Excerpts of "Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness” are covered in the "In Focus" section.  As noted previously, this is a must read article for anyone who litigates in the realm of future dangerousness. 

I should note that although I have included Vodchodsky v. Texas &  Ex Parte Modden in this edition, Texas cases that normally would be covered in the next edition, I have not had a chance to digest Newbury v. Texas, 2004 Tex. Crim. App. LEXIS 669 (Tex. Crim App. 4/21/2004) &  Hankins v. Texas, 2004 Tex. Crim. App. LEXIS 670 (Tex. Crim App. 4/21/2004) decided the same day of Vodchodsky & Modden.  Booth Newbury & Hankins will be covered in the next edition, along with the United States v. Moussaoui decision from the Fourth Circuit.

As always, thanks for reading. -k

This edition is archived at http://capitaldefenseweekly.com/archives/040419.htm.

EXECUTION INFORMATION

Since the last edition the following have been executed:

The following upcoming execution dates are noted:

April
23    Jason Byram                South Carolina
27    James Clark                Texas
27     Gregory Lott                 Ohio

May
18    Kelsey Patterson         Texas
18    Osvaldo Torres           Oklahoma----foreign national
21    Sammy Perkins           North Carolina

United States v. Lara, 541 U.S. --- (4/19/2004)  "[T]he Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians. We hold that Congress exercised that authority in writing this statute."  The double jeopardy clause, therefore, is not implicated where both a tribe & the federal government prosecute the same course of conduct. 

Ex Parte Modden, No. 74,715  (Tex. Crim. App 4/21/2004) (unpublished)(dissent)  Relief granted on mental retardation claim.

As we explained above, the trial court used the criteria set out by the AAMR and the APA. The trial court did not use the Briseño factors in its findings because it did not have the benefit of our order in that case. Nonetheless, we conclude that the trial court's findings are supported by the record.

This is not a case in which we have dueling experts. The three reports from the mental health experts that the trial court considered are consistent with one another and with the report from the TDCJ Mentally Retarded Offender Program. The reports establish that the applicant has (1) significant subaverage general intellectual functioning, (2) concurrent with deficits in adaptive functioning, (3) that occurred before age 18. The applicant's IQ scores of 58 and 64 are well below the 70-75 score that generally indicates subaverage general intellectual functioning. Clark found that the applicant possesses deficits in several adaptive functioning categories, and she found that the applicant has been retarded since birth.

The claim that the parties litigated the applicant's mental retardation claim during the 1992 trial is incorrect. Although evidence was admitted on the issue of mental retardation, there certainly was no special issue on mental retardation included in the jury charge. This evidence was relevant to the mitigation special issue. (14) If the applicant is mentally retarded, it mitigates his moral culpability. And, just because the jury answered the mitigation special issue "no" is not the equivalent of a jury finding that the applicant is not mentally retarded. Also the claim that the applicant "filed" a coherent pro se brief on direct appeal from his 1985 conviction does not necessarily support the conclusion that the applicant is not mentally retarded. It is common knowledge that there are "writ writers" in TDCJ who will write pleadings for other inmates.

While there may be some evidence to the contrary, there is significant evidence that the applicant is mentally retarded. The record supports the trial court's finding that the applicant is mentally retarded. The same trial judge who presided over the applicant's two trials made the findings and conclusions in this case. That trial judge was in the best position to evaluate conflicting evidence, and his findings deserve great deference.

In fact, it is not surprising that the trial judge found that the applicant was mentally retarded in this case. While Penry was pending before the United States Supreme Court, the applicant filed a subsequent application for a writ of habeas corpus. He claimed that he is mentally retarded and that the execution of the mentally retarded violated the Eighth Amendment to the United States Constitution. He also claimed that he was prevented from having the jury consider his evidence of mental retardation in the context of the special issues that were provided in the jury charge of his first trial. During those proceedings the trial judge found that the applicant is mentally retarded. As part of his findings, the trial judge said

At the punishment phase of his trial, petitioner did testify and was allowed to present evidence of his mental retardation, brain damage, alcoholism, alcohol consumption at the time of the offense and purported abuse he suffered as a child. These matters were presented as mitigating factors of his punishment. . . . [P]etitioner is mentally retarded.

The trial court's finding has not changed.

We filed and set that application and granted relief on the basis of Penry error. (15) In our unpublished opinion disposing of the case, we quoted Kartye's testimony from the punishment phase of the applicant's 1985 trial. He said that "even under repeated testings in optimal conditions, his score would fall in the mentally retarded range." (16) After we discussed the Supreme Court's opinion in Penry and how evidence of mental retardation presents a "double-edged sword, we said,

Mr. Modden's evidence of mental retardation presented the same problem. Even as a rational jury might have found that appellant's mental condition made him less blameworthy, they were required to express their consideration of his mental condition in a way that would cause him to receive the ultimate sanction. The second special issue simply did not provide the jury with a way to give effect to mitigating evidence of mental retardation in this case. (17)

This Court has previously concluded that the applicant presented evidence of mental retardation at his 1985 trial.

We want to make clear that the parties' attempt to strike a plea bargain regarding the applicant's status as a mentally retarded person has no bearing on the outcome of this case. The trial court found, long before any agreement between the parties, that the appellant is mentally retarded. Our decision today is based solely on the trial court's findings, which are supported by the record.

Burrell v. Adkins, 2004 U.S. App. LEXIS 7319 (5th Cir 4/15/2004) (unpublished) Suit resulting from wrongful capital conviction permitted to proceed against the defendants in their official capacity.

I. The Death Penalty in Texas
The modern death penalty era began in 1976, when the U.S. Supreme Court permitted states to resume capital punishment.11 Capital punishment had been judged unconstitutional in 1972 in part because of the unbridled discretion afforded to juries in death penalty cases.12 The U.S. Supreme Court struck down all then-existing death penalty statutes, holding that their provisions allowed for arbitrary and discriminatory results. One justice compared the process to a "lottery," 13 and another to being "struck by lightning."14 A few years later, the Court reiterated the view that the death penalty should not be arbitrary, but rather reserved for the worst of all offenders who were properly convicted for the most egregious offenses.15 In so holding, the Court held that the death penalty could not be a mandatory sentence in any case or for any category of crime.16

In 1973, Texas, among other states, drafted new capital punishment provisions and attempted to provide greater structure to the sentencing process by delineating factors to guide jury decision-making.17 Texas was among the first states to rewrite its death penalty law, enacting legislation the year following the Supreme Court's ruling in Furman.18

Texas's revised capital punishment statute provides for the death penalty upon conviction for eleven separate homicide offenses.19 These offenses include murder during the course of a burglary, robbery, or sexual assault; murder for hire; the murder of a police officer; and the murder of a child under the age of six. If a capital case goes to trial, the proceedings will be divided into two stages. In the first stage of the trial, the "guilt-innocence" phase, the jury decides whether the defendant has committed the crime charged. Should the jury deliver a guilty verdict and the prosecution seeks the death penalty, the trial proceeds to the second stage, the "sentencing" phase. At this final stage, the jury hears evidence regarding the defendant's background, character, criminal history, and mental health.20 The jury then determines whether to sentence the defendant to death or life in prison.21 The jury may be told that "life" in prison means the defendant must serve forty years before becoming eligible for parole.22 During the sentencing phase, the trial judge submits questions, known as "special issues," to the jury.23 One is "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."24 The prosecution has the burden of proving this issue beyond a reasonable doubt and an affirmative finding to this question is a prerequisite to a sentence of death.25

The "future dangerousness" issue was a hurried and last-minute additionto the death penalty statutes in the legislative session after the Furman ruling. This issue was not included in the original bill debated and was added by a committee at the end of the session.26 The Texas Legislature failed to study the effectiveness or advisability of the new statutes.27 Former U.S. Representative Craig Washington, who was in the Texas House during the 1973 session, described the process:

Texas's revised statute aimed to make the individualized assessment required by Furman the touchstone of the infliction of the State's ultimate punishment. 29 The Texas Legislature devised a sentencing procedure designed to guide the jury when differentiating between those individuals whose prior behavior and propensity for violence warranted the death penalty and those who, although guilty of capital murder, deserved a life sentence.
By narrowing the pool of persons who should be sentenced to death, the Texas Legislature sought to reserve capital punishment for the worst of the worst, thereby minimizing the risk that the death penalty would be applied capriciously.30 The statute as implemented, however, has backfired: the sentencing procedure fails to give juries meaningful--rather than merely inflammatory--information about defendants. It has led to an obscene ballooning of the number of people sentenced to death, an expansion far beyond those deserving the death penalty.

The faulty statute has helped make Texas the undisputed leader in executions among the thirty-eight states with death penalty statutes. The number of executions in Texas dwarfs that of all other states and comprises one-third of all U.S. executions in the modern era.31 Texas has executed more than three times as many people as has Virginia, the state with the second-highest total.32 In 2003, Texas led the nation with twenty-four executions, nearly half of the total number of executions in the United States.33 In 2004, Texas is thus far responsible for one-half of all executions in the United States.34 Currently, more than 450 men and women reside on Texas's Death Row, with thirty to forty new death sentences being handed down each year.35

The simple fact that the death penalty is available does not mean that it is warranted in every case. Some defendants should not be permitted to return to society--but that does not necessarily mean that they must be executed. What of defendants who would adjust well to the prison setting and never pose a threat to anyone while in an institutional environment?

II. Misplaced Rationale in Future Dangerousness Determinations

In Texas, "future dangerousness" essentially refers to the extent to which these individuals will engage in violent acts while incarcerated in an institutional setting for a minimum of forty years.36 Thus, the institutional adjustment or ability of capital defendants to conform their behavior to a prison setting is generally the critical issue to consider when evaluating whether they actually continue to represent a threat to others.

Although most experts conclude that the death penalty has no more deterrent value than long-term imprisonment,37 the rationale for allowing the issue of future dangerousness to enter the sentencing process is that the death penalty can prevent especially violent killers from killing again, limiting the risk of harm to other inmates and prison guards, as well as the public-at-large. The use of future dangerousness as a guideline rests upon a questionable assumption. This reasoning presupposes juries are able to accurately identify the defendants who are likely to cause harm against which prison confinement is insufficient to guard.

However, research reveals that the majority of murderers do not commit acts of serious violence in prison. Research on the post-incarceration conduct of capital defendants was summarized by Thomas Reidy and his colleagues in 2001.38 Over varying follow-up periods (ranging from two to 56 years) across several jurisdictions, the rates of assault by death row, former death row, capital murder life-without-parole, and life-with-parole inmates were relatively low.39

Upon examining the records of more than 6,000 convicted murders in the Texas prison system, different researchers reported in 2000 that the overwhelming majority of murderers in prison do not have disciplinary records of serious institutional violence.40 Using the average period of confinement, the researchers evaluated the rate of serious violent behavior over a term of forty years, the minimum number of years a defendant would serve if convicted of capital murder and sentenced to life. These calculations revealed that more than 83% of inmates would not commit acts involving serious assaultive behavior during forty years in prison.41 The projected rate of an aggravated assault upon a corrections officer was one percent and the likelihood of an inmate killing another inmate was one-fifth of one percent (00.2%).42

The authors noted that their conclusions were consistent with previous research regarding former death row inmates who were transferred to general prison populations.43 In a 1989 study, researchers James Marquart and Jon Sorenson studied 558 death row inmates whose sentences were commuted in the 1970s after the U.S. Supreme Court's decision in Furman and found that in the fifteen years following the sentencing modification, only seven inmates re-offended.44 Four of the Furman-commuted inmates were later found to have been actually innocent of the crimes.45 As the author of the research noted, but for the Furman decision, "[w]e would have executed nearly 600 convicts to protect us from [seven]. And we would have killed four innocent people in the process."46

Another study tracked 92 death row inmates whose sentences were commuted pursuant to Furman and found that those inmates actually had a lower occurrence of violent infractions than other prisoners, and that only two inmates committed another murder.47 The study compared these inmates to a group of capital murder defendants sentenced to life imprisonment because the juries had concluded that they did not pose a continuing threat to society.48 Overall, the commuted death row inmates "were not a disproportionate threat to the institutional order, other inmates, or the custodial staff."49 Most deathsentenced-but-commuted inmates did not commit serious disciplinary rule infractions or spend time in solitary confinement as punishment for disruptive or assaultive behavior. The inmates--deemed too dangerous by juries to serve life prison sentences--actually had a lower rate of violence than those inmates who were sentenced to life by juries.50

Although most inmates sentenced to longer sentences have been convicted of more violent offenses, correctional administrators agree that these inmates, including those serving murder sentences, are generally among the most docile and trustworthy in the institution.51 Inmates serving long sentences are more invested in earning a high level of inmate privileges.52 Thus, these inmates have incentive to conform their behavior and, in general, they avoid behaviors that would trigger punishment. The opportunity for recreation, work outside one's cell, access to commissary items, and visitation privileges serve as powerful incentives for good behavior.53 Inmates sentenced to life in prison--even the ostensibly high-risk category of capital murderers--can be controlled in the penal environment.

Even withholding the opportunity for parole does not increase the rate of prison violence. Researchers analyzed the violence rates of 323 life-withoutparole inmates and 232 life-with-parole inmates during fifteen years of confinement from 1977 to 1992 in Missouri, a state with a true life-without-parole sentence.54 The rate of assaultive behavior was virtually identical among the two groups. Nearly 80% of both groups did not have any reported incidents of assaults. Of the 20% who did receive disciplinary reports for assaultive behavior, a third of those incidents were classified as minor. The type of sentence--life with parole or life without parole--did not significantly impact the rate of violence in prison.55
Research confirms the views of prison officials--finding inmates convicted of murder to be among the most manageable class of inmates--and reveals that, generally, as inmates grow older in prison, their propensity for violent or disruptive  behavior decreases.56 One study noted "an inverse relationship between sentence length of time served and disciplinary infractions."57One expert noted:

Juries are instructed, and clearly perceive, that the death penalty hinges on the issue of a defendant's future dangerousness.59 The use of this inquiry in  every Texas death penalty case presupposes that juries are capable of identifying those inmates convicted of murder who are more violent or unmanageable than other inmates.

Because the documented rates of recidivism are low, the use of the future dangerousness inquiry results in a very high rate of "false positives."60 Texas adds fuel to this fire of misinformation by urging juries to consider predictions of future dangerousness from prosecution mental health experts. The accuracy of these predictions is the focus of this study.

NEW RESOURCES: Study Examines the Scope of Mistakes in Criminal Cases
Researchers at the University of Michigan identified 328 criminal cases, including 73 death penalty cases, over the last 15 years in which the defendant was ultimately exonerated. The study suggested that many more innocent people are in prison today. Most of the cases studied involved murder and rape, crimes that are subjected to the most intense police investigation but that can also provide defendants with the opportunity to prove their innocence based on DNA evidence. Of the 328 cases of innocence examined by law professor Samuel R. Gross and his assistants, 199 were murder cases. While DNA evidence played a crucial role in exonerating 145 of the wrongfully convicted, and was a factor in 88% of the rape cases, researchers noted that DNA evidence is far less likely to be available to provide definitive proof of innocence in other kinds of cases. While the racial makeup of the exonerees was similar to the U.S.’s general prison population, race did seem to play a factor in the exonerations involving rape. Black men represent 29% of those in prison for rape, but they account for 65% of those exonerated of the crime. In half of those rape exonerations, the black men were falsely accused of raping white women. (New York Times, April 19, 2004) To read the full report in PDF format, Click here.   See Innocence. See Race.

President of Police Union Calls Decision to Bypass Death Penalty Proper After Officer is Killed
San Francisco District Attorney Kamala Harris has announced that she will seek a life without parole conviction for David Hill, who is accused of murdering a city police officer. Harris, who ran for office promising not to seek the death penalty, said that in cases such as this it is “natural to feel that we should have an eye for an eye” but argued “life without the possibility of parole is a severe consequence.” Harris stated that death penalty cases in California typically drag on for years, and that this lengthy process offers little closure for victims’ families. Gary Delagnes, president of the Police Officers Association, said Harris’ decision made sense. “After discussing the facts of the case as best we know them at this point, we believe the district attorney is pursuing the proper path,” said Delagnes, who also noted that San Francisco jurors are reluctant to impose death sentences. (The San Francisco Examiner, April 14, 2004) See Life Without Parole.

Juvenile Offender's Conviction Overturned After DNA Tests
District Attorney Paul Connick has agreed that Ryan Matthews, a juvenile offender on Louisiana’s death row, deserves a new trial. Matthews has maintained his innocence since his arrest. Attorneys for Matthews will use the retrial as an opportunity to present new DNA evidence that they believe exonerates their client. Testing of seven DNA profiles gathered as part of key evidence in the case excludes Matthews as the offender, and several point to the guilt of another man, Rondell Love. After Matthews was arrested, Love was convicted of another murder that occurred near the scene of the murder for which Matthews was convicted. Barry Scheck, co-founder of the New York-based Innocence Project, said, “District Attorney Paul Connick pursued every test that could have helped to decide this case. These all point to Ryan Matthews’ innocence. Mr. Connick has evaluated the results in an honorable and fair way. I applaud his decision today. This is the way that the system ought to work.” (Los Angeles Times, April 15, 2004 and Louisiana Crisis Assistance Center Press Release). See Innocence. See Juvenile Death Penalty.

Supreme Court To Consider Applicability of Prior Ruling to Over 100 Death Row Inmates
On Monday, April 19, the United States Supreme Court will hear arguments in the case of Schriro v. Summerlin that will determine whether a prior decision applies only to some death row inmates in the first stage of their appeals or to all inmates in the affected states. In 2002, the Court held in Ring v. Arizona that juries, not judges, must decide who is eligible for the death penalty. The new ruling could affect over 100 death row inmates in at least 5 states. At the conclusion of Summerlin’s 1982 trial, Judge Philip Marquardt, who was later disbarred after admitting that he was addicted to marijuana, found the existence of two aggravating factors and sentenced Summerlin to death. This case will determine whether the benefits of Ring, upholding the Sixth Amendment's requirement of jury fact-finding, apply only to defendants like Ring, who were in the first stage of their appeal, or apply equally to the larger group of inmates like Summerlin, whose cases are older. Summerlin had repeatedly raised the jury issue in his earlier appeals. See Supreme Court and DPIC's Ring v. Arizona page.

NEW VOICES: Law Enforcement Officials Support Bill to End Juvenile Death Penalty
A bipartisan measure to eliminate the juvenile death penalty in Florida has passed the Senate Criminal Justice Committee and is now on its way to the full Senate for consideration. The measure was introduced by Republican Senator Victor Crist, a death penalty supporter who notes that young people are different because they don’t have the same understanding of consequences as an adult. .The bill also has support from the state’s top law enforcement officers, Florida Attorney General Charlie Crist and Florida Department of Law Enforcement Commissioner Guy Tunnel. “You need to show some compassion, but you can’t forget the needs of victims. I’m a proponent of capital punishment but I think, generally speaking, this is a good thing,” said Tunnel of the bill. Earlier this year, Wyoming and South Dakota eliminated the juvenile death penalty, and the U.S. Supreme Court will decide this fall whether the practice is unconstitutional. The federal government and 19 states prohibit the death penalty for offenders who were under the age of 18 at the time of their crime, and 12 additional states do not have capital punishment. (South Florida Sun-Sentinel, April 14, 2004) See Juveniles: Roper v. Simmons. See also, New Voices.