The National Pulse

A Dangerous Assessment

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When Texas prosecutors urged a jury to sen­tence David Harris to death for the 1985 mur­der of a Beaumont man, they presented testimo­ny from a psychiatrist who said Harris posed a serious risk of fu­ture dangerous behavior.

The psychiatrist acknowledged that he had never examined or even met Harris. He based his opinion on a hypothetical question posed by prosecutors incorporating facts of the crime for which Harris had just been convict­ed. Also considered were previous crimes, unadjudicated offenses and even one alleged offense for which Harris had been acquitted.The jury found the expert’s testimony persuasive. Har­ris, then a 24-year-old apprentice bricklayer, was sentenced in 1986 to die for the shooting death of Mark Mays outside of Mays’ apartment as Harris tried to abduct the victim’s girlfriend.

But during the 18 years he spent on death row, Harris did not engage in any violent or dangerous behavior. In fact, the most serious offense in the records occurred when Harris was accused of kicking a guard while wearing shower shoes. Harris claimed it was an accident.

A recent study by the Texas defender service, which represents defendants facing the death penalty, examined 155 cases in which prosecutors used expert witnesses to predict a defendant’s future dangerousness. The study found that the experts were wrong 95 percent of the time.

Of the 155 inmates against whom state experts testified, eight–5 percent–had engaged in seriously assaultive behavior, defined by the study as an injury requiring more than the administration of first aid. In addition, 31 inmates–20 percent–had no disciplinary record. The remaining 116 inmates–75 percent–had committed disciplinary infractions involving conduct not amounting to seriously assaultive behavior, such as having food in their cells, refusing to shave or yelling obscenities in the hallway.

None of the inmates had killed again, the study showed. Only two had been prosecuted for crimes committed while in prison.

Based on those results and his own disciplinary record, Harris appealed his sentence in early June in state and federal court. He argued that the jury’s prediction of future dangerousness under the state’s death penalty law was unconstitutionally unreliable in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. But no court ever addressed the merits of his claim. Harris’ appeals were denied on procedural grounds. He was executed June 30.

Reliability Debate Continues

Texas, which leads the nation in executions, and Oregon are the only two states where predictions of future dangerousness play a critical role in determining whether a convicted murderer is sentenced to death. To impose a death sentence in either of those states, a jury must find–unanimously and beyond a reasonable doubt–that there is “a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” according to the states’ statutes. Six other death penalty states allow future-dangerousness evidence to play a limited role in a jury’s sentencing decision. Virginia requires that a jury find either that a defendant is a future danger or that the crime he or she committed is particularly heinous or depraved. The remaining 29 death penalty states do not allow future-dangerousness evidence to play any part in the jury’s delib­erations.

Critics say future-dangerousness predictions are junk science at its worst. University of Houston law professor David Dow, who worked on Harris’ appeals, calls such predictions “quackery.” He says most psychiatrists and psychologists would agree with him.

“The fact is, in Texas, you’re being sentenced to death not only for something that you haven’t done, but for something that the evidence suggests you will never do,” he says. But proponents of a future-dangerousness standard say it is a reliable and accurate way of separating those who deserve to live from those who deserve to die.

Joshua Marquis, district attorney of Clatsop County, Ore., who has prosecuted and defended capital murder cases, argues that the future-dangerousness requirement places a greater burden of proof on the state.

“As a prosecutor, I’d rath­er see a death penalty stat­ute like the one California has than the one we have in Oregon because you don’t have to prove as much [there],” he says. In Califor­nia, juries consider a range of aggravating and mitigating factors in deciding whether to sentence a defendant to death.

Marquis, who co-chairs the National District At­torneys Association’s capital litigation committee, also says the future-dangerousness requirement helps ensure that only the worst offenders are condemned to death.

Common-Sense Approach

Marquis says he’s aware of the controversy in the scientific community over the reliability of future-danger­ousness predictions. But he says common sense and 23 years of experience as a lawyer have convinced him that such predictions can reliably be made. He also notes that there seems to be no shortage of so-called experts who are willing to testify that a defendant does not pose a future danger to society.

“I’ve seen several people who I knew were going to commit violent crimes over and over again, and they did,” Marquis says. “Does that mean I’m always going to get it right? No. But for anyone to say that’s junk science is nonsense. Psychiatrists and psychologists do exactly that in a nonforensic, nonlegal setting all the time.”

Gena Bunn, chief of the attorney general’s capital litigation division in Texas, dismissed concerns over the state’s future-dangerousness standard in a 2000 law review article she co-authored.

“Although use of psychiatric testimony to predict future dangerousness is roundly condemned in the scientific community, the reader need only make a common- sense inquiry to see the logic of the system,” she wrote. She cited the case of Aaron Fuller, who was convicted and sentenced to death for raping and killing an elderly woman in 1989. “Would the reader want to share a jail cell with Aaron Fuller?”

Shannon Edmonds, staff attorney for the Texas District and County Attorneys Association, agrees that the future-dangerousness requirement serves a valid and common- sense purpose. He also points out that when such testimony is used, it is used by both sides. “There are as many hired guns for the defense as there are for the prosecution,” he says. “I fail to see how giving jurors information from both sides can be a negative.”

High Court Checks In

Testimony assessing the likelihood of future dangerousness was ruled constitutional by the U.S. Supreme Court in 1983 over the strong objections of the American Psychiatric Association. “The unreliability of psychiatric predictions of long-term future dangerousness,” the group said in its amicus brief, “is by now an established fact within the profession.”

In its decision, the high court said that jurors would be able to distinguish between testimony based on sound scientific theories and testimony based on less reliable opinions. It also said the adversarial nature of the process would be sufficient to remove the taint of inaccurate expert opinions.

“The suggestion that no psychiatrist’s testimony may be presented with respect to a defendant’s future dangerousness is somewhat like asking us to disinvent the wheel,” Justice Byron R. White wrote for the majority. Barefoot v. Estelle, 463 U.S. 880. The court has yet to reconsider its holding in Barefoot in light of its 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, which held that trial court judges must act as “gatekeepers” and assess the reliability of scientific evidence before it is presented to a jury. 509 U.S. 579.

At least one federal appeals judge has suggested, however, that if the factors enunciated in Daubert were ever applied to future-dangerousness testimony, such testimony probably would be excluded.

“Overall, the theory that scientific reliability underlies predictions of future dangerousness has been uniformly rejected by the scientific community absent those individuals who routinely testify to, and profit from, predictions of dangerousness,” 5th U.S. Circuit Court of Appeals Judge Emilio M. Garza wrote in a 2000 concurring opinion upholding a Texas inmate’s death sentence. Flores v. Johnson, 210 F.3d 456.

Last year, Texas state Rep. Jim Dunnam, D-Waco, filed legislation to bar the use of such evidence, but the bill never made it out of the criminal jurisprudence committee. Dunnam says he plans to reintroduce the measure when the legislature reconvenes next January, although he admits that its prospects for passage don’t appear promising.

“Texas politicians are awfully reluctant to talk about the death penalty,” he says, “in terms other than ‘Pull the switch.’ ”

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