In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Texas inmate Duane Buck argues he received death sentence due to his race

US Supreme Court
The Supreme Court left little doubt Wednesday that it will side with a black Texas prison inmate who argues improper testimony about his race tainted his death sentence.

The justices often are divided on death penalty cases, but conservatives and liberals alike agreed that inmate Duane Buck is entitled to a new court hearing.

The only issue in arguments at the high court appeared to be whether to throw out Buck's sentence altogether and order a new punishment hearing. The court also could merely instruct lower courts to decide whether the death sentence can stand.

Buck has been trying for years to get federal courts to look at his claim that his rights were violated when jurors were told by a defense expert witness that Buck was more likely to be dangerous in the future because he is black.

In Texas death penalty trials, one of the "special issues" jurors must consider when deciding punishment is whether the defendant they've convicted would be a future danger.

"What occurred at the penalty phase is indefensible," Justice Samuel Alito said in a comment that was widely shared by the 6 other justices who asked questions Wednesday. Justice Clarence Thomas asked no questions, as is his custom.

The high court appeal is not a broad challenge to the death penalty in Texas, the nation's leader by far in carrying out 537 executions [538 as of October 5, 2016] since the Supreme Court in 1976 allowed capital punishment to resume. Rather, it shows the justices' heightened attention to the process in capital cases, from sentencing to execution. This is especially true in older cases, like Buck's, in which the quality of defense lawyers is at issue.

The New Orleans-based 5th U.S. Circuit Court of Appeals refused attempts by Buck's attorneys to reopen the case, blocking them from moving forward with an appeal contending Buck's constitutional right to a competent lawyer was violated.

Buck's case was among 6 in 2000 that then-Texas Attorney General John Cornyn in a news release said needed to be reopened because statements by the expert witness, Dr. Walter Quijano, were racially charged. In the other 5 cases, new punishment hearings were held and each convict again was sentenced to death. Cornyn, a Republican, is now the state's senior U.S. senator.

Buck's lawyers contended the attorney general, by then Cornyn's successor Greg Abbott, broke a promise by contesting his case, although the 5th Circuit said while that circumstance was "odd and factually unusual," they could find nothing in the case record to indicate the state made an error or promised not to oppose any move to reopen the case. Abbott now is the state's governor.

Texas Solicitor General Scott Keller defended the appellate ruling Wednesday because he said there is ample evidence to support a death sentence.

Buck, now 53, does not dispute that he shot and killed his ex-girlfriend, Debra Gardner, 32, about a week after breaking up with her, and another man in 1995. He also shot his stepsister, who survived.

Buck at the time was on parole after serving about a year of a 10-year prison term for delivery of cocaine. He also had a previous conviction for unlawfully carrying a weapon.

Still, no justice appeared to endorse Keller's argument that the appellate ruling should be upheld.

Christina Swarns, Buck's lawyer at the Supreme Court, sought at one point to place Buck's case in the broader context of issues of race in the criminal justice system, telling the justices that the need to eradicate racial prejudice "is as urgent today as at any time in our nation's history."

The debate at the court was mostly over how the justices might rule in Buck's favor.

The justices could decide there was a "constitutional violation in this case and the court of appeals was wrong to say there wasn't," Chief Justice John Roberts said. Such a ruling would result in a new sentencing hearing for Buck.

Justice Elena Kagan said a decision instead could focus on the appeals court's approach to inmates who wish to reopen their cases in unusual circumstances, which would leave the decision on the death sentence to a lower court. Such a ruling might affect other inmates in the 3 states covered by the 5th Circuit - Louisiana, Mississippi and Texas.

Kagan cited figures produced by Buck's lawyers that prisoners in the 5th Circuit are far less likely to be allowed to pursue their appeals than prisoners in other Southern states.

Source: CBS news, October 5, 2016

Texas cases put spotlight on death penalty

Duane Buck
Duane Buck
The U.S. Supreme Court heard several key cases from Texas during its last session, and this term it is reviewing 2 with life-or-death consequences.

There's no way to predict whether the Texas cases will bring favorable decisions for two condemned prisoners, much less lead to a sweeping reevaluation of the death penalty. But experts are confident they will at least dramatize the difficulties involved in capital punishment.

"Both of these cases are important and raise critical questions about the way the death penalty is administered," said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law.

One case, stemming from the conviction of Duane Buck for the 1995 murder of his ex-girlfriend and her friend, "is one of the most important cases on the Supreme Court docket this year," she said.

That case, Buck v. Davis, which the court heard on Wednesday, raises questions about ineffective counsel and racial bias. The other case, Moore v. Texas, involves the issue of courts use outdated standards to decide if someone is too intellectually disabled to receive a death sentence.

David Dow, a University of Houston Law Center professor and attorney who has represented dozens of death row inmates, said "arbitrariness" in death penalty cases has previously raised the eyebrows of some justices.

Neither of these cases gets at that "in a straightforward way," he said, making it unlikely that the court will issue an historic ruling on the death penalty.

"I would be extremely surprised if the court uses either one to issue some broad pronouncement," he said.

Though ruled unconstitutionally cruel in 1972, the death penalty was reinstated by the court 4 years later. States have since executed more than 1,400 people, and more than 1 in 3 of those have died in Texas.

In a dissent to an Oklahoma lethal injection case last year, Justice Stephen Breyer wrote that there is "a serious problem of reliability" with the death penalty and that "the imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary." Justice Justice Ruth Bader Ginsburg signed onto the dissent.

"I believe it highly likely that the death penalty violates the Eighth Amendment," Breyer wrote. "At the very least, the court should call for full briefing on the basic question."

Randy Schaffer, a Houston criminal defense attorney, said there has been "no movement" by the court to undertake such a a review since then.

But Breyer's unease is widely shared. A recent Pew Research Center poll shows just 49 % of Americans support the death penalty for those convicted of murder, while 42 % oppose it.

Support for the death penalty has dropped 7 % since March 2015 and is at its lowest mark in 4 decades, according to the pollsters.

Buck's case, however, is as complicated as the poll numbers are straightforward.

After Buck shot his ex-girlfriend and her friend, killing both of them, a jury could not sentence him to death unless it concluded unanimously, by law, that he presented a future danger.

Buck received a death sentence after his attorney called a psychiatrist who testified that because he is black, he was a greater risk of future danger.

That was a crucial mistake, according to the Texas Defender Service, which is now representing Buck.

He is asking the Supreme Court to "consider his claim that his trial counsel was constitutionally ineffective for knowingly introducing the race-as-dangerousness testimony," the Defender Service said in a statement. "Mr. Buck is ultimately seeking a new, fair, color-blind sentencing hearing."

While the racial test got the court's attention, Dow said the court ultimate will decide a technical issue - whether Buck should be allowed to appeal. Moore was sentenced to death in 1980 after killing a clerk in a robbery. His case turns on intellectual disability and whether Texas uses outdated standards to determine whether someone is eligible to be executed.

Schaffer said the Supreme Court took up both Texas cases on narrow grounds, meaning that a big decision on the death penalty isn't likely.

Moreover, he said, "In the end, you do not have 5 votes up there to can the death penalty."

Complicating matters is a vacancy on the court created by Justice Antonin Scalia's death in February 2016. President Barack Obama's nomination to fill the spot, with Appeals Court Justice Merrick Garland, has been stalled in the U.S. Senate for more than 200 days.

In the end, Dow said the death penalty's demise is more likely to be gradual. "States are just going to quit using the death penalty," he said, because it's "just a waste of money."

Kathryn Kase, 1 of 4 attorneys representing Buck, said the justices were "very receptive to our arguments" on Wednesday.

And while the constitutionality of the death penalty wasn't before the Court, she said the case could influence the national discussion about race.

"It's an opportunity for the court to make a clear and powerful statement that the American criminal justice system will not condone racial bias in a death penalty case," she said.

Source: Courthouse News, October 6, 2016

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