[Deathpenalty] death penalty news----TEXAS

[Rick Halperin]

April 21



TEXAS:

Closing arguments in capital murder trial set for Thursday


The prosecution and the defense have rested their cases in the capital murder 
trial of Demond Bluntson, who is facing the death penalty.

Closing arguments will be delivered to jurors in the 49th District Court on 
Thursday morning. Jurors will then retire to begin their deliberations.

Bluntson announced Wednesday he will not be testifying during the guilty or 
innocence phase of the trial.

He previously declared, since the trial began Monday, he intended to testify.

If convicted, the trial will shift into the punishment phase, during which 
jurors will be tasked with deliberating on whether to give Bluntson a life 
sentence or the death penalty.

Bluntson is accused of fatally shooting his girlfriend's 2 sons, ages 1 and 6, 
in a local hotel room in June 2012. Authorities allege Bluntson came to Laredo 
with the children after he killed their mother, Brandy Cerny, in El Campo.

(source: Laredo Morning Times)

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What You Need to Know if the Supreme Court Takes the Case of Duane Buck ---- 
Was he sentenced to death "because he is black"?


The U.S. Supreme Court will soon consider whether to hear the Texas case of 
Duane Buck, who was sentenced to die in 1997 for shooting his ex-girlfriend 
Debra Gardner and her friend Kenneth Butler while Gardner's daughter pleaded, 
"Don't kill my mama." His small army of advocates don't dispute his guilt but 
argue he is facing the harshest possible punishment primarily "because he is 
black."

At his trial, Walter Quijano, a psychologist called by the defense, told jurors 
that Buck was more likely to commit a violent crime again because of his race. 
(Death sentences in Texas require that a defendant be judged a "continuing 
threat to society.") Quijano later told The Texas Tribune he was describing a 
statistical relationship, and not a causal connection between race and 
violence, but Buck's lawyers say his comments tainted the jury's decision.

Since then, Buck's attorneys at the NAACP Legal Defense Fund have turned his 
case into a symbol for the argument that the administration of the death 
penalty is rife with racial bias, part of the legacy of lynching and the 
ultimate manifestation of the racism that permeates the wider criminal justice 
system. Many capital defense attorneys see their work as an heir to the civil 
rights movement and a precursor to Black Lives Matter. "It is impossible to 
take race out of the death penalty because that's what it???s for," defense 
attorney Danalynn Recer said at an American Bar Association conference in 
Austin, Texas, last month. "We spare the people that we identify with."

Later at the same conference, Stephen Bright, who has argued at the Supreme 
Court against efforts to keep blacks off death penalty juries, said the court 
"talks a good game but does nothing."

Buck's new appeal to the Supreme Court has been accompanied by a drumbeat of 
news releases, op-ed articles, and blog posts (even MTV noticed). His lawyers 
are asking the justices to decide whether his original trial lawyer was 
"constitutionally ineffective" for putting Quijano on the stand, framing this 
specific concern with the question of "whether and to what extent the criminal 
justice system tolerates racial bias and discrimination." (The justices halted 
Buck's execution in September 2011, but then decided not to hear arguments on 
his case, though Justice Sonia Sotomayor called his death sentence "marred by 
racial overtones.")

Regardless of what happens to Buck, these questions of race and the death 
penalty will remain unsettled. So now is a moment to look back at the reasons 
why, and the long line of cases his has joined.

Many historians (including David Oshinsky last week in the Wall Street Journal) 
see the contemporary death penalty as the latest stage in a history that 
stretches back to lynchings, pointing out that most executions continue to take 
place in the states of the former Confederacy. "We've used the death penalty to 
sustain racial hierarchy by making it primarily a tool to reinforce the 
victimization of white people," the lawyer Bryan Stevenson told The Marshall 
Project last year. Rachel Aviv's New Yorker story on the Louisiana case of 
Rodricus Crawford made prominent mention of the Confederate flag waving outside 
the courthouse during his trial.

But how can lawyers prove that their black clients are being subjected to 
racism? The difficulties center around the 1987 Supreme Court decision 
McCleskey v. Kemp. Warren McCleskey had been sentenced to death for murdering a 
police officer in Georgia, but the NAACP Legal Defense Fund argued that his 
sentence was part of a pattern of bias. They presented a study by law professor 
David Baldus finding that black murderers were 1.1 times more likely to get a 
death sentence than white murderers, controlling for dozens of other variables, 
and that killing a white victim made a defendant of any race 4.3 times more 
likely to be dealt a death sentence.

The court saw a slippery slope. "McCleskey's claim, taken to its logical 
conclusion, throws into serious question the principles that underlie our 
entire criminal justice system," wrote Justice Lewis Powell in a 5-4 decision 
rejecting McCleskey's claims. NAACP attorney Anthony Amsterdam famously called 
McCleskey's loss "the Dred Scott decision of our time."

The case led some justices to shift their overall views of the death penalty, 
but it closed off statistical arguments on racial issues. Still, scholars have 
continued to collect such data in such disparate contexts as Washington, North 
Carolina, and in the U.S. Military. As with Baldus, they have found that cases 
involving white victims are more likely to lead to a death sentence (a 
high-profile exception is Dylann Roof, a white man facing death for killing a 
group of black church members in South Carolina.) Duane Buck's lawyers also 
commissioned a study, which found that from 1992 to 1999 prosecutors in Harris 
County sought the death penalty for African-Americans more than 3 times as 
often as for whites who committed similar crimes. The county, which encompasses 
greater Houston, has not sentenced a white person to death since 2004.

But with little traction in the courts for such arguments, defense lawyers have 
tried instead to show, as they are doing now in the Buck case, that individual 
actors in death penalty trials introduced racism into the proceedings, making 
the sentence fundamentally unfair.

The Buck case concerns an expert witness; many others concern prosecutors. The 
best known is perhaps "Death Penalty Donnie," the prosecutor who compared a 
defendant to King Kong (that got the sentence overturned). But such overt 
statements are relatively rare; much of the debate often centers on what 
prosecutors do, rather than what they say. The Supreme Court is currently 
considering the case Foster v. Chatman, which turns on whether a defendant was 
unfairly sentenced to death because blacks were kept off his jury. (We recently 
published a quiz on the racial statements of jurors in a variety of cases).

Some cases have involved overt racist statements by jurors, like Victor 
Walther, a juror who voted to execute Gary Sterling and in a later affidavit 
continually used the word "nigger" (Sterling was executed in 2005). Last week, 
Georgia executed Kenneth Fults for shooting his 19 year-old neighbor in the 
back of the head in 1996, despite an affidavit from a juror who said, in 2005, 
"I knew I would vote for the death penalty because that's what that nigger 
deserved." The U.S. Supreme Court declined to hear the case.

Finally, and perhaps most surprisingly, there are cases involving racist 
defense lawyers. Fults also had a public defender who told racist jokes and 
once said of another black defendant he represented, "that little nigger 
deserves the chair."

Such cases are difficult for defenders to win. Many have been tripped by 
technical hurdles; if an early appeal does not bring up the issue, it usually 
can't be raised later. And lawyers must show a "reasonable juror" would not 
have sentenced a black defendant to death save for the racist elements. Buck's 
best hope - which failed to help Fults - is a precedent allowing judges to 
overturn sentences with "extraordinary circumstances." Multiple lower courts 
have ruled that Buck's trial was not extraordinary.

As the justices decide whether to examine Buck's case, they will confront a set 
of issues that remain unresolved nearly three decades after they refused 
McCleskey. And while many advocates see Buck's case as an "extraordinary" 
example of racial bias, they also see it as the latest illustration of 
discrepancies that are not extraordinary at all.

(source: themarshallproject.org)

*******************

Racial Discrimination and Capital Punishment: The Indefensible Death Sentence 
of Duane Buck


In Harris County, Texas, where Duane Buck was tried and sentenced, all but 3 of 
the 18 defendants sentenced to death since 2004 have been African-American. In 
Harris County, Texas, where Duane Buck was tried and sentenced, all but 3 of 
the 18 defendants sentenced to death since 2004 have been African-American.

The N.A.A.C.P. Legal Defense and Educational Fund - or the Inc. Fund, as it's 
often called - has been one of the leading campaigners in the long effort to 
convince the Supreme Court that the death penalty is unconstitutional. Early on 
in that effort, the Inc. Fund was forced to broaden its approach. As the legal 
scholars Carol Steiker and Jordan Steiker explained in a law-review article 
last year, in the 19602, the Inc. Fund "focused on the persistence of racial 
discrimination" in the application of capital punishment, but the Justices 
"consistently declined to use race as the lens for understanding or regulating 
the American death penalty." Inc. Fund lawyers decided "that the best hope for 
many death-sentenced black inmates might rest on broader reforms - perhaps even 
abolition - of the capital system." In 1972, the Supreme Court struck down 
capital punishment, in Furman v. Georgia, leading to a 4-year moratorium on the 
penalty in the United States, thanks to a winning strategy devised by the Inc. 
Fund lawyers. They argued that, despite declining public support for the death 
penalty, states were keeping it so that they could impose it on marginal 
groups, including the poor and the powerless as well as blacks.

5 years later, in Coker v. Georgia, the Court decided that "the sentence of 
death for the crime of rape is grossly disproportionate and excessive 
punishment, and is therefore forbidden by the Eighth Amendment as cruel and 
unusual punishment." The Inc. Fund was lead counsel. (The Court struck down 
capital punishment for rape of adult women in that case. In 2008, it ruled that 
capital punishment for child rape is unconstitutional.) The opinion for the 
Court did not mention race or racial discrimination, even though, of the 455 
men executed for rape between 1930 and 1967, four hundred and five were black, 
and almost all had been convicted of raping white women. It also took no notice 
of a brief by Ruth Bader Ginsburg - filed on behalf of the American Civil 
Liberties Union, the National Organization for Women Legal Defense and 
Education Fund, and other groups - arguing that punishing rape with death was 
tied to Southern traditions that "valued white women according to their purity 
and chastity and assigned them exclusively to white men." The Court avoided 
addressing the racial disparity in capital rape cases, and it avoided 
addressing the racial disparity in capital cases in general. That did not make 
the problem of racial discrimination go away.

Last week, Georgia executed an African-American named Kenneth Fults for 
murdering a white neighbor. For the trial, a white man in the pool of potential 
jurors was asked if his views on race would keep him from making a fair 
judgment about the case, since the defendant was a black man and the victim a 
white woman. He said no and was included in the jury that sentenced Fults to 
death. 8 years later, an investigator working on Fults's appeal took a sworn 
statement from the juror. The man said, "I don't know if he ever killed 
anybody, but that nigger got just what should have happened. Once he pled 
guilty, I knew I would vote for the death penalty because that's what that 
nigger deserved." In rejecting Fults's appeal, the U.S. Court of Appeals for 
the Eleventh Circuit said that he should have raised this issue of prejudice 
sooner in state court or explained why he hadn't, so he was "procedurally 
barred" from raising it in federal court.

Racial discrimination is unavoidable in considering the Texas death-penalty 
case of Duane Buck. In the campaign to reduce his punishment from execution to 
life in prison, the Inc. Fund has been prominent and tenacious, because the 
discrimination in his case is blatant. Buck was convicted of murdering 2 women 
in 1996. He was sentenced to death in 1997. To sentence an offender to death 
under Texas law, a jury must unanimously conclude that the defendant is likely 
to commit future criminal acts of violence. In the Buck case, a psychologist 
named Walter Quijano provided evidence to that effect. Before trial, he claimed 
in a report that Buck was more likely to be dangerous because he is black. He 
wrote, "Race. Black. Increased probability."

Major studies have disproved the long-standing, prejudicial assumption of a 
link between race and dangerousness. In 2000, the Texas attorney general said 
that asserting that connection was both false and unconstitutional. In the case 
of Victor Hugo Saldano, who was found guilty of murder, the Supreme Court 
vacated his death sentence and sent the matter back to a Texas court for a new 
sentencing hearing at the request of the attorney general. "My position in this 
matter is taken with full respect and empathy for the suffering experienced by 
victims of crime and their families," he said. "But the public cannot have 
confidence in a criminal justice system if race is going to be considered at 
all in determining whether the ultimate penalty will be given." He pledged that 
in the Buck case and 6 others, "in which testimony was offered by Dr. Quijano 
that race should be a factor for the jury to consider in making its 
determination about the sentence in a capital murder trial," there would be new 
and fair sentencing hearings.

That happened in the 6 other cases, but not in Buck's. Texas said the Buck case 
is different because Quijano was a witness for Buck, rather than for the 
prosecution - though the psychologist was also a defense witness in 2 of the 
other cases. More important, a lawyer providing effective counsel would not 
have called Quijano as a witness, as Buck's lawyer did, after getting such an 
inflammatory report from him. (Another defense expert testified that Buck's 
records showed that he was not likely to commit criminal acts of violence in 
the future.) At the trial, on cross-examination, the prosecutor asked Quijano 
whether he had determined "that the race factor, black, increases the future 
dangerousness, for various complicated reasons; is that correct?" Quijano 
answered, "Yes."

Nor would a lawyer providing effective counsel have waited 2 years after the 
confession of error by the Texas attorney general, as a different lawyer for 
Buck did, to challenge on appeal the trial lawyer's introduction of race in the 
sentencing proceeding. Without considering the merits of Buck's case, Texas's 
highest criminal court dismissed his application for a hearing, calling it an 
abuse of the state's writ of habeas corpus because the issue should have been 
raised in an early application. Buck got new lawyers, who sought a new hearing 
on the merits in federal court. But, based on a 1991 precedent, the petition 
was not allowed to raise the issue of ineffective counsel in the state trial or 
appeal. That case worked its way up the chain of federal courts, and the 
Supreme Court denied his petition in 2011.

In 2013, Buck's lawyers filed a new habeas application in state court. While it 
was pending, the Supreme Court made a ruling in a different case that, for the 
1st time, allowed a federal court to consider a claim of ineffective assistance 
of counsel. Texas's highest criminal court again denied Buck's application, by 
a vote of 6-3, but with a dissent by Judge Elsa Alcala, who wrote, "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." The lawyer who handled Buck's initial habeas appeal "was so 
incompetent as to assert not even one arguably legitimate claim," and the 
combination of that lawyer's "errors and the combined force of state and 
federal procedural-default laws" means that "no Court has ever considered the 
merits of applicant's legitimate claims for post-conviction relief."

In 2014, Buck's lawyers filed a new motion in a federal trial court for 
reconsideration of his case based on ineffective counsel. The court ruled that 
Buck's ineffective lawyers had not hurt his case and that their handling of the 
case did not qualify as extraordinary enough to warrant federal review. The 
U.S. Court of Appeals for the Fifth Circuit upheld that ruling, following its 
conspicuous pattern of denying this kind of appeal much more readily than the 
nearby federal circuits where states still execute offenders. Buck's lawyers 
asked the Supreme Court to review the Fifth Circuit decision.

The Court is expected to consider the Buck petition soon, filed by the Inc. 
Fund, the Texas Defender Service, and the law firm of Holland & Knight. The 
petition has attracted exceptional support from across the political spectrum. 
As a brief by high-profile Democrats and Republicans - including Gregory B. 
Craig, the former White House counsel in the Obama Administration, and Mark L. 
Earley, the former Virginia attorney general - admonishes, "Race is an 
arbitrary and pernicious factor which cannot play a role in our system of 
justice."

Between 1992 and 1999, in Harris County, Texas, where Buck was tried and 
sentenced, the district attorney's office was 3 1/2 times more likely to seek 
the death penalty against black defendants than white defendants, and juries 
were more than twice as likely to impose death sentences on blacks, according 
to a study by criminologists. Since 2004, all but three of eighteen defendants 
sentenced to death in Harris County have been African-American.

As the Buck petition says, the Supreme Court should review the case "to 
maintain public confidence that courts will not permit an execution tainted by 
'expert' testimony explicitly linking race to dangerousness." That's especially 
so when ineffective counsel was responsible for that unconstitutional 
connection.

(source: The New Yorker)

*********************

Death by Blackness?


The color of your skin shouldn't determine whether you live or die. But that is 
precisely the case for Duane Buck, a Texas man facing execution. His case is 
before the Supreme Court this month.

Earlier this month, the nation's highest court allowed the execution of another 
African-American man, Kenneth Fults, to take place in Georgia despite the fact 
that his own defense lawyer referred to him as "n--" and fell asleep in court. 
On top of that, 1 of the jurors in the case, Thomas Buffington said this: "I 
don't know if he ever killed anybody, but that n-- got just what should have 
happened." Buffington went on to say that the death penalty is "what that 
n--deserved."

Kenneth Fults was executed on April 12.

Now the Supreme Court will consider the case of Duane Buck. It's the next big 
test of whether the words inscribed on the front of the Supreme Court - "Equal 
Justice Under the Law" - are a mirage. Mr. Buck's guilt is not in question. 
What is in question is whether he should be executed for what he did. And what 
is also in question is whether black people are more dangerous than white 
people.

We are not executing the worst of the worst but the poorest of the poor - and 
especially people of color.

In Texas, during the sentencing trial in capital cases, the "future 
dangerousness" of the defendant is considered as the jury determines whether 
someone should be executed. In Mr. Buck's case, his own attorneys introduced 
testimony from a psychologist that Mr. Buck posed a danger to society because 
he is black. That same psychologist, Walter Quijano, gave similar racially 
charged testimony in 6 other Texas cases that resulted in death sentences. All 
of those death sentences were thrown out and the defendants were given new 
sentencing hearings - except for Duane Buck who still faces execution.

It gets worse.

At the time of Buck's trial, Harris County prosecutors were 3 times more likely 
to seek the death penalty for African-American defendants than for similar 
white defendants. During the same period, Harris County juries were more than 
twice as likely to sentence African-American defendants to death. Over the last 
5 years, nearly 75 % of all death sentences in Texas have been imposed on 
people of color.

Texas and Georgia (where Kenneth Fults was executed) are currently our 
deadliest states and have accounted for 10 of the 12 executions in 2016. Though 
Texas and Georgia have accounted for over 80 % of the executions so far this 
year, they are only the eye of the storm.

The 13 states that comprised the Confederacy have carried out more than 75 % of 
the nation's executions over the last 4 decades.

The contemporary practice of the death penalty cannot be divorced from our 
history of slavery and racism. As Connecticut's Supreme Court declared the 
death penalty unconstitutional in 2015, the court's treatise made this point: 
"The 13 states that comprised the Confederacy have carried out more than 75 % 
of the nation's executions over the last 4 decades."

To be blunt, the states where people were being lynched 100 years ago are 
precisely the states where people, and an inordinate percentage of people of 
color, are being executed today. To this day, one of the biggest predictors of 
who gets executed is the race of the victim and the resources of the defendant. 
We are not executing the worst of the worst but the poorest of the poor - and 
especially people of color.

The roots of the death penalty are sunk deep in the horrific history of 
lynching. As lynchings decreased, legal executions increased. 2/3 of those 
executed in the 1930s were black. As African Americans fell to 22 % of the 
South's population by 1950, they made up 75 % of the executions. And today - 
2016 - even though African Americans make up only 13 % of the nation's 
population, 42 % of death row is black, and 35 % of those executed since 1976 
have been black.

These stunning realities have created many new leaders in the movement for 
alternatives to the death penalty. Among those calling for a halt to executions 
are many conservative legislators and several governors who are for the death 
penalty in principle but not in practice because of the issues involving racial 
bias. Even some of the death penalty's most vocal supporters, like Southern 
Baptist leaders Al Mohler and Richard Land, have publicly shared their deep 
concerns about racial bias in the system.

In light of these realities, Duane Buck's request for a new sentencing hearing 
is a moral imperative. His case and the concerns it raises have brought 
together an eclectic array of unusual allies around the country. In addition to 
civil rights leaders, clergy, and elected officials, there are also 
prosecutors, judges, and a former Texas governor (Gov. Mark White) supporting 
Mr. Buck's request for a fair sentencing hearing.

Also among the folks asking for justice for Mr. Buck is none other than one of 
the prosecutors during his trial, Linda Geffin. Her own commitment to justice 
would not allow her to be silent.

In the nearly 2 decades he has been in prison, Mr. Buck has been anything but 
"dangerous." He has never been written up for a single violation. He has gained 
a reputation for being a mediator and reconciler, disarming hostilities on the 
inside even between guards and inmates. The warden has called him a light in 
the darkness and a blessing to the prison. He's known as "Preacher Buck" 
because of the clear way his faith shapes him and compels him to care for 
others.

Since all this is happening in the heart of the Bible belt, it's important to 
remember that the Bible itself gives us stories of murderers that were 
redeemed. Among the Bible's most famous figures were 3 murderers saved by God's 
grace - Moses, David, and Paul.

As a devout Christian, Preacher Buck has done everything he can to heal the 
wounds of what he did. One of the folks who can testify to that is Duane's 
stepsister, Phyllis Taylor, who was critically injured during the crime. She is 
among the many voices saying that execution is not the solution.

I hope you will join me in calling for an end to the death penalty. But even if 
you don't - even if you believe in the death penalty - I hope you will join me 
and hundreds of others in calling for a new, fair sentencing hearing for Duane 
Buck.

Duane has made his last appeal to the United States Supreme Court. My hope and 
prayer is that the Supreme Court will fix this injustice once and for all. Let 
justice prevail.

No one should be killed because they are black.

(source: Shane Claiborne, Sojourners)

***********************

Texas Wants to Prevent Inmates' Friends and Family From Speaking


On Friday, April 15, 2016, a new policy published by the Texas Department of 
Criminal Justice (TDCJ) took effect. It prohibits Texas inmates from 
"maintaining active social media accounts for the purposes of soliciting, 
updating, or engaging others, through a third party or otherwise" - and raises 
serious First Amendment concerns.

The 'st problem is obvious: Texas inmates don't have access to the Internet. 
Instead, inmates are allowed to communicate with family and friends through 
written letters and in-person visits, all of which TDCJ already monitors.

For Texas inmates to "maintain active social media accounts," they must ask 
family or friends to post messages on their behalf. And they do so for a 
variety of reasons. Inmates sometimes use social media to generate public 
support for a challenge to a verdict or sentence, for example. Other inmates 
may use social media to express their feelings about incarcerated life, a 
social outlet that often helps prepare inmates to reenter society successfully.

Whatever the reason, inmates' speech on social media occurs outside prison 
walls, facilitated by non-prisoners. That is what Texas seeks to prohibit, with 
blatant disregard for the First Amendment. The government has absolutely no 
authority to silence chunks of the population because they associate with 
individuals who are incarcerated.

Texas claims that social media provides a way for inmates to "sell items over 
the Internet based on the notoriety of their crime, harass victims or victim's 
families, and continue their criminal activity." But this position cannot 
justify the burdens the new policy imposes on First Amendment rights.

To start - because it bears repeating - this policy will largely impact the 
First Amendment rights of people who are not in prison. Plus, TDCJ already has 
a means of regulating the information it purportedly seeks to prohibit through 
its ability to exercise control over the flow of information in and out of 
prison. It's not clear what this new social media policy adds.

The policy already has had a chilling effect on the speech of those who are 
afraid of running afoul of its elusive mandates. Many inmates' supporters have 
begun taking down websites and social media accounts they've established on 
behalf of - or even in support of - Texas inmates for fear TDCJ will discipline 
those inmates under the new policy.

Which brings us to another concern: The policy seemingly gives TDCJ the power 
to discipline inmates for third-party actions. TDCJ has an array of punishments 
for rules violations. For example, TDCJ can take away an inmate's visitation 
and phone call privileges, or place him in more restrictive housing.

Finally, the policy is remarkably vague. Since learning of TDCJ???s new policy, 
concerned friends and family members have been seeking clarification of its 
scope. What if a visiting mother updates her Facebook page with what her 
incarcerated son ate for breakfast that morning? Can a son take a photo with 
his incarcerated father and post it to Instagram? Would this reach the type of 
reporting and advocacy seen in the hit podcast "Serial"?

Social media sites created to advocate against the death penalty for an 
individual inmate could easily fall within the policy's scope, particularly if 
it's unclear whether the inmate initiated or has any control over the content 
posted on the site. In this way, the policy could inhibit pure political 
speech, an arena in which First Amendment protection is at its zenith.

To quote Benjamin Franklin, "[f]reedom of speech is a principal pillar of a 
free government; when this support is taken away, the constitution of a free 
society is dissolved, and tyranny is erected on its ruins." By suppressing the 
voices of inmates and their supporters, this new policy is certain to have the 
kind of effect that Franklin so feared - TDCJ will be freed from the public 
oversight necessary to hold the state accountable.

We cannot tolerate such governmental overreach. This vague, overly broad policy 
must be invalidated.

(source: Wallis Nader Staff Attorney, Texas Civil Rights Project----Huffington 
Post)