Texas Toast: Rick Perry's Death Penalty Calendar

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The governor has the authority to stay three pending executions so that the courts can be sure of the prisoners' guilt. But will he?

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Rick Perry speaks at a media conference / Reuters

Whether or not he was an innocent man, whether or not the nation's justice system failed him, Cameron Todd Willingham is dead, as dead as Julius Caesar.  He was executed way back on February 17, 2004, and there's nothing Texas Governor Rick Perry can do about it now. The same goes for Humberto Leal Garcia, the Mexican national executed in Texas on July 7th despite the earnest protestations of the Justice Department, Mexico's government and the United Nations. Nothing Gov. Perry can do now will bring Garcia back either. 

But the leading Republican candidate for president, the governor who has authorized more executions than any other governor in the history of the United States, more even than his infamous predecessor, has the opportunity in the next ten days to do right by a death row inmate named Duane Edward Buck, who is very much among the living, at least for now. Gov. Perry also soon may have to confront the controversial case of another condemned Texas inmate, a man named Larry Ray Swearingen, whose execution is now on hold pending a new court review of important scientific evidence in his case. And the same goes for convicted triple-murderer Hank Skinner, a condemned inmate who has a November execution date despite a pending federal court case over a requested DNA test.

Political analysts seem divided over whether Gov. Perry's pronounced zeal for capital punishment will help or hurt him on the national stage. Just this past weekend, for example, Juana Summers at Politico wrote a piece suggesting that the death penalty won't be a big deal for Perry (or anyone else) on the campaign trail leading up to the 2012 election. That may or may not be true at the surface level of political theater. But either way it doesn't mean that the candidate's upcoming decisions on capital punishment, placed properly into the context of Texas' long and notorious history with the death penalty, aren't a vital topic to explore now that Labor Day has come and gone.

To understand why this is a worthwhile endeavor, notwithstanding what the pundits and spinmeisters are saying about the public's interest in capital punishment as a stump issue, it's useful to go back 15 years or so ago in Texas history. There was an awful lot we all might have learned early on about the governing styles and intellectual rigor of then-Texas Gov. George W. Bush and his Legal Counsel Alberto Gonzales had folks around the country paid more attention in the 1990s to the grossly negligent way in which the pair evaluated clemency petitions from death row inmates. 

With the benefit of hindsight, for example, one could reasonably argue that the pair's sloppy legal reasoning, disregard for fundamental legal principles, and contempt for honest evaluation of evidence about the Texas prisoners foreshadowed the subsequent torture memos and other low moments of the Bush presidency. If you don't believe me, if you think I am exaggerating the links and patterns here, please take a few minutes to read Alan Berlow's landmark piece, The Texas Clemency Memos, which appeared in the July/August 2003 issue of The Atlantic Magazine.

Likewise, surely, there are important lessons to be gleaned these days by the way in which candidate Perry handles the pending Buck, Swearingen and Skinner cases. They are all different as a matter of fact and law. But their resolution over the next few weeks and months will tell Gov Perry's new national audience a great deal about where he stands on matters of law and justice, pride and prejudice, and the intersection of law and science. The governor doesn't believe in the science of Evolution? He doesn't believe in the science of global warming? How about science of medicine? How about the science of DNA? How about the science of law?

At a time when several states are moving away from the death penalty as a costly, uncertain experiment, and with a chorus of critics still pressing the governor to better explain his dubious handling of the aforementioned Willingham case, Perry now will have to justify his capital decisions more fully than he ever has before. He'll have to convince death penalty opponents and staunch advocates of capital punishment that he is willing and able to follow the rule of law even if it takes him to a place he doesn't necessarily want to go; a place where some condemned prisoners aren't executed as quickly as the Texas justice system wants them to be-- or aren't executed at all.

Duane Edward Buck

Last Wednesday, lawyers for Duane Buck filed a clemency petition with the Texas Board of Pardons and Paroles seeking to have the Board and Gov. Perry halt Buck's execution, now scheduled for September 15th. They do not claim that Buck is innocent. They do not seek to have him released from prison. Instead, they seek either to have his sentence commuted to life in prison without the possibility of parole or to have his execution stayed so that the courts can grant him a new sentencing trial. The lawyers claim that Buck, who was convicted of murdering two people in Harris County, Texas in 1995, has been prejudiced not once but twice by Texas' justice system.

The first time, they say, occurred when an expert witness at Buck's 1997 murder trial told jurors that Buck's race -- he is black -- "increased the likelihood of his being dangerous in the future," a patently unconstitutional bit of testimony that should have immediately halted the trial proceedings. The second time Buck got the shaft from Texas justice, the lawyers say, is when he alone was treated differently from a group of five other convicted murderers whose trials were similarly tainted by the expert's racial testimony. It's an equal protection violation on top of an equal protection violation and Gov. Perry has an opportunity to fix it.

There is more to the Buck story. His lawyers did not raise the "future dangerousness" issue in their initial appeal -- which was denied.  But in June 2000, Texas Attorney General, John Cornyn (now the junior senator of the Lone Star State) conceded after an investigation that Buck's case and those five others had been unconstitutionally tainted by the racial testimony of the expert, a psychologist named Walter Quijano. Over the next few years, to its credit, the Texas AG's office repeatedly confessed its error in those cases and helped ensure that each of the men would get a new sentencing trial, each of the men but Buck, that is.

All five of those other men were subsequently sentenced to death in Texas without the racially impermissible testimony. And it is quite likely that Buck would be, too, were he afforded the opportunity to have a sentencing trial free from the prejudicial impact of Quijano's statements. If Perry gives Buck the chance for that new sentencing trial, he will be following Cornyn's praiseworthy practice, following constitutional precedent, and making good on Texas's 11-year-old promise to put to right the trials the impacted defendants.

On the other hand, if Gov. Perry does not step in, if he allows Buck to be executed on September 15th, he will be going back on Cornyn's word, shunning precedent, and relying upon legal technicalities that would likely have made Bush and Gonzales blush. And that's saying something. Is America ready for a president who makes John Cornyn look like Sister Helen Prejean when it comes to capital punishment? Is it ready for a president who would countenance such an evident (and conceded) violation of due process and equal protection principles?

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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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