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 résumé. 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.

Published: Friday 16 September 2011


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