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Please begin with an informative title:

Rick Perry
Prosecutor: 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; is that correct?

Quijano: Yes

Duane Buck had already eaten his final meal last night—fried chicken, salad, french fries, fried fish, jalapeño peppers and apples—waiting for word from the Supreme Court. Gov. Rick Perry had not granted him a reprieve, and headed to Iowa for a fundraiser instead.

See, back in June 2000, then-Texas Attorney General John Cornyn determined that six death row inmates ought to have their sentences overturned because Walter Quijano, a clinical psychiatrist who often served as an expert witness for the prosecution in sentencing hearings, kept employing race as a reason someone was too "dangerous" to be afforded a lesser penalty. "It is inappropriate to allow race to be considered as a factor in our criminal justice system ... The people of Texas want and deserve a system that affords the same fairness to everyone,'' Mr. Cornyn said.

Five of the six inmates received new sentencing hearings. The sixth was Duane Buck.

There's no question of Buck's guilt: on July 30, 1995, Buck fatally shot his ex-girlfriend Debra Gardner, and her male houseguest Kenneth Ray Butler, after returning to the home following an earlier argument. Buck also shot his sister Phyliss Taylor, who survived. In his petition, Buck's lawyers said he had a drug problem and was "severely intoxicated" that day.

So the question isn't whether Buck was guilty: he was. It's whether the process used to determine his sentence complied with the Constitution's guarantee that even murderers receive equal protection of the laws. As Buck's last-ditch appeal to the Supreme Court noted:

Of the seven individuals whose death sentences the Attorney General had identified as having been obtained in violation of equal protection, Mr. Buck is the only one who has not been resentenced at a trial free from consideration of his race as a basis for imposing death. The only change that has taken place since the Attorney General identified Mr. Buck’s case as being similar to the Saldaño case is that a different person now holds the position of  Attorney General. That is an insufficient legal basis on which to treat Mr. Buck differently from the six other cases that the former Attorney General had identified as being similar.

Capriciousness in the administration of the death penalty is intolerable. Mr. Buck has been twice-subjected to equal protection violations, once when the government asked the jury to sentence him to death, and a second time when the government arbitrarily treated him differently from similarly situated defendants.  Texas promised to remedy Mr. Buck’s racially-based death sentence, then reneged on that promise, then hid its promise from the federal courts to avoid its enforcement in Mr. Buck’s case. Mr. Buck is now the only one of the seven individuals whose death sentences were tainted by the government’s reliance on race who is without a remedy. Such caprice  is intolerable in the administration of justice.

Because Texas in in the Fifth Circuit, emergency petitions to the Supreme Court go to Justice Antonin Scalia.  (See this helpful So You Think You Might Be Executed primer which the Supreme Court makes available.)

And rather than deny the application himself—which he can do and you might have expected—Justice Scalia referred the case to the full Court and at around 9 PM last night, this Order issued:

The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
Translation: a majority of the Court believed that there was a reasonable probability that at least four of them would want to review the merits of the case, that irreparable harm would occur if no stay was granted, and that there was a fair prospect that the Court would conclude, on review, that the decision below was wrong. If it turns out that there aren't four votes to review the case, then the Court will lift the stay and Rick Perry can do what he sees fit.

There's no clear timetable as to when the Court will now rule on the petition for certiorari; the Court's next in-chambers conference is Oct. 7, when they'll have a full summer's worth of petitions to discuss.

For more background and context on Buck's case, Andrew Cohen has a nice piece on The Atlantic's website.


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Originally posted to Daily Kos on Fri Sep 16, 2011 at 09:09 AM PDT.

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