Simple rule for killers: If you are going to murder someone in the United States, don't try to get the job done in Texas. Keep the hostage alive in the car till New Mexico, which recently banned the death penalty, or press on to California, which retains the death penalty but makes available very large sums of state money — potentially hundreds of thousands of dollars — for a capable death penalty defense.
That's enough to hire good investigators, lawyers and expert witnesses who can spend many years on the case — first the trial and then the penalty phase and then the appeals process, which can go on for decades. California currently has 648 prisoners on death row in San Quentin, and since 1976, it has managed to execute only 13.
An indigent person charged with murder in the state of Texas, however, can count on maybe $500 for his court-appointed attorney to pay for special expenses. Yet the cost of importing an expert witness, who will be charging transportation, hotel and a fat fee, easily can exceed $10,000.
Business is correspondingly brisk in the lethal injection chamber in Huntsville, Texas. There are currently 413 on death row, and at the time of writing, 475 have been executed since 1976, 234 of them during Rick Perry's decade-long stint as governor.
It turns out we don't have to adjust the numbers yet. On Sept. 15, the scheduled execution day for Duane Edward Buck, the U.S. Supreme Court granted a stay of execution for Buck, who on Sept. 12 had his clemency request turned down by the Texas Board of Pardons and Paroles, while it reviews the case.
No one claims that Buck, 48, didn't shoot to death his former girlfriend and her male companion and wound a third in Houston in 1995. He himself admitted to doing it. At issue is what an expert witness told the court during the sentencing hearing, where the jury decides whether the convicted murderer should go to prison for a life term or get lodgings on death row.
To get Buck lined up for the lethal needle, his prosecutors needed to prove “future dangerousness.” How might Buck behave in the event he ever got out of prison?
Dr. Walter Quijano, a psychologist practicing in Conroe, a town just south of Huntsville (and no doubt filled with employees for the big prison in Huntsville), had actually been called by the defense, who hoped that he would testify that Buck's killing spree was an act of rage unlikely to be repeated.
Under cross-examination, however, the prosecutors asked Quijano: “The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?”
“Yes,” Quijano answered, probably out of sheer force of habit, because usually he was the prosecution's expert, and he had testified in similar fashion for the prosecution in six other cases, racially profiling the defendants into the Huntsville death house.
That was enough for the jury, which cut smartly through all uncertainty about Buck's future decisions by saying he should die, thus rendering speculation unnecessary.
In 2000, then-Texas Attorney General John Cornyn (now a Republican U.S. senator), recognizing the constitutional abuse for what it was, called for Buck and the other six to receive a retrial. Buck is the only condemned man who hasn't gotten one. On Sept. 13, Linda Geffin, one of Buck's prosecutors in 1995, joined the chorus of voices calling on Gov. Perry to stay his execution.
What mostly has people marveling is Quijano's career stint in the 1990s as an “expert witness.” Buck's was the only case for which he was called by the defense. Expert witnessing is a trade — often a very profitable one — in which by far the most desirable characteristic is predictability. A truly expert witness for the defense would have regarded it as his first duty to reassure the jury of Buck's lamblike character, utterly inconsistent with possibly lethal recidivism.
“Expert” covers many a bizarre resume. One famous expert witness unearthed a few years back by the Chicago Tribune had made it her costly specialty to identify nose and lip prints — a forensic skill that apparently lacked any reliable foundation.
Juries like a well-spoken expert witness, flourishing forensic data. The popularity of shows like “CSI” has enhanced the reputation of forensic “experts,” even though much forensic testimony, up to and including fingerprints, is disfigured by mishandled evidence, mendacity and incompetence.
Of course, it doesn't help that Buck's case has come down to the wire amid Perry's bid to get the Republican presidential nomination and right after Perry issued a fervent endorsement of the death penalty, earning him hearty cheers in the auditorium of the Ronald Reagan Presidential Library when he stressed that imposing it has never lost him a moment's sleep.
The most notorious example of presidential ambition trumping any humane considerations came on Jan. 24, 1992, when Bill Clinton — beset by the Gennifer Flowers sex scandal amid his vital primary race in New Hampshire — hastened back to Little Rock, Ark., to preside over the execution of Ricky Ray Rector, a black man who had managed to botch a suicide bid after his murders and had no idea why they were strapping him down.
As they hunted for 45 minutes for a vein into which to shoot the sodium thiopental, Bill was having dinner with Mary Steenburgen. But that was Bill. Maybe Perry has been on his knees asking for guidance from the Lord or — the functioning modern equivalent — seeking reassurance from his pollsters.
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