But first, a 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 your captive 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, just enough to keep people on their toes.
An indigent person charged with murder in the state of Texas, however, can count on maybe $500 for a 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, 235 of them during Rick Perry’s decade-long stint as governor.
It turned out Thursday we won’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 admits his crimes. 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, some of whom may well have resort to Quijano’s ministrations), 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.
His “yes” 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.
Juries like a well-spoken expert witness, gravely deploying 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 inherently faulty science, mishandled materials and unending mendacity.
CounterPunch’s view is that taken as a whole, forensic evidence as used by prosecutors is inherently untrustworthy. For example, for years many people went to prison on the basis of the claims of a North Carolina anthropologist, Louise Robbins. She helped send people to prison or to Death Row with her self-proclaimed power to identify criminals through shoe prints. As an excellent Chicago Tribune series a decade ago on forensic humbug recalled, on occasion she even said she could use the method to determine a person’s height, sex and race, just like Sherlock Holmes. Robbins died in 1987, her memory compromised by the conclusion of many Appeals Courts that her methodology was bosh. There have been similarly hollow claims for lip prints and ear prints, all of them invoked by their supporters as “100 per cent reliable” and believed by juries too easily impressed by passionate invocations to 100 per cent reliable scientific data.
Of course the apex forensic hero of prosecutors, long promoted as the bottom line in reliability–at least until the arrival of DNA matching–has been the fingerprint, whose career was once the subject of a fine, derisive piece here by your two editors.
Of course, it doesn’t help anyone on Death Row, headed for the injection chamber and amid last-ditch appeals, that we’re in campaign mode 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.
Here’s an item we ran in February, 2004, in our CounterPunch newsletter, under the headline
“’The Gay Adulterer?’ Bush’s Successor as Defender of Straight Marriage in Texas In Eye of Storm”.
“At the very moment, late February, that President George W. Bush let the world be known that if he were governor of Texas, he would insist that the sacred vows of holy matrimony could be exchanged only by a man and a woman, that he would press for a constitutional amendment insisting on this, at that very moment Austin, the state capital of Texas, was convulsed with charges that the current Republican governor’s wife Anita Perry has been on the verge of suing her husband Rick Perry for divorce on the grounds of infidelity, said infidelity possibly being with someone of the same sex as Rick. On one account Anita Perry has engaged the services of Becky Beaver, ‘the most notorious ballbreaker divorce attorney in Austin.’
“On Tuesday, February 24, so we learn from our friend Michael King, city editor of the weekly Austin Chronicle, a small group of protesters (almost outnumbered by reporters and photographers) gathered at the Governor’s Mansion for what was disingenuously billed as a“support rally” under the theme, ‘It’s OK to Be Gay.’
“In a tolerant and forgiving world what Rick might or might not have done behind Anita’s back, would be for him and Anita and maybe the other party to discuss, but our world is neither tolerant nor forgiving and there may be a hypocrisy issue here.
“Last spring Perry endorsed and signed the Defense of Marriage Act,a statement by the Texas legislature that it believes gay and lesbian Texans deserve fewer rights than other citizens. The Texas GOP’s platform declares that ‘The party opposes the decriminalization of sodomy.’ Further diminishing the possibility of any ambiguity on this issue, the platform also declares that ‘The Party believes that the practice of sodomy tears at the fabric of society, contributes to the breakdown of the family unit, and leads to the spread of dangerous, communicable diseases. Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country’s founders, and shared by the majority of Texans.’ Perry approved the statement, and all candidates who run as Republicans in Texas have to sign it, or forfeit financial support by the party.”
Not long after Rick Perry became Governor of Texas, according to an Associated Press release on May 12, 2001 he signed the James Byrd Hate Crimes Act (HB 587) named for a black man in Jasper, Texas, who was dragged to death behind a pickup in 1998. James’ mother Stella, who died last year, was present for the signing.
In the bill-signing ceremony on May 11, 2001 Perry said:
“As the Governor of our diverse state, in all matters it is my desire to seek common ground for the common good. In the end, we are all Texans and we must be united as we walk together into the future. That’s why today I have signed House Bill 587 into law. Texas has always been a tough-on-crime state. With my signature today, Texas now has stronger criminal penalties against crime motivated by hate.”
President Obama signed a similar law, and the Texas statute signed by Perry does effectively establish a special “protected class” status including enhanced sentencing for crimes allegedly motivated by bias against it. I’ve always agreed with the libertarians that hate crimes laws are profoundly misguided. I agree with Steve Baldwin, a conservative author, who wrote in World Net Daily (WND) on August 14, 2011:
“Such a law gives harsher sentences to certain crimes based upon a person’s perceived bias to some class or group. But juries really can’t determine what’s in a person’s heart and, besides, all crime should be punished equally, regard[less] of the race, gender, sexual orientation, etc. of the victim. In other words, under hate-crimes law, if someone beats up a white person and then beats up a gay person, they receive a heavier sentence for the latter crime. This makes a travesty of the concept of equal application of the law and is likely unconstitutional.
“Indeed, the idea of hate crime requires that the prosecutors know the thoughts and motivation of a perpetrator, therefore effectively making such designated crimes into thought crimes. And among many conservative Republicans, that concept is at odds with the constitutional precept that all Americans are equal under the law.”
I should add that our 2004 story concluded thus: “Michael King spends much of his story prudently insisting that he couldn’t find a shred of evidence to substantiate the rumors about Perry.”
At last! The Fascist Threat
“Instead of the Sermon on the Mount, we are now confronted by well-funded conservative evangelicals promoting a sinister vision of America as a corporate autocracy, with Dominionists as Gauleiters of a totalitarian state religion.”
So Lawrence Swaim, Executive Director of the Interfaith Freedom Foundation wrote on this site last week. Swaim concluded with a familiar quote: “This recalls the prescient words of novelist Sinclair Lewis: ‘When fascism comes to America,’ he wrote in 1935, ‘it will come wrapped in the flag, and carrying a cross.’”
Not in my opinion. As a rule, the field of battle between secularism and our Christian ultras ends up stained with the blood of the latter, as Satan counter-attacks. Just glance at the the career of the original Know-Nothings or the history of prohibition. Indeed, looking across the American landscape, I’d say the Dark One has scant cause for lament amid quavering pieces about the Dominionist threat which so delight fundraisers for nonprofits touting the menace of Christian evangelism. Back in the god-sodden Fifties who could presage that a half century later tots could go online to view fornication in every guise and combination.
In my view fascism mostly crosses the threshold these days wrapped in Green clothing, with a thousand summary edicts, which people gloomily strain to read by the pallid glimmer of the new, mercury-filled light bulbs promoted by greens, the General Electric Corp., and signed into law by George Bush Jr. whose own timid effort to promote the fusion of church and state – allowing religious non-profits to run some government programs — didn’t fare too well.
The main purpose of invoking the fascist threat is to scare people into voting Democrat, as Frank Bardacke has often remarked to me. In 1964 it was the Goldwater threat, in 2011 – for now – the Perry threat. Obama will save us from fascism. Alas, fascism is currently wrapped in the decorous clothing of this self-same former constitutional professor.
Back on September 13, 2001, I wrote in a Los Angeles Times op-ed that “The lust for retaliation traditionally outstrips precision in identifying the actual assailant. The targets abroad will be all the usual suspects — the Taliban or Saddam Hussein, who started off as creatures of U.S. intelligence. The target at home will be the Bill of Rights.”
It was maybe an hour after the north tower of the World Trade Center collapsed that I heard the first of a thousand pundits that day saying that America might soon have to sacrifice “some of those freedoms we have taken for granted.” They said this with grave relish, as though the Bill of Rights – the first 10 amendments to the U.S. Constitution — was somehow responsible for the onslaught, and should join the rubble of the towers, carted off to New Jersey and exported to China for recycling into abutments for the Three Gorges Dam, with a special packet of “nano-thermite” (aka paint dust) reserved for Paul Craig Roberts to sprinkle on his porridge.
Of course it didn’t take 9/11 to give the Bill of Rights a battering. It is always under duress and erosion. Where there’s emergency, there’s opportunity for the enemies of freedom. The Patriot Act, passed in October 2001 (the bits that Bill Clinton’s DOJ forgot to put into the 1996 Anti-Terrorism and Effective Death Penalty Act) and periodically renewed in most of its essentials in the Bush and Obama years, kicked new holes in at least six of our Bill of Rights protections.
The government can search and seize citizens’ papers and effects without probable cause, spy on their electronic communications, and has, amid ongoing court battles on the issue, eavesdropped on their conversations without a warrant.
Goodbye to the right to a speedy public trial with assistance of counsel. Welcome indefinite incarceration without charges, denial of the assistance of legal counsel and of the right to confront witnesses or even have a trial. Until beaten back by the courts, the Patriot Act gave a sound whack at the 1st Amendment, too, since the government could now prosecute librarians or keepers of any records if they told anyone the government had subpoenaed information related to a terror investigation.
Let’s not forget that a suspect may be in no position to do any confronting or waiting for trial since American citizens deemed a threat to their country can be extrajudicially and summarily executed by order of the president, with the reasons for the order shielded from the light of day as “state secrets”. That takes us back to the bills of attainder the Framers expressly banned in Article One of the U.S. Constitution, about as far from the Bill of Rights as you can get.
There’s a difference between fascism and a efficiently functioning modern police state. America well into to the latter, instrumented by laws shoved through on a federal bipartisan basis and through state legislatures. Check out the DUI laws and penalties, state by state. A friend here in California was just telling me about a friend up on his second DUI, among whose penalties for his offense has been 45 days house arrest, with a camera installed to observe every move. No visitors allowed. He can go out for two hours a day to do his shopping. The supervising officer in semi-SWAT rig enters his house without knocking or permission at any time. Let’s not even talk about the treatment of sex offenders.
Praying for Rain
Progressives touting the Perry threat howl with merriment at the three-day prayer session pleading with the Almighty to send rain to Texas , which he’s so far failed to do, having his work cut out dispensing fire and brimstone. When I was at my Episcopalian school in Scotland we prayed for good weather a fair amount in our twice-daily sessions in chapel. (As I often say, a childish soul not inoculated with compulsory religion is open to any infection.) Our Book of Common Prayer included under “Prayers and Thanksgivings upon several occasions” prayers for Rain, (“Send we beseech thee, in this our necessity, such moderate rains and showers that we may received the fruits of the earth to our comfort”), for fair weather (“although we for our iniquities have worthily deserved a plague of rain and waters”), and in the time of dearth and famine for “cheapness and plenty”. Praying for seasonable weather is a lot less baneful in practical terms, infinitely cheaper and far less deleterious to landscape and natural life than lobbying the earthly powers – successfully alas — for wind power.
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