In Texas, Prosecutors Add Twitter Insult to Capital Punishment

A few hours after the state once again turned its back on death row inmate Duane Buck, prosecutors accused his lawyers of unprofessional conduct.
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Twice, as we’ve recounted here at The Atlantic, Texas has deprived convicted murderer Duane Buck of his constitutional right to equal protection. The first time came in 1997 when a now-notorious expert unlawfully told jurors under prosecution questioning that Buck would be more dangerous in the future because he was black. "Future danger" was an "aggravating" factor Buck's jury had to consider in imposing the death penalty on him, which those jurors quickly did after that explosive testimony.

The second time the law failed Buck came in 2000, when each of the five other men whose capital trials were similarly tainted by that "expert" testimony were given new sentencing hearings. Even though Texas appropriately conceded that mistakes had been made in all of those original trials, Buck alone was blocked from getting that new sentencing trial because, Texas officials said, it was his witness who had introduced the improper testimony (even though prosecutors had elicited it). Inexplicably, Texas did not make this same assertion in the case of two other men who used this expert as a defense witness; they were each given new sentencing trials.

For the past 13 years, over and over again in many different venues, Buck and his attorneys have tried to square that disparate treatment with constitutional commands—and with state and federal procedural hurdles designed to make it harder for defendants like Buck to get help. In 2011, Buck came within hours of execution when the United States Supreme Court halted the process (though the justices in Washington refused to review the substance of his case at that time).  Buck then filed another appeal in Texas and on Wednesday, the Texas Court of Criminal Appeals, by a vote of 6-3, ended that review.

The six judges on the Texas court who voted against Buck, including the infamous Justice Sharon Keller, were unwilling to address his claims on the merits—and were unwilling even to put their names behind what they had done. Instead, in a brief, unsigned opinion void of any substantive analysis, they wrote: "We dismiss the application as an abuse of the writ without considering the merits of the claims." Duane Buck ought to be executed regardless of whether there are inequalities in his case, these justices concluded, because Texas procedures bar his claims.

The three justices who dissented, however, had a great deal to say about why Duane Buck deserves more from the Texas courts. In a lengthy and detailed analysis, they offered this to start:

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 at the punishment phase.

... and went on from there. In the view of the dissenters, Duane Buck deserves a review of the substance of his claims regardless of any procedural deficiencies that may exist in his case. Such a review, they suggest, would likely result in his sentence being reduced to life in prison without parole because of the many mitigating factors present in his case. Once again, the justices in Washington will be asked to intercede on his behalf. Once again, the Supreme Court will have an opportunity, at least, to rectify a manifest injustice.

But none of that is the necessarily galling stuff. By now, America is used to this brand of justice in Texas, where black capital defendants still are routinely treated in fashions that beggar belief. After all, the Texas Court of Criminal Appeals, the court of last resort for all criminal matters in Texas, is populated by judges who campaign like politicians promising their constituents that they will aggressively endorse capital punishment.

No, what is particularly galling here is that just a few hours after the court issued its ruling against Buck, just a few hours after the state again stamped its approval for this patently unconstitutional result, Texas prosecutors got into a silly Twitter spat with his lawyers, accusing them of unprofessional conduct:

Twitter            

There has indeed been a great deal of unprofessional conduct in the Duane Buck case. It started with that now-discredited expert and, as the dissent says, terrible defense work at trial and on the initial appeal of Buck's conviction. It continued years later with a broken promise by Texas officials to Buck that, like the others similarly situated, he would get a new sentencing hearing void of unlawful racial undertones. And it continues to this day in the effort by state attorneys, and these six judges, to diminish the import of what happened to Buck by precluding even a review of his case on its merits.

This man—this indigent black man in Texas with a low IQ who received inadequate assistance of counsel and whose trial was rocked by racial prejudice— deserves a new sentencing hearing. If Texas had given him one in 2000, this case would be long over (the five other men tainted by that "expert" were re-sentenced to death).  It's not only unprofessional, it's unjust that Texas is fighting so hard to prevent that new sentencing trial from taking place. And I'd be willing to bet that at least a few justices in Washington agree.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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