Saturday, October 16, 2010

CCA upholds death sentence but shoddy forensic psychiatry takes a hit

Having been focused a great deal lately on flawed forensics, I should point out the Texas Court of Criminal Appeals' decision (pdf), authored by Judge Cathy Cochran, upholding the death sentence of Billie Wayne Coble, but declaring that psychiatrist Dr. Richard Coons, who has testified in the punishment phase of some 50 capital murder cases, is not qualified to opine as an expert on future dangerousness. Coons, wrote Cochran had:
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.


Anonymous said...

Thanks for covering this, Grits. For some reason, this particular species of "scientific" evidence has had little coverage in recent years. One of the startling aspects of Coons' career has been the fees he has charged - up to $420 an hour in some cases. And all for something that was not real psychiatry in the first place. One hopes that this decision will put an end to his career and fear into the hearts (if they have hearts ...) of other "killer shrinks".

Anonymous said...

I assume you will support the exclusion of the same shoddy science when it is used to pontificate on why the criminal should NOT get the death penalty? Or is there a double standard?

Anonymous said...

Everything I've read on here is how much a police state Texas has become.
Seriously that's scary and sad.

Gritsforbreakfast said...

10:55, where have I ever said otherwise?

Anonymous said...

"The mad are inarticulate poets. Psychiatrists are articulate know-nothings." From the book "Toxic Psychaitry" by Dr. Peter Breggin.

Matt Byrne said...

The CCA's logic is difficult to follow. Coons's FD testimony doesn't satisfy Daubert-Rule 702, but does satisfy the Eighth Amendment's heightened reliability requirements? That implies that less, not more, reliability is required in death cases, which is just simply not the case.

Looks like a good cert issue, and an opportunity for the SCOTUS to revisit Barefoot v. Estelle.

Anonymous said...

All those hundreds of psychiatrists and psychologist called by the defense. I suppose their testimony is just fine. Yeah, thought so.

Anonymous said...

Here's some pretty good evidence of "future dangerousness." Served 9 years on a 40 year Aggravated Robbery sentence and then kills 3 people in less than a year after paroling. I bet they didn't even need any psychiatrist in this case. Good job Harris County on the death sentence.

Anonymous said...

10/18/2010 03:05:00 PM

I continue to be amazed at the selection process that so many women make these days. They doesn't think twice about bringing this type around their children.

"He eventually tied her up, stabbed her and slit her throat on Oct. 24, 2008, prosecuters said.

Harper also was accused of binding, then strangling Briana Roberson, 15, and Mya Love, 7. Harper was not the children's father."

Anonymous said...

Flawed "science" can have extremely negative and long lasting effects on our culture. Consider Alfred Kinsey, whose research "evidence" has recently been re-evaluated.

Leading this charge is internationally known pornography researcher Judith Reisman, Ph.D. She has been studying Kinsey's work and its effects on our culture for 25 years. (Her initial research on pornography was financed by an $800,000 grant from the U.S. Department of juvenile justice and Delinquency Prevention.)

According to Reisman, Kinsey trained pedophile observers who sexually abused more than 300 minors to prove that children "enjoy" sex with adults. "Some of the victims were only two months old, and some were subjected to more than 24 hours of nonstop sexual atrocities.

As extravagant as Reisman's claims may seem, they're not without warrant. In Kinsey's 1948 book, Sexual Behavior of the Human Male, he recounts the experiments of nine pedophiles he employed for his research. "Some of these adults," Kinsey wrote, "are technically trained persons who have kept diaries or other records which have been put at our disposal."

One research associate of Kinsey observed that Kinsey threw away about 75% of his research findings because they failed to support the conclusions he was promoting.

One of the child victims of his research has recently come forward and revealed horrific secrets of this highly influential institute.