Saturday, January 18, 2020

Execution scheduled based on bogus "future dangerousness" testimony

Much attention has been drawn to the example of A.P. Merillat, the Montgomery County DA investigator and TDCAA favorite son who repeatedly overstated the dangers to inmates and staff at TDCJ in the sentencing phase of death penalty trials. But over the years, many different "experts" have played that role, and he's not the only one overstating the "future dangerousness" of capital defendants while understating TDCJ's ability to manage them.

At The American Scholar, Lincoln Caplan described the sentencing-phase testimony against Billy Joe Wardlow, who is scheduled for execution for capital murder on April 29th. He received his death sentence in 1993 for killing an 82-year old man during a robbery when he was 18-years old. Here's what the jury was told about whether Wardlow would constitute a future danger to others in prison:
The most chilling testimony for the state came from Royce Smithey, an investigator for a group that prosecutes felony crimes committed in Texas prisons. If the jury sentenced Wardlow to death, the investigator said, he would be “segregated” and “severely restricted” until he was executed. He would have limited access to prison employees whom he might harm. Solitary confinement on death row would punish Wardlow and protect prison employees from the continuing danger he represented, Smithey testified. But if the jury gave him a life sentence, he asserted, Wardlow would be released into the general prison population with other felony offenders. 
Recently, Frank G. Aubuchon, who was a correctional officer and an administrator with the Texas Department of Criminal Justice (TDCJ) for more than 26 years, reviewed Smithey’s testimony at the request of Wardlow’s current lawyers. Aubuchon wrote, “Mr. Smithey’s multiple falsehoods served to mislead the jury into believing that TDCJ would be completely unprepared to imprison Mr. Wardlow in a secure environment unless he received a death sentence. Based on my decades of experience as a TDCJ corrections officer, administrator, and prison classifications expert, I can say that this is categorically false.” 
But Smithey’s testimony was uncontested at the trial and made a life sentence for Wardlow sound like a serious threat to others. It would give him the chance to harm other people, perhaps even to kill again. The testimony made a life sentence sound like a reward for Wardlow, not an endless punishment.
Not only were Smithey's dire warnings about TDCJ's ability to manage inmates overstated, predictions that Wardlow in particular would pose a danger turned out to be false, wrote Caplan:
In the Wardlow case, the jury wrongly predicted his future: despite the horrendous crime he committed as a teenager, he has become in middle age a trusted, peacemaking, and in many ways exemplary inmate—generous to others on death row, attentive to fellow prisoners and to others he exchanges letters with, and as engaged in the world as an inmate on death row can be who has spent much of the past 25 years in solitary confinement in a tiny cell.
This blog has complained about "junk science" many times over the years. But not all expert witnesses testifying to "junk" wear lab coats. Many of the complaints by the National Academies of Sciences about forensics amounted to critiques of overstated testimony - e.g., declaring they could "match" evidence to a degree of scientific certainty. In reality, these experts were offering subjective opinions - ones based on observation and experience, to be sure, but also infused with a prosecution-centric agenda.

The example of "experts" predicting future dangerousness in Texas death-penalty cases demonstrate that overstated testimony isn't just a problem with the bite-mark or hair-and-fiber folks. And it certainly goes deeper than just a couple of over-zealous testifiers like Smithey and Merillat.


Anonymous said...

Or in the case of Todd Willingham, when the junk testimony was debunked by a committee of scientists, the committee itself was disbanded and its findings obscured by our then Omniscient Leader Rick "Oops" Perry.

While not single handedly responsible for the execution of a most-likely innocent man; Perry is definitely accountable for his actions in Willingham's death by execution.

Anonymous said...

So testimony from prosecution experts on future dangerousness is bad. But testimony from a paid defense expert is good and objective? Gotcha.....

Gritsforbreakfast said...

Which defense experts, 7:05, on what topics? Not all are created equal. In this particular area, the prosecution "experts" keep getting discredited by the courts. I can't offhand think of a comparable situation on the defense side, but maybe you can enlighten me.

Anonymous said...

This same mindset can be applied to those paid professional experts who attend the hearings of sex offenders being committed to Civil Commitment. How often have you heard an expert testify that psychopathy goes into remission when the person is sent to a prison or otherwise incarcerated at tax payers expense? In other words there are no psychopaths in prison as they are all in a state of remission that will return if the person should ever be freed.
Thank you Sen. Robt. Whitmire for your complete lack of psychiatry and medical knowledge when drafting the bill for Civil Commitment. Keep up the good mind reading and fortune telling along with your paid cronies who are so willing to robotically mindlessly say anything that the state wants to hear and not the pertinent facts of a case.

Anonymous said...

Merillat has gone way beyond being "over-zealous." In Billie Wayne Coble's case he related a gruesome narrative to the jury of one prisoner having brutalized and starved another prisoner to death in the Telford Unit, with the deceased inmate only being discovered in his cell long after his death. The actual trial record of the case in question, in which Merillat was involved, belies his story. See State of Texas v. Christopher Hubbard, Case# 01-F-0561-202, in the 202nd District Court of Bowie County. One of the attorneys involved in that case provided a highly detailed affidavit during the Coble litigation, explaining Merillat's many misrepresentations of the facts. Alas, the courts were not interested.