In The End, Supreme Court Says No to Duane Buck

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Public interest in death penalty cases waxes and wanes, but the bad faith that infects so many prosecutions is here to stay

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The reason there is such a gap between the realities of capital punishment in America and the media coverage of those realities isn't hard to figure or explain. The nation's attention span is notoriously scattered and short. It takes fidelity to the long view -- and a great deal of patience and attention to detail -- to grasp the many ways in which the modern death penalty "experiment" has failed so many people on so many different levels for so many reasons.


An individual story -- like the saga of Troy Davis which ended in September -- occasionally floods the national conscience. Millions of people get involved, on either side of the debate, and the scholars, advocates and tribunes who inhabit the world of capital punishment get to pronounce their points to an interested audience. But then that audience moves on to the next thing (the media either leading or following the hordes) without ever staying around long enough to bring meaningful change to state death penalty regimes.

I mention all this because the United States Supreme Court Monday morning, with virtually no fanfare, declined to hear the case of Duane Edward Buck, the condemned prisoner who has twice now been denied equal protection by the State of Texas. The first time, a state "expert" was allowed to tell jurors at Buck's sentencing trial that the defendant would be more dangerous in the future because he was black. The second time, Texas officials refused to give Buck a new sentencing trial even though it gave such trials to six other men whose trials were similarly tainted by impermissible racial testimony. (All of the other men were subsequently re-sentenced to death).

Here is the piece I wrote in September about how Texas officials, including Gov. Rick Perry, had blown off Buck's request for equal protection under law. And here is the piece I wrote about him shortly thereafter when the Supreme Court, to the surprise of many, temporarily stayed his execution. Now that stay is over, it won't be long before Buck gets a new execution date. If, as a news consumer, you tuned in only to September's news about Buck you might think that justice was done in the case -- after all, the Supreme Court halted the execution, didn't it? But if you still think that today you would be wrong.

Even as the Court was denying certiorari to Buck, even as it was contorting itself and the facts to do so, two of its members were willing to highlight the sleazy manner in which Texas first obtained and then defended its death sentence against the man. Both Justice Sonia Sotomayor (the only trial judge on the Court) and Justice Elena Kagan dissented. Justice Sotomayor wrote: 

Today the Court denies review of a death sentence marred by racial overtones and a record compromised by misleading 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...

Justices Sotomayor and Kagan said it was still unclear why Texas has chosen to treat Buck differently from the other capital defendants whose sentencing trials were tainted by the testimony. "What we do know," Justice Sotomayor wrote, "is that the State justified its assertion of a procedural defense in the District Court based on statements and omissions that were misleading." How the rest of the Court could countenance such pronounced mischief, in a capital case, is a story that won't get nearly as much play as did the Court's initial decision to halt Buck's execution. Yet it is far more important, isn't it? September's news, after all, merely maintained the status quo. Monday's news all but ends Buck's life.

Actually, I misspoke. We do know a little about what the Court was thinking. Justices Samuel Alito, Antonin Scalia, and Stephen Breyer wrote to answer the dissenting justices. In their view, Texas did not trick any of the judges into denying relief for Buck and his sentencing trial was distinguishable from the other tainted trials because it was his attorneys (and not prosecutors) who elicited the prejudiced testimony from the state's expert. To these justices, the expert's racist testimony was "bizarre and objectionable" but evidently not objectionable enough to warrant giving Buck a new sentencing trial after Texas promised him one. Got that? That's the big story that merits the millions of page views and comments. But we both know that isn't going to happen today or anytime soon.

Buck looks to be doomed. There is no reason to believe that Texas officials, including Gov. Rick Perry, will be any more willing this time around to give Buck the fair justice he deserves. After all, it took the state until just last month to stop employing the "expert," Walter Quijano, who fouled up all these capital cases more than a decade ago. There is no remorse in Austin. There is no acknowledgement or acceptance there of the promises former Texas Attorney General John Cornyn made to the men a decade ago. And from Cornyn, of course, there is no succor. The junior senator from Texas already has moved on.

In the meantime, amid the rubble that is the Buck case, another dubious execution looms in Texas. Hank Skinner was scheduled to die on Wednesday without having had his DNA tested to ensure the reliability and accuracy of his conviction or of the ultimate punishment he is going to receive. This despite a new state law that allows for such testing and despite repeated attempts by Skinner's lawyers to get him the test. On Monday afternoon, to the surprise of some, a state appellate court stayed the Skinner execution to look a little closer at the relationship between Skinner's case and the new statute. So you'll likely hear all about that over the next few days before you and all the reporters inevitably move on to something else.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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