Where were the experts over the weekend, oh silly me, they were probably packing to go speak at some high-dollar seminar, about the deadly speculations of prosecutors and how they mislead capital juries during death penalty punishment phases....

On June 30, 2006, at the Stiles prison unit, convicted capital murderer Jose Alonzo, doing a less than death sentence out of Bexar County, stabbed to death fellow prison inmate Victor Rocha. Alonzo is a member of the PRM (Partidos Revolucinarios de Mexicles) gang, apologies for my corrupt spelling.

Now, is AP making this up, like the educated defense experts will tell juries, or is Rocha really dead? We have the autopsy report, if the defense bar doubts the story. And, yes Alonzo is only the newest out of many convicted capital murderers who have killed again, after arriving at prison.

The following concurring opinion was sent out by Judge Johnson on the CCA. Does it make sense, AP?

By definition, a probability is the result of many observations of a defined reference group. For instance, after many observations are made and analyzed, we can say with some certainty that one out of two marriages will fail or that seven of ten professional football players will retire because of injury. What we cannot say with any certainty is which marriages will fail or which football players will suffer career-ending injuries.

If we mine the treasure trove of statistics that is major league baseball, we may discover that, over a number of seasons, left-handed batters reached first base safely three times out of ten at-bats when facing right-handed pitchers, but only two times out of ten at-bats when facing left-handed pitchers. One hundred sixty-two games per team, times the number of left-handed batters, times 3 or so at-bats per game, times 30 teams, is a large number of observations of a defined reference group, left-handed professional baseball players who bat. From such data, we may then reasonably conclude that the probability of a left-handed batter reaching first base safely is 30% if facing a right-handed pitcher and 20% facing a lefty, but we cannot say where, when, or against which pitcher a given batter will get his hits. Nor can we say that every left-handed batter will bat .300 against right-handed pitchers; we can state only that, over a season, the average for all left-handed batters will be close to .300.

If we want to apply those probabilities to someone who does not play major league baseball and also desire reliability, we can apply those probabilities only to those who are like the members of the reference group, such as left-handed Japanese professional baseball players. If we try to apply those probabilities to right-handed batters, sand-lot players, or minor-league players, any predictions made are likely to be proven wrong.

If we want to know the probability that an individual will engage in a certain behavior within a given time frame, the only probability that can be accurately and truthfully stated must assume a person who is like the members of the reference group on which the estimate of probability is based. By its very nature, probability cannot, and does not, exist based on one observation of a group of one, nor can it be used to predict the behavior of a given individual. It is misleading to purport to be able to state a probability that a given individual will act in a given way in the future. Therein lies the difficulty with asking witnesses to testify about the probability that a given defendant will be a danger in the future.

A probability that a single individual will engage in a given behavior does not exist. The probability that does exist is the likelihood that a person like that individual will engage in a given behavior. For example, a psychiatrist may be asked to estimate the chances that a given mental patient will harm himself or someone else within the next year. The questioner may ask for that information in at least two ways, one of which provides valid information, the other of which provides merely a guess. If the question asks the psychiatrist to state the probability that a given individual will harm someone, any answer in terms of probability is meaningless; to make such an answer reliable requires a working crystal ball. The proper and appropriate question asks the psychiatrist to estimate the probability that a person like the given individual, that is, a person with a similar mental history, will harm someone within the next year. That probability can be calculated by reviewing large numbers of observations of mental patients with similar mental disorders. The reliability of the estimate of probability increases as the number of observations increases. With sufficient observations, an answer based on that probability may offer helpful information. Again, we may be able to say that a given number of mental patients will harm someone in the next year, but we still cannot say with any certainty which patients will comprise that number.

The proceedings in capital trials are on much more stable ground if the future-dangerousness witnesses are questioned about the probability of future violence by a person who is like the defendant in, for example, background, criminal history, mental status, and demonstrated propensity for violence against others. Sometimes it is clear that the witness is purporting to be able to predict the future as to the individual on trial. (1) It may be that some witnesses are being asked the wrong question and yet, basing the answer on their knowledge about many similar individuals, answering the correct one. (2) The only way to be sure is to ask the question in the correct form.

I concur in the judgment of the Court.



Filed: June 28, 2006.

Do Not Publish

1. See, e.g., Barefoot v. Estelle, 463 U.S. 880, 905 n.11 (1983)(without having examined Barefoot, Dr. Grigson testified that there was a 100% probability that Barefoot would commit violent acts in the future). Dr. Grigson may have been committing the common mistake of conflating probability and possibility. Probability does not exist without large numbers of observation of a defined reference group. However, almost anything that does not violate the laws of physics is at least theoretically possible. Possibility does not require numerous observations because a single attempt may prove the theory. The basic question addressed is different. The question for possibility is, can this event happen? The question for probability is, how often does this event happen?

On the other hand, Dr. Grigson may have been asked the wrong question, but answered the correct one: he stated that he was "'100% sure' that an individual with the characteristics of the one in the hypothetical would commit acts of violence in the future . . .." Id. (Emphasis added.) Even if that were the case, he stretched the limits of predictability; "in response to Dr. Grigson's assertion that he was '100% sure' that an individual with the characteristics of the one in the hypothetical would commit acts of violence in the future, Dr. Fason testified at the habeas hearing that if a doctor claimed to be 100% sure of something without examining the patient, 'we would kick him off the staff of the hospital for his arrogance.'" Id.

2. "[T]he State called two expert witnesses, Dr. George Parker, a psychologist, and Dr. Richard Koons, a psychiatrist. Both of these doctors agreed that accurate predictions of future dangerousness can be made if enough information is provided; furthermore, they both deemed it highly likely that an individual fitting the characteristics of the one in the Barefoot hypothetical would commit future acts of violence." Barefoot at 901. (Emphasis added.)

Judge Johnson has shown an interest in probabilities elsewhere. In my Wilson case, she concurred about probabilities as regards DNA. She compared DNA match probabilities with the improper use of probabilities we all learned about in law school. I don't think her concurrence there held water because DNA markers are not independent variables, unlike the situation she compared it too.

Isn't it more likely that she has a briefing attorney with an undergraduate degree in math?

Those mathmatical observations are very interesting, and they are exactly the sort of thing that, as many of you prosecutors have discovered, jurors will hang their hats on. For crying out loud, it's hard-and-fast arithmetic, it MUST be the determining factor in the future danger question. And, if you have one weak juror or one who transformed from a serious-minded, pro-victim, pro-law enforcement juror into one who fears that as soon as the last person leaves the courtroom, the defendant is going straight to the gurney, then those probability examples will be all that person needs to justify hanging the jury up or voting "no" to the f.d. question.

The truth is, incorrectly predicting who might be overdue to hit a triple or pop out to center doesn't have quite the impact that incorrectly predicting who might go to prison and kill a guard has. At least in my pea brain, anyway.

I am fully aware of the studies that have reported that capital murderers and murderers in general are more docile prison inmates and their prison records have proven them to get into less trouble than their fellow inmates. Those studies were reported in the same writings that said "Furman-released capital murderers proved less dangerous than other parolees." However, many Furman releasees were not even capital murderers, some of them were rapists and robbers, who were sentenced to death under the old capital punishment provisions. Nobody brings that up, for some reason. As for taking a sampling of similar types of killers and applying percentages to their histories and incidents of violent behavior then putting all of that into a bowl and stirring it up and adding a pinch of Bay seasoning then letting it chill and become the answer to a probability question about who will be likely to be dangerous (not necessarily "murderous" but dangerous) in the future, I would point out that:

James Porter, convicted capital murderer, beat a prison inmate to death afer Porter got his life sentence and went to general population;

Jermarr Arnold, convicted capital murderer, went to death row and killed another inmate;

Robert Pruitt, convicted capital murderer (his final conviction was for murder, but his crime was capital) murdered prison guard Daniel Nagle;

Noe Beltran, convicted capital murderer, went to death row, was removed from the row by the appellate courts because he was not proven to be a future danger, then he stabbed another inmate to death;

William Speer, capital murderer, strangled Gary Dickerson to death in a prison cell;

Capital murderer Ennis Coleman murdered James Wilson at the Polunsky Unit;

Capital murderer Cary Money murdered William Smith at the Beto Unit ...

Then, of course just the other day, capital murderer Alonzo kills inmate Rocha.

I could go on, but it would probably not change minds that have been made up, neither would it influence those who put their trust in numbers and percentages. All I know is, it only takes one mistake to create a victim.

Which raises the question, why do we even have the future danger special issue? Constitutionally, it is not a requirement. By narrowing the choices for capital murder by circumstance of the offense, Texas has met the constitutional necessities. The mitigation special issue then gives the defendant all the constitutional choices he deserves. The only other special issue that is required constitutionally is the one asking if the defendant personally intended to kill or knew others would kill (in case he is convicted as a party).

Given all the complaining by liberals, why not delete the special finding on future dangerousness? Of course, that would result in the same outcry as we saw when life without parole was passed without the confusing 3-choice option.

The truth is, liberals don't want to fix anything having to do with the death penalty. They want it gone.

David Dow, a liberal law professor at UH, recently had an editorial published in the NY Times. He complained to (I guess other liberals) that it is not enough to look for the innocent capital murderer. Seems that not finding one leaves them sort of morally without ammunition. So, he says the real fight should return to seeking abolition of the death penalty. At least that's honest.

I tend to agree with the suggestion of doing away with the f.d. special issue. Although, it presents an extra hurdle that prosecutors must overcome to a unanimous verdict, which results in safeguards for a defendant, the issue provides too much fodder for people who spend their lives, a) getting rich at the expense of tax payers and at the cost of innocent victims' tragedies b) grand-standing as champions of the down-trodden defendants.

Not to mention, it would keep Royce and me out of your courthouses and spending more time at home.

Isn't the issue necessary to guide the discretion of the sentencing jury? Otherwise, our statute only narrows the classes of offense for which death is available and gives the possibility for the jury to give effect to mitigating evidence. Arent the requirements (after Penry) narrowing, guidance, and vehicle for mitigation?

Most other states simply give the jury a list of special circumstances to find or reject in narrowing the type of murders that merit the death penalty. Texas accomplishes that finding by making the circumstances an element of the offense (e.g., killed a child under six or peace officer, etc.).

The Texas method is actually more protective of the defendant, as a nonfinding results in a conviction for the lesser-included offense of murder and a lighter punishment range (5-99 or life with parole rather than automatic life without parole). Anyone making the cut to capital murder then gets the benefit of the wide-open mitigation issue.

I don't know of any constitutional requirement that a defendant who gets the death penalty must be shown to be a future danger. And that really has little to do with historic punishment theory, which is based on having the punishment serve as retribution for the seriousness of the crime. The future danger issue is a fairly modern invention, pleasing those that aren't comfortable with punishment as a moral response to gross immorality. The future dangerousness gives us a feeling we are participating in social self-defense -- killing before we are killed.

What about the notion mentioned in Gregg and Jurek about specific deterrence or preventing capital murder defendants from committing any other crimes via execution?