Texas Death Penalty Two-Step

November 8, 2011

Texas FlagOne step forward, one step back.  Usually, the U.S. Supreme Court has been the one to scrutinize the shenanigans of Texas capital punishment, and to step in when local courts go too far.  But yesterday was opposite day.  It was the Texas Court of Criminal Appeals that did the right thing in staying an execution, and the U.S. Supreme Court that refused to intervene despite an obvious and disturbing injustice.

In the Supreme Court case, Buck v. Thaler, Duane Buck was sentenced to die by a jury that heard an “expert” – Dr. Walter Quijano – testify that African Americans are more inclined to commit crimes and be a danger to others.  (Buck is African American and you have to be considered a “future danger” to get a death sentence in Texas.)

Buck is seeking a new sentencing hearing because this testimony is … you know …  racist.  But the Supreme Court didn’t think it was important and chose not to intervene.  The Justices who defended this decision agreed that the testimony in question was indeed “bizarre and objectionable”. But that didn’t matter, because it was the defense who called Dr. Quijano to the stand.  If the prosecution had introduced this testimony it “would provide a basis for reversal”, wrote Justices Alito, Scalia, and Breyer.

The Court’s two newest members, Sotomayor and Kagan, disagreed, writing that Buck’s death sentence was “marred by racial overtones” that “our criminal justice system should not tolerate”.  They also pointed to other cases where Dr. Quijano (who has provided such race-based testimony many times) was called by the defense but relief was nonetheless granted.

But, for the majority of our Supreme Court, racist testimony in a death penalty case is apparently okay as long as the defense makes the mistake of introducing it.