Tuesday, November 26, 2013

Duane Buck & the False Claims of Racism


Duane Buck & the False Claims of Racism: More Deceptions by Death Penalty Opponents
Dudley Sharp

"Duane Buck: Sentenced to Death Because He is Black" (NAACP - LDF) (1)


Falsely invoking racism, as with the Duane Buck case, is just another example of how death penalty opponents will apply any deception, no matter how vile, to achieve their ends (1). 


Vicious double capital murderer Duane Buck, also a double attempted capital murderer, murdered his ex girlfriend, in front of three children (2,3,4).


"Debra ran out into the street, where Buck followed after her with shotgun in hand. Debra fell to her knees and begged Buck to spare her life. The three children stood in the doorway of Debra's residence watching. Shennel, Debra's 13-year-old daughter, ran and jumped on Buck's back, clinging to his neck and shoulders and yelling for him not to shoot her mother.

Both mother and daughter cried and pleaded for Buck to stop. Shennel screamed, "Duane, don't shoot! Duane, don't shoot … don't kill my mama!" Buck gazed down at Debra, aimed his shotgun at Debra's chest and pulled the trigger. She fell back in a pool of her own blood, as the three children cried and screamed in shock. After he was arrested and in a police car, Buck smiled and joked, saying, 'The bitch got what she deserved.' " (4)

SCOTUS' Justice Sotomayor (2), "based" her racism dissent on an out of context presumption of an inference:

"After inquiring about the statistical factors of past crimes and age and how they might indicate future dangerousness in Buck’s case, the prosecutor said: “You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?” 
Quijano answered, “Yes.” 

After additional cross-examination and testimony from a subsequent witness, the prosecutor argued to the jury in summation that Quijano “told you that there was a probability that [Buck] would commit future acts of violence." (2)

As Sotomayor admits, these are two separate times and contexts. Yet, she improperly attempts to combine them.

Quijano and the other defense psychiatrist, both testifying on Buck's behalf, found that Buck was at reduced risk of future danger - reduced, not zero risk. So all the prosecutor is saying is that the defense psychiatrists' findings include that Buck "might" be at some risk of future danger, just as any murderer might be. Quijano's testimony was that Buck was at a reduced risk for future danger, as known to the jury and the opposite of death penalty opponents' claims.

The prosecutor had substantial evidence of Buck's future dangerousness, devoid of racial components (2.3.4).

Sotomayor, out of thin air, has fabricated her own perception of an inference that was the factual opposite of the testimony.

That is the basis for this newest anti death penalty campaign - nonsense - just like so many others (1,5,6).

The prosecutors never said that "there was a probability that (Buck) would commit future acts of violence" because of race or gender. Never.

She couldn't, because that is never what Quijano said and the jury knew it.

That is the entire "racism" case. Zero.

The prosecutor had substantial evidence of Buck's future dangerousness (2,3,4), with zero racial components.

The odd thing is that Sotomayor admits that, exactly. From her opinion, she writes:

"The context in which Buck’s counsel addressed race differed markedly from how the prosecutor used it. On direct examination, Quijano referred to race as part of his overall opinion that Buck would pose a low threat to society were he imprisoned. This is exactly how the State has characterized Quijano’s testimony. . . . “In this case, first on direct examination by the defense, Dr. Quijano merely identified race as one statistical factor and pointed out that African-Americans were overrepresented in the criminal justice system; he did not state a causal relationship, nor did he link this statistic to Buck as an individual”.  

Sotomayor complains: " Buck did not argue that his race made him less dangerous, and the prosecutor had no need to revisit the issue. But (the prosecutor) did, in a question specifically designed to persuade the jury that Buck’s race made him more dangerous and that, in part on this basis, he should be sentenced to death."

No, the prosecutor never argued that. Sotomayor made it up, even pointing out the statements were at different times, within different contexts.

The problem for Buck and Sotomayor is that Quijano's entire testimony, with regard to Buck, specifically, was that he was at reduced risk of being a future danger, as the jury knew.

To repeat, from Sotomayor: 

“In this case, first on direct examination by the defense, Dr. Quijano merely identified race as one statistical factor and pointed out that African-Americans were overrepresented in the criminal justice system; he did not state a causal relationship, nor did he link this statistic to Buck as an individual”, as the jury knew.

This alleged racist component from the trial never existed.

It is despicable that so many death penalty opponents are libeling Quijano with the term "racist", which he certainly does not deserve. Such opponents will say anything to save murderers. 

Some see a perception of an inference. Odd how Sotomayor compounded it, then contradicted it, within her dissent:

"Moreover, the prosecutor did not revisit the race-related testimony in closing or ask the jury to find future dangerousness based on Buck’s race." (2).

Death penalty opponents manufactured racism in this case, as with so many others' (5).

The prosecutor had substantial evidence of Buck's future dangerousness (2,3,4), with zero racial components.

Texas Court Of Criminal Appeals (TCCA) Justice Alcala  (3) , who dissented, IN FAVOR OF Buck:

Alcala writes: "As to (Buck's) second claim (based upon racism) , I conclude that (Buck) has failed to make out a prima facie case for discriminatory intent in the prosecution's decision to seek the death penalty in his case." (3).  


Not even  "intent", much less an actual claim.

Alcala thought this such  a minor issue that response was in a footnote (3).


Even though Alcala found no intent, in her opening paragraph, she stated, the integrity of the proceedings were "further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment phase."

Alcala, like Sotomayor,  invents racism, here, for which there is zero evidence. The prosecutor asked Quijano about his research, finding that blacks were more likely to commit violence, to which Quijano responded that such was true. Not racism but, instead, a criminological fact (5b) . . . and not inflammatory, as both defense experts stated, throughout, that Buck was at a lesser risk of future danger, as the jury knew, just as the jury knew of all of the substantial proof of Buck's real future dangerousness (devoid of any racial components), as presented by the prosecutor (2,3,4).

No intent, no racism, no inflammation.

What was inflammatory? Buck committed two capital murders, tried to commit two additional capital murders and did so in the presence of three children. Lots of intent, lots of inflammation, lots of destruction, all courtesy of Buck.

How bad was Justice Sotomayor's claim?

One might speculate, as did Sotomayor, that the prosecutor may have been attempting to infer that Buck was a future danger because of race, but the prosecutor never stated it and the jury knew that Quijano's testimony, as well as the other defense psychologist,  was to the contrary. Alcala didn't even find intent, much less proof.

The prosecutor was inferring that, because Buck never argued that he was at zero probability of any future danger, that Buck might represent some future danger, just as any murderer might, statements, more truthfully, representing what Quijano or the prosecutor may have inferred, as that would be consistent with the defenses position that Buck represented a reduced risk of future danger, but not a zero risk, the only inference the prosecutor could make, based upon all the presented evidence, none of which found Buck a future danger based on race, the, completely, fabricated claim by death penalty opponents.

Buck's history supplied lots of  evidence for future danger for the prosecutor to use (2,3,4), with zero racial components.

Not even the dissents FOR Buck,  in SCOTUS and the TCCA, nor with Texas AG Cornyn's concerns did any of them make the mistake of saying that Quijano or the prosecutor stated that Buck was a future danger because of being black or male. Why? Because it never happened, as the jury knew.

There was a clear reason that Texas AG Cornyn did not pursue relief for Buck. He shouldn't have.


The testimony from the two defense witness psychologists, including Quijano,  was that Buck was at reduced risk for future danger, not zero risk, as the jury knew.

The prosecutor never said what some may presume was her inference, which, of course, has no weight, in the context of all of Quijano's actual testimony on behalf of Buck, that Buck was at reduced risk of future danger, as the jury well knew.


If we, generously,  presume a non credible inference of racial bias, which is all Sotomayor and Buck's other supporters have,  we are left with: 

Presuming an inference of facts not in evidence, when both that presumption and inference are opposite the facts in evidence, is a prescription for a no win appellate argument, as it should be, just as it proves the lie, by death penalty opponents, who repeatedly claim that Buck was sentenced to death because of his race (1).


As Sotomayor repeated, within her same dissent, again:

“In this case, first on direct examination by the defense, Dr. Quijano merely identified race as one statistical factor and pointed out that African-Americans were overrepresented in the criminal justice system; (Quijano) did not state a causal relationship, nor did he link this statistic to Buck as an individual”. (bold my emphasis)

There is no smoke and no fire. It's a bogus claim and a bogus argument by Buck. Again, just another vile claim of racism, contrary to the facts, very common with anti death penalty folk (1, 5, 6).

As a common rule, the media didn't just drop the ball, they parroted the anti death penalty folks.

It is a completely  invented race conflict, which so many seem so eager to embrace. Irresponsible and despicable.

1) No racial bias in Duane Buck's case: A Review 

BOLD my emphasis. "Quotes"  from denial of certiorari, US Supreme Court:

"The witness, Dr. Walter Quijano, testified that (Buck), if given a noncapital sentence, WOULD NOT PRESENT A DANGER TO SOCIETY." (2).

Repeatedly, defense counsel and the two defense experts made it clear that BUCK DID NOT FIT INTO THE CATEGORY OF BLACK MALES THAT WERE MORE LIKELY TO RE OFFEND AND THAT BUCK WAS AT A REDUCED RISK TO RE OFFEND.


Never was it presented to the jury that because Buck was black and/or male, that he was more likely to re offend because of that. All of the evidence, for Buck,  was to the contrary.

“In this case, first on direct examination by the defense, Dr. Quijano merely identified race as one statistical factor and pointed out that African-Americans were over represented in the criminal justice system; (Quijano) DID NOT STATE A CAUSAL RELATIONSHIP (BY RACE OR GENDER), NOR DID HE LINK THIS STATISTIC TO BUCK AS AN INDIVIDUAL."(2).


"On direct examination, Quijano referred to RACE AS PART OF HIS OVERALL OPINION THAT BUCK WOULD POSE A LOW THREAT TO SOCIETY WERE HE IMPRISONED." (2).

"Although (Sotomayor's) dissent suggests that the District Court may have been misled by the State’s inaccurate statements, the District Court, in denying petitioner’s motion under Rule 60 of the Federal Rules of Civil Procedure, was fully aware of what had occurred in all of these cases. It is for these reasons that I conclude that certiorari should be denied." (2).

There were six other death penalty cases, wherein  Dr. Quijano testified, that some minorities and males were more likely to be a future danger.

It is extraordinarily difficult to get a death sentence (7), yet . . .


In those  6 re sentencing trials, all received the death penalty, again, a solid rebuttal to any claim that race/gender testimony, in any of the cases,  was a factor in the prior jury decisions to give death.

Just as with Buck, it was the nature of the crimes and other non racial/gender factors which convinced 156 jurors in those 13 trials to, unanimously, award the death penalty.

"Moreover, the prosecutor did not revisit the race-related testimony in closing or ask the jury to find future dangerousness based on Buck’s race." (2).

THE PROSECUTOR DID NOT ASK THE JURY TO FIND FUTURE DANGEROUSNESS BASED UPON BUCK'S RACE OR GENDER.


Quijano responded affirmatively and truthfully, to the prosecutor's question, regarding that both blacks and males were more likely to be violent and re offend.

"And, on redirect, defense counsel mentioned race ONLY TO MITIGATE the effect on the jury of Dr. Quijano’s prior identification of race as an immutable  factor increasing a defendant’s likelihood of future dangerousness." (2).

When the prosecution presented Buck's probability of future dangerousness, IT WAS NEVER IN THE CONTEXT OF BUCK'S RACE OR GENDER.


2) No Racial Bias on Death Row

"White murderers are twice as likely to be executed as are black murderers.  (3)

"After accounting for some of the many factors that may influence penalty decisions, neither race of the defendant nor race of the victim appreciably improved prediction of who was sentenced to death . . . ". (3).

"There is no sustained, statistically significant evidence that white victim cases are more likely than minority victim cases to result in imposition of the death penalty." (3).
 


3) Redemption and Death Row - an additional reply to the many ministers supporting Buck

Only God and the individual know of their transformation, if any (8).

 ". . . a secondary measure of the love of God may be said to appear. For capital punishment provides the murderer with incentive to repentance which the ordinary man does not have, that is a definite date on which he is to meet his God. It is as if God thus providentially granted him a special inducement to repentance out of consideration of the enormity of his crime . . . the law grants to the condemned an opportunity which he did not grant to his victim, the opportunity to prepare to meet his God. Even divine justice here may be said to be tempered with mercy." Carey agrees with Saints Augustine and Aquinas, that executions represent mercy to the wrongdoer: (p. 116). Quaker biblical scholar Dr. Gervas A. Carey. A Professor of Bible and past President of George Fox College, Essays on the Death Penalty, T. Robert Ingram, ed., St. Thomas Press, Houston, 1963, 1992 (8).

St. Thomas Aquinas: "The fact that the evil, as long as they live, can be corrected from their errors does not prohibit the fact that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement. They also have at that critical point of death the opportunity to be converted to God through repentance. And if they are so stubborn that even at the point of death their heart does not draw back from evil, it is possible to make a highly probable judgement that they would never come away from evil to the right use of their powers." Summa Contra Gentiles, Book III, 146. (8).
 


FOOTNOTES

1)  a)  With liberal anti death penalty group Conservatives Concerned About the Death Penalty showing the way, http://conservativesconcerned.org/27-evangelical-leaders-call-for-a-new-fair-sentencing-hearing-for-death-row-prisoner-duane-buck/



      b)  Conservatives Concerned About The Death Penalty:   Just another dishonest anti death penalty group   (A Young Americans for Liberty partner) 
http://prodpinnc.blogspot.com/2013/11/concerned-conservatives-about-death.html



      c) Duane Buck: Sentenced to Death Because He is Black, NAACP-LDF, 12/5/12



and many, many others.

2) From the denial of certiorari, US Supreme Court



DUANE EDWARD BUCK v. RICK THALER, SUPREME COURT OF THE UNITED STATES. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, No. 11–6391. Decided November 7, 2011

majority  http://www.supremecourt.gov/opinions/11pdf/11-6391alito.pdf
dissent  http://www.supremecourt.gov/opinions/11pdf/11-6391Sotomayor.pdf


3) Dissent, Texas Court of Criminal Appeals, Footnote 8, http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=24847

4) Smith: "Justice is served in case of Duane Buck", By Accie Smith, Houston Chronicle, July 13, 2013

Smith is Debra Gardner's sister

http://www.chron.com/opinion/outlook/article/Smith-Justice-is-served-in-case-of-Duane-Buck-4663725.php



5) a) RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
http://prodpinnc.blogspot.com/2012/07/rebuttal-death-penalty-racism-claims.html

b)  Race, ethnicity and crime statistics

For the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape, and 4.5 times greater for aggravated assault.

For the Hispanic–Black comparison, the Black level is 3.1 times greater than the Hispanic level for homicide, 4.1 times greater for robbery, 2.4 times greater for rape, and 1.9 times greater for aggravated assault.

From

REASSESSING TRENDS IN BLACK VIOLENT CRIME, 1980.2008: SORTING OUT THE "HISPANIC EFFECT" IN UNIFORM CRIME REPORTS ARRESTS, NATIONAL CRIME VICTIMIZATION SURVEY OFFENDER ESTIMATES, AND U.S. PRISONER COUNTS, DARRELL STEFFENSMEIER, BEN FELDMEYER, CASEY T. HARRIS, JEFFERY T. ULMER, Criminology, Volume 49, Issue 1, Article first published online: 24 FEB 2011


6)  The Innocent Frauds: Standard Anti Death Penalty Strategy

8) The Death Penalty: Mercy, Expiation, Redemption & Salvation

http://prodpinnc.blogspot.com/2013/06/the-death-penalty-mercy-expiation.html

some others:

"All interpretations, contrary to the biblical support of capital punishment, are false. Interpreters ought to listen to the Bible’s own agenda, rather than to squeeze from it implications for their own agenda. As the ancient rabbis taught, “Do not seek to be more righteous than your Creator.” (Ecclesiastes Rabbah 7.33.). Part of Synopsis of Professor Lloyd R. Bailey’s book Capital Punishment: What the Bible Says, Abingdon Press, 1987.




Saint (& Pope) Pius V, "The just use of (executions), far from involving the crime of murder, is an act of paramount obedience to this (Fifth) Commandment which prohibits murder." "The Roman Catechism of the Council of Trent" (1566).
 


Pope Pius XII: "When it is a question of the execution of a man condemned to death it is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to live." 9/14/52.
 


"Moral/ethical Death Penalty Support: Modern Catholic Scholars"
http://prodpinnc.blogspot.com/2009/07/death-penalty-support-modern-catholic.html
 
Christianity and the death penalty.
http://www.prodeathpenalty.com/DP.html#F.Christianity
 
Catholic and other Christian References: Support for the Death Penalty,
http://homicidesurvivors.com/2006/10/12/catholic-and-other-christian-references-support-for-the-death-penalty.aspx


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Some related topics

The Death Penalty: Not a Human Rights Violation

86% Death Penalty Support: Highest Ever - April 2013
    World Support Remains High
    95% of Murder Victim's Family Members Support Death Penalty

http://prodpinnc.blogspot.com/2013/11/86-death-penalty-support-highest-ever.html

The Death Penalty: Neither Hatred nor Revenge
http://homicidesurvivors.com/2009/07/20/the-death-penalty-neither-hatred-nor-revenge.aspx

The Death Penalty: Mercy, Expiation, Redemption & Salvation
http://prodpinnc.blogspot.com/2013/06/the-death-penalty-mercy-expiation.html


Few Conservatives Embrace Anti Death Penalty Deceptions
Conservatives Concerned About The Death Penalty:
Just another dishonest anti death penalty group

DEAD WRONG: (Montana) Conservatives Concerned About the Death Penalty (MCCATDP)
Rebuttal to Richard A. Viguerie's "A conservative argues for abolishing the death penalty"