DEADLY
SPECULATION
Misleading Texas Capital Juries with
False Predictions of Future Dangerousness

TEXAS DEFENDER SERVICE
Houston and Austin,Texas

Acknowledgements
Many people worked tirelessly on this project. TDS would like to extend our
enormous thanks to Dr. John Edens, a licensed psychologist and an associate
professor of psychology at Sam Houston State University, who participated in
and consulted on this study. His speciality is forensic clinical psychology and
he has published numerous book chapters and peer-reviewed scientific articles
on topics such as violence risk assessment, predictors of institutional adjustment,
and the assessment of offenders involved in the criminal justice system.
TDS also thanks Dick Burr, Rob Owen, Hanna Liebman Dershowitz, Andrew
Hammel, Maurie Levin, Shelby O’Brien, Karen Alexander, Alison Meyers,
Melissa Hamilton, Casey Calkins, Brit Roberts, Eliza Wiest, Patrick Peters, John
Heal, Robyn Pullio, Joe Hingston, Kathleen Turton, Rich Stenberg, Robert
Cabral, Jared Tyler, Gene Malbrough, Heath Treadwell, Sally-Anne Moringello,
Scott Roskilly, Matt Atkinson, Jacki Buffington, and Kirsten Jacobvitz.
Special thanks to Philip Roskamp and Kevin Ranlett for their contributions,
as well as the staff at the Texas Department of Criminal Justice and Texas
Special Prosecutions Unit.
TEXAS DEFENDER SERVICE
412 Main Street, Suite 1150
Houston,Texas 77002
Telephone: 713-222-7788
Fax: 713-222-0260
or
510 South Congress, Suite 307
Austin,Texas 78704
Telephone: 512-320-8300
Fax: 512-477-2153
www.texasdefender.org
© 2004 by Texas Defender Service
All rights reserved. Published 2004
Printed in the United States of America
Cover Photo ©image100 Ltd

Texas Defender Service: Who We Are

Texas Defender Service (TDS) is a nonprofit organization established in
1995 by experienced Texas death penalty attorneys. There are four aspects of
our work, all of which aim to improve the quality of representation provided
to persons facing a capital sentence and to expose the stark inadequacies of
the capital punishment system. These four components are: (a) direct representation, (b) consulting, training, case-tracking, and policy reform at the postconviction level, (c) consulting, training, and policy reform focused at the trial
level, and (d) systemic research and report publication.
Direct Representation of Death-Sentenced Prisoners
Attorneys at TDS represent a limited number of prisoners on Texas’s Death
Row in their post-conviction proceedings, primarily in federal court, and strive
to serve as a benchmark for quality of representation of death-sentenced inmates.
TDS seeks to litigate cases that have a broad impact on the administration of capital punishment in Texas. Recently, TDS successfully litigated the question of
whether death-sentenced prisoners have the right to appeal the denial of access
to DNA testing, and defeated the State’s restrictive reading of the scope of the appeal. TDS represents several inmates who received stays of execution from the
U.S. Supreme Court because of potential mental retardation. In 2002, TDS cocounseled a civil rights lawsuit on behalf of three death row prisoners against
the Texas Court of Criminal Appeals, arguing that the court violated their right
of access to courts by appointing incompetent post-conviction counsel. In
2003, the U.S. Supreme Court remanded the case of Thomas Miller-El and
ordered the Texas courts to address overwhelming evidence of a pattern and practice of racial discrimination in the selection of juries in Dallas County.
Consulting,Training, and Case-Tracking
Founded in 1999, the Post-Conviction Consulting and Tracking Project
serves several critical purposes. First, the project has developed, and maintains,
a system to track Texas capital cases to ensure that all death row prisoners have

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D E A D LY S P E C U L AT I O N

counsel. Such tracking verifies that no prisoner on Texas’s Death Row loses his
right to appeal based on an attorney’s failure to file a timely motion seeking appointment in federal court. At least two prisoners were executed without any
federal review of their cases prior to the implementation of TDS’s tracking project. Second, the project identifies issues and cases appropriate for impact litigation. Third, TDS develops sample pleadings and brief banks to be distributed
both on request and through a national Web site. Fourth, TDS recruits, consults, and provides training for pro bono and appointed attorneys representing
prisoners on Texas’s Death Row. And fifth, TDS identifies cases of system failure or attorney abandonment, and intervenes when possible.
Capital Trial Project
The Trial Project was inaugurated in May of 2000. The goal of the project
is to provide resources and assistance to capital trial lawyers, with a particular
emphasis on the early stages of capital litigation and the crucial role of thorough investigation, preparation, and litigation of a case for mitigation, or a sentence less than death. The impact of the project is steadily growing. In 2002,
life sentences were returned in sixteen cases in which the Trial Project was involved. This is more than double the seven life sentences obtained in the first
year of the project.
The Trial Project helps lawyers by recruiting mitigation specialists to work
on the case, identifying and preparing expert witnesses, consulting extensively
with trial counsel (including extensive brainstorming sessions), researching and
writing on evidentiary matters, and producing case-specific pleadings. The
Trial Project targets the most difficult cases, such as multiple murders, black
defendant-white victim cases, and rape-murder cases. The number of successful outcomes in these death penalty cases is unusual and may be fairly attributed to the assistance provided by the Trial Project.
In addition, the Trial Project is collecting and providing the data needed
to initiate reforms of the system by which indigent capital defendants are tried
and sentenced to death. In 2001, the Texas Legislature passed the Fair Defense
Act, which requires Texas counties to reform the manner in which they provide legal services to indigent defendants in criminal proceedings. The Trial Project, in conjunction with other organizations, is assisting with the mandated
reporting on compliance with the Act across the state. The Trial Project is also
challenging the inequities resulting from the extremely varied responses to the
Act; some counties have instituted reforms while others have failed to make any
meaningful improvements.

Foreword, by David Bruck

Parade Magazine recently featured the story of Ray Krone, an Arizona man
sent to death row for a rape and murder that DNA evidence eventually proved
he didn’t commit. Cases like Krone’s are making many Americans re-think their
support for the death penalty, and may help bring about long-overdue reforms
in the criminal justice system.
On the surface, the case of Gerald Mason is the exact opposite of Ray
Krone’s. Mason is the 69-year-old Columbia man who pleaded guilty on Monday [March 24, 2003] to having murdered two California police officers nearly
46 years ago as he fled from the scene of a kidnapping and rape.
As with Ray Krone, society guessed wrong about Gerald Mason. Mr. Krone
was really a law-abiding citizen whom everyone wrongly believed to be a rapist
and murderer; Gerald Mason has now turned out to be a rapist and murderer
whom everyone wrongly believed to be a law-abiding citizen.
But while these men’s stories could hardly be more different, they contain
the same warning.
After Mason admitted his guilt in a California courtroom Monday, prosecutor Craig Richman pointed out that if Mason had been arrested in 1957,
instead of 45 years later, he’d probably have been executed. That hasn’t changed.
In South Carolina today, a 24-year-old ex-con like Mason with a prior record
for burglary who kills two police officers after raping a 15-year-old girl is just
about certain to end up on death row.
The law requires the jury to consider the defendant, not just his crime, before deciding whether to impose the death penalty.
But when the crime is as bad as Gerald Mason’s was, “considering” the defendant usually doesn’t take long. The prosecutor assures the jury that the killer’s
crimes tell us everything we need to know about him: His criminal behavior has
been getting steadily worse; he’s incurably vicious; not even life in prison without parole is punishment enough; there’s nothing to be done but get rid of him.

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D E A D LY S P E C U L AT I O N

It’s a simple line of reasoning, and a lot of juries in South Carolina have
agreed with it: We’ve executed 28 people in the past 18 years, and 60 more wait
their turn on death row.
But in the case of Gerald F. Mason, the prosecutor never got to make that
speech, because Mr. Mason got away.
And then?
What happened next didn’t follow the script. He didn’t kill again.
He didn’t commit any more crimes. Instead, he did what fewer and fewer
people nowadays seem to think possible. He changed.
Gerald Mason came back to South Carolina, got a job, married, raised a family, started several businesses, paid his taxes, became a grandfather, and went out
of his way to help his neighbors and his community. When a fingerprint check
finally snared him earlier this year, more than 45 years after the crime, no one
who knew him could believe it: The Gerald Mason that his family, neighbors,
and friends all knew was a good, caring, generous man, not a rapist or a cop killer.
The truth turns out to be that he was both. Or, to be more precise, he was
first one and then the other.
Of course, it would still have been better if Mason had been caught back
in 1957. The families of those two murdered officers should not have had to
endure the added anguish that must have come from thinking that the killer
had gotten away with it.
But we should stop to reflect that if Gerald Mason had been executed in
the 1950s (as he surely would have been if he’d been caught back then), no one
would ever have encountered his capacity for good.
So it is with the people we condemn to death today. It’s fashionable nowadays to think that a person’s worst act tells us everything about who he is and
will always be. But it’s not true.
The mistakes that have sent innocent people like Ray Krone to death row
are shocking, and it’s good that Americans are becoming less complacent about
the death penalty as such mistakes come to light.
But we also make mistakes when we judge the guilty to be beyond redemption or change.
The story of Ray Krone, who spent years on death row for a crime he didn’t
commit, should remind us of the fallibility of human judgment, and make us
pause before we take away what we can’t restore.
And so should the story of Gerald Mason.
Mr. Bruck is an attorney in Columbia, South Carolina.
This article was reprinted with the author’s permission.

Contents

Acknowledgements ii
Texas Defender Service:Who We Are iii
Foreword v
Preface ix
Deadly Speculation: An Executive Summary xiii
CHAPTER 1 Tipping the Scales in Favor of Death with Unreliable

Procedure 1
I.

The Death Penalty in Texas 1

II. Misplaced Rationale in Future Dangerousness Determinations 4
CHAPTER 2 The Fatal Crystal Ball: Convincing Juries of the

Unpredictable 9
I.

The Proliferation of State-Paid Expert Speculation 10

II. The Lack of Judicial Protection from Unreliable Evidence 11
III. Dr. Death and Other Self-Appointed Oracles for Hire 16
CHAPTER 3 The Study: Overwhelmingly Inaccurate Predictions of

Future Dangerousness 21
I.

Methodology 21

II. Getting It Wrong: Findings and Case Studies 23
A. All Inmates in Study
B. Inmates Sentenced to Death Whose Sentences Have Been Reduced
C. No Turning Back: Executed Inmates
D. Inmates Currently on Death Row

III. Conclusion 34

CHAPTER 4 A House of Cards: Dangers in Forecasting the Future 37

I.

Questionable Use of the Past to Prove the Future 37

II. Racial Bias in Future Dangerousness Guesses 40
III. Painting Juries into a Corner: Absence of Life-without-Parole
Option 43
IV. Texas: Apart from the Other States 45
CHAPTER 5 Conclusion:Texas Death Penalty Sentences

Are Arbitrary 47
Recommended Reforms 49
Appendix
1. Correspondence concerning Dr. James Grigson 55

Preface

More than seven years ago, the American Bar Association (ABA), a group of
approximately half a million lawyers from various fields of practice, called for a nationwide moratorium on the death penalty while issues of fundamental fairness
were researched and reformed.1 Despite a recitation by the ABA of numerous factors present in state capital punishment schemes that inject arbitrary elements into
the application of the death penalty, few states have heeded the warning.
U.S. Supreme Court justices, state and federal lawmakers, prosecutors
from all levels of service, and state court judges have all echoed concerns similar to those voiced by the ABA, and called upon states to ensure the integrity
of systems meting out capital punishment.2 Still, many states execute inmates
with disregard for these admonitions.
Recently, however, caution has prevailed in two death penalty states. Responding to persuasive evidence of racial disparities in capital sentencing, the

1 ABA Section of Individual Rights and Responsibilities, ABA House of Delegates Approves Call

for Halt in U.S. Executions Until Death Penalty Fairness Assured, Report with
Recommendations No. 107 (Feb. 3 1997), available at http://www.abanet.org/irr/rec107.htm.
2 See U.S. Supreme Court Justice Sandra Day O’Connor, Address to Nebraska State Bar
Association (Oct. 18, 2001), in John Fulwider, O’Connor Lectures Lawyers, Recollects for
Students in Lincoln, NEB. STATE PAPER, Oct. 18, 2001, available at
http://nebraska.statepaper.com/vnews/display.v/ART/2001/10/18/3bcf6460c1279?in_archive=1).
See also Charles Lane, O’Connor Expresses Death Penalty Doubt: Justice Says Innocent May Be
Killed, WASH. POST, July 4, 2001, at A1 (quoting O’Connor’s July 2, 2001, speech to the
Minnesota Women Lawyers association in which she singled out Texas for opprobrium and
stated that “serious questions are being raised” about the death penalty, and “the system may
well be allowing some innocent defendants to be executed”).
U.S. Supreme Court Justice Ruth Bader Ginsburg, criticizing the quality of representation
provided to indigent capital defendants, has voiced support for a moratorium on the death
penalty. See Anne Gearan, Ginsburg Backs Ending Death Penalty, ASSOC. PRESS ONLINE, Apr.
9, 2001, available at 2001 WL 18926346. Former prosecutor and Arizona Court of Appeals
Judge Rudolph J. Gerber conceded that capital punishment “sweeps some innocent
defendants in its wide nets . . . .” O. Ricardo Pimental, Tough, Speedy Justice Often is Neither,
ARIZ. REPUBLIC, Oct 11, 2001. U.S. Senators Russ Feingold (D-Wis.) and Jon Corzine (DN.J.), in calling for a review of the death penalty, wrote that the state capital punishment
systems “[are] so riddled with errors that for every eight persons executed in the modern death
penalty era, one person on death row has been found innocent.” Russ Feingold & Jon
Corzine, Editorial, Halt Executions across the Nation, BALTIMORE SUN, May 16, 2002, at 19A.

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D E A D LY S P E C U L AT I O N

state of Maryland declared a moratorium on executions in 2002.3 Similarly, in
2003, then-Illinois Governor George Ryan converted all death sentences to sentences of life in prison without parole, finding capital punishment in Illinois
to be “arbitrary, capricious, and therefore, immoral.”4 In support of this conclusion, Ryan listed problems in lawyer competency, trial procedures, sentencing unfairness, appellate process deficiencies, and the Illinois Legislature’s
“spectacular failure” to enact reform measures.5
Although its system contains the same endemic defects, Texas has not yet
followed the lead of Maryland and Illinois. In our 2000 report, A State of Denial: Texas Justice and the Death Penalty,6 we documented egregious problems
in the administration of Texas’s death penalty—problems that remain largely
unaddressed. Our 2002 report, Lethal Indifference: The Fatal Combination of
Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeals,7
focused on the systematic insufficiencies in the post-conviction stage of appellate review and revealed holes in the safety net preventing wrongful executions.
This report examines a flaw in the capital sentencing hearing: the future dangerousness inquiry.

3

4

5
6
7

Senior Texas State District Judge C.C. “Kit” Cooke told a statewide legal seminar in July of
2001 that his experiences as a judge have changed his mind about the death penalty: “people
are realizing there are deficiencies in the system. . . . We always think we’ve got the right
person, but the system is not infallible.” Anthony Spangler, Judge Expresses Concerns about
Fairness of Death Penalty, FORT WORTH STAR-TELEGRAM, July 24, 2001, at 4. Oklahoma
Governor Frank Keating (R) proposed raising the burden of proof in death penalty cases to a
“moral certainty,” explaining that such a standard, which requires jurors to go deeper in their
deliberations than the current “beyond a reasonable doubt” standard, is “I think not only
appropriate, I think it is essential” to prevent the mistaken execution of an innocent person.
Cheyenne Hopkins, Keating Proposes Death Penalty Standard, DAILY OKLAHOMAN, June 23,
2001, at 4A. Former Bexar County District Attorney Sam Millsap, Jr., who prosecuted several
death penalty cases, spoke out in favor of a moratorium: “The system in Texas is broken. . . .
Until it is fixed and we are satisfied that only the guilty can be put to death, there should be
no more executions in Texas.” Dave McNeely, Moratorium on the Death Penalty? This Idea’s
Close, AUSTIN AM.-STATESMAN, Feb. 22, 2001, at B1. Virginia legislator Frank D. Hargrove,
Sr. (R), who early in his legislative career had sought to reintroduce public hangings,
sponsored a bill to abolish Virginia’s death penalty. Matthew Dolan, Death Penalty Wrong,
Former Advocate Says: Hanover Delegate Now Seeks Colleagues’ Help in Ridding Virginia of
Capital Punishment, VIRGINIAN-PILOT, Jan. 31, 2001, at B7 (referring to the unenacted 2001
H.B. 1827, though Hargrove sponsored another such bill in the 2002 session, H.B. 224). On
April 29, 2003, the Travis County, Texas Commissioners Court passed a resolution calling for
a moratorium on the death penalty. Steven Kreytak, Travis Asks Lawmakers to Postpone
Executions, AUSTIN AM.-STATESMAN, Apr. 30, 2003, at B1. County Judge Sam Biscoe said a
moratorium is “the right thing to do.” Id. Houston Mayor Lee Brown, a former police chief,
called for a nationwide moratorium and stated: “Until you can convince me there is no
disparity, racially or economically, I am a proponent of life without parole.” Roma Khanna,
Kim Cobb & Rachel Graves, Black Mayors Back Execution Moratorium, HOUS. CHRON., Apr.
26, 2003.
Lori Montgomery, Maryland Suspends Death Penalty; Glendening Awaits Report on Racial Bias
in Murder Prosecutions, WASH. POST, May 10, 2002, at A1. The moratorium was lifted
January 22, 2003, after incoming Governor Robert Ehrlich took office. Maryland Execution
Moratorium Ends, BALTIMORE ASSOC. PRESS, Jan. 22, 2003.
Maurice Possley & Steve Mills, Clemency for All; Ryan Commutes 164 Death Sentences to Life
in Prison Without Parole; ‘There Is No Honorable Way to Kill,’ He Says, CHI. TRIB., Jan. 12,
2003, at C1.
Excerpts from Ryan’s Speech, CHI. TRIB., Jan. 12, 2003, at C16.
Available at http://www.texasdefender.org/publications.htm.
Available at http://www.texasdefender.org/publications.htm.

xi

P R E FAC E

Capital trials in Texas consist of a two-part process. First, the jury decides
the guilt or innocence of the defendant. Upon a finding of guilt, the jury determines an appropriate sentence. The death penalty is intended for the worst
of the worst:8 offenders without any redeemable qualities, any chance for rehabilitation, or any hope that they can coexist with other human beings without causing harm. Texas requires juries to determine whether capital defendants
will “pose a continuing threat to society.”9 In effect, juries must decide the defendant’s fate by predicting the likelihood of recidivism in society or in prison.
This report concludes, however, that basing capital sentencing decisions on
predictions of future dangerousness is unjustifiable—and not only because a
system that so allots punishment in effect punishes defendants for offenses they
may or may not commit, thus violating the fundamental legal principle that
the accused is innocent until proven guilty. Texas’s criminal justice system is far
removed from the precision depicted in Hollywood’s “Minority Report.”10
Available predictive methods are severely limited in their capacity to distinguish
persons who will recidivate from those who will not.
Particularly troubling is the Texas prosecutors’ use of state-paid expert witnesses employed to convince juries of a defendant’s “future dangerousness.” As
the defendant’s fate—and the prosecutor’s success—hinges primarily on this
question, the apparently infallible testimony of state-commissioned expert witnesses is a deceptive but reassuring hook on which a jury can hang its hat.
Testing the predictive reliability of expert testimony in Texas capital trials
on questions of future dangerousness, Texas Defender Service conducted original research on these “expert” predictions to determine if inmates sentenced
to death did indeed pose a future danger in their communities—i.e., prisons.
In doing so, we gathered disciplinary records from the Texas Department of Corrections and identified inmates who had engaged in violent behavior. We found
that state-sponsored experts are much more likely to be wrong than right in
their predictions of dangerousness.
Basing outcomes of the most solemn proceedings in American law on specious reasoning and conjecture threatens the integrity of the entire judicial system. Our adversarial process of justice rests on the assumption that the fight
between opponents is fair. Nowhere is this more necessary than in the capital
punishment context. When a death row inmate’s last appeal is denied and
lethal injection becomes imminent we, as the citizens of this state, must be confident that the State of Texas provided the condemned fair process. The statistics in this study reveal that the Texas capital sentencing scheme, as presently
practiced, delivers far less.

8 Woodson v. North Carolina, 428 U.S. 280, 303-05 (1976).
9 TEX. CRIM. PROC. CODE ANN. art. 37.071§ (2)(b)(1) (Vernon 2001).
10 20th Century Fox 2002.

xii

D E A D LY S P E C U L AT I O N

Predictions of future dangerousness are not integral to the existence of capital punishment. In fact, Texas is one of only three states in the nation that allows highly speculative, often inaccurate evidence on the possibility of future
bad acts to play a crucial role in life and death decisions made by juries. Twentynine of the 38 death penalty states do not allow for consideration of future dangerousness at all in their capital sentencing procedures. Six other states allow
speculative future dangerousness evidence to play a limited role in the sentencing
decision. As the experience of other death penalty states illustrates, it is possible for Texas to amend its death penalty statute to provide for fairer, more accurate sentencing decisions.

Deadly Speculation: An Executive Summary

There is increased recognition that the death penalty in Texas is plagued with
failures and mistakes. This study—the most comprehensive review of the accuracy of prosecution-hired experts on future dangerousness—reveals a highly
flawed component of the Texas sentencing process and calls into question the
validity and fairness of many Texas death sentences.
We reviewed 155 cases in which prosecutors used experts to predict a defendant’s future dangerousness. These experts were wrong 95% of the time.
Texas is the undisputed leader in executions among the thirty-eight states
with death penalty statutes. Since reintroduction of the death penalty in 1976,
Texas has been responsible for more than 35% of all executions in the United
States and is responsible for one-half of the executions thus far in 2004.
This study shows a serious flaw in the Texas sentencing statute—the mechanism for determining which convicted defendants should be executed. Texas
requires a jury to guess a defendant’s “future dangerousness”—the likelihood
that the defendant will pose a continuing threat to society.
We conducted original research to determine if inmates sentenced to death
did indeed pose a danger in their communities—i.e., prisons. By reviewing published opinions and gathering information from district attorney offices, we
identified 155 inmates against whom prosecutors had presented expert predictions of future dangerousness and obtained their disciplinary records from
the Texas Department of Criminal Justice. Consistent with existing research regarding violence rates and future dangerousness and the Texas Department of
Criminal Justice definition of “serious assault,” this study defines “serious assaultive behavior” as that which results in an injury requiring more than the
administration of first aid (i.e. injury requiring more than a bandage).
The main findings of this report are as follows:
§ Sixty-seven of the 155 inmates have been executed after serving an average
of 12 years. Forty currently reside on death row and have been incarcerated
an average of eight years. Forty-eight inmates were sentenced to death but
have had their sentences reduced. These inmates, currently in less restrictive
facilities or released, have served an average of nearly 22 years.

xiv

D E A D LY S P E C U L AT I O N

§ Of the total 155 inmates against whom state experts testified, eight (5%) engaged in seriously assaultive behavior. Thirty-one (20%) have no records at all
reflecting disciplinary violations. The remaining 75% of inmates committed
disciplinary infractions involving conduct not amounting to serious assaults.
§ Many inmates sentenced to death based on predictions of future dangerousness have proven to be non-assaultive, compliant inmates who pose no
risk to other inmates or prison guards. This is true even among those whose
sentences have been reduced and who have increased opportunity to engage
in violence, possess weapons, or abuse drugs and alcohol.
§ Cases highlighted in this report include Baby Ray Bennett who was sentenced
to death for a 1985 murder. After serving ten years on death row, his sentence was commuted to life. The 40-year-old Bennett is a trustee in prison.
He has been disciplined for only four minor infractions, including the possession of five lottery tickets, and did not lose a single day of good-time credits in 17 years.
§ George Clark, had his capital murder sentence reduced to life in 1981 after
being on death row for three years. Over the past 22 years, Clark has been
disciplined once by prison officials—for hanging a clothesline across his cell.
He has worked as a clerk, bookkeeper, and chaplain assistant, and had a job
in the prison library.
§ Noble Mays was convicted in the 1979 murder of Jerry Lamb. Mays did not
receive any disciplinary violations for assaultive behavior during his 14 years
on death row. He was executed on April 6, 1995.
§ Many inmates included in this study incurred disciplinary write-ups for offenses bordering on the ridiculous, such as illegally possessing cookies or
jalapeños while incarcerated. Others were punished for hanging a sheet up as
a curtain in their cell, yelling an obscenity in the hallway, or refusing to shave.
§ The use of the future dangerousness question injects impermissible racial
components into the sentencing process. The race of the juror and the race
of the defendant may affect the decision the jury’s determination of future
dangerousness. In at least seven Texas death row cases, including that of
Victor Saldaño, licensed psychologist Walter Quijano testified that being a
member of a minority race makes a defendant more dangerous.
§ Texas’s failure to offer a life-without-parole sentencing option compounds
the risk of erroneous sentences. Juries hear misleading and highly inflammatory future dangerousness testimony, and are then informed that the defendant might be back on the streets. Capital juries find themselves painted
into a corner.
Texas’s sentencing statute, intended to accurately separate those deserving
the death penalty from those who do not, has backfired. It fails to give juries
meaningful—rather than merely inflammatory—information about defendants

EXECUTIVE SUMMARY

xv

and has led to a ballooning of the number of people sentenced to death, an expansion beyond those deserving the death penalty.
The present system pressures juries to choose death for inmates who are
able to peaceably co-exist in an institutional setting with other inmates and
guards, regardless of the nature of their crime. Because documented rates of recidivism among inmates convicted of murder are low, the use of the future dangerousness inquiry in every Texas death penalty case results in a high rate of
“false positives.”
Beginning in the early 1980’s, researchers and professionals concluded that
“mental health professionals cannot predict dangerousness.” Strong objections to
this speculative testimony have been voiced by many, including the American
Psychiatric Association, which maintains that “the unreliability of psychiatric
predictions of long-term future dangerousness is by now an established fact within
the profession.”
Despite this—and in the face of research establishing that the authority implied by the title “Doctor” unduly sways juror’s deliberations—Texas courts
routinely permit this testimony even when the expert has not met the defendant
at all and courts allow experts to unambiguously guarantee that a defendant will
commit acts of violence in the future.
Allowing this questionable and professionally discredited testimony to play
any role in the application of the death penalty—let alone allowing this evidence to be a key sentencing factor—undermines the integrity of the system
and calls into question the fairness of all death sentences in this state.
The results of this study reveal that Texas would execute 155 inmates to prevent continued violence by eight. Texas allows the life or death decision to turn
on evidence less reliable than the flip of a coin.
Predictions of future dangerousness are not essential to the existence of capital punishment. Texas is only one of two death penalty states that allow this
highly speculative evidence to play a critical role in life and death decisions made
by juries. Seven other death penalty states allow juries to consider future dangerousness in a limited way. The remaining 29 death penalty states do not allow
future dangerousness evidence at all.
As the experience of other death penalty states illustrates, it is possible for
Texas to amend its death penalty statute to provide for fairer, more reliable sentence decisions. One can favor the death penalty “yet still recoil at the thought
that a junk science fringe of psychiatry . . . could decide who should be sent to
the gallows.”

DEADLY
SPECULATION
The Study

1

Tipping the Scales in Favor of Death
with Unreliable Procedure

I.

The Death Penalty in Texas
The modern death penalty era began in 1976, when the U.S. Supreme Court
permitted states to resume capital punishment.11 Capital punishment had been
judged unconstitutional in 1972 in part because of the unbridled discretion afforded to juries in death penalty cases.12 The U.S. Supreme Court struck down
all then-existing death penalty statutes, holding that their provisions allowed for
arbitrary and discriminatory results. One justice compared the process to a “lottery,”13 and another to being “struck by lightning.”14 A few years later, the Court
reiterated the view that the death penalty should not be arbitrary, but rather reserved for the worst of all offenders who were properly convicted for the most
egregious offenses.15 In so holding, the Court held that the death penalty could
not be a mandatory sentence in any case or for any category of crime.16

11 See, e.g., Jurek v. Texas, 428 U.S. 262, 276 (1976) (plurality) (upholding Texas’s revised death

penalty statute).

12 The five Supreme Court justices voting to invalidate all state and federal capital punishment

13
14
15
16

statutes then in existence explained their reasoning in separate opinions. See Furman v.
Georgia, 408 U.S. 238, 253 (1972) (Douglas, J., concurring) (condemning a “system of law
and of justice that leaves to the uncontrolled discretion of judges or juries the determination
whether defendants . . . should die or be imprisoned” and that provides “‘no standards’ for
selecting the penalty”); id. at 295 (Brennan, J., concurring) (observing that juries “make the
decision whether to impose a death sentence wholly unguided by standards governing that
decision”); id. at 308 nn. 8-9, 310 (Stewart, J., concurring) (characterizing the “broad
sentencing leeway” afforded juries by states’ challenged death penalty statutes as resulting in
“legal systems that permit . . . [the death penalty] to be so wantonly and so freakishly
imposed”); id. at 313 (White, J., concurring) (tracing the arbitrariness in the infliction of the
death penalty to the unlimited sentencing discretion of judges and juries under the statutes at
issue); id. at 365 (Marshall, J., concurring) (commenting that the commitment to the
“untrammeled discretion of the jury the power to pronounce life or death in capital cases . . .
was an open invitation to discrimination”) (internal quotation marks and citation omitted).
Furman v. Georgia, 408 U.S. 238, 293 (1972) (Brennan, J., concurring).
Id. at 309.
Woodson v. North Carolina, 428 U.S. 280, 303-05 (1976).
Id.

2

D E A D LY S P E C U L AT I O N

In 1973, Texas, among other states, drafted new capital punishment provisions and attempted to provide greater structure to the sentencing process by
delineating factors to guide jury decision-making.17 Texas was among the first
states to rewrite its death penalty law, enacting legislation the year following
the Supreme Court’s ruling in Furman.18
Texas’s revised capital punishment statute provides for the death penalty
upon conviction for eleven separate homicide offenses.19 These offenses include
murder during the course of a burglary, robbery, or sexual assault; murder for
hire; the murder of a police officer; and the murder of a child under the age of
six. If a capital case goes to trial, the proceedings will be divided into two
stages. In the first stage of the trial, the “guilt-innocence” phase, the jury decides whether the defendant has committed the crime charged. Should the jury
deliver a guilty verdict and the prosecution seeks the death penalty, the trial proceeds to the second stage, the “sentencing” phase. At this final stage, the jury
hears evidence regarding the defendant’s background, character, criminal history, and mental health.20 The jury then determines whether to sentence the
defendant to death or life in prison.21 The jury may be told that “life” in prison
means the defendant must serve forty years before becoming eligible for parole.22
During the sentencing phase, the trial judge submits questions, known as
“special issues,” to the jury.23 One is “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”24 The prosecution has the burden of proving this issue
beyond a reasonable doubt and an affirmative finding to this question is a prerequisite to a sentence of death.25
The “future dangerousness” issue was a hurried and last-minute addition
to the death penalty statutes in the legislative session after the Furman ruling.
This issue was not included in the original bill debated and was added by a com17 See Act of June 14, 1973, 63rd Leg., R.S., ch. 426, art. 3, § 1, 1973 TEX. GEN. LAWS 1122,

18

19
20
21
22
23
24
25

1125 (amended 2001) (codified as amended in TEX. CRIM. PROC. CODE ANN. art. 37.071
(Vernon 2001)) (articulating sentencing procedure designed to constrain sentencing jury’s
discretion). See generally Michael Kuhn, Note, House Bill 200: The Legislative Attempt to
Reinstate Capital Punishment in Texas, 11 HOUS. L. REV. 410 (1973-1974) (discussing the
Texas Legislature’s attempts in enacting revised death penalty legislation to remedy the
constitutional defects identified in Furman).
House Bill 200, the revised capital punishment statute, was passed by the Texas House of
Representatives on May 10, 1973. TEX. H.R. JOUR. 3363 (1973). The Texas Senate approved
an amended version on May 23, 1973. TEX. S. JOUR. 1743 (1973). After the Conference
Committee resolved the differences, House Bill 200 was approved by both legislative bodies
and became effective on June 14, 1973. See Act of June 14, 1973, 63rd Leg. R.S., ch. 426,
arts. 1-3, 1973 Tex. Gen. Laws 1122-29 (codified as amended in scattered sections of TEX.
CRIM. PROC. CODE and TEX. PENAL CODE).
TEX. PENAL CODE ANN. § 19.03 (Vernon 1994).
TEX. CRIM. PROC. CODE ANN. art. 37.071§ (2)(a) (Vernon 2001).
Id. at 37.071(2).
Id. at 37.071(2)(e)(2)(B).
Id. at 37.071(2)(b) & (2)(e) (enumerating special issues).
Id. at 37.071(2)(b)(1).
Id. at art. 37.071(2)(g).

T I P P I N G T H E S C A L E S I N F A V O R O F D E AT H

3

mittee at the end of the session.26 The Texas Legislature failed to study the effectiveness or advisability of the new statutes.27 Former U.S. Representative
Craig Washington, who was in the Texas House during the 1973 session, described the process:
Nobody sat down and thought through those things to come up
with a rational way. They made up something that sounded like it
would give the jury some guidance, but it really obfuscates more
than it guides. You have got to remember these questions were . . .
thought up on the spur of the moment in conference committee.28
Texas’s revised statute aimed to make the individualized assessment required by Furman the touchstone of the infliction of the State’s ultimate punishment. 29 The Texas Legislature devised a sentencing
procedure designed to guide the jury when differen“They made up something
tiating between those individuals whose prior behavthat sounded like it
ior and propensity for violence warranted the death
would give the jury
penalty and those who, although guilty of capital murder, deserved a life sentence.
some guidance, but it

really obfuscates more
than it guides.”

By narrowing the pool of persons who should be
sentenced to death, the Texas Legislature sought to reserve capital punishment for the worst of the worst,
— Former U.S. Representative
thereby minimizing the risk that the death penalty
Craig Washington
would be applied capriciously.30 The statute as implemented, however, has backfired: the sentencing procedure fails to give juries
26 As originally enacted by the House on May 10, 1973, the death penalty was mandatory for

27

28
29
30

certain offenses and thus there were no special issues for the jury to consider. TEX. H.R. JOUR.
3218 (1973). The Senate version, passed less than two weeks later, contemplated an advisory
role in sentencing for the jury, and listed future dangerousness as one of eight aggravating and
seven mitigating factors to guide the jury’s deliberations. TEX. S. JOUR. 1538-39 (1973). The
decision to make future dangerousness an issue of mandatory consideration by the jury was
made by the Conference Committee. Act of June 14, 1973, ch. 426, art. 3, § 1, 1973 TEX.
GEN. LAWS at 1125. There was virtually no discussion of this alteration in the House and
Senate versions; the debate over the statute consists largely of an address by then-Governor
Dolph Briscoe to a joint legislative session urging its enactment. See TEX. H.R. JOUR. 134,
138 (1973).
See Hugo A. Bedau, Social Science Research in the Aftermath of Furman v. Georgia: Creating
New Knowledge About Capital Punishment in the United States, in ISSUES IN CRIMINAL JUSTICE:
PLANNING AND EVALUATION 75, 82 (Marc Riedel & Duncan Chappel, eds. 1976); Welsh S.
White, The Role of the Social Sciences in Determining the Constitutionality of Capital
Punishment, 45 AM. J. ORTHOPSYCHIATRY 581, 587-90 (1975).
Kathy Walt, Debate Over Death Penalty Is Renewed; Predicting Future Threats Raises Question of
Flaws, HOUS. CHRON., July 9, 2000, at B1 (quoting former U.S. Rep. Craig Washington).
Kuhn, supra note 17, at 423.
Cf. Zant v. Stephens, 462 U.S. 862, 874, 877-79 (1983) (describing the constitutional
function of statutory aggravating circumstances to channel the jury’s discretion by
circumscribing the class of persons eligible for the death penalty). The issue of arbitrariness of
sentence is compounded in Texas given that there is no uniform, state-based policy for
prosecutors seeking the death penalty. Elected prosecutors across the state’s 254 counties are
given unfettered discretion in the decision to seek the death penalty and that decision, by and
large, will be left undisturbed by judicial review. See, e.g., Town of Newton v. Rumery, 480
U.S. 386, 396 (1987); Wayte v. United States, 470 U.S. 598, 607 (1985); United States v.
Goodwin, 457 U.S. 368, 380 (1982).

4

D E A D LY S P E C U L AT I O N

meaningful—rather than merely inflammatory—information about defendants. It has led to an obscene ballooning of the number of people sentenced
to death, an expansion far beyond those deserving the death penalty.
The faulty statute has helped make Texas the undisputed leader in executions among the thirty-eight states with death penalty statutes. The number of
executions in Texas dwarfs that of all other states and comprises
one-third of all U.S. executions in the modern era.31 Texas has
Executions in 2003 executed more than three times as many people as has Virginia,
the state with the second-highest total.32 In 2003, Texas led the
nation with twenty-four executions, nearly half of the total number of executions in the United States.33 In 2004, Texas is thus
Texas
All Other
24
far responsible for one-half of all executions in the United
States
Combined
States.34 Currently, more than 450 men and women reside on
41
Texas’s Death Row, with thirty to forty new death sentences
being handed down each year.35
The simple fact that the death penalty is available does not mean that it is
warranted in every case. Some defendants should not be permitted to return to
society—but that does not necessarily mean that they must be executed. What
of defendants who would adjust well to the prison setting and never pose a threat
to anyone while in an institutional environment?
II.

Misplaced Rationale in Future Dangerousness Determinations
In Texas, “future dangerousness” essentially refers to the extent to which
these individuals will engage in violent acts while incarcerated in an institutional
setting for a minimum of forty years.36 Thus, the institutional adjustment or
ability of capital defendants to conform their behavior to a prison setting is generally the critical issue to consider when evaluating whether they actually continue to represent a threat to others.

31 Death Penalty Information Center, Number of Executions by State Since 1976, at

http://www.deathpenaltyinfo.org/dpicreg.html (last visited March 1, 2004).
Id.
Id.
Id.
See Texas Department of Criminal Justice, Offenders on Death Row, at
http://www.tdcj.state.tx.us/stat/offendersondrow.htm (last visited March 1, 2004).
36 Capital defendants in 35 out of 38 death penalty jurisdictions who are not put to death will
receive life-without-parole sentences. In those states that allow for life with parole, minimum
sentences to be served are usually 25 years or more before conditional release. See Richard C.
Dieter, Sentencing for Life: Americans Embrace Sentencing Alternative to the Death Penalty,
Death Penalty Information Center, (Apr. 1993), available at
http://www.deathpenaltyinfo.org/article.php?scid=45&did=481.
32
33
34
35

T I P P I N G T H E S C A L E S I N F A V O R O F D E AT H

5

Although most experts conclude that the death penalty has no more deterrent value than long-term imprisonment,37 the rationale for allowing the issue
of future dangerousness to enter the sentencing
process is that the death penalty can prevent especially
The use of future
violent killers from killing again, limiting the risk of
dangerousness as a
harm to other inmates and prison guards, as well as
guideline rests upon a
the public-at-large. The use of future dangerousness
as a guideline rests upon a questionable assumption.
questionable assumption.
This reasoning presupposes This reasoning presupposes juries are able to accurately identify the defendants who are likely to cause
juries are able to
harm against which prison confinement is insuffiaccurately identify the
cient to guard.

defendants who are likely
to cause harm against
which prison confinement
is insufficient to guard.

However, research reveals that the majority of
murderers do not commit acts of serious violence in
prison. Research on the post-incarceration conduct of
capital defendants was summarized by Thomas Reidy
and his colleagues in 2001.38 Over varying follow-up
periods (ranging from two to 56 years) across several jurisdictions, the rates of
assault by death row, former death row, capital murder life-without-parole, and
life-with-parole inmates were relatively low.39

Upon examining the records of more than 6,000 convicted murders in the
Texas prison system, different researchers reported in 2000 that the overwhelming majority of murderers in prison do not have disciplinary records of
serious institutional violence.40 Using the average period of confinement, the
researchers evaluated the rate of serious violent behavior over a term of forty
years, the minimum number of years a defendant would serve if convicted of
capital murder and sentenced to life. These calculations revealed that more than
83% of inmates would not commit acts involving serious assaultive behavior
during forty years in prison.41 The projected rate of an aggravated assault upon
a corrections officer was one percent and the likelihood of an inmate killing
another inmate was one-fifth of one percent (00.2%).42
37 Michael L. Radelet & Ronald L. Akers, Deterrence and the Death Penalty: The Views of the

Experts, 87 J. CRIM. L. & CRIMINOLOGY 1, 3 (1996).

38 Thomas J. Reidy, Mark D. Cunningham & Jonathan R. Sorensen, From Death to Life: Prison

39
40
41
42

Behavior of Former Death Row Inmates in Indiana, 28 CRIM. JUST. & BEHAV. 62-82 (2001).
Research also reveals that jurors overestimate the rate of recidivism among murder-convicted
inmates after their release into the community on parole. See Jonathan R. Sorensen & Rocky
L. Pilgrim, An Actuarial Risk Assessment of Violence Posed by Capital Murder Defendants, 90 J.
CRIM. L. & CRIMINOLOGY 1251, 1256 (2000); Allen J. Beck & Bernard E. Shipley, U.S. Dep’t
of Justice, Recidivism of Prisoners Released in 1983, at 2-6 (1989); Craig Perkins, U.S. Dep’t of
Justice, National Corrections Reporting Program, 1992 at 18 (1994) (finding that the rate of
recidivism among inmates convicted of murder and later released was lower than the rate for
inmates released with non-murder convictions).
Reidy, Cunningham & Sorenson, supra note 38.
Sorensen & Pilgrim, supra note 38, at 1256.
Id.
Id.

6

D E A D LY S P E C U L AT I O N

The authors noted that their conclusions were consistent with previous research regarding former death row inmates who were transferred to general
prison populations.43 In a 1989 study, researchers
James Marquart and Jon Sorenson studied 558 death
“We would have executed
row inmates whose sentences were commuted in the
nearly 600 convicts to
1970s after the U.S. Supreme Court’s decision in
protect us from seven.
Furman and found that in the fifteen years following
the sentencing modification, only seven inmates
And we would have
re-offended.44 Four of the Furman-commuted inkilled four innocent
mates were later found to have been actually innocent
people in the process.”
of the crimes.45 As the author of the research noted,
— Professor James Marquart
but for the Furman decision, “[w]e would have executed nearly 600 convicts to protect us from [seven].
And we would have killed four innocent people in the process.”46
Another study tracked 92 death row inmates whose sentences were commuted pursuant to Furman and found that those inmates actually had a lower
occurrence of violent infractions than other prisoners, and that only two inmates committed another murder.47 The study compared these inmates to a
group of capital murder defendants sentenced to life imprisonment because the
juries had concluded that they did not pose a continuing threat to society.48
Overall, the commuted death row inmates “were not a disproportionate threat
to the institutional order, other inmates, or the custodial staff.”49 Most deathsentenced-but-commuted inmates did not commit serious disciplinary rule infractions or spend time in solitary confinement as punishment for disruptive
or assaultive behavior. The inmates—deemed too dangerous by juries to serve
life prison sentences—actually had a lower rate of violence than those inmates
who were sentenced to life by juries.50
Although most inmates sentenced to longer sentences have been convicted
of more violent offenses, correctional administrators agree that these inmates, including those serving murder sentences, are generally among the most docile and
43 Id.
44 See James W. Marquart & Jonathan R. Sorensen, A National Study of the Furman-Commuted
45
46

47

48
49
50

Inmates: Assessing the Threat to Society from Capital Offenders, 23 LOY. L.A. L. REV. 5, 22-24
(1989).
Id. at 25.
Andrew H. Malcolm, Society’s Conflict on Death Penalty Stalls Procession of the Condemned,
N.Y. TIMES, June 19, 1989, at B-10, quoting Professor James Marquart. See also Ronald
Tabak, How Empirical Studies Can Affect Positively the Politics of the Death Penalty, 83
CORNELL L. REV. 1431 (1998); Sorensen & Pilgrim, supra note 38; Wendy P. Wolfson, The
Deterrent Effect of the Death Penalty Upon Prison Murder, in THE DEATH PENALTY IN AMERICA
159, 160 (Hugo A. Bedau ed., 3d ed. 1982) (noting that the rate of homicide in prison is
much lower than the rate of homicide in the free community).
James W. Marquart, Sheldon Ekland-Olson, Jonathan R. Sorensen, Gazing into the Crystal
Ball: Can Jurors Accurately Predict Dangerousness in Capital Cases?, 23 LAW & SOC’Y REV. 449,
460 (1989).
Id.
Id. at 464.
Id.

T I P P I N G T H E S C A L E S I N F A V O R O F D E AT H

7

trustworthy in the institution.51 Inmates serving long sentences are more invested
in earning a high level of inmate privileges.52 Thus, these inmates have incentive
to conform their behavior and, in general, they avoid behaviors that would trigger punishment. The opportunity for recreation, work outside one’s cell, access
to commissary items, and visitation privileges serve as powerful incentives for good
behavior.53 Inmates sentenced to life in prison—even the ostensibly high-risk category of capital murderers—can be controlled in the penal environment.
Even withholding the opportunity for parole does not increase the rate of
prison violence. Researchers analyzed the violence rates of 323 life-withoutparole inmates and 232 life-with-parole inmates during fifteen years of confinement from 1977 to 1992 in Missouri,
The type of sentence—
a state with a true life-without-parole sentence.54 The rate
life with parole or life
of assaultive behavior was virtually identical among the
without parole—
two groups. Nearly 80% of both groups did not have any
reported incidents of assaults. Of the 20% who did receive
did not significantly
disciplinary reports for assaultive behavior, a third of those
impact the rate of
incidents were classified as minor. The type of sentence—
violence in prison.
life with parole or life without parole—did not significantly
impact the rate of violence in prison.55
Research confirms the views of prison officials—finding inmates convicted
of murder to be among the most manageable class of inmates—and reveals that,
generally, as inmates grow older in prison, their propensity for violent or disruptive behavior decreases.56 One study noted “an inverse relationship between
sentence length of time served and disciplinary infractions.”57 One expert noted:
“This is one of the most clearly-established principals in criminology, is that
the risk of crime and violence in the community or in prison decreases steadily
with age. That it peaks in the late teenage, early adult years, and then falls
steadily across the life span.”58

51 Id.
52 Id.
53 Id. See also Beth M. Huebner, Administrative Determinants of Inmate Violence: A Multilevel

Analysis, 31 J. CRIM. JUST. 107 (2003).

54 Jonathan R. Sorensen & R. Wrinkle, No Hope for Parole: Disciplinary Infractions Among

Death-Sentenced and Life-Without-Parole Inmates, 23 CRIM. JUST. & BEHAV. 542-52 (1996).

55 Id.
56 See John D. Woolredge, Correlates of Deviant Behavior Among Inmates of U.S. Correctional

Facilities, 14 J. CRIME & JUST. 1 (1991); Kevin N. Wright, A Study of Individual,
Environmental, and Interactive Effects in Explaining Adjustment to Prison, 8 JUST. Q. 217
(1991).
57 Sorensen & Pilgrim, supra note 38. See also Terrill R. Holland & Norman Holt, Correctional
Classification and the Prediction of Institutional Adjustment, 7 CRIM. JUST. & BEHAV. 51, 54
(1980); Frank Porporino, Managing Violent Individuals in Correctional Setting, 1 J.
INTERPERSONAL VIOLENCE 213, 220-21 (1986).
58 Testimony of Dr. Mark Cunningham, Statement of Facts at 132, State v. Murphy, (Tex. Crim.
App. 2000) (No. 73,194).

8

D E A D LY S P E C U L AT I O N

Juries are instructed, and clearly perceive, that the death penalty hinges
on the issue of a defendant’s future dangerousness.59 The use of this inquiry in
every Texas death penalty case presupposes that juries are capable of identifying those inmates convicted of murder who are more violent or unmanageable than other inmates.
Because the documented rates of recidivism are low, the use of the future
dangerousness inquiry results in a very high rate of “false positives.”60 Texas adds
fuel to this fire of misinformation by urging juries to consider predictions of future dangerousness from prosecution mental health experts. The accuracy of these
predictions is the focus of this study.

59 See generally Sorensen & Pilgrim, supra note 38; See also Sally Constanzo & Mark Constanzo,

Life or Death Decisions: An Analysis of Capital Jury Decision Making Under the Special Issues
Sentencing Framework, 18 LAW & HUM. BEHAV. 151 (1994).
60 Id.

2

The Fatal Crystal Ball: Convincing Juries
of the Unpredictable

Prosecutors attempt to convince juries of a defendant’s future dangerousness in myriad ways, including appealing to the jury’s sense of duty to the community,61 the use of character witnesses, prior convictions, unadjudicated
offenses,62 the facts of the crime itself,63 and expert testimony. Future dangerousness is the critical issue in every Texas capital sentencing proceeding,64 and
the integrity of Texas death sentences depends on whether the evidence used
to prove future dangerousness is reliable.

61 See, e.g., Fortenberry v. State, 579 S.W.2d 482 (Tex. Crim. App. 1979) in which the

prosecutor argued to the jury: “I tell you now that unless you do observe the evidence, and
base your decision, and find beyond a reasonable doubt and find the answer to be yes in this
case, that upon your heads will lie the next man that’s dead due to . . . [the defendant’s]
hands.”
62 See Chapter Four, infra.
63 Recent Court of Criminal Appeals (CCA) decisions have rubberstamped the jury’s finding of
future dangerousness based on the facts of the crime despite the U.S. Supreme Court’s
position that “death is a punishment different from all other sanctions in kind rather than
degree.” Woodson v. North Carolina, 428 U.S. 280, 303-04 (1976), See, e.g., Martinez v.
State 924 S.W.2d 693, 397 (Tex. Crim. App. 1996), in which the CCA upheld the jury’s
finding of future dangerousness against Martinez despite his lack of criminal record,
immediate remorse, state of intoxication, and mitigating evidence.
64 Prosecutors have acknowledged that “[b]y some accounts, the issue of future dangerousness
has become the single most important factor in determining which defendants spend their life
in prison and which defendants are sent to the execution chamber.” Guy Goldberg & Gena
Bunn, Balancing Fairness & Finality: A Comprehensive Review of the Texas Death Penalty, 5
TEX. REV. L. & POL. 49 (Fall, 2000). The authors discount concerns about future
dangerousness predictions as “unwarranted.”

10

I.

D E A D LY S P E C U L AT I O N

The Proliferation of State-Paid Expert Speculation

“The unreliability of psychiatric predictions of longterm future dangerousness is by now an established
fact within the profession.”
— American Psychiatric Association65
In the absence of other evidence to support a jury finding of future dangerousness—as in cases in which the defendant has no prior criminal record or
the crime itself does not reflect a risk of continuing violence—the State often
uses “experts” to predict a defendant’s future behavior. These experts have been
testifying in Texas capital murder cases for over thirty years. More and more
mental health experts consider themselves adept at predicting future violence.66
The State uses these hired witnesses because of their effectiveness in helping secure death sentences.
Mental health professionals were first called upon to predict an individual’s
propensity for future violence beginning in the 1970s in the context of civil commitments. The Supreme Court had held that persons could not be involuntarily
confined on the basis that they were mentally ill absent a finding that they posed
a risk of harm to others or to themselves.67 Soon after these predictions by psychologists and psychiatrists became commonplace, researchers began studying
their accuracy.68 Studies revealed that the majority of those predicted to be dangerous did not engage in any assaultive behavior and that only one of three predicted to be violent proved to be so.69 Beginning in the early 1980s, researchers

65 Brief of Amicus Curiae, Am. Psychiatric Ass’n, Barefoot v. Estelle, 463 U.S. 880 (1983) (No.

82-6080).

66 Daniel W. Shuman & Bruce D. Sales, The Admissibility of Expert Testimony Based Upon

Clinical Judgement and Scientific Research, 4 PSYCHOL., PUB. POL’Y & L. 1226 (1998), Stephen
L. Golding, Increasing the Reliability, Validity, and Relevance of Psychological Expert Evidence:
An Introduction to the Special Issue on Expert Evidence, 16 LAW. & HUM.BEHAV. 253, 255
(1992), John Monahan & Henry J. Steadman, Crime and Mental Disorder: An Epidemiologial
Approach, 4 CRIME & JUST. 145 (1983).
67 Randy K. Otto, On the Ability of Mental Health Professionals to “Predict Dangerousness:” A
Commentary on Interpretations of the “Dangerousness” Literature, 18 LAW & PSYCHOL. REV. 43
(1994).
68 See generally, e.g., Henry J. Steadman & Arlene Halfon, The Baxstrom Patients: Backgrounds
and Outcomes, 3 SEMINARS IN PSYCHIATRY 376 (1971). Summarizing the results of this
research, the author of several such studies concluded: “It . . . appears that psychiatrists cannot
even predict accurately enough to be more often right than they are wrong;” Joseph Cocozza
& Henry Steadman, The Failure of Psychiatric Predictions of Dangerousness: Clear and
Convincing Evidence, 29 RUTGERS L. REV. 1084 (1976).
69 Id.

T H E F A TA L C R Y S T A L B A L L

11

and professionals began concluding that “[m]ental health professionals cannot
predict dangerousness.”70
Ignoring these early warning signs, and despite the fact that many states
limit the use of this mental health testimony to civil commitment settings,71
Texas expanded the use of psychiatric opinion on future dangerousness to death
penalty cases.
II.

The Lack of Judicial Protection from Unreliable Evidence

“In a capital case, the specious testimony of a psychiatrist,
colored in the eyes of an impressionable jury by the inevitable
untouchability of a medical specialist’s words, equates with
death itself . . . . In the present state of psychiatric knowledge,
this is too much for me. One may accept this in a routine
lawsuit for money damages, but when a person’s life is at stake,
a requirement of greater reliability should prevail.”
— U.S. Supreme Court Justice Harry Blackmun72
In the landmark 1983 case Barefoot v. Estelle, the U.S. Supreme Court addressed the admissibility of expert predictions of future dangerousness in capital sentencing hearings and, in permitting its introduction, assumed that jurors
would be able to distinguish between testimony based on sound scientific theories and testimony based on less reliable or accurate opinions, and that the adversarial nature of the process would be sufficient to remove the taint of
inaccurate expert opinions.

70 JOHN MONAHAN, PREDICTING VIOLENT BEHAVIOR: AN ASSESSMENT OF CLINICAL

TECHNIQUES (1981); See generally John Monahan, The Prediction of Violent Behavior: Toward a
Second Generation of Theory and Policy, 141 AM. J. PSYCHIATRY 10, (1984); Bruce J. Ennis &
Thomas Litwach, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom,
62 CAL.L. REV. 693 (1974); John Monahan et al., Report of the American Psychological
Association Task Force on the Role of Psychology in the Criminal Justice System, 33 AM.
PSYCHOLOGIST 1099, 1100 (1978), Charles Lidz, et al., Sources of Disagreement Among
Clinicians’ Assessments of Dangerousness in a Psychiatric Emergency Room, 15 INT. J. LAW &
PSYCH. 237 (1993), Charles Lidz, et al., The Accuracy of Predictions of Violence to Others, 269
J. AM. MED. ASSOC. 1007 (1993).
71 See, e.g., Kansas v. Hendricks, 521 U.S. 346, 356-60 (1997) (emphasizing the acceptability of
expert predictions in civil contexts due to reduced due process protections and noting civilcriminal dichotomy in upholding civil commitment statute for sexual predators). See generally
Paul H. Robinson, Foreward: The Criminal-Civil Distinction and Dangerous Blameless
Offenders, 83 J. CRIM. L. & CRIMINOLOGY 693 (1993) (discussing judicial deference to civil
commitment laws in face of due process challenges).
72 Barefoot v. Estelle, 463 U.S. 880, 916 (1983) (Blackmun, J., dissenting).

12

D E A D LY S P E C U L AT I O N

The Court declined to heed the strong objections to this speculative testimony voiced in an amicus curiae brief filed by the American Psychiatric Association (APA).73 The APA insisted that psychiatrists are not qualified to make
determinations of long-term future dangerousness, and still consistently urges
that expert psychiatric testimony on future dangerousness be deemed inadmissible at capital sentencing hearings.
The premises relied upon by the Supreme Court in Barefoot have not been
borne out in practice. Research has consistently established that the aura of authority emanating from the title “Doctor” unduly sways jurors’ deliberations.74
Even when the jury is told that the expert neither examined the defendant nor
formed his opinion based on access to in-depth information not available to the
jury—the common practice in capital sentencing hearings—the jury shows such
unreasoning deference to the expert’s prediction that it can only be the result of
the expert’s cloak of respectability.75 Indeed, as a then-judge of the Texas Court
of Criminal Appeals pointed out in 1980, “[i]t is widely recognized that many
lay persons show an inordinate amount of deference to members of the medical
profession. Consequently, prosecutors go to great lengths to obtain psychiatric
testimony on the . . . [future dangerousness issue]. They obviously believe that
such testimony significantly influences a jury’s punishment deliberations.”76
Despite the courts’ assumptions to the contrary, the adversary process, including cross-examination, is often insufficient to remove the bias generated from
this unwarranted confidence in the pronouncements of ostensible experts. It is
hard for a defense attorney to successfully cross-examine an expert about a personal opinion based on sparse, case-specific facts, especially when the defense
73 See Brief of Amicus Curiae Am. Psychiatric Ass’n, Barefoot v. Estelle, 463 U.S. 880 (1983)

(No. 82-6080).

74 The seminal study in this line of inquiry is Stanley Milgram’s Yale study in which persons

posing as scientists were able to secure compliance with their requests at a much higher rate
than laypersons. See generally STANLEY MILGRAM, OBEDIENCE TO AUTHORITY: AN
EXPERIMENTAL VIEW (1983). Recent research in this area includes Daniel A. Krauss’s and
Bruce D. Sales’s study, The Effects of Clinical and Scientific Expert Testimony on Juror Decision
Making in Capital Sentencing, 7 PSYCH. PUB. POL. & L. 267 (2001), which found that
psychological expert testimony regarding the defendant’s future dangerousness in a mock trial
strongly affected jurors’ decisions on sentencing. The study concluded that the U.S. Supreme
Court “may have taken an incorrect view concerning the constitutionality of dangerousness
predictions in Barefoot when they stated that ‘we are not persuaded . . . that the fact finder
and the adversary system will not be competent to uncover, recognize, and take due account
of its shortcomings.’” Id at 305.
75 Id. See also White v. Estelle, 554 F. Supp. 851, 858 (S.D. Tex. 1982) (finding that an opinion
by “a witness bearing the title of ‘Doctor’” has a much greater impact on the jury, even where
the jury is told that the expert never examined the defendant nor had access to in-depth
information).
76 Sanne v. State, 609 S.W.2d 762, 778 (Tex. Crim. App. 1980) (Phillips, J., dissenting). See also
Proffitt v. Wainwright, 685 F.2d 1227, 1244 (Fla. Cir. Ct. 1982) (where the state’s argument
“that the doctor’s testimony showed appellant was likely to kill other people in the future and
was therefore a danger to society” was “likely to appeal to the emotions of the jurors”);
Bennett v. State, 766 S.W.2d 227, 232 (Tex. Crim. App. 1989) (Teague, J., dissenting)
(“Believe me dear reader, for jury purposes, [the expert] is extremely good at persuading jurors
to vote to answer the second special issue in the affirmative. . . . [He] closely resembles a
combination of all those great major league baseball hitters who could almost hit home runs
with their eyes closed.”).

T H E F A TA L C R Y S T A L B A L L

13

attorney lacks expertise in this area. Thus, the impact of this questionable evidence can be directly affected by the quality of counsel.77
Despite the APA’s conclusion that psychiatrists have no special expertise in
the area, Supreme Court Justice White noted: “The suggestion that no psychiatrist’s testimony may be presented with respect to a defendant’s future dangerousness is somewhat like asking us to disinvent the wheel.”78 Ten years after
Barefoot, the U.S. Supreme Court considered the admissibility of expert testimony in Daubert v. Merrell Dow.79 The Supreme Court held that trial judges
must act as “gate-keepers” of the evidence and must conduct a review of scientific evidence before it is presented to a jury which includes an analysis of the
potential error rate for the evidence and whether the method is generally accepted within the field.80
Although the Supreme Court upheld the admissibility of future dangerousness evidence in Barefoot, it has yet to reconsider the reliability of future dangerousness evidence in light of the test enumerated in Daubert for determining
whether evidence is reliable enough for jury consideration. 81 At least one judge
has expressed the opinion that future dangerousness evidence appears to fail all
of the Daubert factors: “Overall, the theory that scientific reliability underlies
predictions of future dangerousness has been uniformly rejected by the scientific community absent those individuals who routinely testify to, and profit
from, predictions of dangerousness.”82

77 An analysis of the quality of trial counsel appointed in Texas is beyond the scope of this
78
79
80

81
82

report, see Texas Defender Service, A State of Denial: Texas Justice and the Death Penalty
(2000), available at http://www.texasdefender.org/publications.htm.
Barefoot v. Estelle, 463 U.S. 880, 896 (1983).
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
See id. (wherein the Court sets forth factors that trial judges must consider when evaluating
the admissibility of expert scientific testimony: (1) whether the theory or hypothesis is
falsifiable or testable or has been tested, (2) whether the evidence has been subjected to peer
review, (3) whether there is a known or potential error rate for the evidence, and (4) whether
the technique or method is generally accepted within the field.). See also Kelly v. State, 824
S.W.2d 568, 571-73 (Tex. Crim. App. 1992); Kumho Tire v. Carmichael, 526 U.S. 137
(1999). See generally Krauss & Sales, supra note 74; J. Harvey Brown, Eight Gates for Expert
Witnesses, 36 HOUS. L. REV. 743 (1999) (analyzing the admissibility of expert evidence in
Texas courts and explicating the function of the trial judge in enforcing the rules of evidence).
The Daubert test replaced the former Frye test, which was in effect at the time of the Barefoot
decision. The court in Frye held that scientific evidence is admissible if it is “sufficiently
established to have gained general acceptance in the particular field to which it belongs.” Frye
v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
Kumho Tire, 526 U.S. 137 (holding that the Daubert test encompasses all expert testimony—
scientific expert evidence as well as expert clinical opinion testimony).
Flores v. Johnson, 210 F.3d 456, 465 (5th Cir. 2000) (Garza, J., specially concurring).
Although the Texas rules purport to require expert testimony to be reliable and relevant, the
courts have failed to conscientiously apply the admissibility requirements enumerated in
Daubert. See Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998) (adopting only a
modified Daubert analysis, explaining that questions of reliability are to be guided by the
validity of the underlying scientific theory, the validity of the technique applying the theory
and the proper application of the technique on the occasion in question). See also Joiner v.
State, 825 S.W.2d 701 (Tex. Crim. App. 1992) (performing a reliability, relevance, and
prejudice inquiry for the admission of psychiatric testimony in the penalty phase of a capital
murder trial).

14

D E A D LY S P E C U L AT I O N

Although judges are supposed to screen the evidence, the reality is that the
introduction of this evidence is routine and easy for the State.83 An outside observer may envision that the use of expert
predictions of future dangerousness in cap“Overall, the theory that scientific ital sentencing includes the expert making
a careful judgment after a thorough review
reliability underlies predictions
of all information available about the deof future dangerousness has
fendant. One may imagine that the expert
been uniformly rejected by the
meticulously creates an elaborate life history
scientific community absent
of the defendant, examines school, medical,
those individuals who routinely
and military records, and takes into account
any mental disorders, physical ailments, and
testify to, and profit from,
traumatic events. One might assume that
predictions of dangerousness.”
the expert examines the defendant, ques— U.S. District Judge J. Garza
tions him closely, observes him across a series of sessions, administers a battery of
psychological tests, and scrupulously compares the results to a wide corpus
of statistical data.
The reality falls far short of this idealized depiction. In many Texas cases,
the psychiatrist or psychologist testifies whether a defendant will constitute a
continuing threat to society based solely on a hypothetical fact pattern presented
by the prosecutor. The hypothetical question incorporates the facts of the specific crime for which the defendant has been convicted as well as his previous
crimes, and invariably omits any positive information. These hypothetical fact
patterns are routinely admitted despite being “simply subjective testimony
without any scientific validity.”84 There is no consistent methodology applied
or required for these analyses and “standards controlling the operation of the
technique are nonexistent.”85

83 Comparison to the standard of admissibility for scientific evidence in civil cases reflects the

degree to which the deck is stacked against a capital murder defendant. Research indicates
that although defendants in civil cases succeed in keeping unreliable expert testimony from
the jury most of the time, criminal defendants “virtually always lose their reliability challenges
to government.” D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of
Certainty Being Left on the Dock? 64 ALB. L. REV. 99 (2000) (emphasis added). The result of
subjecting civil evidence to stricter scrutiny “would be that the pocketbooks of civil
defendants would be protected from plaintiff ’s claims by exclusion of undependable expert
testimony, but that criminal defendants would not be protected from conviction based on
similarly undependable expert testimony.” Id. Such a result is particularly unseemly given the
law’s claim that “inaccurate criminal convictions are substantially worse than inaccurate civil
judgments, reflected in the different applicable standards of proof.” Id. (reviewing challenges
to scientific evidence in civil cases and finding that in over 90% of the cases, challenges were
raised regarding plaintiff-offered experts, with civil defendants prevailing two-thirds of the
time).
84 Flores, 210 F.3d at 459 (Garza, J., specially concurring).
85 Id. at 465. See also Kenneth Dekleva, Psychiatric Expertise in the Sentencing Phase of Capital
Murder Cases, 29 J. AM. ACAD. PSYCHOL. & L. 58, 60 (2001) (noting that “guidelines for
making dangerousness predictions in forensic populations do not currently exist.”).

T H E F A TA L C R Y S T A L B A L L

15

The expert, in many cases, never meets the defendant at all. Instead, he relies solely upon the prosecution’s case file. Even when the expert does meet the
defendant before testifying against him, the evaluation tends to be perfunctory—sometimes as short as twenty minutes.86
Judges also allow unqualified witnesses to make these unreliable predictions.87 This failure was highlighted in the case of Doyle Skillern, in which the
forensic pathologist who performed the autopsy on the victim was permitted by the trial court to testify about
In Doyle Skillern’s
Skillern’s future dangerousness.88 Although not a psycholtrial, the pathologist
ogist, the doctor expressed his opinion that, to a “reasonwho performed the
able degree of medical certainty,” Skillern would constitute
a continuing threat to society.89 When the defense counsel
autopsy on the victim
objected that the medical examiner lacked the training and
was allowed to testify
experience necessary to render such an opinion, the trial
about Skillern’s future
court overruled the objection and compounded the error
dangerousness.
by implying that the pathologist was qualified to make such
an assessment, stating:
There is no question but . . . the jury makes the decision, but this
witness is a medical doctor and I believe that the testimony shows
that he has studied human behavior, had experience with it, and is
giving this testimony to aid the jury, if it does.90
When evaluated for reliability, the danger of these predictions of future dangerousness becomes clear. Yet courts routinely admit this sophistry—sanctioning the masquerade of speculation as scientific fact—and fail to perform any
gate-keeping function at all.

86 RANDALL DALE ADAMS ET AL., ADAMS V. TEXAS 64 (1991) (describing the meeting in which
87

88

89
90

the state-paid expert asked Adams to draw shapes on a paper, asked him two questions, and
left.).
Texas courts even permit lay witnesses to speculate about a defendant’s likelihood of future
dangerousness. See East v. State, 702 S.W. 2d 606 (Tex. Crim. App. 1985), in which the court
allowed an acquaintance of the defendant to proffer her opinion that the defendant would be
a threat to society. See also Esquival v. State, 595 S.W. 2d 516, 527 (Tex. Crim. App. 1980);
Cass v. State, 676 S.W. 2d 589 (Tex. Crim. App. 1984).
See Sanne v. State, 609 S.W.2d 762, 773-74 (Tex. Crim. App. 1980) (Which discussed
Skillern case and acknowledged that forensic pathologist should not have been permitted to
render an expert opinion on Skillern’s future dangerousness, but deciding that the mistake was
harmless).
Id. at 778 (Phillips, J., dissenting).
Id.

16

D E A D LY S P E C U L AT I O N

III. Dr. Death and Other Self-Appointed Oracles for Hire

“Just take any man off the street, show him what [the
defendant did], and most of them would say the same
things I do. But I think the jurors feel a little better
when a psychiatrist says it—somebody that’s supposed
to know more than they know.” 91
— State Expert Dr. James Grigson
In refusing to bar such predictions from capital trials, Justice White of the
Supreme Court remarked that “neither petitioner nor the [American Psychiatric] Association suggests that psychiatrists are always wrong with respect to
future dangerousness, only most of the time.”92 Because predictions that a person will be dangerous in the future are wrong more often than they are right93
and researchers have found clinicians no more accurate in their guesses than
lay persons,94 juries could more accurately predict dangerousness by flipping a
coin than by relying on an expert’s testimony.
One researcher commented: “[Our] predictive ability is one for three—not
bad for a batting average, but somewhat more problematic for imprisonment
and execution.”95 Because the conclusions drawn from ad-hoc predictions of future dangerousness are flawed, the amorphous and undefined methodologies they

91 John Bloom, Doctor for the Prosecution, AM. LAW. 25, 26 (Nov. 1979).
92 Barefoot v. Estelle, 463 U.S. 880, 901 (1983).
93 See Reidy et al., supra note 38; Charles Patrick Ewing, Preventive Detention and Execution: The

Constitutionality of Punishing Future Crimes, 15 LAW & HUM. BEHAV. 139 (1991); Michael L.
Radelet & James W. Marquart, Assessing Nondangerousness During Penalty Phases of Capital
Trials, 54 ALB. L. REV. 845 (1990); Christopher Slobogin, Dangerousness and Expertise, 133 U.
PA. L. REV. 97, 111-17 (1984) (summarizing the results of the major studies); Brief of Amicus
Curiae, Am. Psychiatric Ass’n, Barefoot v. Estelle, 463 U.S. 880 (1983) (No. 82-6080);
William J. Bowers & Benjamin D. Steiner, Death by Default: An Empirical Demonstration of
False and Forced Choices in Capital Sentencing, 77 TEX. L. REV. 605, 625 (1999) (noting that
“[j]udging a person’s likely future dangerousness is far from foolproof ”); Steven G. Gey, Justice
Scalia’s Death Penalty, 20 FLA. ST. U. L. REV. 67, 118 (1992). Even in less recent research, the
error rate for predictions was two out of three times. See JOHN MONAHAN, CLINICAL
PREDICTION OF VIOLENT BEHAVIOR (1981).
94 David Faust & Jay Ziskin, The Expert Witness in Psychology and Psychiatry, 241 SCI., July 1,
1988, at 31.
95 Irene Merker Rosenberg, Yale L. Rosenberg & Bentzion S. Turin, Return of the Stubborn and
Rebellious Son: An Independent Sequel on the Prediction of Future Criminality, 37 BRANDEIS L.J.
511, 519-21 (1998-99) (stating that “[a]lthough measures for predicting and preventing
future crime are very much in vogue, a substantial body of literature suggests that prophecy of
this sort is a very speculative business” and criticizing the U.S. Supreme Court for its decision
in Barefoot, which constituted a “lack of appreciation of the inherent difficulty of the task and
the consequences of using inadequate methodologies to identify the dangerous predator.”).

17

T H E F A TA L C R Y S T A L B A L L

employ should be deemed unreliable and the evidence should therefore be inadmissible pursuant to Daubert.96
The APA condemned the use of this testimony based in part on the literature revealing the inaccuracy of expert predictions of long-term potential for
violence. The Association concluded: “Psychiatric testimony of future dangerousness impermissibly distorts the fact-finding process in capital cases.” 97 One
scholar emphasized:
In time, perhaps . . . the accuracy of predictions of dangerousness may
be improved to the point of scientific acceptability. At present, however . . . . [such] predictions cannot be said to be founded on a scientific basis . . . . The psychiatrist or psychologist who makes a
prediction of dangerousness [in a capital sentencing proceeding] violates his
or her ethical obligation to
render judgments that rest
on a scientific basis.98
As an indication of the
strength of the scientific community’s rejection of this speculation, the APA expelled
Texas’s Dr. James Grigson—
nicknamed Dr. Death for his
unambiguous guarantees of future dangerousness—from their
ranks because he consistently testified as to a defendant’s future
dangerousness without examining the defendant.99 Grigson and
other state-paid witnesses have
testified in capital cases and
made the claim that the defendant in question will kill again,
with “100% certainty.”100
96 See Gen. Elec. v. Joiner, 522 U.S. 136, 146 (1997) (holding that “conclusions and
97
98

99
100

methodology are not entirely distinct from one another” and that erroneous conclusions may
indicate a faulty underlying methodology).
Brief of Amicus Curiae, Am. Psychiatric Ass’n, Barefoot v. Estelle, 463 U.S. 880 (1983) (No.
82-6080).
Charles P. Ewing, “Dr. Death” and the Case for an Ethical Ban on Psychiatric and Psychological
Predictions of Dangerousness in Capital Sentencing Proceedings, 8 AM. J.L. & MED. 407, 418
(1983).
Bruce Vincent, Dearth of Work for “Dr. Death;” The Once Ubiquitous James Grigson Now Finds
Little Demand for his Testimony in Texas Capital Murder Sentencings, TEX. LAW., Dec. 4, 1995, at 4.
See, e.g., Deposition of James Grigson at 51, State v. Moody, (Tex. Crim. App. 1994)(No.
70,883).

18

D E A D LY S P E C U L AT I O N

Grigson, who has testified for the prosecution in many capital sentencing
hearings in Texas,101 went so far to secure death sentences as to investigate the
jurors whom he was going to try to persuade. In
one case, Grigson felt a juror was not going to
“It seems to me that when
believe his testimony and thus not sentence the
Dr. Grigson testifies at the
defendant to death. Grigson investigated that
punishment stage of a capital
juror’s family and background and, upon finding that the juror had a fourteen-year-old daughmurder trial he appears to
ter, testified that the defendant was the type of
the average lay juror, and the
man who would rape and kill a fourteen-year-old
uninformed juror, to be the
girl if given the opportunity.102 Former Texas
second coming of the
Court of Criminal Appeals Judge Marvin O.
Almighty. . . . When Dr. Grigson Teague noted: “It seems to me that when Dr.
speaks to a lay jury . . . the
Grigson testifies at the punishment stage of a
capital murder trial he appears to the average lay
defendant should stop what
juror, and the uninformed juror, to be the seche is then doing and
ond coming of the Almighty. . . . When Dr.
commence writing out his last
Grigson speaks to a lay jury . . . the defendant
will and testament—because
should stop what he is then doing and comhe will in all probability soon
mence writing out his last will and testament—
because he will in all probability soon be ordered
be ordered by the trial judge
by the trial judge to suffer a premature death.”103
to suffer a premature death.”
Grigson continued to profess his ability to
foresee the future even after he learned of his own
previous incorrect predictions. In 1988, an Assistant Dallas County District Attorney informed Grigson that a number of
inmates—whose violence Grigson had assured—had not engaged in assaultive
behavior.104 Asking that Grigson “keep this report confidential,”105 the prosecutor included a report from an investigator who had tracked the behavior of
inmates against whom Grigson had testified. One inmate approached “the
model inmate category,” the investigator reported, while several others “caus[ed]
no problems.” Many inmates in the study turned out to be successful workers
who had bettered themselves through education.106

— Former Texas Court of Criminal
Appeals Judge Marvin O.Teague

101 In 1991, Grigson claimed to have testified for the prosecution in 136 capital cases in Texas.

102
103
104
105
106

Clark v. State, 881 S.W.2d 682, 695 (Tex. Crim. App. 1994). See Texas Defender Service,
supra note 77, at Appendix Three. Numerous cases in which Grigson testified probably
remain unidentified because his name was not mentioned in appellate opinions reviewed for
the study. Id.
Ron Rosenbaum, Travels with Dr. Death, VANITY FAIR, May 1990, at 141.
Bennett v. State, 766 S.W.2d 227, 232 (Tex. Crim. App. 1989) (Teague, J., dissenting).
Correspondence from Jeff Shaw, investigator for Texas Special Prosecutions Unit, to Dallas
Assistant District Attorney, on file with author and attached as Appendix 1.
Id.
Id.

T H E F A TA L C R Y S T A L B A L L

19

Undeterred, Grigson continued, as did many other state experts, to speculate about recidivism.107 Grigson, while outlandish and notorious, is not the
only “expert” upon whom the state of Texas relies to convince juries of the need
to put a defendant to death. Other “killer shrinks” have followed Grigson’s lead
and, in courtrooms around the state today, forecast the unknown cloaked in
the aura of reliability conferred by the honorific title “Doctor.”

107 See, e.g., testimony of Dr. Grigson in the following cases: People v. Orona, (Colo. Ct. App.

1995) (No. 91CA0121); Hernandez v. State, (Tex. Crim. App. 1994) (No. 71,083); Garcia v.
State, (Tex. Crim. App. 1994) (No. 71,417). Grigson’s testimony regarding the number of
cases in which he had testified varied considerably from trial to trial as did his recitation of
the accuracy of his predictions.

3

The Study: Overwhelmingly Inaccurate
Predictions of Future Dangerousness

I.

Methodology
This study relied on archival records to identify inmates in the Texas Department of Criminal Justice (TDCJ) who, since reinstatement of the death
penalty: (1) were the subject of state expert testimony at trial declaring them a
“continuing threat to society” and, (2) received a death sentence at the time of
their trial (reflecting the jury’s unanimous verdict that they would be a future
danger).108 In order to identify this sample, we gathered records and searched from
a number of different sources. First, we reviewed opinions published by the Texas
Court of Criminal Appeals for information regarding the presence of expert testimony in the punishment phase of the trial. Although every death penalty conviction and sentence is automatically appealed to the Texas Court of Criminal
Appeals, only 27% of the opinions between 1995 and 2000 were published.109
Because the punishment phase expert testimony may not have been raised as an
issue in every inmate’s direct appeal, this search yielded limited results.110
We also asked District Attorneys offices around the state to identify cases
in which experts had testified for the State regarding future dangerousness. Although some district attorney’s offices complied with the request and provided
lists of cases, many prosecutors either could not comply because of technological limitations, or declined to comply.111

108 Additional scientific review and analysis of this data is provided in Buffington-Vollum, J.,

Edens, J., Keilen, A., Roskamp, P., & Anthony, C. (accepted, pending revision). Predictions of
Future Dangerousness in Capital Murder Trials: Is It Time to ‘Disinvent the Wheel’? (2003) LAW
& HUM. BEHAV.
109 See Texas Defender Service, Lethal Indifference: The Fatal Combination of Incompetent Attorneys
and Unaccountable Courts in Texas Death Penalty Appeals (2002), available at
http://www.texasdefender.org.
110 Unpublished opinions on file with author were searched to identify cases in which state
experts testified regarding future dangerousness.
111 Correspondence on file with author.

22

D E A D LY S P E C U L AT I O N

Thus, while every case we identified as having state-sponsored future dangerousness testimony is included in this study, the sample of inmates identified
is likely under-inclusive. There are certainly more cases in which state-paid experts predicted future dangerousness but were not discovered because of the partial or missing documentation. However, there was no selection of cases for
purposes of this study. Every case identified within the time frame of this study
with the state-sponsored expert testimony is included.
We identified a total of 155 inmates by this process.112 We obtained disciplinary records regarding each of them. Public information act requests sought the
disclosure of any and all records regarding each inmate’s disciplinary infractions.113
The requests included records spanning each inmate’s incarceration for the capital murder charge. Further, we requested and obtained records alleging the commission of a crime while incarcerated. We also obtained records from the Texas
Special Prosecutions Unit, the agency responsible for filing charges against and
prosecuting inmates for offenses committed while in prison.
TDCJ inmates receive a 139-page Inmate Offender Handbook which details the rules by which inmates must abide while incarcerated.114 There are regulations for every aspect of incarceration, including meals, showers, haircuts,
clothing, recreation, visitation, and commissary. There are seventeen separate
rules alone regarding how an inmate is to behave at mealtime, including that
an inmate cannot save a seat for another.115 The rulebook contains 15 pages listing regulations regarding inmate correspondence.116 The handbook contains
hundreds of rules, the violation of which can result in a disciplinary report.
The TDCJ Disciplinary Rules and Procedures for Offenders manual contains a listing of Disciplinary Offenses encompassing 45 separate general infractions which can be committed in a variety of ways. Each can result in
institutional sanctions and penalties. The numerous infractions vary in the degree to which they reflect violent or other behavior of major concern to TDCJ
officials (e.g., “Assaulting an Officer,” “Threatening to inflict harm on an officer,” “Refusing to work,” “Rule Violation,” “Possession of Contraband”).117
TDCJ classifies offenses as either major or minor depending on its severity,
which in turn dictates both the procedure by which it is adjudicated and the
penalty imposed. We drew the disciplinary infraction data for the present sample from the archival records provided by the TDCJ staff and this study relies on
the fact that the TDCJ’s disclosure of these records was accurate and complete.
112 A list of inmates included in this study is available from author.
113 These records were received between June and October 2002.
114 Texas Department of Criminal Justice, Offender Handbook, Nov. 2002, available at

http://www.tdcj.state.tx.us/publications/id/offender-handbook-2003.PDF. Inmates in this
study may not have received this particular version of the handbook, but would have been
subjected to rules and regulations regarding their incarceration.
115 Id. at 15.
116 Id. at 98-113.
117 Disciplinary Infraction List on file with author.

23

T H E S T U DY

Consistent with existing research regarding violence rates and future dangerousness, this study defines “serious assaultive behavior” as behavior that results in an injury requiring more than the administration of first aid.118 Any
injury requiring more than a bandage is considered “serious assaultive behavior,” including cuts requiring stitches, fractures, injuries requiring hospitalization, and injuries resulting in death. The methodology is consistent with the
definition of “serious assault” used by TDCJ.119
Because of the sheer number of rules in prison the violation of which could
trigger a disciplinary report, many inmates in prison and in this study have incurred records. The definition of “serious assaultive behavior” identifies which
inmates are able to safely co-exist with others in an institutional setting. It is
consistent with the type of behavior juries sought to avoid by imposing a death
sentence. Juries aim to protect society—the prison society of guards and other
inmates, and the community at large—from inmates who will commit serious
acts of violence or kill again.
II.

Getting It Wrong: Findings and Case Studies
Of the 155 inmates identified in this study, 67 have been executed by the
State of Texas. Forty inmates currently reside on Texas’s death row and 48 inmates were sentenced to death by juries but have, for a variety of reasons, had
their sentences reduced to life in prison or to a term less than life in prison.

A. All Inmates in Study
Of the total 155 inmates, eight (5%) engaged in assaultive
Behavior of Inmates
behavior requiring treatment beyond first aid. Thirty-one of the
in Study
155 inmates (20%) have no records reflecting disciplinary violations. The remaining 75% of inmates committed disciplinary
20%
infractions involving conduct not amounting to serious assaults.
None of the inmates identified in this study committed another
5%
homicide and only two inmates (1%) were prosecuted by the
75%
Texas Special Prosecution’s Unit, the agency responsible for
charging and prosecuting crimes committed in prison.
No Disciplinary Violations
Serious Assaultive Behavior
Minor Disciplinary Violations

The predictions of future dangerousness made by these statepaid witnesses have not proven to be true in 95% of the cases.

118 See Sorensen & Pilgrim, supra note 38; Marquart & Sorensen, supra note 44; Marquart et al.,

supra note 47.

119 See, e.g., Texas Department of Criminal Justice, Select Statistics April 2002, at 29 (defining

“Serious Staff Assault” as “assault to staff resulting in injury that requires treatment beyond
first aid as determined by medical staff and defining “Serious Offender Assault” as “assault to
an offender resulting in injury that requires treatment beyond first aid as determined by
medical staff ”).

24

D E A D LY S P E C U L AT I O N

B. Inmates Sentenced to Death Whose Sentences Have Been Reduced
Forty-eight of the 155 inmates identified are those who were sentenced to
death based on jury predictions of their risk of recidivism and who have had
their sentences commuted, reduced to life in prison, or reduced
to a term less than life. One inmate was exonerated of the charges
Death Row Assaults
and has been released from prison. Another, though not formally
(Inmates Sentenced to Death Whose
Sentences Have Been Reduced)
exonerated by the courts, entered into a plea agreement for time
4%
served after his conviction had been reversed. Two additional in96%
mates whose sentences were reduced have been released from
prison—one on parole, another at the conclusion of his sentence.
These 48 inmates have served an average of 20 years, 11 months
in prison.120
Five of these 48 inmates (10%) had no disciplinary records
while incarcerated, either during the time they spent on death row
or in the less-secure facilities to which they were transferred after
sentence commutation.121 Two inmates (4%) committed serious
assault while incarcerated and one of those inmates was prosecuted for aggravated assault by the Special Prosecutions Unit. The remaining inmates violated
rules not amounting to serious assaultive behavior.

No Serious Assault
Committed Serious
Assault

1.

Randall Dale Adams: Condemning the Innocent

“I would place Mr. Adams at the very extreme, worse
or severe end of the scale. You can’t get beyond that. . .
There is nothing known in the world today that is
going to change this man; we don’t have anything.”
— Testimony of Dr. Grigson122
Randall Dale Adams was convicted and sentenced to death for the 1976
murder of a police officer in Dallas, Texas. Adams’s only criminal record was
for driving while intoxicated.123 Unlike many defendants, Randall Dale Adams
was innocent of the crime. Judge M.P. Duncan said of Adams’s case: “The State
120 Records regarding the length of time these inmates spent specifically on death row before their

sentences were commuted to life or less were available in 28 of the 48 cases. For those 28
cases, the average time an inmate spent on death row was seven years, nine months and the
average time an inmate was incarcerated after sentence reduction was 15 years, six months.
For the other 20 inmates, only the total incarceration period was available and the specific
time spent on death row before commutation was not available.
121 For two of these inmates, the Texas Department of Corrections could not locate any records
regarding the inmate’s disciplinary history. For the other three, records were available, but the
inmate had not committed any disciplinary infractions. Correspondence on file with author.
122 Statement of Facts at 1410, Adams v. State, 577 S.W.2d 717 (Tex. Crim. App. 1979) (No.
60,037).
123 Adams v. State, 577 S.W.2d 717 (Tex. Crim. App. 1979).

25

T H E S T U DY

was guilty of suppressing evidence favorable to the accused, deceiving the trial
court during [the] trial, and knowingly using perjured testimony.”124 Adams was
freed after the real killer confessed on tape to the crime. Adams spent more than
12 years in prison before being exonerated.125
His actual innocence did not prevent two state-paid “experts” from announcing to the jury that after a brief interview with Adams,126 they had concluded that Adams would certainly continue to be a threat to society. Adams
had no disciplinary violations or assaultive behavior during his 12 years in prison
and was considered “an ideal inmate.”127
2.

Kerry Max Cook: Compounding Injustice

“Dr. James Grigson—and other associated junk-science
‘experts’—are simply hired guns for the prosecution.
They are result-oriented and say whatever the
prosecution needs to meet their end result. They are no
different than Miss Cleo—scamming the Courts and
the public.”
— Kerry Max Cook128
Kerry Max Cook spent 20 years on death row for the 1977 murder and
rape of Linda Jo Edwards. Cook was freed after compelling evidence of his innocence was uncovered and DNA evidence implicating someone else was revealed in 1999. The jury convicted and sentenced Cook to death after a trial
involving prosecutorial misconduct, including the State concealing exculpatory
evidence and persuading witnesses to lie, shoddy police work, and unreliable
expert evidence.129
The State’s punishment phase evidence included the testimony of Dr.
Grigson, who confidently stated: “It would not matter where he might be,
whether he was free in the free world or whether he was institutionalized. He
would present a real threat to people that found themselves in that same setting with him, whether it is prisoner guards or rather free people.”130 Grigson
124 MICHAEL L. RADELET ET AL., IN SPITE OF INNOCENCE 71 (1992).
125 See Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989). See also Milestones, TIME, Apr.
126
127
128
129

130

17, 1989 at 69; Richard L. Fricker, Crime and Punishment in Dallas, 75 A.B.A. J. 52 (July
1989).
ADAMS ET AL., supra note 86.
Correspondence from Jeff Shaw, investigator for Texas Special Prosecutions Unit, to Dallas
Assistant District Attorney, on file with author.
Letter on file with author.
Cook v. State, 940 S.W.2d 623, 627 (Tex. Crim. App. 1996) (noting that “[p]rosecutorial and
police misconduct has tainted this entire matter from the outset. . . . [T]he taint, it seems
clear, persisted until the revelation of the State’s misconduct in 1992.”).
Cook v. State, 821 S.W.2d 600, 602 (Tex. Crim. App. 1991).

26

D E A D LY S P E C U L AT I O N

ratcheted up the rhetoric: “I certainly would not mind telling you that I feel
absolutely one hundred percent certain that he is and will continue to be a
threat no matter where he is.”131
After the CCA reversed two prior convictions of Cook for Edwards’ murder based on prosecutorial misconduct and perjury,132 prosecutors and police
threatened to try Cook again in 1997. Finally, they conceded the unlikelihood
of conviction by allowing Cook’s release from prison in exchange for a “no contest” plea. Maintaining his innocence, but fearful of another unjustified conviction, Cook consented.133
In February, 1999—more than 20 years after the murder—new DNA testing excluded Cook as the assailant and implicated another man, the victim’s
married ex-lover and the original suspect in the case.134
Vigorously protesting his innocence from the start, Cook endured 20 years
on death row and once came within 11 days of execution.135 Despite the frustrations of being an innocent man wrongly convicted, Cook avoided any major
disciplinary violations during his incarceration.
Today, Kerry Max Cook lives in New York. He is a husband and the father
of a young son. After his release, he studied American government and history
at the college level and maintained a 4.0 grade point average. His case is featured in the play “The Exonerated,” now running in New York and in other
cities. Cook is actively involved in the production of the play and speaks to audiences about his experience. He speaks on capital punishment issues around
the world. Cook remains a successful, peaceful, law-abiding citizen—proving
Dr. Grigson 100% wrong.
3.

Others Released

Two other inmates, found to be a future danger and condemned to die by
juries, have been released from prison. One inmate, James Pierson, was released
in February, 1994 and is currently on parole, supervised by the Texas Department
of Criminal Justice.136 Pierson, incarcerated for almost 17 years, had no disciplinary violations while in prison. Further, public records in Texas reveal no arrests,

131 Id.
132 Id. at 600-01.
133 Former Death Row Convict Seeks Pardon, FORT WORTH STAR-TELEGRAM, Sept. 13, 1999, at 6;

Texas Department of Criminal Justice, Offenders No Longer on Death Row, at
http://www.tdcj.state.tx.us/stat/permanentout.htm. See also Evan Moore, Justice Under Fire:
‘Win at all Costs’ is Smith County’s Rule, Critics Claim, HOUS. CHRON., June 11, 2000, at A1.
134 Renae Merle, Plea Deal Halts Man’s Fourth Trial in Slaying: Defendant Pleads No Contest in
Killing, Gets Credit for Time Served on 20-year Sentence, AUSTIN AM.-STATESMAN, Feb. 17,
1999, at A-1.
135 See Moore, supra note 133.
136 Texas Department of Criminal Justice, supra note 133.

27

T H E S T U DY

charges, or prosecutions since his release in 1994 and his parole officer indicated
that Pierson has not had any parole violations to her knowledge.137
Another inmate, Charles County, was discharged from prison in January
1995 after serving nearly 16 years.138 County did not engage in serious assaultive
behavior while in prison. Public records in Texas reveal that County has not
been arrested, charged with, or prosecuted for any offense since his release.139
4.

Case Studies: Less Violence Despite Increased Opportunity

In addition to the two inmates freed from death row and the two paroled
inmates, 44 inmates identified in this subgroup of 48 had their sentences commuted or reduced to life in prison or a lesser prison sentence.
Prosecutors seeking the death penalty frequently rely on the testimony of
“prison experts” who testify that because of fewer security precautions and the
increased availability of weapons, inmates serving a life sentence will have more
opportunity to commit violent acts.140 What the State’s prison experts do not
say is that these inmates are generally among the most manageable.141
So-called “prison experts”—often called in tandem with the future dangerousness expert—remind the jury that if the inmate is not sentenced to death,
he will be treated as any other felony offender and may be
placed in the general population, free to have unfettered
However, the “lifers”
contact with other inmates and prison guards. According
in our study, despite
to these experts, inmates on death row are more isolated
additional access to
from other inmates and have less contact with guards and
staff because they are locked in their cells 23 hours a day.
weapons and
opportunity to engage Inmates serving non-death sentences can be let out on furloughs, are more able to smuggle drugs into the facility, and
in assaultive behavior
have more access to weapons and more opportunity to use
against guards and
them.142 Such testimony from the prison and future danother inmates, did
gerousness experts convinces juries that ordinary prison
confinement cannot control the violent tendencies of capnot, as a rule, engage
itally sentenced inmates.
in violent behavior.
However, the “lifers” in our study, despite additional
access to weapons and opportunity to engage in assaultive behavior against
137 Texas Criminal Detail, James Willard Pierson, SID Number 01302144, available at
138
139
140
141
142

http://publicdata.com last visited May, 2003; telephone conference with parole officer
Ladreka Simmons, May 15, 2003.
Texas Department of Criminal Justice, supra note 133.
Texas Criminal Detail, Charles County, SID Number 01348436, available at
http://publicdata.com last visited May, 2003.
See, e.g., Testimony of Royce Smithey, Chief Investigator for the Special Prosecutions Unit,
Statement of Facts at 55-79, State v. Brewer, (Tex. Crim. App. 2002) (No. 73,641).
See Malcolm, supra note 46; Tabak, supra note 46.
See, e.g., Testimony of Royce Smithey, Chief Investigator for the Special Prosecutions Unit,
Statement of Facts at 55-79, State v. Brewer, (Tex. Crim. App. 2002) (No. 71,307);
Testimony of Dr. Rafeal Otero, Statement of Facts at 219, State v. Murphy, (Tex. Crim. App.
2000) (No. 73,194).

28

D E A D LY S P E C U L AT I O N

guards and other inmates, did not, as a rule, engage in violent behavior. In fact,
those who were in less restrictive facilities were less likely to engage in assaultive
behavior than were those inmates serving time on death row.
Baby Ray Bennett was sentenced to death for a 1985 murder in Newton
County, Texas. After serving ten years on death row, his sentence was commuted
to life.143 The 40-year-old Bennett is now a trustee at a prison in Abilene.144 He
has been disciplined for four minor infractions, including the possession of five
lottery tickets. In the 17 years of his incarceration, he has not lost a single day
of good-time credits.145
In his dissenting opinion in Bennett’s case, Judge Teague noted:
This is another case in which Dr. James P. Grigson, who has earned
the nickname of “Dr. Death” because of the number of times he has
testified on behalf of the State at the punishment stage of a capital
murder trial and the number of times the jury has returned affirmative answers to the submitted special issues, testified. . . . Dr. Grigson testified at the punishment stage of applicant’s trial and, as
usual, was the State’s star witness at that stage of the trial. My favorite Dr. Grigson answer, given the question, is the following:
Q: Well, I’m asking, do you pick those people out [who are “like
cancer and should be wasted”]; I mean, is it you that is charged with
that responsibility, to pick out what people in our society are like
cancers that make their waste not needless?
A: Yes, sir, I have been asked to do this on numerous occasions by
Courts, and I have been proved to be right in my prediction of individuals continuing to kill; and so I have been asked to do that,
and it has proven to be so.146
Ernest B. Smith was condemned to death in 1976. The prosecution expert
testified at trial that Smith would “continue his previous behavior—that which
he has done in the past. He will again do it in the future.”147 When asked what
would happen should Smith be released into society, the expert witness testified that his behavior “[would] only get worse.”148 In helping the prosecution
secure a death sentence against Smith, the expert emphatically proclaimed that
“. . . certainly, Mr. Smith is going to go ahead and commit other similar or same

143 Texas Department of Criminal Justice, supra note 133; Bennett v. State, 766 S.W.2d 227

(Tex. Crim. App. 1989).

144 Kathy Walt, Debate over Death Penalty is Renewed; Predicting Future Threats Raises Question of

Flaws, HOUS. CHRON., July 9, 2000, at B1.

145 Id.
146 Bennett, 766 S.W.2d at 231-32 (Teague, J., dissenting) (quoting Statement of Facts, Vol. XI,

Holloway v. State, (Tex. Crim. App. 1990) (No. 68,925)).

147 Statement of Facts at 2944, State v. Smith, (Tex. Crim. App.) (No. 49,809).
148 Id. at 2945.

T H E S T U DY

29

criminal acts if given the opportunity to do so.”149 The expert had only met with
Ernest Smith for an hour and a half before making this conclusion.150
Ernest Smith resided on death row following his conviction until 1981
when his conviction was reduced and sentence converted to life. Since then, despite placement in a less-secure facility and the concomitant opportunities for
violence, Smith has incurred no disciplinary infractions in more than 20 years.
Texas Department of Corrections records indicate that Smith received a Bachelor’s degree from Cleary College while incarcerated, trained other inmates on
computer use, and worked as a clerk in the prison with excellent work reports.151
George Clark, imprisoned on death row for three years, had his capital murder sentence reduced to life in 1981. Over the past 22 years, Clark has been
disciplined once by prison officials. His infraction was hanging a clothesline
across his cell. With no violent behavior, Clark lived in the general population
for 17 of those years. He worked as a clerk, bookkeeper, assistant to the chaplain, and had a job in the prison library. A state-paid expert at his trial, after
speaking with Clark for less than three hours, had convinced the jury that Clark
would be a continuing threat to any society he inhabited.152
A State expert testified: “For Jeremiah O’Pry I would say the prognosis is
bleak. . . . The prognosis would be an expectation that he will cause difficult[y]
for people in the future.”153 When asked if O’Pry would have regard for the life
of other persons, including inmates and guards, the expert responded, “Very
little to no regard.”154 Jeremiah O’Pry was sentenced to death but later had his
sentence commuted to life. After serving more than 25 years in prison, he has
been written up only for having dirty cell bars, wearing another inmate’s shirt,
and possessing a fan.
Since having his death sentence commuted to life, Doyle Boulware has
earned a Bachelor of Science Degree in Psychology and is awaiting placement
in a master’s program for literature.155 After hearing a state-paid expert testify
at his trial that he would be a danger in the future, a jury sentenced him to death.
Boulware has not received any disciplinary violations for assaultive or disruptive behavior. He has not been disciplined at all since 1988. Over 28 years his
disciplinary infractions include making a false statement, failing to report to
training, and being late for work. Boulware earned trustee status and has worked
as a clerk in the Narcotics and Alcoholics Anonymous Office.156
149 Id. at 2947.
150 Id. at 2807.
151 Correspondence from Jeff Shaw, investigator for Texas Special Prosecutions Unit, to Dallas
152
153
154
155
156

Assistant District Attorney, on file with author and attached as Appendix One.
Statement of Facts at 1519, Clark v. State, 627 S.W.2d 693 (Tex. Crim. App. 1981).
Statement of Facts at 605-06, O’Pry v. State, 642 S.W.2d 748 (Tex. Crim. App. 1982).
Id. at 607.
Correspondence on file with author.
Correspondence from Jeff Shaw, investigator for Texas Special Prosecutions Unit, to Dallas
Assistant District Attorney, on file with author and attached as Appendix One.

30

D E A D LY S P E C U L AT I O N

Selwyn Gholson completed high school, earned two college degrees, and
maintained a 3.66 grade-point average in school since his death sentence was
commuted to life. Gholson has been sanctioned fewer than five
times for minor disciplinary infractions. Testimony from two State“Not all of us
paid witnesses labeled him as a continuing threat to society.
are hopelessly
Twenty-eight years after being incarcerated, Gholson says he has
bad people, just changed his life and notes: “Not all of us are hopelessly bad people, just people who did bad things out of ignorance or stupidity.”157
people who did

bad things out
of ignorance or
stupidity.”

The jury determining Magdaleno Rodriguez’s fate was told
that: “He absolutely will [kill again], regardless of whether he’s inside an institutional-type setting or whether he’s outside. No matter where he is, he will kill again.”158 The expert persuaded the jury,
— Selwyn Gholson
and Rodriguez was condemned to die. The CCA later reduced his
sentence to life, citing an unrelated legal error. In the 22 years Rodriguez has
spent serving a life sentence, he has been disciplined only for infractions such
as stealing coffee, talking in the hallway, destroying a pillow, and “trafficking”—
passing a bag of potato chips from one inmate to another.
Many other inmates condemned to die based on jury predictions of future
dangerousness have proven to be non-assaultive, compliant inmates who pose
no risk to other inmates or prison guards—
even though they are imprisoned in less seIn the 22 years Rodriguez has
cure facilities than death row and have more
spent serving a life sentence, he
opportunity to attack others, possess
has been disciplined only for
weapons, or abuse drugs and alcohol.

infractions such as stealing coffee,
talking in the hallway, destroying
a pillow, and “trafficking”—
passing a bag of potato chips
from one inmate to another.

Some inmates have received disciplinary
reports for offenses bordering on the ridiculous, including a report against an inmate
for possessing a can of jalapeños. These nonassaultive inmates epitomize the failings of
the “future dangerousness” question and reflect the arbitrary and unreliable outcome resulting from the expert predictions
in the sentencing process.

157 Correspondence on file with author.
158 Rodriguez v. State, 597 S.W.2d 925 (Tex. Crim. App. 1980).

T H E S T U DY

31

C. No Turning Back: Executed Inmates
Sixty-seven of the 155 inmates (43%) have been executed. The average length
of their incarceration before execution was 11 years and ten months. Of the 67
executed, only three (5%) engaged in seriously assaultive behavior.159 One of those three inmates was prosecuted for and
Death Row Assaults
convicted of aggravated assault.160 Eleven of the 67 (17%) had
(Executed Inmates)
no disciplinary violations at all.
5% 95%

Napolean Beazley was executed on May 28, 2002, for a
crime committed when he was seventeen years old. Convicted of the murder of John Luttig during a car-jacking,
Beazley was predicted to be a future danger and after this testimony, was sentenced to death. A successful student, star athlete, and church member with no prior arrests, Beazley
admitted responsibility for his crime and expressed extreme
No Serious Assault
remorse. A stream of mitigation witnesses appeared on
Committed Serious
Beazley’s behalf but a state-paid expert testified that Beazley
Assault
would pose a continuing threat to society. Incarcerated on
death row for over eight years before his execution, Beazley did not prove to be
assaultive, combative or dangerous to other inmates or guards. He incurred only
three disciplinary infractions—possessing too many bed sheets and shirts, soliciting the assistance of another to break a rule, and possession of contraband
($40 in cash someone had sent him in the mail).
Stanley Faulder was convicted and sentenced to death for the murder of Inez
Phillips in 1977.161 Three state-hired psychologists testified that Faulder posed a
grave danger to others even behind bars.162 Without interviewing Faulder, the witnesses convinced the jury that Faulder would commit violent acts in the future.
One doctor claimed that Faulder would be unable to learn from punishment.163
One of the three predicting future dangerousness testified: “Faulder is at
the very extreme of your extremely severe sociopath. He can’t become any more
severe except in terms of numbers. . . . There is absolutely nothing we have in
medicine or psychiatry, nothing that is known in terms of rehabilitation that
has ever worked. We don’t have anything.”164
159 In one of these cases, the inmate caused a half-inch cut to an officer’s finger. Records did not
160

161
162
163
164

indicate whether treatment above first aid was required. This incident has been included in
the “serious assaultive behavior” category for the sake of caution.
In addition to this one inmate, Juan Soria assaulted a prison chaplain twenty days prior to his
execution. Although disciplinary records were filed documenting the assault and the Special
Prosecution’s Unit investigated the incident, he was not prosecuted given his impending
execution date. Records on file with author. Soria was executed on July 26, 2000. Texas
Department of Criminal Justice, Executed Offenders, available at
http://www.tdcj.state.tx.us/stat/executedoffenders.htm
Jim Henderson, Albright Joins Effort to Spare Canadian’s Life; Texas Inmate’s Execution
Scheduled for Next Week, HOUS. CHRON., Dec. 2, 1998, at A1.
Faulder v. State, 745 S.W.2d 327, 329 (Tex. Crim. App. 1987) (No. 69,077).
Statement of Facts, Vol. 5 at 884, Faulder v. State, 745 S.W. 2d 327 (No. 69,077).
Id. at 1127-28.

32

D E A D LY S P E C U L AT I O N

Despite Faulder having no violent criminal history and no record of disciplinary problems during his incarceration prior to trial, the jury found Faulder
a future danger and sentenced him to death. Faulder was received on death row
in December of 1977 and resided there until his execution in June of 1999. He
spent over twenty-two years on death row with no assaultive behavior. He was
61 years old when executed.
Noble Mays was convicted in the 1979 murder of Jerry Lamb. When asked
where Mays would be on a scale of anti-social personalities, the State witness
testified that Mays would be “at the high end of it. If you could go higher than
ten, he’d be higher, but certainly, at the very end of the scale. . . . It really doesn’t make any difference in any type of setting or environment, he’s going to be
the same type person.”165 Mays did not receive any disciplinary violations for
assaultive behavior during his 14 years on death row. He was executed on April
6, 1995.
Proponents of the future dangerousness inquiry point to Juan Soria in literature as the best “example . . . of the superior ability of a jury to correctly assess the facts and determine whether a convict constitutes a future danger.”166
Twenty days from his execution, Soria assaulted a prison chaplain, cutting his
arm with razor blades. However, for every Juan Soria there are 26 other inmates
who have not proven violent.
The same prosecutors who cited Soria as an example of the effectiveness of
the future dangerousness inquiry also singled out Aaron Fuller, who was sentenced to death for the 1989 murder of Loretta Stephens. After describing
Fuller’s gruesome crime, the authors chalked up the jury’s future dangerousness
determination to common sense: “The reader need only make a common-sense
inquiry to see the logic of the system. Would the reader want to share a jail cell
with Aaron Fuller?”167 While calling the jury’s ability to see into the future “superior” with respect to the Soria case, the authors fail to acknowledge the jury’s
inaccurate prediction in the Fuller case. In fact, many prisoners might have preferred to share a cell with Fuller. Fuller was executed on November 6, 1997,
without having engaged in any seriously assaultive behavior. Fuller’s disciplinary records indicate he violated rules by wearing tennis shoes to work, and by
possessing cigarettes and an extra shirt.
Many other executed inmates against whom state witnesses testified committed disciplinary infractions while in prison not amounting to assaultive behavior. Among the transgressions were possessing cookies, throwing a tomato,
refusing to shave, and drawing a picture on a cell wall. One condemned inmate
failed to turn out for work in a timely manner three times and possessed a
V-neck shirt. One was disciplined once for leaving commissary goods unstored
165 Statement of Facts, Vol. __ at 62, Mays v. State, 726 S.W.2d 937 (Tex. Crim. App. 1986)

(No. 68,824).

166 Goldberg & Bunn, supra note 64, at 131.
167 Id. at 132.

T H E S T U DY

33

in his cell. Another’s misbehavior was failing to get his hair cut. None of these
offenses, however, posed a threat to fellow inmates or prison officials.
D. Inmates Currently on Death Row
Forty of the 155 total inmates studied currently reside on death row. The
average time of their incarceration is 7.92 years. Collectively, the inmates have
served more than 388 years. Three death row inmates (7%) have
committed assaults requiring treatment beyond first aid.168 None
Death Row Assaults
of these inmates has been prosecuted or convicted by the Spe(Inmates Awaiting Execution)
cial Prosecutions Unit for a crime committed in prison.
7% 93%

Gustavo Garcia was convicted of the 1990 murder of Craig
Turski, which occurred during the robbery of a liquor store in
Plano, Texas. Garcia was 18 years old at the time of the offense.
After conviction, the State called a psychologist who told the
jury that poor people are more “risky than non-poor people,”169
and, after detailing the degree to which weapons and drugs
No Serious Assault
were available in the prison setting, informed the jury that GarCommitted Serious
cia was “more likely than not to—to be a continuing threat to
Assault
society.”170 A second State expert testified that there was “more
than ample data for a mental health expert to affirmatively predict that this man
will be a continuing threat of violence, whether in a prison society, in jail, or
on the streets.”171 After more than ten years on death row, however, Garcia has
not received any disciplinary violations for assaultive behavior.
Joe Lee Guy was convicted and sentenced to death for his role as the lookout in the botched robbery of a convenience store during which the owner, Larry
Howell, was killed. While Guy remained outside the store, Thomas Howard
and Richard Springer went inside, robbed the store, and shot the owner. Guy
had no history of violent criminal behavior, so the State commissioned two experts to convince the jury of the need to impose a death sentence.

168 In two of these three cases, records were unclear about the extent or existence of injuries. In

one case, an inmate was investigated for aggravated assault, but no information was available
regarding the extent of the injuries, if any. In the other case, the offender is alleged to have
swiped at another inmate with a razor blade. Records do not indicate that contact was made
or injuries sustained. These inmates have been included in the “serious assaultive behavior”
category for the sake of caution.
169 Testimony of Dr. Walter Quijano, Statement of Facts, Vol. 70 at 855, Garcia v. State, 919
S.W.2d 370 (Tex. Crim. App. 1994) (No. 71,417). Another psychologist testified that
economics can contribute to violence: “There is also another stressor which is other intense
stressors likely to stimulate primitive impulses for survival, and in his case there is a history of
chronic money problems. He’s poor.” Statement of Facts at 218, State v. Murphy, (Tex. Crim.
App. 2000) (No. 73,194).
170 Quijano testimony, supra note 169, at 908.
171 Testimony of Dr. Jerry Landrum, Statement of Facts, Vol. 72 at 1463, Garcia v. State, 919
S.W.2d 370.

34

D E A D LY S P E C U L AT I O N

One expert, who testified in another case that examining a defendant
would be “a hindrance in comparison to [the state using] a hypothetical question” to elicit his opinion of future dangerousness,172 readily testified that Guy would continue to be a threat to society. Despite
The prosecutor, in
having never spoken to Guy, the doctor told the jury that the
closing argument,
likelihood of Guy’s violent recidivism was “ninety-nine, a huninvoked the
dred percent.”173 A second State-paid expert agreed with the
first and emphasized that “there is a lot of violence in the penispecial credibility
tentiary.”174 The prosecutor, in closing argument, invoked the
of its degreed
special credibility of its degreed witnesses and implored the jury:
witnesses and
“Will you do what the doctor says?”175

implored the jury:
“Will you do what
the doctor says?”

Guy was the only of the three participants in the crime to
receive a death sentence, although Guy remained outside the store
and did not shoot the owner. Guy has been on death row for over
eight years. He has incurred minor disciplinary infractions six times, including
refusing to shave, hanging a curtain in his cell and possessing more clothing than
allowed by regulation. Guy has posed no threat of violence to other inmates or
guards. Because of other issues of unfairness, in 2004, the Texas Board of Pardons and Paroles recommended to the Governor that Guy’s sentence be commuted to life in prison. The Governor has not yet acted on that recommendation.
Other predictions of future violence have proven unwarranted. Their disciplinary records consist of technical violations of prison regulations. For example, one inmate possessed cigarettes. One possessed tobacco, refused to come
in quickly from recreation, and was unnecessarily noisy in his cell. Another refused to shave. Others condemned were disciplined for infractions such as possession of a playing card, banging a metal box against a toilet, refusing to shave,
and having an “extreme” haircut.

III. Conclusion
This study reveals state-paid expert predictions were inaccurate 95% of the
time. This error rate caused an over-inclusion of non-violent inmates among
those who were condemned to death.
In imposing death sentences, juries sought to protect society—the prison
society of guards and other inmates, and the community at large—from inmates

172
173
174
175

See Flores v. Johnson, 210 F.3d 456, 467 (5th Cir. 2000).
Statement of Facts, Vol. 19 at 175, Guy v. State, (Tex. Crim. App. 1996) (No. 71,913).
Id. at 196.
Id. at 38.

T H E S T U DY

35

they were assured would commit serious acts of violence or kill again. Juries
did not impose a death sentence out of concern that an inmate might illegally possess cookies or jalapeños while incarcerated. They did not seek to execute inmates who they thought might hang a sheet up as a curtain in their
cell, yell an obscenity in the hallway, or refuse to shave. Yet the present system pressures juries to choose death for inmates who are able to peaceably
co-exist in an institutional setting with other inmates and guards, regardless
of the nature of their crime.

4

A House of Cards: Dangers in Forecasting
the Future

I.

Questionable Use of the Past to Prove the Future

“You take what we know about him: He’s been to the
penitentiary. Did he get off dope when he went to
the pen for dope? No. He goes on to heroin. You take
that evidence, you stick it together with [this offense]
and then you ask yourself is there a probability, more
than not, that if this man were allowed to reenter
society he would commit criminal acts of violence? Is
there any doubt in your mind whatsoever? Nobody
can say for certain, but we can darn sure say there’s
a probability.” 176
— Prosecutor’s Closing Argument
The Texas Rules of Evidence generally prohibit the introduction of character evidence177 and specifically exclude “evidence of other crimes, wrongs or acts”
when used “to prove the character of a person in order to show action in conformity therewith.”178 At the guilt-innocence phase of the trial, this prohibition
is intended to protect defendants from convictions based upon a troubled past
rather than based upon the actual evidence of the pending charge. By tainting a
defendant’s presumption of innocence in the eyes of the jury, bad character evidence relieves the state of its burden to prove guilt beyond a reasonable doubt.
176 Grijalva v. State, 614 S.W.2d 420 (Tex. Crim. App. 1980).
177 TEX. R. EVID. § 404(a).
178 Id. at § 404(b).

38

D E A D LY S P E C U L AT I O N

During the punishment phase of a capital murder trial, however, evidence “as
to any matter that the court deems relevant to sentence, including evidence of
the defendant’s background or character” may be presented to prove future dangerousness.179 The CCA has interpreted this statement to include evidence of the
commission of unadjudicated extraneous offenses—offenses which have not been
charged, tried or proven in any court180—and even the details of such offenses.181
In cases where the gravest punishment is at stake, the Court of Criminal
Appeals allows the use of the least reliable and most prejudicial evidence. The
lenient standard of proof applicable to this bad-character evidence worsens the problem of unreliability. The CCA ostenIn cases where the
sibly requires the state to “clearly prove” the defendant
gravest punishment
committed an extraneous offense before the jury can consider
is at stake, the
it.182 However, the “clear proof ” standard calls only for evidence “connecting a defendant with an alleged extraneous ofCourt of Criminal
fense” to “ensure a minimum threshold of reliability.”183 This
Appeals allows the
barely perceptible admissibility standard lets the state put
use of the least
untested facts before the jury.

reliable and most
prejudicial evidence.

Whatever the “clearly proven” standard means, it falls well
short of the standard required by law on questions of guilt in
a criminal court: proof beyond a reasonable doubt. Consequently, despite the
heightened reliability required of capital murder cases, the CCA has actually lowered the threshold of proof applicable to critical punishment-phase evidence.

Courts have even approved the introduction of facts of an offense of which
a defendant had been acquitted at trial. In Powell v. State, prosecutors were allowed to introduce facts related to an attempted murder charge.184 Although
the facts of this alleged offense were tested by a jury that found Powell not guilty,
prosecutors were allowed to ask the jury to consider those charges when deciding
Powell’s fate. In Rachel v. State, prosecutors urged jurors to consider evidence
of a previous alleged murder when deciding whether the defendant would pose
a continuing threat to society.185 However, a grand jury failed to indict Rachel
on that charge, finding that Rachel had acted in self-defense. Prosecutors in both
179 TEX. CRIM. PROC. CODE art. 37.071, § 2(a)(1) (Vernon 2001).
180 Hammett v. State, 578 S.W.2d 699, 709 (Tex. Crim. App. 1979); Garcia v. State, 581 S.W.2d

181

182
183
184
185

168, 178-79 (Tex. Crim. App. 1979), vacated on other grounds sub nom. Garcia v. Texas, 453
U.S. 902 (1981); Wilder v. State, 583 S.W.2d 349, 361 (Tex. Crim. App. 1979), vacated on
other grounds sub nom. Wilder v. Texas, 453 U.S. 902 (1981), overruled on other grounds by
Green v. State, 682 S.W.2d 271, 287 (Tex. Crim. App. 1984).
See Davis v. State, 597 S.W.2d 358, 361 (Tex. Crim. App. 1980) (permitting details of
extraneous offenses in punishment phase of capital trial). But cf. Johnson v. State, 650 S.W.2d
784, 792 (Tex. Crim. App. 1983) (prohibiting details of extraneous offenses in punishment
phase of non-capital trial under statute then in effect).
Hughes v. State, 24 S.W.3d 833, 843 (Tex. Crim. App. 2000) (citing Harris v. State, 827
S.W.2d 949, 961 (Tex. Crim. App. 1991)).
Kemp v. State, 846 S.W.2d 289, 307 (Tex. Crim. App. 1992).
Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994)
Rachel v. State, 917 S.W.2d 821 (Tex. Crim. App. 1996).

A HOUSE OF CARDS

39

of these cases were allowed to introduce testimony and argue that these acts evidenced future dangerousness despite the results of the prior charges.
Further adding to the unreliability of evidence of prior offenses presented
in capital cases, the CCA permits the introduction of uncorroborated accomplice testimony concerning offenses that the defendant allegedly committed
with the witness.186 In most other contexts, accomplice testimony must be corroborated because courts view such testimony with considerable skepticism.187
Even the CCA has acknowledged the shortcomings of accomplice testimony:
This suspicion and fear of perjury is not without reason. Accomplices often strike bargains with the state, where the prosecuted
agrees to a favorable sentencing recommendation in exchange for
the accomplice’s testimony against another person. . . . In addition,
those accused of crimes tend to try to place the responsibility for
the commission of the crime on the other participants while downplaying their own participation, often in order to avoid the consequences of criminal acts.188
Because the death penalty is qualitatively different from other punishments,189 “there is a corresponding difference in the need for reliability in the
determination that death is the appropriate punishment in a specific case.”190
Functionally, there are no standards limiting the admissibility of such evidence,
regardless of how unreliable the sources. Juries therefore hear a litany of wrongful acts ostensibly committed by the defendant but never proven in a court of
law as proof of his danger to society.
For example, during the punishment phase of Larry Estrada’s case, Harris
County prosecutors introduced testimony that Mr. Estrada committed an
armed home invasion.191 The prosecutors offered the testimony of one of the
victims, who positively identified Mr. Estrada as one of two men who: entered
186 See, e.g., Thompson v. State, 691 S.W.2d 627, 633 (Tex. Crim. App. 1984).
187 Blake v. State, 971 S.W.2d 451, 460 (Tex. Crim. App. 1998) (en banc) (citing Benson v.

188

189
190
191

United States, 146 U.S. 325, 335 (1892)); see also TEX. CRIM. PROC. CODE ANN. art. 38.14
(West 2002); see generally 25 J. LEE BALDWIN ET AL., TEXAS JURISPRUDENCE CRIMINAL LAW §
3999 (3d ed. Supp. 2002).
Blake v. State, 971 S.W.2d 451, 460 (Tex. Crim. App. 1998) (en banc) (citations omitted).
One method of correcting the influence of unreliable evidence on questions of future
dangerousness could be through the use of jury instructions, which would explain the State’s
obligation to prove the prior offense beyond a reasonable doubt. Instead, CCA opinions
regarding jury instructions fail to adequately remedy this problem. Texas courts routinely fail
to instruct jurors that for them to consider the prior conduct, the State must prove the act
beyond a reasonable doubt. Without these instructions, juries are impliedly permitted to
assume the truth of any uncharged prior offense. See Tong v. State, 25 S.W.3d 707, 711 (Tex.
Crim. App. 2000) (citing Jackson v. State, 992 S.W.2d 469, 477 (Tex. Crim. App. 1999)).
Further, courts have refused to submit to the jury special verdict forms on which the jury
would indicate whether the state had proven the prior offense beyond a reasonable doubt. The
CCA has upheld these refusals. See, e.g., Prystash v. State, 3 S.W.3d 522, 534 (Tex. Crim.
App. 1999).
Gardner v. Florida, 430 U.S. 349, 357-58 (1977).
Woodson v. North Carolina, 428 U.S. 280, 305 (1976).
State v. Estrada, No. 746585, (262 Dist. Ct., Harris County, Tex., Feb. 19, 1989).

40

D E A D LY S P E C U L AT I O N

the victim’s apartment, bound the victim and his roommate, put guns to their
heads, threatened to kill them, and then robbed them. The defense objected
only after the jury heard the victim’s entire harrowing tale of being bound and
threatened with death.192 The objection was based on the fact that Mr. Estrada
was in jail for another offense on the day of the robbery and could not have
committed it, despite the victim’s positive in-court identification (the prosecutor
brought both victims to the courtroom, but one could not positively identify
Mr. Estrada so he was not called to testify).193 The judge refused to declare a
mistrial but instructed the jury to disregard the testimony.194 Because prosecutors are not required to prove that the defendant committed the alleged extraneous acts beyond a reasonable doubt, there is no incentive for the State to avoid
this sort of negligent behavior.
Capital defendants, often poor and uneducated, are forced to defend as many
charges as there are people willing to step forward and point a finger. In a bestcase scenario, the ineffective jury instructions following such a prejudicial presentation simply leave the jury confused about how to treat such evidence of
unproven, uncharged bad acts. That the state could use an act to punish a defendant with the penalty of death when it would fail to prove the commission
of the act beyond a reasonable doubt in court reflects the trappings of a system
designed to compel a death sentence, rather than determine its appropriateness.
II.

Racial Bias in Future Dangerousness Guesses

“Because of the range of discretion entrusted to a jury
in a capital sentencing hearing there is a unique
opportunity for racial prejudice to operate but remain
undetected…a juror who believes that blacks are
violence prone or morally inferior might well be
influenced by that belief.” 195
— U.S. Supreme Court Justice White
Justice White recognized the risk that the race of the juror and race of the
defendant may affect the decision that a minority defendant will likely pose a
continuing threat to society. In at least seven Texas death row cases, that risk

192
193
194
195

Id.
Id.
Id.
Turner v. Murray, 476 U.S. 28, 35 (1986).

A HOUSE OF CARDS

41

became a reality when a licensed psychologist testified that being a member of
a minority race makes a defendant more dangerous.
A Texas jury sentenced Victor Saldaño, a native of Argentina, to death by
lethal injection in 1996. Dr. Walter Quijano, who testified about Saldaño’s future dangerousness, claimed that a number of factors, including race, could
be used to assess whether or not a defendant would pose a future danger to
society.196 Quijano cited statistics analyzing crime rates by racial subgroup.197
After hearing Quijano describe Hispanics as more likely to engage in crime, the
jury found Saldaño a future danger and sentenced him to death.
Saldaño appealed his conviction and death sentence to the Texas Court of
Criminal Appeals, and vigorously challenged Quijano’s testimony. The CCA,
however, refused to even consider the claim since Saldaño’s trial attorney had,
incredibly, failed to object to the testimony. Rather than considering the possible influence of racial prejudice on Saldaño’s sentence, the majority concluded
that the error had not been preserved for review.198 The court also denied his claim
of ineffective assistance of counsel because his appellate lawyer failed to object.
Saldaño appealed the CCA’s decision to the U.S. Supreme Court. The State
of Texas admitted to the U.S. Supreme Court that Quijano’s testimony had “seriously undermined the fairness, integrity or public reputation of the judicial
process.”199 The Supreme Court sent the case back to the CCA for consideration of the State’s confession of error.
On remand, the Texas Court of Criminal Appeals again refused to hear Saldaño’s claim of racial bias on the grounds that the issue had not been preserved
for appellate review.200 The CCA denied Saldaño a hearing as to whether or not
the biased testimony from Quijano violated his rights. The decision tolerates
racial bias in the sentencing process, and worse, advocates a lethal emphasis of
form over substance.
And the problem does not end with Victor Saldaño. Quijano’s testimony
has also been used to condemn to death at least six other minority defendants
who are currently on death row.201 Quijano served as an expert witness on fu196
197
198
199

Saldaño v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).
Id. at 885.
Id. at 891.
Some Texas counties did not agree with this position taken on behalf of the State of Texas by
then-Attorney General John Cornyn and sought to avoid conceding this error. See Saldaño v.
O’Connell, 322 F.3d 365 (5th Cir. 2003).
200 Saldaño v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002). In 2001, the Texas Legislature
amended article 37.071 by prohibiting the state’s use of race as a factor the jury can consider
in capital sentencing. TEX. CRIM. PROC. CODE ANN. art. 37.071§ (2)(a)(2) (Vernon 2001).
201 See testimony of Dr. Quijano, testifying that black men would be more likely to be violent in
part because of race, in the following cases: State v. Blue, (Tex. Crim. App. 1996) (No.
72,106); Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995) (No. 924026); State v.
Buck, (Tex. Crim. App. 1999)(No. 72,810). See also Garcia v. State, 57 S.W.3d 436, 438-40
(Tex. Crim. App. 2001), and State v. Michael Gonzales, (Tex. Crim. App. 1998) (No.
72,317), in which Dr. Quijano testified that Hispanic men would be more violence-prone
based in part on their race. In some cases Quijano’s testimony was proffered by the defendant.

42

D E A D LY S P E C U L AT I O N

ture dangerousness in numerous other trials, including cases in which inmates
have already been executed.202
Less obvious, unconscious racial biases infect the future dangerousness
question.203 Studying jurors from seventy capital murder cases, the Capital Jury
Project discovered that black and white jurors viewed future dangerousness differently.204 Despite jury instructions intended to ensure uniformity, jurors of
different races had disparate views and concerns about a defendant’s future dangerousness upon potential release back into society. The study found that white
jurors thought black defendants were more dangerous than white defendants
and believed that black defendants could be paroled sooner from prison than
whites even when no evidence had been presented as to these points.205
The study found that jurors discussed two factors regarding a defendant’s dangerousness—likelihood to be released into society and need to prevent defendant
from killing again—more in cases with a black defendant and white victim than
in cases with a white defendant and white victim.206 White jurors reported 43%
of the time that the defendant’s proclivity towards future dangerousness made
them “much more likely” to vote to impose death. Only 8% of black jurors in
the same cases agreed with the finding of future dangerousness.207
The research from the Capital Jury Project posits that differences in white
and black jurors’ perceptions of defendants’ future dangerousness stem from
divergent personal experiences, assumptions about causes of crime, and levels
of trust in the criminal justice system.208 Regardless of the cause of the disparity, the study illustrates clearly that both the jurors’ and the defendant’s race
have an undeniable effect on determinations of future dangerousness and sentencing decisions in capital cases.209
By legitimizing racial biases already held by many jurors, expert testimony
increases the likelihood that jurors will inappropriately act upon those prejudices. The Court of Criminal Appeals’ refusal to hear Saldaño’s claim undermined the legitimacy of the Texas criminal justice system by implicitly endorsing
death sentences based partly on race.

202 Dr. Quijano also testified in the trials of some inmates who have been executed since 1982.
203

204

205
206
207
208
209

James Kimberly, Death Penalties of 6 in Jeopardy; Attorney General Gives Result of Probe into
Race Testimony, HOUS. CHRON., June 10, 2000, at A1.
See Kathryn Roe Eldridge, Racial Disparities in the Capital System: Invidious or Accidental?, 14
CAP. DEF. J. 305, 317 (2002) (concluding that the jury selection procedures ensure that “an
African American is more likely to face a jury which will be more prone to sentence him to
death on the future dangerousness predicated out of subconscious fears based on his race.”).
William J. Bowers, Benjamin D. Steiner & Marla Sandys, Death Sentencing in Black and
White: An Empirical Analysis of the Role of Juror’s Race and Jury Racial Composition, 3 U. PA. J.
CONST. L. 171 (2001).
Id at 222-23.
Id. at 224.
Id. at 225.
Id. at 264.
Id. at 266.

A HOUSE OF CARDS

43

III. Painting Juries into a Corner:Absence of Life-without-Parole Option

“[T]here is an effective alternative to burning the life out of human
beings in the name of public safety. That alternative is just as
permanent, at least as great a deterrent and—for those who are so
inclined—far less expensive than the exhaustive legal appeals
required in capital cases. That alternative is life imprisonment
without the possibility of parole.”
—Mario Cuomo
“You’re not going to find twelve people back-to-back on the same jury
that are going to kill someone when the alternative is throwing away
the key.”
—Former Harris County District Attorney Johnny Holmes
“Allowing juries to ‘opt out’ of execution for life without parole ‘would
lead to the abolition of the death penalty.’”
—Harris County District Attorney Chuck Rosenthal210
The absence of an option for the jury to sentence capital defendants to life
without the possibility of parole compounds the risk of erroneous sentences. A
jury that has just heard misleading and highly inflammatory future dangerousness testimony, and is then informed that the deLife-Without-Parole
fendant might be back on the streets, might act on their fears
Option in Death
and sentence the defendant to death, even though in their hearts
Penalty States
the individual jurors doubt that the defendant is so culpable that
8% 92%
he warrants such a punishment. But even if one doubts such a
knee-jerk reaction by jurors, the fact that they can only prevent
the defendant from leaving prison by sentencing him to death
cannot help but color their deliberations and prejudice them
toward imposing a death sentence.
Available
Not Available

(Kansas, New Mexico,Texas)

210 Mario Cuomo, Editorial, New York State Shouldn’t Kill People, N.Y. TIMES, June 17, 1989, §1

at 23., Citizens United for Alternatives to the Death Penalty, What Do You Really Know About
the Death Penalty?, available at http://www.cuadp.org/ev_reports/infoflyer.pdf, quoting Johnny
Holmes. “John B. Holmes Jr., who almost single-handedly beat back life without parole for
years because, as he put it, some people just did not deserve to live. By no coincidence, Harris
County leads the nation in death penalties assessed by a single jurisdiction.” Mike Tolson,
“Death Penalty Reforms Sought” HOUS CHRON., Feb. 7, 2001, Michael King, Tinkering with the
Machinery of Death, AUSTIN CHRON., Mar. 9, 2001, Vol. 20, No. 28, available at
http://www.austinchronicle.com/issues/dispatch/2001-03-09/pols_capitol.html (quoting Harris
County District Attorney Chuck Rosenthal).

44

D E A D LY S P E C U L AT I O N

Texas is one of only three death penalty states that fails to provide juries
with the option of a life-without-parole sentence.211 The remaining thirty-five
death penalty jurisdictions make this sentence available to capital juries.
Fred Baca, jury foreman in the capital murder trial of Bobby Moore, describes the role future dangerousness played in the jury’s death verdict.
I can tell you that nobody in that room thought that he was going
to spend his whole life in prison on a life sentence. If there had been
such a thing as life without parole that would have done it for us.
That would have made a huge difference to us. We would have had
number two right there. [referring to special issue No. 2, future dangerousness]. . . .With a model prisoner, the assumption was that he
had already served half of his sentence. It was an assumption that
he would get parole. The 20 years was the thing—life without parole would have meant everything.212
Opponents of the life-without-parole option argue against it knowing that
its enactment would reduce the number of death sentences.213 Despite the political rhetoric that people overwhelmingly support the death penalty, polling
reflects that support for capital punishment drops to less than 50% when the
jury has a life-without-parole option.214
211 Only Kansas, New Mexico, and Texas do not provide juries with a life-without-parole

option. Kansas has not executed an inmate since the reinstatement of the death penalty and
currently has only seven inmates on its death row. New Mexico has two inmates currently
on death row and has executed one inmate since 1976. See Death Penalty Information
Center, Death Row U.S.A. (Mar. 1, 2004), available at
http://www.deathpenaltyinfo.org/DEATHROWUSArecent.pdf.
212 Interview with Fred Baca, foreman of the jury in State v. Moore, 700 S.W. 2d 193 (Tex.
Crim. App. 1985) (No. 68,871), on file with author, (Feb. 16, 2001). Some studies have
found that despite instructions in capital cases regarding the length of time the defendant
would serve before parole eligibility, jurors often disbelieve the instructions concerning the
minimum time for parole eligibility and think that defendants can be released much earlier
than legally possible. See, e.g., John H. Blume, Stephen P. Garvey & Sheri Lynn Johnson,
Future Dangerousness in Capital Cases: Always at Issue, 86 CORNELL L. REV. 397 (2001), in
which authors report that average jurors in South Carolina believed that a capital defendant
serving a life sentence only remains in prison for seventeen years; Dieter, supra note 36
(quoting the late Judge Charles Weltner of the Georgia Supreme Court: “Everybody believes
that a person sentenced to life for murder will be walking the streets in seven years.”) (internal
citation omitted).
213 See Tabak, supra note 46 (addressing the political debate in New York in which some opposed
life without parole because, as they publicly acknowledged, allowing that option would weaken
the death penalty). See also Elizabeth Kolbert, As Vote on Death Penalty Nears, Cuomo Advocates
Life Sentences, N.Y. TIMES, June 19, 1989, at B10; Testimony of Jim Gibson, Assistant District
Attorney, Tarrant County, before Senate Committee on Criminal Justice, Apr. 1, 2003,
available at http://www.senate.state.tx.us/75r/Senate/AVarch.htm; Citizens United for
Alternatives to the Death Penalty, What Do You Really Know About the Death Penalty?, available
at http://www.cuadp.org/ev_reports/infoflyer.pdf (quoting former Harris County District
Attorney John B. Holmes: “You’re not going to find twelve people back-to-back on the same
jury that are going to kill someone when the alternative is throwing away the key.”); Michael
King, Tinkering with the Machinery of Death, AUSTIN CHRON., Mar. 9, 2001, Vol. 20, No. 28,
available at http://www.austinchronicle.com/issues/dispatch/2001-03-09/pols_capitol.html
(quoting Harris County District Attorney Chuck Rosenthal who “expressed the prosecutors’
real fears: Allowing juries to ‘opt out’ of execution for life without parole ‘would lead to the
abolition of the death penalty.’”).
214 Dieter, supra note 36. Life-without-parole option included restitution to the victim’s family.

45

A HOUSE OF CARDS

The presence of a life-without-parole option would not make predictions
of future dangerousness any more reliable. However, by introducing future dangerousness evidence into the sentencing determination in
every case and failing to give juries the life-without-parole
Public Opinion on Lifeoption, Texas gives this untrustworthy evidence the greatest
Without-Parole Option
potential to pervert the most profound of judicial determinations and damage the confidence that death sentences are
41%
more than merely the function of passion and prejudice.
15%

IV. Texas: Apart from the Other States
44%

Prefers Death Penalty
Prefers Life Without Parole
Not Sure

Perhaps recognizing that predictions of future dangerousness are speculative and unreliable, the majority of states
do not require sentencing jurors to address future dangerousness. Of the 38 states that impose the death penalty, 29
do not consider “future dangerousness” at all in their capital
sentencing procedures.215

215 See ALA. CODE §13A-5-47 (West 2003); ARIZ. REV. STAT. ANN. § 13-703 (West 2003); ARK.

CODE ANN. § 5-4-603 (Michie 2003); ARK. CODE ANN. § 5-4-604 (Michie 2003); CAL.
PENAL CODE § 190.3 (West 2003); CONN. GEN. STAT. ANN. § 53a-46a (West 2003); DEL.
CODE ANN. Tit. 11, § 4209, amended by 2003 Del. Laws Ch. 174 H.B. 287 (2003); FLA.
STAT. ANN. § 921.141 (West 2003); GA. CODE ANN. § 17-10-30 (2003); GA. CODE ANN. §
17-10-31.1 (2003); IDAHO CODE § 19-2515 (Michie 2003); ILL. COMP. STAT. ANN. 5/9-1
(2003); IND. CODE ANN. § 35-50-2-9 (West 2003); K.S.A. § 21-4624 (2003); K.S.A. § 214625 (2003);KY. REV. STAT. ANN. § 532.025 (2) (Michie 2003); LA. REV. STAT. ANN. § 14:30
(West 2003); MISS. CODE ANN. § 99-19-101 (2003); MISS. CODE ANN. § 99-19-103 (2003);
V.A.M.S. 565.032 (2003); MONT. CODE ANN. § 46-18-301 (2003); MONT. CODE ANN. §
46-18-303 (2003); MONT. CODE ANN. § 46-18-304 (2003); NEB. REV. STAT. ANN. § 28105.01 (4) (Michie 2003); NEB. REV. STAT. ANN. § 29-2520 (Michie 2003); NEB. REV. STAT.
ANN. § 29-2523 (Michie 2003); NEV. REV. STAT. ANN. 175.552 (Michie 2003), amended by
2003 Nev. Stat. Ch. 366 (A.B. 13) (2003); NEV. REV. STAT. ANN. 200.03 (Michie 2003),
amended by 2003 Nev. Stat. Ch. 470 (A.B. 250) (2003); N.H. REV. STAT. ANN. § 630:5
(2003); N.J. STAT. ANN. § 2C: 11-3 (c) (West 2003); N.Y. CRIM. PRO. LAW § 400.27
(McKinney 2003); N.Y. PENAL LAW § 125.27 (McKinney 2003); N.C. GEN. STAT. § 15A2000 (2003); OHIO REV. CODE ANN. § 2929.03 (West 2003); 42 PA. CONS. STAT. ANN. §
9711 (West 2003); S.C. CODE ANN. § 16-3-20 (Law. Co-op. 2003); S.D. CODIFIED LAWS §
23A-27A-4 (Michie 2003); TENN. CODE ANN. § 39-13-204 (2003); UTAH CODE ANN. § 763-207 (2003).

46

D E A D LY S P E C U L AT I O N

The role of the future dangerousness question varies in the nine states that
consider it. In some of those states, a jury can consider the defendant’s future
dangerousness as an aggravating factor along with other aggravating factors in the case.216 Other states allow a defendant
Future Dangerousness
to argue that the absence of future dangerousness is a mitias a Sentencing Factor
gating factor.217 While these nine states allow speculative fuin Death Penalty States
ture dangerousness evidence to play some role in the
2 29
sentencing decision, only Texas and Oregon218 have chosen to
make jury predictions of future dangerousness a prerequisite
7
for a sentence of death.

Not Required
Limited
Required

216 See, e.g., OKLA. STAT. ANN. tit. 21, § 701.12(7) (West 2002); WYO. STAT. ANN. § 6-2-

102(h)(xi) (Michie 2001).

217 COLO. REV. STAT. ANN. § 18-1.3-1201(4)(k) (West 2002); MD. CODE ANN., CRIM. LAW § 2-

303(h)(2)(vii) (2002); N.M. STAT. ANN. § 31-20A-6(G) (Michie 2001); WASH. REV. CODE §
10.95.070(8) (2002). Although these states specifically provide that lack of future
dangerousness is a mitigating factor, any other state with a “catch-all” mitigating factor allows
the jury to consider the lack of future dangerousness. If, after hearing the evidence, the jury
believes that the defendant is likely to be a future danger, the result is that the jury cannot
find the presence of that mitigating factor. Research shows that “while future dangerousness
[is] highly aggravating, lack of future dangerousness is only moderately mitigating,” which in
part explains the deadly consequences of this sentencing issue in Texas. See Stephen P. Garvey,
Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 COLUM. L. REV. 1538,
1560 (1998).
218 See TEX. CRIM. PROC. CODE ANN. art 37.071 § (2)(b)(1) (Vernon 2001) (conditioning death
sentence on jury finding beyond a reasonable doubt that defendant constitutes a “continuing
threat to society”); OR. REV. STAT. § 163.150(1)(b)(B) (2001) (providing that juries consider
four special issues, among them future dangerousness). But cf. VA. CODE § 19.2-264.4(C)
(2003 Lexis) (requiring jury finding beyond a reasonable doubt that defendant constitutes a
“continuing serious threat to society” or that defendant’s conduct was “outrageously or
wantonly vile, horrible, or inhuman” to impose a death sentence).

5

Conclusion: Texas Death Penalty Sentences
Are Arbitrary

This study shows that it is impossible to predict the future with the accuracy and consistency required of evidence that determines whether someone lives
or dies. Despite research illustrating results consistent with our findings and a
formal rejection of definitive predictions of dangerousness by the American Psychiatric Association, prosecutors continue to present this evidence, courts continue to permit its introduction, and jurors continue to consider it. As a result,
jurors relying on the future dangerousness evidence are handing down unwarranted death sentences.
Reliability and accuracy are the cornerstones of the American criminal justice system. In no case are these assurances more vital than in the application
of the State’s ultimate punishment. Allowing questionable, speculative, and professionally discredited testimony to play any role in the application of the death
penalty—let alone allowing this evidence to be a key sentencing factor—
undermines the integrity of the system and calls into question the fairness of all
death sentences in this state. The unabashed fortune-telling of state-commissioned
psychologists makes a mockery of the system.
The criminal justice system in the United States is designed to prevent “false
positives”—the over-inclusion of people in the group convicted and condemned
to die.219 The spirit of our laws reflects the consensus that it is better to err on
the side of caution when it comes to execution. The state’s high burden of proof
reflects society’s judgment that, if necessary, it is preferable to allow a guilty person to go unpunished than it is to allow an innocent person to be killed by the
state. Our values should also prohibit us from countenancing the execution of
undeserving defendants.
The sentencing procedures in Texas have turned these deeply held values
on their heads. Texas’s flawed procedure leads to the execution of many individuals to protect society from the miniscule minority among them who are

219 See Marquart et al., supra note 47.

48

D E A D LY S P E C U L AT I O N

genuinely likely to re-offend. The results of this study reveal that Texas would
execute 155 inmates to prevent continued violence by eight.
This 95% error rate is intolerably high. The acceptable margin for error in
industries engaging in potentially dangerous activities which threaten human
lives is miniscule. If the brakes on an automobile failed to work 95% of the
time, it would be abandoned as a dismal failure, rather than unflinchingly
touted as a success because the brakes worked 5% of the time. If an alarm clock
did not work 95% of the time, it would be replaced. If only five of 100 Christmas lights worked on a strand, it would be tossed. A roof covering 5% of a house
would not keep out the rain. Such an astronomical error rate is indefensible
where lives are held in the balance.
Why then does Texas cling to such an untrustworthy process in the most
serious of cases? That the accuracy rate is “not always wrong”220 is no longer a
sufficient response. One scholar, critiquing the admission of this unreliable evidence, noted: “One suspects that the Justices would not choose a neurosurgeon on such a basis, nor even a podiatrist.”221 Texas allows the life or death
decision to turn on evidence much less reliable than the flip of a coin.
The current sentencing process in Texas is as flawed as the arbitrary process
it replaced in the 1970s. Thirty years of death sentences based on suspect and
unreliable evidence should concern all who are interested in an equitable capital punishment system. One can favor the death penalty “yet still recoil at the
thought that a junk science fringe of psychiatry . . . could decide who should
be sent to the gallows.”222

220 Paul C. Giannelli, Junk Science: The Criminal Cases, 84 J. CRIM. L. & CRIMINOLOGY 105, 114

(1993).

221 Id. Cf. Rosenberg et al., supra note 95, at 581-82.
222 PETER W. HUBER, GALILEO’S REVENGE: JUNK SCIENCE IN THE COURTROOM 220 (1991).

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Recommended Reforms

Recommended Reforms
§ Follow the American Bar Association recommendations and the lead of other
states, such as Maryland and Illinois, in calling for a moratorium on the death
penalty while a commission reviews issues of fairness in the application of the
death penalty and the adequacy of procedures designed to prevent the innocent or undeserving from execution.
§ Revise the sentencing procedures in Texas to allow jurors to consider the presence of articulated statutory aggravating and mitigating factors as in other
death penalty jurisdictions.
§ Adopt a life-without-the-possibility-of-parole sentencing option. The judge
should instruct the jury in a way that leaves no doubt as to the meaning of the
life-without-parole statute.
§ Disallow witness predictions of future dangerousness.
§ Eliminate the special issue regarding future dangerousness. In the alternative,
require a hearing immediately preceding an inmate’s execution in which the accuracy of the jury’s prediction in that particular case could be evaluated. Commute sentences to life if it is found that the jury’s future dangerousness
prediction was incorrect.
§ Develop clear jury instructions, so that juries understand their obligation to
consider mitigating factors.
§ Create a remedy for inmates previously condemned to death based on the inaccurate and discredited speculations of state-paid expert witnesses by which
inmates would be afforded a meaningful and reliable sentencing hearing.
§ Establish a statewide public defender office to ensure that defendants facing
the death penalty in Texas are well represented, and train attorneys regarding the
deficiencies in the state’s punishment scheme, so that the evidence used to justify a death sentence is subjected to an intensive adversarial process.

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Appendix

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Appendix
Correspondence concerning Dr. James Grigson

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