testified at appellant’s 1990 trial that he would be a future danger. Dr. Coons testified at the 2008 retrial that appellant would still be a future danger even though appellant did not have a single disciplinary report for the eighteen years that he had been on death row. Dr. Coons explained this discrepancy by stating that all those on death row have an incentive to behave because their convictions are on appeal, and thus they are less violent than they would be in the general prison population.In a section of the opinion titled "The Admissibility of Dr. Coons's Expert Testimony," Cochran authored a passage that seemingly will end Dr. Coons career as an expert witness in future death penalty cases: "appellant contends that Dr. Richard Coons’s expert testimony concerning future dangerousness was not admissible under Rule 70226 because it was insufficiently reliable. We agree." She goes on to say that:
Forensic psychiatry is certainly a science; as Dr. Coons stated, it is practiced solely by those with a medical degree. It may be a “soft science,” but trial courts, in their gatekeeping function, must ensure that the expertise is not only soft, but that it is science as well. “Soft” science does not mean soft standards.The opinion walks through standards under precedential cases (Daubert/Kelly) and concludes Dr. Coons' testimony does not qualify. (See Russ Hunt, Jr., and Jeff Gamso for more details.) Cochran warns that "'gatekeeping' standards of the trial court must keep up with the most current understanding of any scientific endeavor," including forensic psychiatry, keeping in mind that "The validity of the expert’s conclusions depends upon the soundness of the methodology." A footnote cites research declaring "two out of three predictions of long-term future violence made by psychiatrists are wrong."
Despite having declared that Dr. Coons' testimony should not have been admissible under Texas' evidentiary standards, Cochran and the majority decided the error was harmless because testimony by the state's expert on dangerousness "did not have a 'substantial and injurious' effect upon the jury’s deliberations concerning the future dangerousness special issue." Go figure. Jeff Gamso has a good analysis of Sharon Keller concurrence (pdf) in the case, where a minority of judges (Keller + Meyer, Kealer and Hervey) said Coons' testimony should have been admitted.
The CCA, FWIW, has been viewing forensic science of late with a particularly jaundiced eye. First the court declares dog-scent lineups insufficient evidence to sustain a conviction, now shoddy forensic psychiatry takes a hit. Perhaps two data points don't make a trend - certainly the Coble decision was sharply divided compared to the unanimous Winfrey decision on scent lineups - but at least the court's gatekeeping function is being vigorously debated at the court, both behind the scenes and in their published opinions.
It seems strange to congratulate attorneys Walter Reaves and Alex Calhoun on an opinion affirming their client's death sentence, but Russ Hunt, Jr. is right they did a good job proving up this portion of the case. (As an aside, my condolences to Skip Reaves on his mother's recent passing.)
RELATED: See a post from Russ Hunt, Jr. (one of the attorneys in Coble's trial), from Jeff Gamso here and here, and from Liberty and Justice for Y'all.