Monday, November 7, 2011

Sure it's racist. What's your point?

Here's Samuel Alito, that's Associate Justice Samuel Alito of the Supreme Court of the United States, explaining the problem.
The petition in this case concerns bizarre and objectionable testimony given by a “defense expert” at the penalty phase of Buck’s capital trial.
"[B]izarre and objectionable."  You won't see that sort of language often from the most conservative, law and order, member of the Supreme Court in his summary of the facts about which a condemned guy complains.  Of course, there aren't that many cases like Buck v. Thaler.  Or, sadly, maybe there are.  It probably depends on how you're counting.
I've written about Duane Buck before.  Here's the summary plot from one of those posts.
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.
I wrote that on September 13th.  Texas had planned Buck's murder on the 15th, but that day, and some two hours into the killing window, the Supreme Court called a halt so it could decide what to do.  I wrote then:
In a few months, the Court will decide whether to hear the case. 
Until then, Duane Buck lives.
And maybe, just maybe racial injustice moves one baby step toward its demise.
Nah.  That's too much to hope for.
Today's the day.  And even Alito (joined, I should add, by Scalia and Breyer), recognizes the basic truth.
Bizarre and objectionable.
Wait.  No.  That's not the basic truth. That's a pesky complication. The basic truth is that Texas should get to kill Duane Buck because his trial lawyer's the one who got Quijano to say that Buck was more likely than most folks to commit crimes because he's black.  Alito (joined by and his band of brothers) explained.
Dr. Quijano’s testimony would provide a basis for reversal of petitioner’s sentence if the prosecution were responsible for presenting that testimony to the jury. But Dr. attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness.
Alito doesn't use the term, but he's talking about a close cousin of what's called invited error.  The idea, and it's not absolutely nuts, is that you can't complain that the judge was wrong to grant your request or motion or objection or whatever.  You can't, that is, complain that you shouldn't have gotten your way.  This isn't quite the same thing, but you can see the connection.
Buck's trial lawyer had a report from Quijano saying that one of the things he looks at in assessing future dangerousness is that black's are especially dangerous.  [That's nonsense, of course, but a different issue.]  So when he asked Quijano, 
[i]f we have an inmate such as Mr. Buck whois sentenced to life in prison, what are some of the factors, statistical factors or environmental factors that you’ve looked at in regard to this case?
He pretty much either knew what he was gonna get.  Hell, he put Quijano's report into evidence even though the prosecutor objected.  Of course, the prosecutor didn't exactly shy away from the racism of it all.
Q. You have determined that the sex factor, that a male is more violent than a female because that’s justthe way it is, and that the race factor, black, increasesthe future dangerousness for various complicated reasons; is that correct?
A. Yes.
But, as Alito said,
[T]he responsibility for eliciting the offensive testimony lay squarely with the defense.
And you really should have learned the basic rule by now.
If the lawyer fucks up, kill the client.
In Parents Involved in Community Schools v. Seattle School District No. 1,  Chief Justice Roberts  wrote  about racism, and though his point in that case was both wrong and offensive, the words he used have some resonance.
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
He had nothing to say about Duane Buck.  Nor did the only African-American Justice, Clarence Thomas who once complained that he was the victim of a "high tech lynching." Nor the Court's longest serving woman, Ruth Bader Ginsburg, the one who as a powerful advocate before the Court almost single-handedly (yes, I'm exaggerating, but not all that much) forced it to confront and begin to redress discrimination against women.
Sonia Sotomayor, on the other hand and joined by Elena Kagan, dissented.
Today the Court denies review of a death sentence marred by racial overtones and a record compromised bymisleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent and vote to grant the petition.
Which is something, I suppose.  
But not nearly enough.
And cold comfort to Duane Buck.


  1. I'm curious about what happened to any ineffective assistance claims that were presumably part of the habeas case. It seems pretty obvious that this lawyer was not thinking through his mitigation case very well.

  2. It's a fair question, and one I haven't bothered looking into. My guess is that, given the standards for IAC claims, it was quickly and easily (if not wisely) dismissed by the courts.