Future Dangerousness: Skin Color is Not a Crystal Ball


The U.S. Supreme Court will hear arguments this week about whether a Texas defendant, who had previously been sentenced to death, should be allowed a second sentencing hearing because the jury heard evidence from an expert witness (called by the defense!) who testified that the defendant was more likely to commit violent crimes and pose a future danger because he is black.  In the case of Duane Buck, as well as in six other Texas death penalty cases, psychologist Walther Quijano testified that based on his research, a black defendant was statistically more likely to commit violent crimes because of his race.

The issue of future dangerousness is critical in Texas law because without a unanimous finding by the jury that the defendant on trial for a capital offense poses a future danger to commit violent acts, that defendant cannot be sentenced to death and must instead be sentenced to life in prison.  In the Buck case, the original jurors sent several notes to the court during their deliberations, with many of their questions having to do with the issue of future dangerousness.

It is interesting to note that in the six other capital cases that this “expert” offered the same type of testimony, Texas conceded error during the appeals process and agreed to conduct a new sentencing hearing on the issue of life in prison versus death.  In this case however, under a new Attorney General, Texas is not conceding and is requiring this defendant to make his case before our highest court.

I think it is frankly unconscionable for Texas to stand behind the shocking testimony from this discredited so-called “expert”.  They punted on six cases already, and I’m afraid to say they should just grit their teeth and punt on the seventh.  As a former prosecutor of murder cases I know what a new sentencing hearing entails: re-opening old wounds to a victim’s family, hunting down witnesses that may have moved, retired or even passed away, marshalling trial evidence that may have been archived in a vault somewhere (or lost!) for years.  I know.  I’ve been there.  But when the State is going for the utmost punishment – death, the ultimate negation of one’s life, liberty and pursuit of happiness — it’s best to do it with clean hands.  If Buck deserves death, let a jury deliver that sentence, but a jury who has not been tainted by evidence that so improperly attempts to link the color of their skin to the content of their character.

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