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Wednesday, April 10, 2013

Foul Blows

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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