USA-HOUSTON, June 9 - Texas juries in capital cases must make a 'prediction'. They may impose a death sentence only if they find that the defendant will probably commit more violent acts.
Other states look backward, asking juries to consider the moral blameworthiness of the crime. Texas, which leads the nation in executions, wants to know the future: Will the killer kill again?
"The fact is," said David R. Dow, a law professor at the University of Houston, "you're being punished for something that you haven't done."
In making their predictions, juries rely on expert testimony. [? trial by expert.]
In 1986, for instance, Dr. Edward Gripon, a psychiatrist, testified that David Harris, then 25 and freshly convicted of murder, posed a substantial risk of further violent acts. Dr. Gripon, who had never examined or even met Mr. Harris, based his conclusion on a prosecutor's description of the defendant's past conduct.
Mr. Harris, now 43, is to be executed on June 30. On Wednesday, his lawyers submitted a petition to a state appeals court. It says Dr. Gripon's prediction 18 years ago has turned out to be wrong:
Mr. Harris's years in prison have been marred by only minor infractions, like having too many postage stamps or hanging a clothesline in his cell. His most serious offense, according to the authorities, was kicking a guard's boot while wearing shower slippers; Mr. Harris says he slipped.
Mr. Harris's case is not unique. A recent study by the Texas Defender Service, a group that represents defendants in capital cases, examined 155 such cases in which prosecution experts had predicted, often with a claim of scientific certainty, that the defendants would commit more violent crimes.
"These experts," the report concluded, "were wrong 95 percent of the time." Though the 155 inmates in question generally served at least a decade on death row, none of them killed again. Eight committed serious assaults, all against prison employees or other inmates, [prisoners]; two were prosecuted.
Maintaining that he was sentenced to death on the basis of junk science, Mr. Harris says he deserves a stay of execution and a resentencing hearing at which evidence of how the future turned out can be presented.
A spokesman for the state attorney general's office declined to comment, citing the pending litigation.
But Shannon Edmonds, a lawyer with the Texas District and County Attorneys Association, said objections to the future-dangerousness standard were a smokescreen.
"There is no issue or litmus test that would be accurate enough to satisfy the Texas Defender Service," Mr. Edmonds said. "They basically don't think anyone should get the death penalty."
Gena Bunn, chief of the Texas attorney general's capital litigation unit, defended the state's future-dangerousness requirement in a law review article in 2000.
Ms. Bunn said abstract arguments must fail in the face of the reality of vicious killers like Aaron Fuller, who raped and killed an elderly woman in 1989.
"Although the use of psychiatric testimony to predict future dangerousness is roundly condemned in the scientific community," she wrote with a co-author in The Texas Review of Law & Politics, "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?"
Texas law makes the death penalty available for about a dozen categories of murder, including those committed during a robbery or a sexual assault, those done for hire and those in which the victim is a child or a police officer.
But conviction of such a crime is not enough. To impose a death sentence, a jury must find, unanimously and beyond a reasonable doubt, that "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Because those convicted of capital crimes must serve at least 40 years, as a practical matter that threat is to prison guards and other inmates, [prisoners.]
Ed: Anything that happens in relation to a prisoner's defence and or any violent struggle in a prison, in terms of the conditions in prison should be null and void and should not even register on a prisoners record. Simply because anyone who's been there knows that prison is not a normal environment nor does it have anything like community standards.
Err..."These experts," the report concluded, "were wrong 95 percent of the time." Though the 155 inmates in question generally served at least a decade on death row, none of them killed again. Eight committed serious assaults, all against prison employees or other inmates, [prisoners]; two were prosecuted.
By ADAM LIPTAK & EDITED BY GREGORY KABLE posted 15 June 04
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