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.