Some of Dr. Coons’s factors have great intuitive appeal to jurors and judges, but are they actually accurate predictors of future behavior? Dr. Coons forthrightly stated that “he does it his way” with his own
methodology and has never gone back to see whether his prior predictions of future dangerousness have, in fact, been accurate. Although he had interviewed appellant before the first trial in 1990, Dr. Coons had lost his notes of that interview in a flood and apparently had no independent memory of that interview. He relied entirely upon the documentary materials given to him by the prosecution, including his 1989 report. Dr. Coons, therefore, did not perform any psychiatric assessment of appellant after his eighteen years of nonviolent behavior on death row, nor did he refer to any psychological testing that might have occurred in that time frame.
Based upon the specific problems and omissions cited above, we conclude that the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coons’s methodology for predicting future dangerousness by clear and convincing evidence during the Daubert/Kelly gatekeeping hearing in this particular case. We conclude that the trial judge therefore abused his discretion in admitting Dr. Coons’s testimony before the jury.

It's really quite extraordinary.  Of course, there are all those other folks about whom Coons testified.  I don't know who they are (I imagine we'll learn in the next few days), but I wouldn't be shocked to find out that some have been executed based, in large part, on Coons' psychiatric blather.

Back in 1996 or thereabouts, I cut this story out of somewhere or other and stuck it in a file-folder.

In the New Mexico Legislature’s 1995 session, Sen. Duncan Scott, a Republican from Albuquerque, proposed an amendment to a psychologist regulatory bill offered by another
senator. The Scott amendment would have dramatically changed the face of New Mexico’s legal system: The amendment said: “When a psychologist or psychiatrist testifies during a defendant’s competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts.
“Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong.” The bill, with the wizard amendment, passed the Senate by voice vote and cleared the House 46-14.
Unfortunately, Gov. Gary Johnson vetoed the legislation.

But I digress. For while the CCA made a surprisingly robust and important ruling, it does Billy Wayne Coble no good.

Because, you see, there was all that other evidence that despite 18 years of nonviolence, Billy Wayne was just biding his time.  At the 2008 sentencing trial, he turned a number of times to look at his ex-wife in the gallery with what she described as a "weird evil grin."

So even without Coons, the jury would have sentenced him to die.

Anyway, I was going to write that post.  But then my friend Hilary sent me this AP story.  And how could I not praise the willingness of the federal prosecutor in Detroit to do the right thing and drop the criminal charges it just brought against a dead man.

Good for that AUSA.  Good for the government.  Just as soon as the late Herbert Daniels, Sr. proves that he is, in fact, late, the government will abandon the effort to convict him of running an illegal lottery.

Close enough for government work.

Rick Got His Gun

If, like me, you've been watching to see how District of Columbia v. Heller (the case where the Court declared that the Second Amendment provides an individual and fundamental right to keep and bear arms) shakes out, we're starting to get some signs.

The Second Circuit in Maloney v. Cuomo, and the Seventh Circuit in N.R.A. v. Chicago, say regardless of Heller, the Second Amendment doesn't apply to the states but only to the federal government. The Ninth Circuit, in Nordyke v. King disagrees. Sonia Sotomayor was on the panel that decided Maloney which may make it unlikely that the Court will take that up, but N.R.A. seems a likely pick for a cert. grant.

And then, and with thanks to The Volokh Conspiracy for pointing it out, there's United States v. Engstrum, a case in the United States District Court for the District of Utah. Engstrum addresses 18 U.S.C. 922(g)(9) which makes it a federal crime for a person, say, Rick Engstrum who has been convicted of a misdemeanor offense of domestic violence to possess a firearm. Charged with violating that section, Engstrum moved to dismiss the charges because, since the Second Amendment provides an absolute and unlimited right to keep and bear arms, the prohibition is unconstitutional.

In an opinion in April, Judge Stewart rejected that argument. Heller makes plain, he found, that the Second Amendment right is fundamental, but it's not absolute and it's not unlimited. Applying the strict scrutiny to a statute that infringes a fundamental right, Stewart concluded that 922(g)(9) is constitutional because it entails a presumption that persons convicted of misdemeanor domestic violence pose a prospective risk of violence. However, it follows that the statute would be unconstitutional if applied to a person who poses no prospective risk of violence.

This week, though, the judge decided that if Engstrum can present sufficient evidence that he's not dangerous, the jury will be instructed this way:

The Second Amendment to the United States Constitution guarantees the fundamental right of individuals to keep and bear arms. That right may only be infringed when the restriction is narrowly tailored to meet a compelling government interest. You are instructed that 18 U.S.C. § 922(g)(9), the crime for which Defendant is charged, is, as a matter of law, a lawful and constitutional restriction of the Second Amendment rights of those who pose a prospective, or future, risk of violence.

If you find that the government has proved beyond a reasonable doubt the elements of the charge against him, as set forth in Jury Instruction Number ____, regarding Count I, you are instructed that Defendant is presumed to pose a prospective risk of violence. However, Defendant is entitled to offer evidence to rebut that presumption and show that he did not pose a prospective risk of violence. It is the burden of the defendant to prove to you, by a preponderance of the evidence, that he did not pose a prospective risk of violence.

Therefore, if you find that the Defendant did not pose a prospective risk of violence, he may not be deprived of his Second Amendment rights, and you must find him not guilty.

However, if you find that the government has proved beyond a reasonable doubt the elements of the charge against him, and that the Defendant has not proved, by a preponderance of the evidence, that he posed no prospective risk of violence, you must find the Defendant guilty.

Another time we'll talk about the intellectual dishonest of the Heller decision which reached the right result but for the wrong reason.