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November 21, 2013

Split Texas appeals court refuses to allow additional habeas action for death row defendant complaining about racialized testimony

As reported in this local article from Texas, that "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." Here is more about the ruling and its context:

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.

Though there is no question about Buck’s guilt — he gunned down a former girlfriend and her male friend, shot his stepsister and targeted a fourth adult in Houston — his case has become a rallying point for judicial reformers and civil rights advocates, largely because of its racial overtones at trial.

The controversy centers on punishment-phase testimony by psychologist Walter Quijano, a defense expert who told jurors that Buck was less likely to pose a future danger — and therefore not eligible for the death penalty — because the crime wasn’t a random act of violence. But Quijano also testified, unprompted, that “Hispanics and black people are overrepresented in the criminal justice system.” On cross-examination, a prosecutor followed up by asking Quijano if race, particularly being black, increases a defendant’s future dangerousness “for various complicated reasons.” Quijano replied, “Yes.”

Buck was sentenced to death in 1997. Three years later, however, then-state Attorney General John Cornyn, now a U.S. senator, acknowledged that seven death penalty convictions — including Buck’s — had been improperly influenced by Quijano’s testimony linking race to dangerousness. The attorney general’s office did not oppose new punishment trials for the other six inmates to cure the constitutional defect.

State lawyers later decided, however, to oppose a new trial for Buck, arguing that his case was “strikingly different” because Quijano was a defense expert whose questionable testimony was elicited by a defense lawyer. Instead, lawyers for Texas argued that Buck should have objected to the racial testimony in his 1999 habeas petition. Because he didn’t, Buck lost his chance to appeal the matter, they argued.

On Wednesday, the Court of Criminal Appeals agreed, dismissing Buck’s latest habeas petition as improper. In her dissent, Alcala said she would have accepted the new petition because Buck’s 1999 appeal was so poorly done that it amounted to no defense at all, depriving a death row inmate of a full review of constitutional claims before his execution.

The two-page majority opinion in this case says nothing of substance, but the 30-page dissent has a whole lot to say.

November 21, 2013 at 08:09 AM | Permalink

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1.} Buck was sentenced to death in 1997.
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2.} “[T]here is no question about Buck’s guilt.”
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3.} The ineffective “racialized testimony” was given “by psychologist Walter Quijano, a defense expert who told jurors that Buck was .. not eligible for the death penalty .. [and] “Hispanics and black people are overrepresented in the criminal justice system.”
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There is every good reason to realise justice by executing the multi-murderer today.

Posted by: Adamakis | Nov 21, 2013 8:57:41 AM

1. Is he indisputably factually guilty? Yes.
2. Is he mentally competent? Yes.
3. Has the present question been fully litigated before? Yes.
4. Was the disputed testimony given by his own optional witness? Yes.
5. Is he a dangerous man by any standard? Yes.
6. Has this case dragged on for well more than a decade? Yes.

Good grief. It is FAILING to execute someone in those circumstances, not executing him, that brings the system into disrepute.

Posted by: Bill Otis | Nov 21, 2013 9:24:44 AM

Did they improperly invoke race to secure his conviction and death sentence? Yes.
Did the prosecutor's office and former attorney general promise to revisit this case and all the others where race was over played? Yes.
Was reconsideration undertaken and relief provided in every case but this one? Yes.
That is why the system is in disrepute.

Posted by: Cleveland Attorney | Nov 21, 2013 3:12:30 PM

I agree with Bill O. on this one, for the same reason I believe that George Zimmerman's self-defense claim was BS.

A person does not get to create a negative situation and then claim the benefit from it. It was the defense expert who screwed up so the defense gets no relief now. Period. End of story. For me it really is that simple.

Posted by: Daniel | Nov 21, 2013 5:02:48 PM

Cleveland Attorney --

It's noteworthy that you don't disagree with a single one of my six assertions.

As to yours:

"Did they improperly invoke race to secure his conviction and death sentence? Yes."

Who's the "they," how do you know, and how do you know specifically that the racial reference had any influence with the jury?

"Did the prosecutor's office and former attorney general promise to revisit this case and all the others where race was over played? Yes."

To revisit is not necessarily to reverse. And no consideration was given for that promise in any event.

"Was reconsideration undertaken and relief provided in every case but this one? Yes."

So what? Each case and each defendant is different, as defense lawyers often (and correctly) remind us.

Finally, the outrageous and absurd acquittal of child killer Casey Anthony -- to give one example -- did vastly more to bring disrepute to the system than this case will do in a thousand years. Our distinguished defense bar notwithstanding, the great majority of Americans actually WANT violent killers whose guilt is not in doubt to be executed.

Do you disagree?

Posted by: Bill Otis | Nov 21, 2013 6:09:13 PM

Race is not a factor of dangerousness. Bastardy is. So super dark skinned, pitch black immigrants have lower crime rates than whites. But they have families and family values, still untouched by the vile feminist lawyer.

To the extent that lighter black American skin is a reliable marker for bastardy, it is a reliable marker for dangerousness. American blacks are 6 times more violent than other groups.

Violent crime shot up in 2012. The Obama lawyers have removed the race of the perpetrators from the Crime Victim Survey. But one should assume, based on repeated past statistics, the increase is due to black violence, especially against whites, when the crime is between strangers.

Again, there are no real black Americans. The overwhelming majority of minorities in the US are all half white Southern trash. So Ivy race whore cry baby Louis Gates is mostly Irish or Scottish. He had his DNA analyzed on Public TV. This harsh reality, he isn't even black, but a phony black, is glossed over in this left wing propaganda rag.

http://www.nytimes.com/2010/02/10/arts/television/10faces.html?_r=0

Posted by: Supremacy Claus | Nov 21, 2013 6:53:09 PM

How hard is this?

1. IAC is a weak claim. The clear rationale for offering up Quijano is the argument that even this guy, who thinks African-Americans have a higher dangerousness rate thinks this murderer isn't. That's a strategic decision, and so it is virtually unchallengeable. That's not a politically correct position for me to take, but it's unimpeachably right. So this dissenter, with all her fulmination, is basically a fool.

2. IAC is the only way that the case can be reversed on the basis that the evidence never should have been in front of the jury--unless one believes that a defendant can introduce error at trial and then be heard to complain about it. Last I checked, unless you're Ronnie White, sandbagging doesn't get a reversal.

3. The prosecution having the statement repeated. This is as weak as it gets. First of all, the defendant (other than in the IAC context) simply cannot be heard to complain about the repetition of evidence that was in his case-in-chief. I guess in the minds of liberal judges hell-bent on saving murderers, there's an exception for this sort of evidence. But that's completely unprincipled. And, the defense didn't object . .. .

4. The argument that because Texas confessed error in other cases that it must here is weak. Last I checked, there's no constitutional requirement that litigants must take identical litigation positions in similar cases, let alone those with factual dissimilarities. The "wise [sic] Latina" must have missed that day in law school. Her opinion in Buck v. Thaler is just godawful--particularly coming after a full round of habeas.

This is truly an easy case.

Posted by: federalist | Nov 21, 2013 10:52:32 PM

I believe that it is wrong to deny capital habeas on res judicata grounds when there is serious under representation by counsel.

Posted by: Just Plain Jim (Just Another Guy) | Nov 22, 2013 4:41:10 AM

Jim. The amount of second guessing after an adverse verdict may approach infinity in number.

Posted by: Supremacy Claus | Nov 22, 2013 8:00:38 AM

All cases of inadequate representation should be referrens tothe Disciplinary Counsel and to a lawyer malpractice firm, as a per tort.

Posted by: Supremacy Claus | Nov 22, 2013 9:31:02 AM

The judge who wrote the dissent is an ultra-conservative Republican - a Rick Perry appointee - whose husband is a Houston police officer. If she's got problems with the ruling, we're not talking about concerns that appeal only to liberal anti-death penalty hacks, there are real issues at stake.

Posted by: Gritsforbreakfast | Nov 22, 2013 6:42:43 PM

Grits: And Scalia is a leader in the release of the predators supporting all the decisions to open the prisons, and writing the opinion in Blakely. The rent above nation, and the betrayal of the American people is as rampant among the Republicans as among the Democrats. The latter are bit less hypocritical.

There will be many conservative jurists on the arrest list when the time comes to kill the lawyer hierarchy.

Violent crime is shooting up, contrary to the lawyer propaganda being put out by the left. That is a direct result, and highly foreseeable consequence, of the protection of the criminal by the lawyer traitors to the country. This protection has a pious veneer of constitutional rights, many invented, but is cheap and tawdry rent seeking, stealing from the tax payer, in bad faith by the criminal cult enterprise.

Posted by: Supremacy Claus | Nov 23, 2013 5:22:12 AM

Grits unwittingly proves my point. He points to the fact that the outraged judge is a conservative to argue that Buck's case has merit. That's the same sort of argument that Buck's attorney was making, i.e., even this guy, who thinks blacks are more likely to reoffend, thinks this guy doesn't need to be executed. Or even more--this guy, who often testifies for the sttate doesn't think my guy should die.

How is this IAC?

My sense is that Grits can't really deal with this case on the merits. So, because he doesn't like the result, he will simply use the fallacious appeal to authority to make his point. In other words, he won't dare tangle with federalist on this one.

Posted by: federalist | Nov 23, 2013 11:38:54 AM

SC, I take no position on the merits because I haven't read the opinions and know little about the case beyond the press coverage. I'm just reacting to the asinine demagoguery in the comments about "liberal judges hell-bent on saving murderers," etc..

Oh, and you're still a nutjob.

Posted by: Gritsforbreakfast | Nov 25, 2013 9:39:04 AM

Duane Buck: Racism Claims Are Total Fabrication
Dudley Sharp

Falsely invoking racism, as with the Duane Buck case, is just another example of how death penalty opponents will apply any deception, no matter how vile, to achieve their ends (1).

The problem for Buck and his supporters is that Dr. Quijano's entire testimony, with regard to Buck, specifically, was that Buck was at reduced risk of being a future danger, the opposite of the death penalty opponents claims. No surprise.

To repeat, from US Supreme Court Justice Sotomayor in her dissent, IN FAVOR OF BUCK: “In this case, first on direct examination by the defense, Dr. Quijano merely identified race as one statistical factor and pointed out that African-Americans were over represented in the criminal justice system; he did not state a causal relationship, nor did he link this statistic to Buck as an individual”

The alleged racist component from the trial never existed.

Sotomayor attempted to create a racism based claim, by taking a prosecutor's inference out of context, an inference which never stated that Buck was af future danger based upon race.

"Moreover, the prosecutor did not revisit the race-related testimony in closing or ask the jury to find future dangerousness based on Buck’s race." (2).

Even Texas Court Of Criminal Appeals (TCCA) Justice Alcala (3) , who dissented, IN FAVOR OF Buck, recognized Sotomayor's obvious error:

Alcala writes: "As to (Buck's) second claim (based upon racism) , I conclude that (Buck) has failed to make out a prima facie case for discriminatory intent in the prosecution's decision to seek the death penalty in his case." (3). "intent".

Alcala thought this such a minor issue that she didn't even bother to respond to the claim in the body of her opinion, but only in a footnote (3).

Death penalty opponents just carried a dishonest claim forward, and made it their own (5). Nothing new.

balance at
http://prodpinnc.blogspot.com/2013/11/duane-buck-false-claims-of-racism-more.html

Posted by: Dudley Sharp | Nov 28, 2013 7:38:55 AM

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