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SPOTLIGHT
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In Texas, black means future danger

Published on -5/6/2013, 9:30 AM

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If the state of Texas executes Duane Buck, it'll be because he is black.

Well, mainly it will be because in 1995, he shot his ex-girlfriend, Debra Gardner, and her friend, Kenneth Butler, to death at Gardner's Houston home, and also wounded his own stepsister, Phyllis Taylor. But it will also be because he's black.

In Texas, they have this rule: a jury contemplating the death penalty must evaluate the likelihood a defendant poses a future danger to the community. Jurors in Buck's trial were told he poses said danger because he is a black man.

Mind you, this came from a defense witness, whose ultimate finding was that Buck himself represented little danger. But, said psychologist Dr. Walter Quijano, "It's a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system."

When asked by the prosecutor whether "the race factor, black, increases the future dangerousness," Quijano answered, "Yes."

So Buck sits on death row awaiting an appeals court ruling on his bid for a new sentencing hearing. Not a new trial, you understand.

No one disputes his guilt -- or the monstrousness of his crime. But about the sentence, there is plenty dispute, enough that his surviving victim and Linda Geffin, a prosecutor who helped convict him, both think he should get a new hearing. In 2000, Sen. John Cornyn, then Texas attorney general, identified six capital cases, including Buck's, in which Quijano gave similar testimony and conceded the state erred in allowing race to be used as a sentencing factor.

The other five defendants -- all black or Hispanic -- received new sentencing hearings. All were re-sentenced to death. Buck was denied a new hearing.

Why? Bucks' attorney, Christina Swarns, director of the Criminal Justice Project at the NAACP Legal Defense Fund, says the only explanation she's heard "is it's because Quijano was called as a defense witness. That would sound like a plausible explanation, if not that Quijano was called as a defense witness in two of the other cases in which they did concede error."

Sara Marie Kinney, a spokesperson for the Harris County DA, says there's a difference: in Buck's case, the offending testimony came on direct examination -- "not on cross." In other words, the defense brought it up first. Whatever. There is something viscerally ... wrong in relying upon so flimsy a rationale to justify so blatant an appeal to bias.

But race, argues Kinney, was not the only factor in the jury's decision. Buck, she notes, "was a violent offender who systematically killed these people. ... He checks all the boxes for the appropriate penalty being the death sentence."

Quijano, by the way, stands by his testimony.

He told the New York Times, "The literature suggests ... correlation" between race and threat. It is not, he said, "the blackness of the person that is causing the violence. It is what goes with it. Poverty, the exposure to lack of education, exposure to criminal elements."

Psychology professor John Monahan, whose writings Quijano cited among the "literature," told the Times his work supports no such conclusion. Race, he said, "plays at most an extremely small role" in predicting future violent acts.

Moreover, it is specious in the extreme to act as if poverty, crime and ignorance are some natural outgrowth of blackness. They are not. They were imposed upon black people by generations of oppressive law, policy and custom. To act as if they are somehow endemic to blackness is like accusing a woman of walking funny after you have cut off her feet.

What we have here, then, is but the latest example of a "justice" system bloodied and soiled by racial bias. If Duane Buck is killed, it will be in part because an "expert" stoked a jury's fear of the scary black man. That is not just wrong.

It is obscene.

Leonard Pitts is a columnist

for the Miami Herald.

lpitts@miamiherald.com

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