Capital Litigation in South Padre Island eBook

Capital Litigation October 28, 2022 South Padre Island, TX

Course Directors: Steve Miears & Liz Harvey

The seminar is sponsored by CDLP, a project of TCDLA, funded by the Texas Court of Criminal Appeals

Criminal Defense Lawyers Project

Capital Litigation Table of Contents

speakers Dr. Hans Hansen Rick Wardroup Gretchen Sween

topic Narrative Team Building Wellness and the Capital Litigator Anticipating and Attacking the State’s Reliance on ASPD Testimony and Argument

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CAPITAL DEFENSE SEMINAR INFORMATION Date Location Course Director Total CLE Hours:

October 28, 2022 South Padre Island, Texas Steve Miears and Liz Harvey 7.0 Ethics: 1.0

Friday, October 28, 2022 Time

CLE

Daily CLE Hours: 7.0 Topic

Ethics: 1.0 Speaker

7:45 am

Registration/Continental Breakfast

8:15 am

Opening Remarks

Steve Miears and Liz Harvey

8:30 am

1.0

Introduction to Neuroscience and a Look at Personality Disorders

Jeffrey D. Lewine, Ph.D.

9:30 am

1.0

Neuropsych Evaluations for ASPD

Jeanine Galusha, Ph.D.

10:30 am 10:45 am

Break 1.0

11:45 am 12:00 pm

Organizing the Team for Difficult Times

Hans Hansen Ph.D.

Lunch Line 1.0

Lunch Presentation: Wellness and the Capital Litigator

Rick Wardroup

ETHICS

1:00 pm

Break

1:15 pm

1.5

Defense of a Non-shooter (Flip-side of ASPD)

2:45 pm

1.5

Anticipating and Attacking the State’s Reliance on ASPD Testimony and Argument

4:15 pm

Bill Harris, Patrick Curran, Nicole Van Toorn Gretchen Sween

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Criminal Defense Lawyers Project

Capital Litigation October 28, 2022 Beach Resort at South Padre Island South Padre Island, TX

Topic: Narrative Team Building and Strategizing

Speaker:

Hans Hansen, PhD Texas Tech University Rawls College of Business 806.470.4778 phone Hans.Hansen@ttu.edu email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

10/20/2022

Hans Hansen, PhD Texas Tech Narrative Team Building (and strategizing)

What are narratives? What do they do?

• Stories • Educate • Accounts of ‘what happened’ • The outcome of sensemaking • BUT ALSO…. !!!!

• They are PRODUCED • CREATE understandings

•Guide, but also control us

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How Narratives Become “true” via enactment

(4) Concept embedded in discourse

(2) symbols, narratives, stories, rhetoric are employed

DISCOURSE CREATION

(3) Discourse associated with some organizational concept or agenda (1) Discursive statements are made as part of sensemaking or proposal of agenda

(5) Discourse warrants attention of members

DISCOURSE PERFORMED

(6) Discourse has meaning for actors (7) Discourse ‘takes’

(9) Discursive meaning shared, becomes common practice, and influences future discourse

(8) Discourse manifested in practice

DISCOURSE ENACTED (model adapted from Hardy, Palmer, Phillips, 2000)

A narrative summary

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Most of the time….

But… the goal for us • To collective create a narrative that will guide the team

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Some suggested steps: 1. Meet as a team to identify goals, vision, how you want it to be 2. Put it in CONCRETE story form a. Enactable (action verbs) b. Plausible

3. Use it as a guide to your actions, decisions a. Flexible b. Highly-coordinated

The trick is in “the creation of” the narrative (a lot becomes clear)

For more information (academics snuck into a gripping tale)

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Questions?

Thank you so much. I am very passionate about, and love to help, the death penalty defense community. Let me know if I can help more. Don’t hesitate to contact me. Hans.Hansen@ttu.edu

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Criminal Defense Lawyers Project

Capital Litigation October 28, 2022 Beach Resort at South Padre Island South Padre Island, TX

Topic: Wellness and the Capital Litigator

Speaker:

Rick Wardroup Curriculum Attorney Texas Criminal Defense Lawyers Association 915 Texas Ave Lubbock, TX 79401-2725 806.283.1469 phone 806.762.1699 fax rwardroup@tcdla.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

10/20/2022

REVIEW OF “THE PATH TO LAWYER WELL-BEING” Practical Recommendations for Positive Change

Rick Wardroup, Curriculum Attorney Texas Criminal Defense Lawyers Association rwardroup@tcdla.com (806)283-1469

The Alarm is Sounded!

2016 ABA Commission on Lawyer Assistance Programs and Hazelden Betty Ford Foundation study of nearly 13,000 lawyers  “Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns” 

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WHAT, ME WORRY?

Recommendation 1 Acknowledge the Problems and Take Responsibility

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Take a Look at Yourself

What Are The Problems? 

Nearly ½ of Texas lawyers are concerned with depression at some point in career 

28% experiencing it in moderate to high levels

Burnout  Depression often contributes to suicide 

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Letting the Balls Drop 

Impaired person isn’t a good lawyer



Distracted person isn’t a good lawyer



“The unexamined life . . ..”

It Starts Early 2015 law school wellness study:  42% of law students reported needing help for emotional or mental health problems 

20.5% reported they had considered suicide in the past

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Problem Drinkers Lawyers v. Comparable Professionals 25.00%

20.00%

15.00%

10.00%

5.00%

0.00%

I Can Change the Way I Feel Anytime

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Colleague In Danger? 



Air Force study (2010) Suicide prevention training included in all military training reduced the mean suicide rate within the population studied by 21%.

Just Ask About It!  

   

Be ready to listen.

Give yourself ample time for what might unfold.

Know that you won’t have all the answers.

Be prepared to hear about difficult struggles.

Choose a place that is private and informal.

Be prepared to get help.

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Recommendation 2 Use This Report as a Launch Pad

Recommendation 3 Leaders Should Demonstrate a Personal Commitment to Wellbeing 

State Bar’s Response   

Increase the staff at TLAP Provide resources for treatment Encourages local associations to develop awareness and protocols

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Our TLAP Staff

What the Process Looks Like Confidential call made to TLAP*  Referral made to local lawyer volunteer  Possibly solicitation of support  Non-threatening visit w/ information shared  Follow-up where appropriate 

• *

caller’s identity never divulged

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Money Is Not an Object!

Recommendation 4 Facilitate, Destigmatize, and Encourage HelpSeeking Behaviors

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Monkey, Human, Lawyer Destigmatation Isn’t Making Excuses

Simple Chemistry

Explains attraction of alcohol and substances

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Dopamine Rush

Results of Attempts Deal With Stress 

people who suffer from alcohol and substance use disorders have a sixfold increase in suicide rates



36% of lawyers meet criteria for having a substance use disorder

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Other Methods for Managing Stress     

Make self-care a priority Make time to decompress Set boundaries (and keep them!)

Loose the multitasking mentality Develop and increase awareness

Make Self-Care a Priority

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“Do Not Disturb” Time

Set Boundaries

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Loose the Multitasking Mentality

Be Aware

Not Just For Rocket Scientists Nor Monks

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Exercise Effects More Than Your Body!

Build a Circle of Accountability

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Therapy is for Winners

Recommendation 5 Build Relationships with Lawyer Well-Being Experts



Mindful Mondays



Articles in “The Voice”



Expert presentations at seminars

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Recommendation 6 Foster Collegiality and Respectful Engagement Throughout the Profession



“Chronic incivility is corrosive.”

Cut Ourselves Some Slack

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Recommendation 7 Enhance Lawyer’s Sense of Control 

Lack of control + high job demand = DEPRESSION



Depression + time = Suicidal Ideation

Practices to Consider Eliminate  expectations of 24/7 work schedules and prompt response to electronic messages  senior lawyers creating emergencies for junior attorney’s management  tight deadlines set by clients or prosecutors not based on court setting  trial settings immediately after vacation`

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Recommendation 8 Provide High-Quality Educational Programs About Lawyer Distress and Well-Being

Recommendation 9 Guide and Support the Transition of Older Lawyers

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As Time Goes By Planning Transition of Older Lawyers 1.

2.

3.

Provide education to detect cognitive decline.

Develop succession plans.

Create transition programs to respectfully aid retiring professionals plan for their next chapter.

Know The Signs       

Memory loss Disorientation Deteriorating performance Poor grooming/hygiene Disinhibition from usual behaviors Trouble staying on topic Denial of all of the above

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Starting This Conversation*   



“I am concerned about you because . . ..”

“We have worked together a long time. . ..”

“So, I hope you won’t think I’m interfering when I tell you I am worried about you . . ..”

“I’ve noticed you haven’t been yourself lately, and I’m concerned about how you are doing. . ..”

• “How to Deal with Aging Lawyers” – Chris Ritter

Brain Disease – Alzheimer’s

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ABA Definition of Lawyer Well-Being “A continuous process in which lawyers strive for thriving in each dimension of their lives:  Occupational  Intellectual  Spiritual  Physical  Social  Emotional”

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Criminal Defense Lawyers Project

Capital Litigation October 28, 2022 Beach Resort at South Padre Island South Padre Island, TX

Topic: Anticipating and Attacking the State’s Reliance on ASPD Testimony & Argument Speaker:

Gretchen Sween Ph.D., J.D. Law Office of Gretchen Sween PO Box 5083 Austin, TX 78763-5083 214.557.5779 phone gsweenlaw@gmail.com email www.gsweenlaw.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Anticipating and Attacking the State’s Reliance on ASPD Testimony & Argument Outline Augmented by Some Critical History TCDLA Presentation, October 28, 2022 Gretchen Sween, Ph.D., J.D gsweenlaw@gmail.com I.

Understand the Appeal of “Personality Disorders”: The State’s Perspective •

Misconception that mitigation is limited to that which “reduces moral blameworthiness”

•

For State, only value of mental-health expertise: chance to inject ASPD and/or psychopathy “diagnosis” into case

Note: According to the State, every one of our clients has ASPD. Yet, at most, the prevalence of psychopathy is 1% in the general population and 15-25% in incarcerated populations. See John F. Edens & Jennifer Cox, Examining the Prevalence, Role and Impact of Evidence Regarding Antisocial Personality, Sociopathy and Psychopathy in Capital Cases: A Survey of Defense Team Members, 30 BEHAV. SCI. & L. 239, 248 (2012) (explaining results of survey study finding that in capital cases, “mental health evidence concerning APD, sociopathy, or psychopathy was presented by prosecutors in virtually every case in which they presented any mental health evidence at all.”)

•

Helpful to the State because plays to jurors’ misconceptions and biases

But note: Researchers and scholars have found a positive correlation between a defendant’s perceived lack of remorse with jurors’ imposition of the death penalty.

Mark Costanzo & Sally Costanzo, Jury Decision Making in the Capital Penalty Phase, 16 L. & HUM. BEHAV. 185, 198 (1992); Scott E. Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 CORNELL L. REV. 1557, 1558 (1998).

II.

Learn from History

What follows here is a short (no joke) history of the litigation against the use of irresponsible/baseless ASPD labels in death-penalty cases.

A.

Barefoot v. Estelle & the APA’s Objections 1

The merits question in Barefoot v. Estelle, 463 U.S. 880 (1983) was: whether the State’s use of psychiatrists to make predictions about the defendant’s future dangerousness was unconstitutional because “psychiatrists, individually and as a class, are not competent to predict future dangerousness.” Id. at 884. The majority decided that the jury should be left to “make up its mind” about which experts’ opinions to credit and should not be barred from hearing the views of the State’s psychiatrists “along with opposing views of the defendant’s doctors.” 1 Id. at 898-99.

The theme of the resulting opinion was that the adversarial process would take care of any problems of reliability. Id. at 899-902.

However, the end of the opinion alludes to the real concern animating the court’s decision: “At bottom, to agree with the petitioner’s basic position would seriously undermine and in effect overrule Jurek v. Texas, 428 U.S. 262 (1976).” Id. at 906 (emphasis added). In other words, the Barefoot majority recognized that, if expert testimony about the probability of any given defendant committing a criminal act of violence in the future was unreliable, then, perhaps, the whole endeavor of making such predictions might be unreliable; and such a conclusion risked destabilizing every death sentence that Texas had handed down since 1976.

Barefoot includes an excoriating dissent by Justice Blackmun, focused on his colleagues’ refusal to consider the American Psychiatric Association’s unequivocal condemnation of psychiatric testimony regarding future dangerousness as a phenomenon that distorted the fact-finding process in capital cases. The dissent spells out the precise testimony that was at issue, including conclusory testimony from Dr. Grigson who had diagnosed Barefoot, without ever meeting him, as “a fairly classical, typical sociopathic personality disorder” of the “most severe category” of sociopaths who, whether in society at large or in the society of prison, was so irredeemable that Dr. Grigson found a “‘one hundred percent and absolute’ chance that Barefoot would commit future acts of criminal violence that would constitute a continuing threat to society.” Id. at 919 (emphasis retained). Only the dissent explained that the American Psychiatric Association had categorically condemned Dr. Grigson’s testimony, and this kind of testimony generally, as demonstrably unreliable. Id. at 920. “Neither the Court nor the State of Texas ha[d] cited a single It merits noting that, according to Barefoot’s footnote 5, “petitioner had not offered any evidence at trial to contradict the testimony of Doctors Holbrook and Grigson and, critically, there was no record that petitioner had sought and been refused funds to procure an expert of his own.” This off-the-cuff observation ignored the reality that, at that time, Texas law provided for indigent defendants to receive only $500—total—for all investigation and experts, an amount that some experts charge for a single hour of their time. See TEX. CODE CRIM. PROC., art. 26.05(d) (1982) (providing for payment of $500 for “expenses incurred for purposes of investigation and expert testimony.”).

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reputable scientific source contradicting the unanimous conclusion of professionals in this field that psychiatric predictions of long-term future violence are wrong more often than they are right.” Id. at 921. And Justice Blackmun called out his colleagues for ignoring the obvious: that “[i]t is impossible to square admission of this purportedly scientific but actually baseless testimony with the Constitution’s paramount concern for reliability in capital sentencing.” Id. at 923-24.

Indeed, Justice Blackmun was flabbergasted: “Surely, this Court’s commitment to ensuring that death sentences are imposed reliably and reasonably requires that nonprobative and highly prejudicial testimony on the ultimate question of life or death be excluded from a capital sentencing hearing.” Id. at 929. Allowing this kind of quackery to be put before the jury was, Justice Blackmun recognized, a grave “distortion of the truth-finding process” that is supposed to animate a trial. Id. at 931. Justice Blackmun attacked the majority opinion’s blithe conclusion that the adversarial process could be depended upon to help the jury sort wheat from chaff; and in making the attack, Justice Blackmun quoted words the Chief Justice had penned two decades earlier about the limits of the adversarial process and how jurors have difficulty distinguishing between science and pseudo-science: The very nature of the adversary system . . . complicates the use of scientific opinion evidence, particularly in the field of psychiatry. . . .

Although under ideal conditions the adversary system can develop for a jury most of the necessary fact material for an adequate decision, such conditions are rarely achieved in the courtrooms in this country. These ideal conditions would include a highly skilled and experienced trial judge and highly skilled lawyers on both sides of the case, all of whom in addition to being well-trained in the law and in the techniques of advocacy would be sophisticated in matters of medicine, psychiatry, and psychology. It is far too rare that all three of the legal actors in the cast meet these standards.

Id. at 933 (quoting Burger, Psychiatrists, Lawyers, and the Courts, 28 FED. PROB. 3, 6 (June 1964)).

Even after Dr. Grigson was expelled from the American Psychiatric Association and the Texas Society of Psychiatric Physicians because of his unethical practices, he continued to testify as an expert witness on behalf of the State of Texas. 2 Recently, the CCA concluded that one of the individuals who remains on Texas’s death row because of Dr. Grigson’s testimony was not entitled to relief even though the prosecutor who had sponsored Dr. Grigson’s testimony had conceded that she would not have done so had she known that Dr. Grigson had been sanctioned for ethics violations. See Ex parte Jeffrey Lee Wood, No. WR-45,500-02 (Tex. Crim. App. Nov. 21, 2018).

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See Effect of “Dr. Death” and his testimony lingers, HOUSTON CHRONICLE, June 27, 2004. 3 This was possible because a majority in Barefoot had punted on the question of reliability—even though heightened reliability in sentencing is supposed to be a pillar of a constitutionally compliant capital-sentencing scheme. See, e.g., Woodson, 428 U.S. at 305 (“Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”).

B.

Kelly/Daubert Implicitly Undercut Barefoot

Justice Blackmun’s critique in Barefoot about the need for courts to play a critical gatekeeping function to ensure reliability in capital sentencing fell on deaf ears. But the concern about keeping from the jury baseless, unreliable testimony masquerading as “expertise” became the subject of a landmark civil case a decade later. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Regrettably, the Supreme Court at that time was more concerned about the problem of unreliable, quasi-scientific testimony from purported experts in cases involving money judgments than in cases involving matters of life and death. 4 The Daubert decision was indeed a game-changer—which should have immediately been seen as changing the precedential value of Barefoot. After all, the foundation upon which Barefoot rested was the then-prevailing view that: “the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party.” Barefoot, 463 U.S. at 898. But with Daubert, that foundational premise was rejected; no longer would evidentiary rules simply favor admissibility based on the naïve notion that the adversary system would resolve all issues of weight and credibility relevant to testimony presented as “science.” Daubert established that the trial judge should ensure that purported scientific testimony or evidence must be not At least two inmates remain on Texas’s death row who were sent there following trials featuring Dr. Grigson’s wholly unreliable speculations about future dangerousness. One of those is Jeff Wood, who was sitting in a car when someone else shot and killed a store clerk during a robbery-gone-bad; the other one is Scott Panetti, whose flagrant mental illness remains the subject of ongoing litigation about his competency to be executed. See, e.g., Panetti v. Davis, 863 F.3d 366 (5th Cir. 2017).

3

This poignant irony was implicitly acknowledged by one jurist, even while concurring in the decision to affirm a Texas inmate’s death sentence: “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.” Flores v. Johnson, 210 F.3d 456, 465 (5th Cir. 2000) (Garza, J., concurring).

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only relevant, but also reliable or be deemed inadmissible. 509 U.S. at 589. That is, Barefoot had entrusted the “adversary process ... to sort out the reliable from the unreliable evidence,” insisting that the jury was a “constitutionally competent” factfinder, 463 U.S. at 880 n.6, 900, but Daubert imposed on the judge a “gatekeeping” role; as gatekeeper, the judge must assess the admissibility of expert testimony outside the presence of the jury and arrive at a “quick, final, and binding legal judgment—often of great consequence.” 509 U.S. at 597.

Ever since Daubert, courts must find an expert’s testimony reliable and that the alleged expertise must actually assist the trier of fact. 509 U.S. at 590-91. 5 The Supreme Court offered a non-exhaustive list of factors to determine reliability, including whether the expert’s theory can be tested, whether it has been subjected to peer review and publication, whether it has an acceptable rate of error, and whether it had gained general acceptance in the relevant scientific community. No single factor is dispositive. 509 U.S. at 593. The Supreme Court also explained that “the ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” 509 U.S. at 591-92. And as the Texas Supreme Court has further clarified, “[i]f the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). That is, courts as gatekeepers also have an obligation to probe the basis for an expert’s opinion for reliability. Further, Daubert’s progeny instructs that “an expert’s testimony is unreliable even when the underlying data are sound if the expert draws conclusions from that data based on flawed methodology.” Id. In other words, the reliability of the reasoning process used to move from data to conclusion must be vetted. Any “flaw in the expert’s reasoning from the data may render reliance on a study unreasonable and render the inferences drawn therefrom dubious.” Id. If the expert’s testimony is unreliable for any of these reasons, then “legally,” it amounts to “no evidence” at all. Id. Heightened concerns about the reliability of experts’ opinions are imminently reasonable because, unlike lay witnesses, experts occupy a special status: they are “permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Id. at 592. As one moves further from the requirement of personal knowledge, deemed a sufficient indicator of reliability at common law, expert testimony must find its reliability elsewhere. Id. Expert testimony must be based on “scientifically valid” methodologies and reasoning. Id. at Texas actually beat the Supreme Court in arriving at this victory for enhanced reliability in expert testimony. See Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (interpreting Texas Rule of Evidence 702, which mirrors the federal rule subsequently analyzed in Daubert). Yet binding authority has not yet recognized how Kelly/Daubert are incompatible with the rationale underlying Barefoot— although many have made the argument.

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593-94.

Where legal disputes are of “great consequence,” as in capital cases, the need for gatekeeping should be even more pressing. Id. at 597; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (describing Daubert’s objective is to secure reliable and relevant testimony).

Commentators soon recognized the tension between the modern rules of evidence reflected in Daubert and the optimistic assessment of jurors’ ability to separate wheat-from-chaff announced in Barefoot. See, e.g., Paul C. Giannelli, Daubert: Interpreting the Federal Rules of Evidence, 15 CARDOZO L. REV. 1999, 2021(1994) (“Barefoot is inconsistent with Daubert . . . Daubert required a higher standard of admissibility for money damages than Barefoot required for the death penalty.”); Randy Otto, On the Ability of Mental Health Professionals to “Predict Dangerousness”: A Commentary on Interpretations of the “Dangerousness” Literature, 18 LAW & PSYCHOL. REV. 43, 64 & n. 65 (1994); David L. Faigman, The Evidentiary Status or Social Science under Daubert: Is it “Scientific,” “Technical,” or “Other” Knowledge?, 1 PSYCHOL. PUB. POL’Y & L. 960, 967 n. 32 (1995) (“Barefoot is inconsistent with Daubert.”); John H. Mansfield, Scientific Evidence Under Daubert, 28 ST. MARY’S L. J. 1, 37 (1996) (“If Barefoot does not necessarily conflict with Daubert, it certainly is in tension with it.”); Michael H. Gottesman, From Barefoot to Daubert to Joiner: Triple Play or Double Error, 40 ARIZ. L. REV. 753, 755 (1998) (“Daubert cannot be squared with Barefoot.”); Erica Beecher-Monas & Edgar Garcia-Rill, The Law & The Brain: Judging Scientific Evidence of Intent, 1 J. APP. PRAC. & PROCESS 243, 222 (1999) (“In light of Daubert’s emphasis on acceptable error rates . . .

Barefoot’s decision is highly questionable.”); Craig J. Albert, Challenging Deterrence: New Insights on Capital Punishment Derived from Panel Data, 60 U. PITT. L. REV. 321, 338 (1999) (“Notwithstanding the fact that Barefoot and Daubert can stand together as a matter of law, it may be fair to say that they cannot co-exist as a matter of common sense.”).

Some judges then started to note the troubling tension between Barefoot and Daubert. See Flores, 210 F.3d at 458-70 (Garza, J. specially concurring) (noting that the Supreme Court’s decision in Daubert may have undermined Barefoot); United States v. Sampson, 335 F. Supp. 2d 166, 220-21 (D. Mass. 2004) (stating that there is a “serious question” as to whether the Supreme Court would, in a post-Daubert world, continue to hold that a jury may impose the death penalty based on its prediction of a defendant’s future dangerousness). Indeed, Arizona’s Supreme Court concluded that it is “impossible” to reconcile Daubert with Barefoot. Logerquist v. McVey, 1 P.3d 113, 127 (Ariz. 2000).

But to date, neither the U.S. Supreme Court nor the CCA has revisited Barefoot in light of Daubert in conjunction with the constitutional mandate of heightened reliability in death-penalty cases. If either high court did so, it would 6

inevitably lead to the conclusion that future-dangerousness predictions that the State’s mental-health “experts” offered for decades are inherently unreliable and thus such predictions are an improper component of a capital-sentencing scheme.

C.

One Small Step Forward: Coble

The CCA recognized at least half of this equation—how the legal landscape has changed since Barefoot in terms of evidentiary standards for expert testimony—in 2010. See Coble v. State, 330 S.W.3d 253 (2010).

Coble addressed, in part, the reliability of another infamous “Dr. Death” whom the State employed in numerous capital cases to opine about a defendant’s future dangerousness. Id. at 270-87 (discussing error of trial court under Tex. R. Evid. 702 in admitting testimony of Dr. Richard E. Coons at a capital-resentencing hearing).

After a careful review of the record of Dr. Coons’ voir dire testimony, the CCA concluded that Dr. Coons was unfamiliar with the current literature in his field; knew of no studies regarding the accuracy of long-term predictions; did not know if other psychiatrists rely on the methodology he uses, but doubted that they do; used criteria in his own “idiosyncratic” evaluations that “overlap and blend;” had never ascertained the accuracy of his own predictions; and could not tell what his own accuracy rate might be. Id. at 271-72, 277. Consequently, the CCA concluded that the prosecution had not satisfied its burden of demonstrating the admissibility of Coons’ testimony.

Id. at 279-80.

But as the CCA gave with one hand it took away with another. While ruling that the testimony of Dr. Coons was insufficiently reliable under Rule 702, the CCA rejected the more important argument that Coons’ testimony was inadmissible because it failed to meet the heightened-reliability requirement of the Eighth Amendment and thus admitting it violated Mr. Coble’s right to due process. In doing so, the CCA stated that “the United States Supreme Court, in Barefoot v. Estelle, rejected this argument and we are required to follow binding precedent from that court on federal constitutional issues.” Id. at 270. 6 In doing so, the CCA, however, misapprehended the scope of Barefoot’s actual holding. 7 Curiously, Coble does not specify which of the various arguments at issue in Barefoot it had considered in reaching the conclusion that the constitutional inquiry had been foreclosed. But Barefoot did not in fact categorically reject the Eighth Amendment or Due Process challenges to the admission of unreliable expert testimony.

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The CCA itself appeared to second-guess the wisdom of this ruling when it ordered briefing in another case, Ex parte Ramey, on possible constitutional violations engendered by the admission of Dr. Coons’ testimony: “Applicant and the State shall file briefs on the above claim specifically addressing whether the holding in Coble v.

State, 330 S.W.3d 253 ([Tex. Crim. App.] 2010), impacts this claim in a federal 7

7

Barefoot did not compel the result in Coble. Barefoot does not hold that considering the reliability of expert testimony is constitutionally irrelevant, let alone barred. As explained above, what Barefoot actually addressed was whether psychiatrists can ever testify about future dangerousness without injecting error into the proceeding, not whether a particular expert’s testimony was constitutionally unreliable. 463 U.S. at 884-85 (summarizing Barefoot’s arguments on appeal as concerning whether the predictions of psychiatrists “are so likely to produce erroneous sentences that their use violated the Eighth and Fourteenth Amendments”). Therefore, Barefoot cannot stand for the proposition that psychiatric predictions of future dangerousness were shielded in perpetuity from constitutional scrutiny.

Even while the Barefoot majority expressly rejected a categorical bar to the admission of such testimony, it implicitly suggested that developments in evidentiary standards might alter the constitutional analysis. And, as discussed above, evidentiary standards did thereafter develop. No longer do state or federal courts in Texas leave it to jurors to assess the reliability of expert testimony. In light of these developments in evidence law and the on-going constitutional commitment to reliability and accuracy in capital-sentencing proceedings, the holding of Barefoot must be interpreted consistently with the notion that the Constitution requires some indicia of reliability before expert testimony may be admitted in a proceeding where a life is at stake. 8 Moreover, since Barefoot, the Supreme Court has readily acknowledged mounting evidence of a far broader reliability problem: that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials.” Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 317-18 (2009) (affirming that the ultimate goal of the Confrontation Clause is to ensure evidentiary reliability). The Supreme Court has also noted that “[a] forensic analyst responding to a request from a law enforcement constitutional setting.” Ex parte Ramey, No. AP-76,533 (Tex. Crim. App. Apr. 6, 2011).

However, the CCA ultimately concluded again, without further substantive discussion, that it was bound by Barefoot, even though Barefoot did not foreclose all constitutional challenges of this nature. Ex parte Ramey, 2012 Tex. Crim. App. LEXIS 1511 * 2-3 (Tex. Crim. App. Nov. 7, 2012).

Although Barefoot held that there was no categorical bar on psychiatric predictions, it noted that “[p]sychiatric testimony predicting dangerousness may be countered ... as erroneous in a particular case[.]” 463 U.S. at 898. It certainly did not hold that “expert” testimony provided by the likes of Dr. Grigson and Dr. Coons automatically meets the threshold of heightened reliability under the Eighth Amendment. But see Devoe v. State, 354 S.W.3d 457, 476 (Tex. Crim. App. 2011).

8

8

official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.” Id. Indeed, a report from the National Academy of Sciences, cited in Melendez-Diaz, 557 U.S. at 318, remarked that “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” 9 If unreliable expert testimony has no value to civil juries where money damages are at stake, it should not be permitted when a jury is considering the possibility of a death sentence. Barefoot cannot stand for the proposition that all psychiatric expert testimony is admissible as a matter of constitutional law without any threshold showing of minimal reliability; yet that is what the CCA held in Coble.

Put another way: it cannot be that only Rule 702, not the Constitution, imposes limits on the quality or validity of expert testimony that can be presented to a jury deciding the critical question of whether a defendant lives or dies.

Because the ruling in Coble is unsupported by Barefoot itself, Coble is in tension with developed jurisprudence regarding both capital punishment and expert witnesses and is inconsistent with other constitutional principles. Therefore, Coble should not be viewed as the last word on the subject. Otherwise, the door remains wide open to unreliable quackery and junk science. See, e.g., General Electric Co. v.

Joiner, 522 U.S. 136, 153 n.6 (1997) (Stevens, J., concurring) (using as an example of junk science a phrenologist who would testify that future dangerousness was linked to the shape of a defendant’s skull); see also Saldano v. Cockrell, 267 F. Supp. 2d 635, 642 (E.D. Tex. 2003), aff’d in part and dismissed on other grounds sub. nom. Saldano v. Roach, 363 F.3d 545 (5th Cir. 2004) (holding that reliance on defendant’s race as part of expert’s future dangerousness evaluation violated the Equal Protection Clause). 10 D.

One Giant Step Back: Lagrone

See National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 183 (2009). Available for download at https://www.nap.edu/catalog/12589/strengthening-forensic-science-inthe-united-states-a-path-forward.

9

On February 28, 2019, Billie Coble was executed, a sentence derived from unreliable junk-science testimony from Dr. Coons and false, perjured testimony from another expert. See Billie Wayne Coble v. Davis, 18-5546, available at https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public /18-5546.html.

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9

III.

How Lagrone Enables Injecting ASPD Label and How to Fight Back

Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997): What did it actually hold?

– certain defense action effects a limited waiver of 5th Amendment right: “when the defense demonstrates the intent to put on future dangerousness expert testimony, trial courts may order defendants to submit to an independent, state-sponsored psychiatric exam prior to the actual presentation of the defense's expert testimony” Lagrone embodies a state rule adopted in the wake of Buchanan v. Kentucky, 438 U.S. 402 (1987) (holding that, when defense expert conducts mental health exam and defense presents results at trial, State expert can conduct own exam TO REBUT).

Some key text: n.8: “Because the defendant has not actually waived his Fifth Amendment protection prior to the presentation at trial of future dangerousness expert testimony, it is crucial for the trial court to protect the defendant's Fifth Amendment rights. Indeed, in this case, the trial court deserves commendation for its efforts in ensuring that the defendant's Fifth Amendment rights were protected to the greatest possible extent.

Other courts would do well in the future, in fact, to follow the guidelines adhered to by the trial court in this case. See Note 6, supra (setting out the trial court's guidelines).” n.6: 1. State shall notify the defendant's counsel, in advance of the time and place of the examination. Defendant's counsel may not be present during the examination. The defendant may recess the interview and consult with counsel. [Note: not the law; but State will claim it is] 2. Dr. Coons shall not relate by any manner or means his conversations, findings, conclusions and opinions with any State prosecutors or agents.

Dr. Coons shall reduce his findings, conclusions and opinions to writing and deliver the same to the Court for in-camera inspection.

3. The Court, after examination of Dr. Coons' report, will decide whether to release the ultimate conclusions only. If the Court determines the report to contain Brady material, it shall release that [material] to the attorneys.

4. The State may have Dr. Coons present in court if the defense presents a mental health expert to testify.

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5. If the defense calls a mental health expert to testify, at that time, Dr. Coons' report shall be turned over to the State by the Court.

Warning: Milam v. State, No. AP-76,379 (Tex. Crim. App. May 23, 2021) (unpub.) suggests that the waiver maybe unlimited. But do not concede this is good law because the proposition conflicts with higher law embodied in the U.S. Constitution.

See Saldaño v. Davis, 701 F. App'x 302 (2017) (emphasizing “limited rebuttal purpose” as basis for State’s expert to obtain access to defendant in reliance on Lagrone, citing SCOTUS cases).

A.

Pre-trial Battles 1. Lagrone Litigation

Fight the notion that Lagrone can ever be used as a sword. (In truth, prosecutors routinely endeavor to use it as a battering ram to try to inject ASPD diagnosis into the case.) The “right” to seek rebuttal evidence does not ripen until defense expresses intent to use fruits of mental-health examination of the client in a specific way.

Never lose sight of this objective: Avoid personality testing entirely or at least limited the resulting damage.

Consider what you want your testifying experts to address: •

Is exam of client necessary to methodology and thus credibility?

•

Can expert reasonably rely on testing undertaken by other experts? A generally accepted practice?

Vet what your experts will do: •

Do they really need to discuss facts of underlying offense or extraneous offenses with the client?

•

Ensure they stay in their lane, e.g., neurologist or education expert has no business opining about personality disorders.

Give your own experts what they need to be able to do an appropriate assessment and defend their methodology and results.

NEVER accept State’s expert getting initial access to client.

If State’s expert is permitted access, litigate everything about process:

11

•

Scope of exam – “mirror image” = “limited to the issue raised by the defense.”

Williams v. Lynaugh, 809 F.2d 1063, 1068 (5th Cir. 1987)

•

Right to receive production in advance of testing materials, names of all who will be present and why, etc.

•

Right to discover method and substance of testing actually undertaken.

Preempt argument re giving client test/answers in advance by proposing Protective Order.

Object preemptively to involuntary waiver, noting client cannot be expected to do this in the moment; this also affords an opportunity to educate re client’s mental illness or impairment.

Demand a deposition after testing to prep for Daubert hearing.

Constitutionalize all requests and objections, on the record, repeatedly.

2. Daubert Litigation Bases for Challenges •

Threshold issue: is expert testimony really necessary, will it “assist” the jury, with respect to a given issue

•

Qualifications must be relevant to purported expertise, see Vela v. State, 209 S.W.3d 126 (Tex. Crim. App. 2006)

•

Opinions must be relevant to a disputed issue

•

Methodology must be reliable

•

Probative value must outweigh danger of unfair prejudice

Objectives in Challenging State’s expert’s ASPD opinions under Daubert: •

Show you are being mindful of the Rules of Evidence, e.g., o TRE 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

12

o TRE 705: Disclosing the Underlying Facts or Data and Examining an Expert About Them •

Seek to exclude expert or limit scope of his/her testimony

•

Use Daubert’s requirements to develop points for cross

•

Expose biases & interest

•

Assess the intangibles in terms of how this expert will “play” to the jury

Get help from your own expert for attacking the process and conclusions of the State’s expert and strengthening the presentation of your own experts.

B.

Primary Trial Battle: Deconstructing ASPD on Cross 1. Basic Questions to Ask in Pursuing Your Objectives

Objectives should include: •

Getting best fodder from Daubert challenge before the jury

•

Exposing biases & interest

•

Federalizing your objections to entire enterprise (Don’t just rely on TRE; also invoke 5th, 6th, 8th, 14th Amendments to the U.S. Constitution) 2. Utilize DSM a. Use DSM-5 against State’s expert

Note: ASPD and psychopathy are diagnoses of exclusion, meaning that other, more common disorders such as depression, anxiety disorder, and PTSD must first be ruled out to proceed with a personality disorder diagnosis. If defense teams are able to gather evidence pointing to a mental disorder, which are comparatively less aggravating than personality disorder diagnoses, they may be able to insulate their client from the prejudicial effects of personality disorder labels. Lauren N. Miley et al., An Examination of the Effects of Mental Disorders as Mitigating Factors on Capital Sentencing Outcomes, 38 BEHAV. SCI. & L. 381, 385-86 (2020). b. Obtain admissions: symptoms, such as “impulsivity” are imprecise and open to subjective interpretation, even racial bias 13

c. DSM does not even include “psychopathy” as an independent diagnosis because so controversial; not widely accepted within field d. DSM is in its 5th edition; there have been significant changes over time, reflecting continuously evolving scientific understanding, particularly of the brain; thus, the DSM does not purport to be the “definitive word” on anything.

Note: Until 1987, the DSM classified homosexuality as a mental disorder; “hysteria” was not removed until the 5th edition. DSM only recently recognized PTSD as a discrete (and treatable) mental disorder.

See also Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010): •

Recognizing that “[s]cience is constantly evolving and, therefore, the Rule 702703 "gatekeeping" standards of the trial court must keep up with the most current understanding of any scientific endeavor, including the field of forensic psychiatry and its professional methodology of assessing long-term future dangerousness.”

•

Finding that the trial court abused discretion in admitting Dr. Coons’s expert testimony because “prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coons’s methodology for predicting future dangerousness by clear and convincing evidence during the Daubert/Kelly gatekeeping hearing in this particular case.” e. Even though ASPD in the DSM, it has been frequently misapplied.

Note: Dr. James Grigson aka “Doctor Death” believed that people he had diagnosed with ASPD or psychopathy were inherently evil, and testified so in court on the State’s behalf—often without meeting with those he “diagnosed” at all. See Laura Beil, Groups Expel Texas Psychiatrist Known for Murder Cases, DALLAS MORNING NEWS (July 26, 1995), https://web.archive.org/web/20090307034749/ http://ccadp.org/DrDeath.htm [https://perma.cc/64GY-SXSJ].

C.

Additional Trial Battles

Prepare motion in limine to preclude improper argument.

Object to prosecution pursuing improper questions (assuming facts not in evidence, lack of foundation, etc.) or argument regarding ASPD/”sociopath” label.

Basic Argument: “sociopath/psychopath” is akin to “rabid dog,” “monster,” etc.

14

Basic Law: Castigating a defendant in personal and demeaning terms, particularly before a jury, serves “no legitimate purpose except to jeopardize the State’s case on appeal.” Tompkins v. State, 774 S.W.2d 195, 217 (Tex. Crim. App. 1987), aff’d, 490 U.S. 754 (1989). The CCA has “observed the well[-]established rule which prohibits prosecutorial argument that is abusive or inflammatory.” Grant v. State, 472 S.W.2d 531, 534 (Tex. Crim. App. 1971). See also Duran v. State, 356 S.W.2d 937, 938 (Tex. Crim. App. 1962) (finding prosecutor’s instruction to jury in Closing Argument to convict “this punk” to be manifestly improper). Recourse to ad hominem attack invites the jury to convict based on personal animus as opposed to evidence. See, e.g., Velez v. State, No. AP-76,051, 2012 WL 2130890, at *29 (Tex. Crim. App. June 13, 2012) (unpub.) (finding characterization of a defendant as “this coward right here” as improper); Tompkins, 774 S.W.2d at 217 (finding that prosecutor’s comparison of the defendant to “an animal” improper).

IV.

Undertake a Deep Dive

Educate yourself about the scholarly controversies around the ASPD diagnosis generally, in the forensic context specifically, and, most critically, in the context of arguing that someone should be sentenced to death. Start with the APA’s amicus curiae brief in Barefoot, which noted that a large body of research demonstrates that even under the best conditions, psychiatric predictions of long-term future dangerousness based on, for instance, an ASPD diagnosis, are demonstrably wrong in at least two out of every three cases. See also, e.g.: •

Richard Rogers et al., Prototypical Analysis of Antisocial Personality Disorder: A Study of Inmate Samples, 27 CRIM. JUST. & BEHAV. 234 (2000) (“[The] illusion of a unitary ASPD diagnosis is shattered by integral shifts in the diagnostic criteria and the innumerable possibilities under the succession of polythetic models.”).

•

John F. Edens, Unresolved Controversies Concerning Psychopathy: Implications for Clinical and Forensic Decision Making, 37 PRO. PSYCH. 59 (2006) (cautioning against drawing overzealous conclusions based on the PCLR because the construct of psychopathy as well as the assessment tool have great potential for abuse).

•

Willem H. J. Martens, The Problem with Robert Hare's Psychopathy Checklist: Incorrect Conclusions, High-Risk of Misuse, And Lack of Reliability, 27 MED. L. 449, 449 (2008).

•

John F. Edens & Jennifer Cox, Examining the Prevalence, Role and Impact of Evidence Regarding Antisocial Personality, Sociopathy and Psychopathy in Capital Cases: A Survey of Defense Team Members, 30 BEHAV. SCI. & L. 239, 239 (2012) (“[T]he instrument has demonstrated very little utility in predicting 15

the most relevant outcome for defendants facing death or life in prison: violent behavior in U.S. prisons.”).

•

Kathleen Wayland & Sean D. O’Brien, Deconstructing Antisocial Personality Disorder and Psychopathy: A Guidelines-Based Approach to Prejudicial Psychiatric Labels, 42 HOFSTRA L. REV. 519 (2013).

•

John F. Edens et al., Bold, Smart, Dangerous and Evil: Perceived Correlates of Core Psychopathic Traits Among Jury Panel Members, 7 PERSONALITY & MENTAL HEALTH 143 (2013) (finding that laypersons associate psychopathy with evil, a potential for violence, intelligence, and boldness).

•

Michael Baglivio et al., Racial/Ethnic Disproportionality in Psychiatric Diagnoses and Treatment in a Sample of Serious Juvenile Offenders, 46 J. YOUTH ADOLESCENCE 1424 (2016) (finding that Black youths are more likely to be diagnosed with conduct disorder than white youths, that Black and Latino male youths are less likely to be diagnosed with ADHD than white male youths, and that Black males are less likely to receive psychiatric treatment than white males).

•

Bang Thi, The Psychopath’s Double-Edged Sword: How Media Stigma Influences Aggravating and Mitigating Circumstances in Capital Sentencing, 26 S. CAL. REV. L. & SOC. JUST. 173, 176 (2017).

•

Lauren N. Miley et al., An Examination of the Effects of Mental Disorders as Mitigating Factors on Capital Sentencing Outcomes, 38 BEHAV. SCI. & L. 381, 385-86 (2020).

•

David DeMatteo et al., Statement of Concerned Experts on the Use of the Hare Psychopathy Checklist-Revised in Capital Sentencing to Assess Risk for Institutional Violence, 26 PSYCH., PUB. POL’Y, & L. 133, 137 (2020) (“[O]ne cannot use the PCL–R in the context of capital sentencing evaluations to make predictions that an individual will engage in serious violence in high-security institutional settings with adequate precision or accuracy to justify reliance on the PCL–R scores.”).

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Texas Criminal Defense Lawyers Association 6808 Hill Meadow Dr., Austin, TX 78736 • www.TCDLA.com P: 512.478.2514 • F: 512.469.9107