"Longtime expert witness unreliable, court says," is the report in today's Austin American-Statesman. It's written by Steven Kreytak.
In his decades working as a forensic psychiatrist, Dr. Richard Coons of Austin has testified at dozens of death penalty trials across Texas in which he opined about how defendants would behave in the future.
In Travis County, prosecutors called him in the past year to testify during the sentencing trials of killers Milton Gobert and Paul Devoe. Coons pronounced that, in his expert opinion, both men would be a future danger. They both received the death penalty.
Coons' paid testimony at those trials and others could get new scrutiny after the Court of Criminal Appeals ruled last week — in a Waco death penalty case — that Coons' methodology for predicting future dangerousness is not reliable.
The court upheld Billy Wayne Coble's death sentence in the killings of his wife's mother, father and brother, ruling that other evidence presented at sentencing supported the McLennan County jury's findings.
The ruling, however, was a significant victory for capital defense lawyers statewide who for years have fought to persuade courts to prohibit the testimony of Coons and other forensic psychiatrists. The lawyers say such testimony offers nothing more than opinions.
"If you are going to be an expert, you should have some scientific basis of what you are testifying about," said Russ Hunt Jr., a Georgetown lawyer who represented Coble at trial. Coons "basically just says, 'Trust me. I'm a doctor. I know it when I see it,' " Hunt said.
And:
For someone to be sentenced to death in Texas, juries must find that there is a probability they pose a continuing threat to society by committing continuous acts of violence and that there are no mitigating factors to warrant a sentence of life in prison.
The U.S. Supreme Court ruled in 1983 in Barefoot v. Estelle that psychiatrists are competent to give opinions on the first question — the so-called future dangerousness of the defendant.
The testimony often comes after a psychiatrist interviews the defendant and evaluates pertinent documentation from the case, including their medical and criminal history. But even when the defendant is not interviewed, psychiatrists are sometimes allowed to give an opinion on a hypothetical scenario, usually one that matches the facts of the case at issue.
At Coble's trial, Coons testified that he has developed his own methodology to come to a conclusion on future dangerousness, one in which he considers factors such as the person's conscience, criminal history and attitudes toward violence.
"These factors sound like common sense ones that the jury would consider on its own," Judge Cathy Cochran wrote in the opinion for the court. Cochran noted that Coons could not show how his past predictions have fared or whether the factors he has considered are validated by any research.
In a dissenting opinion, Judge Sharon Keller said expert witnesses with some specialized knowledge should be allowed to testify about it to aid the jury in reaching a conclusion. Coons' experience and educational background "place him in a better position than the average juror."
The CCA ruling in Coble is available in Adobe .pdf format, as is the concurring opinion written by Judge Keller.
Texas is unique among the states with capital punishment upon its reliance of predictions of future dangerousness. Earlier coverage of this critical issue begins with this post.
UPDATE with new document link -- In 2004, Texas Defender Service published Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness. It's a must-read.
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