Rick Perry’s latest execution stopped (for now)

Updated
Texas death-row inmate Duane Buck.
Texas death-row inmate Duane Buck.

Duane Buck was scheduled to die last night. Unlike in the case of Troy Davis in Georgia, there’s no issue of doubt that he committed the crime of which he was convicted: Mr. Buck, now 48, does not contest that it was he that shot his ex-girlfriend and another man to death in 1995. Buck’s impending execution would break Governor Rick Perry’s own national record. Considering that fact, and the governor’s presidential aspirations, this was already newsworthy.

Toss in the American social grenade of race, and you really have a story.

A psychologist who testified as an expert witness at Buck’s sentencing trial claimed, in essence, that Mr. Buck was inherently more dangerous because he’s Black. This prompted then-Texas attorney general John Cornyn (the current junior senator and kinda-sorta Perry ally) to order a new sentencing hearing, but Buck never received one. The cries for mercy (one from an attorney who prosecuted him) left Governor Perry unmoved. His last appeal was exhausted. By yesterday, only the governor or the federal courts could keep him alive.

Turns out the biggest federal court of all did just that:

(Buck) was spared from lethal injection when the justices, without extensive comment, said they would review an appeal in his case. Two appeals, both related to a psychologist’s testimony that black people were more likely to commit violence, were before the court. One was granted; the other was denied…

The reprieve from the (Supreme Court) came nearly two hours into a six-hour window when Buck could have been taken to the death chamber. Texas officials, however, refused to move forward with the punishment while legal issues were pending.

Mr. Buck’s is hardly the only impending execution under Governor Perry, and there may be even more before the end of his presidential run. Yes, he’s running in a party whose debate audiences literally cheer for the death penalty, so I’m not sure a case like Mr. Buck’s would cause him to abandon his hardline support of capital punishment.

But is Supreme Court Justice Antonin Scalia, in light of this decision, reconsidering the death penalty? Adam Serwer puts this all into context:

…in the case of Troy Davis, who may soon be executed despite the fact that the case against him has fallen apart, Scalia wrote an angry dissent claiming that “this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” A “fair trial,” in Scalia’s view, is not necessarily a perfect one…

In this case, it’s best not to read too much into Scalia’s decision to kick the matter to the full court. “Standard practice in this type of case is to refer the matter to the entire Court,” says UCLA Law Professor Adam Winkler…

On the other hand, looking at Scalia’s Davis dissent, there are reasons he might be more sympathetic to Buck despite the fact that his culpability is not in question. Scalia described the Davis case as “a trial untainted by constitutional defect,” whereas Buck’s sentencing is marred by a rather obvious constitutional defect: Testimony that he was more dangerous because of his skin color.

That last bit brings up an important point, with Mr. Davis’ heavily protested execution coming up on Wednesday. Inevitably, there will be more Cameron Todd Willinghams: prisoners who die at the hands of the state despite obvious doubts as to their guilt. There will be others like Mr. Buck, guilty prisoners whose trials were tainted by race. In some ways, Mr. Davis’ case is a terrible mix of both flaws in the system.

Will the Supreme Court save him, too?

Rick Perry's latest execution stopped (for now)

Updated