SNAKE OIL WITH A BITE: THE LETHAL VENEER OF SCIENCE AND TEXAS' DEATH PENALTY.

• Author: Acker, James R.

1. INTRODUCTION

   Texas is this country's undisputed leader in making use of the death penalty. With 546 executions in the last four decades through 2017, Texas has carried out almost five times as many as Virginia, the next leading state with 113, and has accounted for more than one-third of the nation's total during the modern era of capital punishment. (1) Roughly 250 prisoners were awaiting a date with the executioner in the state as 2017 dawned, comprising the country's third largest death row. (2) The abundant executions and death sentences are attributable in part to the state's sizeable population. With nearly 28 million residents, (3) Texas is the nation's second most populous state, (4) with a commensurate amount of crime including a large number of murders committed annually. (5) The state thus has many opportunities to impose and carry out death sentences. (6)

   But other factors also are at work in explaining why Texas has embraced capital punishment with such enthusiasm. Prosecutors, particularly in parts of the state, have not been reluctant to pursue capital sentences. (7) For example, in Houston, the nation's fourth largest city (8) and the hub of surrounding Harris County, the district attorney's office has been known to aggressively pursue death sentences, especially during the administration of Johnny Holmes, Jr. (1979-2001) and his successor, Chuck Rosenthal (2001-2008). (9) Additionally, Texas lagged for years in supplying well qualified and adequately funded defense attorneys for indigents charged with capital crimes, (10) thus skewing the adversarial system in favor of the prosecution and the production of death sentences. The state and federal courts that serve Texas have been significantly less likely than courts elsewhere to find reversible error in capital cases. (11) And it may well be that Texans simply possess distinctive attitudes about crime and punishment, thus generally leaning jurors and inhabitants of the state toward favoring the death penalty for murder. (12)

   On top of these possible explanations, Texas's capital sentencing statute (13) is unlike that of nearly all other states in the country, in that it conditions offenders' death penalty-eligibility on proof of their future dangerousness. (14) In supplying evidence in support of such predictions, and at virtually every other stage of the state's capital punishment process, criminal justice officials have alternately enlisted expert witnesses and scientists who have helped move accused and convicted offenders progressively closer to the execution chamber, and ignored or discounted scientific norms and developments inconsistent with securing and carrying out capital sentences. All too often, the determinations made in support of death sentences are of dubious reliability--including opinions and conclusions based on what many would agree qualify as junk science--thus greatly enhancing the risk of miscarriages of justice in capital cases.

   This article examines the several stages of Texas capital prosecutions in which improper, suspect, or unreliable expert and scientific opinions have contributed to the prosecution, conviction, sentencing, and execution of persons accused of committing murder. Such opinions have figured into decisions made from the beginning to the end of capital cases--from ascertaining defendants' competency to stand trial through their execution--and have involved virtually all stages of the justice process and all justice system officials. Wittingly or unwittingly, unreliable expert testimony and dubious science have been employed in the administration of Texas's death penalty law. (15) The misappropriation of science risks enabling and perpetuating grave miscarriages of justice in the state's capital murder cases.

2. CAPITAL PUNISHMENT IN TEXAS: THE LAW

   A pair of Supreme Court decisions involving Georgia's death penalty are widely recognized as marking the end of one era of capital punishment in the nation's history and ushering in another. In 1972, in Furman v. Georgia, (16) five justices concluded that laws providing juries with unbridled discretion to decide which offenders convicted of capital crimes should live, and which should die, violated the Eighth Amendment's prohibition against cruel and unusual punishments. (17) Four years later, in Gregg v. Georgia, (18) the Court gave its approval to revised legislation that incorporated standards designed to limit and guide capital sentencing discretion. (19)

   Whatever bragging rights may be associated with these landmark rulings, Texas has a legitimate claim to them as well. When the Court invalidated the death penalty, in Furman, as it was administered in 1972, Branch v. Texas (20) was joined for decision with Furman. (21) And in 1976, in Jurek v. Texas, (22) a companion case to Gregg, the justices reviewed and approved of Texas's revised capital punishment legislation, (23) although the Georgia case again commanded the most attention. The current capital murder and sentencing provisions in Texas have undergone change since the Supreme Court reviewed and approved them in Jurek, but in many significant respects they continue to resemble the original provisions.

   To be eligible for the death penalty in Texas, a defendant must first be convicted of capital murder. Under current law, proof is required at the trial's guilt phase that the defendant killed his (24) victim(s) "intentionally or knowingly," (25) accompanied by one or more of nine enumerated statutory aggravating circumstances. (26) The present list of aggravating factors qualifying a capital murderer for death-penalty eligibility has grown from the original five circumstances included in the legislation when it was enacted in 1973, (27) and when the law was considered by the Supreme Court in Jurek. (28) Following a defendant's conviction for capital murder, if the prosecution chooses to pursue a death sentence, (29) a penalty phase of the trial is conducted before the same jury that found the defendant guilty. (30)

   Under the law now in effect, in cases other than those involving guilt for capital murder "as a party" (31) (pertaining to accomplice or co-defendant liability for a killing committed by the principal), (32) the jury initially is instructed to consider a single sentencing issue focusing on the defendant's likely future dangerousness: "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." (33) In addressing this question, the jurors are told to consider all evidence admitted at both the guilt and sentencing phases of the trial, "including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty." (34) Jurors are further instructed that if they unanimously conclude beyond a reasonable doubt that the answer to the future dangerousness question is yes, (35) they must then answer:

   Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed. (36) The jurors are specifically instructed to "consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness." (37) A negative answer to the sentencing question, which can be returned only on the agreement of all twelve jurors, (38) requires the judge to sentence the offender to death. (39) An affirmative answer, requiring the agreement of ten jurors, (40) results in the judge imposing a sentence of life imprisonment without parole, (41) as does the jurors' inability to arrive at a verdict. (42) Texas adopted life imprisonment without parole as the alternative sentence to death in 2005, becoming one of the last jurisdictions to do so. (43)

   In addition to introducing life imprisonment without parole as the alternative punishment option in death penalty trials, Texas's current capital sentencing provisions differ in other important aspects from the original post-Furman procedures. The statute was amended in 2001 to specifically prohibit the state from offering evidence "to establish that the race or ethnicity of the defendant makes it likely that the defendant will engage in future criminal conduct." (44) Under the 1973 statute, jurors were instructed to consider the future dangerousness question as well as two additional issues: 'whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result,'"(45) and "'if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.'" (46) Those questions were removed when the statute was amended in 1991. (47)

   Absent from the original legislation were explicit directives regarding the jury's consideration of mitigation evidence and the offender's moral culpability. (48) The Supreme Court had made clear in another one of its 1976 death penalty decisions, Woodson v. North Carolina, (49) that in capital cases the sentencing authority must be allowed to consider case-specific offense circumstances and offender characteristics before making a punishment decision. (50) Two years later the justices ruled explicitly that relevant mitigation evidence cannot be excluded from the penalty phase of a capital trial. (51) In Jurek, the justices had reasoned that the special issues in the Texas death penalty statute were sufficiently expansive to allow juries to consider and make use of evidence relevant to their sentencing decision. (52)

   However, in 1989...