In the middle of the punishment phase of a capital murder trial. Defense proposing to use John Escobedo, formerly a member of the Board of Pardons and Paroles, as an expert...maybe on parole or clemency issues. Anyone dealt with him before?

I don't know Mr. Escobedo or how his experience would assist the trier of fact. This may be something defense lawyers are picking up at seminars because a couple of years ago I had the same thing happen. I objected that the testimony would be speculative because no one knows what rules or procedures will be in place then. If I am not mistaken, the law on parole for a capital lifer did change. It used to require a quorum and a "super majority" of the Board; now it is something less. The point is that laws and the make up of the board will be different forty years hence. The horrible facts and the loss of the victim or victims will never change.
addendum: I, like the next poster, was unsuccessful in my objection. The judge allowed the testimony and I would have to say overall it was a wash if not a marginal plus for the State. As an aside, have you noticed that Judges tend to let the defense present evidence that they would never allow were the possible penalty not death? Have you also noticed SOME defense lawyers think because we are seeking the death penalty, anything goes and to hell with the rules and even ethics? A significant minority seem to.....

[This message was edited by BLeonard on 10-21-04 at .]

[This message was edited by BLeonard on 10-21-04 at .]

[This message was edited by BLeonard on 10-21-04 at .]

Well here's the update:

Today, I encountered Escobedo and Larry Fitzgerald. It seems that it's become the "In" thing for these ex-TDCJ and Board of Pardons and Paroles folks to supplement their retirement pensions by testifying for capital murderers.

Actually, Escobedo was permitted to testify about parole stuff over our objection but may have proved to be of some benefit to my case.

The judge limited him to telling the jury that the law requires a capital life sentenced offender to serve 40 years (which the jury, of course, already knows) but he did not express any opinion related to my defendant in particular nor could he express any opinion as to what the law or parole procedures would be 40 years from now.

On cross-examination, he conceded that the 40 year statute was a law that could be changed every two years at the whim of the Legislature (and even made retroactive)and, in addition, conceded that some aspect of the parole law had been changed in every legislative session in the 23 years he had been involved in the parole business. He also conceded that there were any number of ways a capital life offender could be released (clemency, commutation, pardon, appellate court intervention) or escape. He also conceded that the prison system is currently overcrowded, that jail space was being rented, and that changes or adjustments to the parole laws were often times based upon overcrowding and other state financial concerns.

He also favors the death penalty and hardly ever voted to grant executive clemency or a commutation to any death sentenced inmate. Of course, now that he's in the testifying business, he's only testified for the defense in 3 (now 4) capital cases he's testified in.

For John Bradley-- I tried like hell to convince the judge not to allow him to testify to no avail---but the end result wasn't all that bad and may have done the defense more harm than good if the jury starts thinking about the parole law changing in the near future and this guy getting out.

Which probably leads to a claim of ineffective assistance of counsel later. The rule of law apparently does not apply when the defense lawyer and judge have personal issues over the punishment.

You're probably right, John. I know defense attorneys really like to make a big deal out of that MANDATORY 40 YEARS--DAY FOR DAY AND NIGHT FOR NIGHT stuff, but I think it's pretty much a waste of time. Regarding parole, or the lack thereof, I think jurors are sophisticated enough to realize that unless the death penalty is assessed, there's always a chance that the defendant will get out. Escobedo, to his credit, had to admit that laws (including parole laws) are subject to change and I think that's really all a jury needs to hear.

For what it's worth, our judge did refuse to allow a defense future dangerousness expert (actuarial-statistical stuff) to testify because the defense had failed to timely designate the expert pursuant to Art. 39.14(b). Chalk one up for the good guys!