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.

Debtors-prison policies decried, DPS cuts license center hours, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused on preparing for a much-need break next week.

SCOTUS to consider warrants for cell-phone location data
The US Supreme Court will finally consider the constitutionality of accessing cell-phone location data from service providers without a Fourth Amendment search warrant. See a press release from the ACLU, a report from Ars Technica, NY Times coverage, and commentary from Mother Jones. This makes me wish Texas had succeeded in enacting a statutory warrant requirement - an effort with which your correspondent was involved for several years. Doing so would bolster the case for the courts requiring a warrant and provide belt-and-suspenders protection if SCOTUS rules the wrong way.

Budget cuts shorten DPS driver license center hours, but border security fully funded
Border security funding for DPS remained at pre-Trump levels in Texas' new state budget, despite the President's commitment to having the feds step up on border security. In the meantime, though, legislators cut DPS' budget resulting in shortening hours at state drivers license centers. Legislators say they didn't know that would be the result of the cuts, but it's hard to see how anyone believed that cutting the DPS budget while making border security spending sacrosanct could possibly result in anything else but reduced services. MORE: Following a predictable uproar, the governor ordered DPS to reinstate the old hours. Of course, he' can't reinstate the money to pay for it, which was cut in the budget he just signed, so DPS will have to cut services in other areas.

Discussing future dangerousness
A New York Times feature last week featured a discussion of Texas' Duane Buck case and the notion of proving "future dangerousness." The article brought to mind an old Texas Defender Service report from 2004 which found most predictions of future dangerousness by then-commonly used experts turned out to be demonstrably wrong. See also Judge Elsa Alcala's dissent from the Buck case, which was received more favorably by justices on SCOTUS than by her colleagues on the Court of Criminal Appeals. FWIW, Texas executions are down, the Dallas News reported recently, though Grits would expect them to rise again by the end of the year. The main reasons for the decline were a new 2015 law requiring prosecutors to give notice to the defense when they seek to have execution dates set, and Texas' new junk science writ, which has resulted in consideration of additional issues in several cases. Over time, though, most of those cases will end up with execution dates. Executions are slowing, but not by as much as last year's numbers would indicate.

What a screwup
Never convicted, he still spent 35 years locked up in TDCJ: Jerry Hartfield was released this week.

Documenting Texas forensic reforms
Nicole Casarez and Sandra Guerra Thompson have a new academic paper out posted on SSRN last month discussing Texas forensic reforms. Not all of those efforts have worked as well as one might like, but Texas has done more than most states on this front.

Debtors prison policies decried
See testimony from Texas A&M law prof Neil Sobol to the US Commission on Civil Rights related to debtors prison practices, and a pair of academic articles he wrote suggesting consumer credit protections be applied to nonpayment by criminal defendants. This year, the Texas Legislature passed important reforms to limit arrests for criminal-justice debt. See coverage from the San Francisco Chronicle. Then go here to ask Gov. Abbott to sign HB 351 limiting debtors-prison practices.

Discredited "future dangerousness" expert was honored trainer at prosecutors' association

An investigator with the Special Prosecution Unit in Huntsville - who was honored by last year by the Texas District and County Attorneys Association for service as a faculty-trainer for the group - gave false "expert" testimony that's now caused two death sentences to be overturned by the Texas Court of Criminal Appeals. According to the Fort Worth Star-Telegram (June 15):

An "expert witness" who frequently testified for the prosecution in capital punishment cases has caused another death sentence to be overturned in Texas.

The Texas Court of Criminal Appeals on Wednesday justly threw out the death sentence for Manuel Velez of Brownsville, convicted of killing his girlfriend's infant son in 2005, because of false evidence given during the punishment phase of the trial.

A.P. Merillat, who testified for the state as an expert on prisoner security classification, told the jury during the punishment phase that if sentenced to life in prison, Velez would eventually be given lenient privileges allowing him to work outside the prison fence line. In other words, he would continue to be a threat to society.

The appeals court, in overturning the sentence (still upholding the conviction), said the Cameron County district attorney's office and the witness should have known the testimony was false.

The court in 2010 threw out the death sentence of a San Antonio man because of similar testimony from Merillat.

Given recent court rulings regarding testimony he "should have known" was false, one wonders what sort of training Mr. Merillat provides for TDCAA, not to mention whether the guidance he provided changed after the Court of Criminal Appeals ruled he gave false testimony in 2010? But since most of their training sessions are "open only to licensed prosecutors," that's impossible to say. Grits is a bit dumbfounded that TDCAA would continue to use this fellow as a trainer after the Court of Criminal Appeals cited him for false testimony in 2010, much less honor him with an award. Merillat has been a go-to expert for prosecutors in the sentencing phase of capital trials for years - his schtick is to help prove up "future dangerousness" of those locked up with life sentences - and there's no telling in how many cases he's provided similarly wrong testimony. And of course, he's not the only "expert" Texas courts have found to have given bogus testimony on "future dangerousness" in capital trials.

In an April 2010 article for the Bar Association, Merillat described his future dangerousness testimony and suggested that "A benefit to you readers who are on the defense bar [from reading his article] is that you can examine and dissect this information, put your heads together, and come up with ways to rebut my testimony and convince jurors that I am a crackpot." Two months later, the Court of Criminal Appeals ruled Merillat gave false testimony when he claimed, as he did in that article, that "Capital murderers are not singled-out for special precautionary custody while in prison" That's a pretty short turnaround from issuing challenges to the defense bar to having his testimony discredited by the state's highest criminal court.