He
may prosecute with earnestness and vigor-- indeed, he should do so. But, while
he may strike hard blows, he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one. -Justice
Sutherland
In 1997, Duane Buck was sentenced to death for shooting three people, two of whom died. Today, there is a movement among
the citizens of Harris County, including one of the prosecutors who convicted
him and his surviving victim, to re-do his sentencing hearing because of what
most seem to believe was racist testimony from a defense expert.
Much has been made of psychologist
Walter Quijano’s testimony; a lot of people are accusing Harris County of
institutional racism. By focusing on that one (somewhat shaky) conclusion, I
believe that the discussion has side-stepped the actual, relevant problem.
According to Quijano, “I was asked a question whether there is a
relationship between race and violence or dangerousness,” he said. “The
literature suggests that there is a correlation. So I had to say yes.”
Whether the numbers actually
support this is a matter of much debate, which would take us even further down
the racial rabbit-hole; let’s say that Dr. Quijano spoke in good faith, based
on a scholarly investigation of the pure, un-opinionated numbers.
From the sentencing hearing, as
written by the New York Times:
Dr.
Quijano had been called to the stand by the defense, and ultimately found that
the probability that Mr. Buck would commit future acts of violence was low. But
under cross-examination, the prosecutor for the Harris County district
attorney’s office asked him about the various factors. “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,” the prosecutor asked Dr.
Quijano. “Is that correct?”
“Yes,”
he replied.
In
her closing argument, the prosecutor reminded the jury of the psychologist’s
testimony. “You heard from Dr. Quijano, who had a lot of experience in the
Texas Department of Corrections, who told you that there was a probability that
the man would commit future acts of violence,” she said.
There it is; the prosecutor is
encouraging the jury to sentence this man, not by his personal likelihood to
re-offend, but by his group’s statistical likelihood (accurate or not)
to commit violence. Quijano was called as a defense witness, to testify that
Buck was unlikely to commit future violence; the prosecutor got up and, with a
superb control over his own language and an obvious knowledge of the same
statistics the psychologist had, elicited a response to that would permit the
jury to consider this man not as an individual, but as a member of a group.
I do not have a lot of sympathy for
Duane Buck. If he is guilty (and it certainly appears that he is), we have
given the State the right to punish him with imprisonment or death. But to use
an individual’s involuntary association with a group -any group- in an attempt
to strip him of his life or liberty is heinous; it is disgusting; it is the
lowest, slimiest, masturbatory self-aggrandizement possible.
The State is not God. The Jury is
not omniscient. They must not be allowed to punish us for the real or perceived
sins of our groups. By having the misfortune to be accused of the sexual
assault of a child, Carlos Coy was absorbed into one of the most hated and
reviled groups on the planet. There are those who would have advocated his
immediate execution based on nothing but his involuntary inclusion into that
group.
This is our fight; it’s not a
popular one, but it is important. The Harris County Justice System itself has
shown that it is capable of engaging in that fight, of realizing the severity
of these tiny, seemingly insignificant bouts of sneakiness. This is a big part
of what Coy’s case is all about; creeping, insidious misbehavior that seems
unimportant until enough people, pulling enough political weight, get upset
about it.
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