Later On

A blog written for those whose interests more or less match mine.

Who Is Dangerous, and Who Dies?

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Errol Morris writes in the NY Times:

The death penalty, like abortion, is one of those hot-button topics that keeps popping up into the public consciousness, a roach motel for meretricious ideas and bad public policy — including racism. I would bet that if it involved putting white people to death for killing black people, it would have been abolished years ago. Still, it persists. Except our society — until recently — has come to believe that overt expressions of racism might not be a good thing. Better to keep a fig leaf over it than to explore its underbelly.

In 1972, the Supreme Court found in the 5-4 decision of Furman v. Georgia that the death penalty as practiced in this country was unconstitutional under the Eighth and Fourteenth Amendments. But the majority couldn’t agree on a rationale for its decision, so instead of one majority opinion, five separate concurrences were produced. While Justices Brennan and Marshall found the death penalty itself to be cruel and unusual punishment, Justices Stewart, White and Douglas focused on its arbitrariness, leaving the door wide open for states to rejigger their statutes and return to executions.

In 1973, Texas did just that — the sentencing phase of a capital trial was separated from the guilt phase, and the jury was asked to consider “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society [future dangerousness].” In response to the Furman decision, Governor Preston Smith commuted the death sentences of 52 inmates in Texas, clearing out death row entirely. In 1976, consolidating cases from five different states (Georgia, Florida, Texas, North Carolina and Louisiana), the court in Gregg v. Georgia found that the death penalty was not unconstitutional in every case. Executions in Texas, now by lethal injection — Old Sparky, the Texas electric chair, had been retired — started back up in 1982.

I first became involved with all this while making my film “The Thin Blue Line.” I had read about Dr. James Grigson, an expert witness regularly called by the state of Texas. Some referred to him as “Dr. Death” because he would routinely find that the defendant posed a risk of future dangerousness, and thus should be executed. I met with Dr. Grigson in 1985, and on his recommendation I started interviewing Texas death row inmates. Among those Dr. Grigson had testified posed a risk of future dangerousness was Randall Dale Adams, a convicted cop killer — or at least, so it seemed.

My film was finished, and Mr. Adams was exonerated. I had thought — stupidly, it turned out — that Dr. Grigson had been put out of business. Not so. The “dangerousness” provision of the Texas law remained very much in place. But I forgot about it. I had done my fair share of good — got an innocent man out of prison.

Then, not long ago, I read about the case of Buck v. Davis, decided by the Supreme Court on Feb. 22. Duane Buck had been convicted of capital murder in 1997. He killed his ex-girlfriend and one of her friends. The details of the crime are appalling, but no less appalling is that Dr. Walter Quijano discussed Mr. Buck’s race as a factor in determining his future dangerousness. African-Americans, Dr. Quijano argued, are more likely to commit acts of violence. Though Dr. Quijano opined that Mr. Buck was not a risk of future dangerousness, his testimony about race remained an element for the jury to consider.

Dr. Quijano has given similar testimony in other death penalty cases since 1991. Prompted by the Supreme Court’s decision in Saldaño v. Texas (2000), which vacated the sentence of Victor Hugo Saldaño because Dr. Quijano had testified that Mr. Saldaño’s Hispanic ethnicity made him a greater risk of future dangerousness, State Attorney General John Cornyn promised that his office would not object if the other defendants (Mr. Buck among them) sought to overturn their death sentences based on Dr. Quijano’s testimony. In Mr. Buck’s case, though, they did object, claiming that since it was the defense attorney who put Dr. Quijano on the stand and allowed his testimony into the record without objection, the State of Texas owed the defendant nothing.

I called Mr. Buck’s attorney Christina Swarns, litigation director of the NAACP Legal Defense & Educational Fund Inc., to discuss the case.

CHRISTINA SWARNS: Thank you so much for reaching out about the Duane Buck case.

ERROL MORRIS: It brought alive a lot of feelings that go back so many years. One of the horrors of the “Thin Blue Line” case involved the prediction of future violence. You had a psychiatrist, “the hanging psychiatrist,” Dr. James Grigson, who would make predictions of future violence based on a diagnosis of sociopathy. He would testify the defendant is a sociopath and will kill and kill again. I am offended that this law still exists. I believe it came out of the Dallas district attorney’s office and was written with Dr. Grigson in mind. Various prosecutors thought: “We have these psychiatrists in our hip pocket. Why not fashion a law which will allow us to make use of this in the courtroom?” And that is exactly what they did, except they overplayed their hand. As a result many of these cases were retried on grounds of improper jury selection and Fifth Amendment violations. And then 25 years later, along comes Duane Buck.

CHRISTINA SWARNS: Everyone was horrified by the fact that the damaging testimony was introduced by the defense counsel. It explicitly, out loud, links race to dangerousness. This is not implicit bias; this is explicit, first-generation racism. This is the good old stuff. And that’s bad, but it’s even worse that his own lawyer brings it in.

ERROL MORRIS: Not ineffective counsel, but counsel actively undermining the case.

CHRISTINA SWARNS: Predictions of future dangerousness are absurd, and then to be put in a capital punishment box which is already so contaminated by racial bias. The introduction of evidence linking race to dangerousness — like that which was presented in the Duane Buck case — was an inevitable product of future dangerousness in the capital punishment system in Texas. Because the Texas death penalty system was already so contaminated and corrupted by racial bias, the Duane Buck death sentence was a predictable outcome of that mess.

ERROL MORRIS: And yet you kept losing in the courts.

CHRISTINA SWARNS: Yes. For me, having litigated it for the last six years, I was astonished every time we lost. Clearly someone is going to correct this thing. It plays on so many of the obvious flaws in the system.

ERROL MORRIS: Can you tell me about the attempts made “to correct this thing”? . . .

Continue reading.

Written by LeisureGuy

7 June 2017 at 12:40 pm

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