Free Motion to Preclude - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. RUDY CABRERA SABLAN, et al. Defendant. ______________________________________________________________________________ MOTION TO PRECLUDE EXPERT TESTIMONY ON THE ISSUE OF FUTURE DANGEROUSNESS (R-50) (Phase III) ______________________________________________________________________________ Rudy Sablan, by and through counsel, requests an order excluding expert testimony on the issue of future dangerousness at any sentencing trial in this matter for the reasons set forth herein. FUTURE DANGEROUSNESS AS A NON-STATUTORY AGGRAVATING FACTOR IN THIS CASE In its amended notice of intent to seek the death penalty, the government lists future dangerousness as a non-statutory aggravating factor under 18 U.S.C. 3593(a)(2). The government lists three criminal cases under a "Non-institutional Setting," one on Saipan and two on Guam, in 1992-1993. Under the heading "Institutional Setting" the government lists five BOP incident reports. Rudy Sablan continues his objection to the government's use of this vague, overbroad aggravator under any circumstances. If the Court allows evidence of this factor, it must do so

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with great care and scrutiny in recognition of the heightened need for reliability in capital sentencing hearings. Federal and state prosecutors often use experts in the penalty hearing to opine, based upon a review of records, that a defendant is likely to commit serious violent acts in the future, if he is not put to death. This type of evidence survived a constitutional attack in the Supreme Court in 1983. The court did not address evidentiary issues regarding admissibility of this evidence. In later decisions, the court promulgated broad, comprehensive standards for the admission of expert testimony in all federal cases. The court must evaluate this type of evidence against those current standards. DAUBERT-KUMHO ANALYSIS Expert testimony on the issue of future dangerousness would not be helpful to the jury and cannot survive a Daubert challenge. A recent law review article summarizes the current analysis of expert testimony in this area: For nearly twenty years we have known that psychiatrists cannot predict whether a person who has committed a violent act will be violent in the future. Neither can lay people. The best anyone can do is speculate. Even the most scientific examinations, based on a thorough examination, diagnosis of mental symptoms, past patterns of behavior, and probalistic assessment are wrong nearly as often as they are right. The most common courtroom predictions -- frequently based solely on hypotheticals -- are wrong twice as often as they are right. Erica Beecher-Monas, Edgar Garcia-Rill, Danger at the Edge of Chaos: Predicting Violent Behavior in a Post-Daubert World, 24 Cardozo L. Rev. 1845 (May, 2003)

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Ten years after the Supreme Court rejected a constitutional attack1 on the admission of expert testimony on the future dangerousness aggravator in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383 (1983), the court imposed standards and threshold requirements for the admission of expert testimony on federal cases. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), to address the need for reliability in expert scientific testimony. The court identified five non-exclusive factors to assist trial courts in determining whether expert evidence is reliable enough to be admissible: 1. 2. 3. 4. 5. Whether the theory has been tested; Whether the theory has been subjected to peer review and publication; The known or potential rate of error; The existence of standards controlling the operation of the technique; and The degree to which the theory has been generally accepted by the scientific community. Id., at 2796-97. Many courts, post-Daubert, have questioned the admissibility of expert testimony on future dangerousness. In Flores v. Johnson, 210 F.3d 456 (5th Cir. 2000), Judge Garza, in a concurring opinion, noted the constitutional requirement of high scrutiny and need for heightened reliability in capital sentencing procedures. He then applied Daubert to this type of evidence and reached the following conclusions:

"The question before us is whether the constitution forbids exposing the jury or judge in a state criminal trial to the opinions of psychiatrists about [future dangerousness] . . ." Barefoot, at 3398, fn. 6. 3

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On the basis of any evidence thus far presented to a court, it appears that the use of psychiatric evidence to predict a murderer's "future dangerousness" fails all five Daubert factors. First, "testing" of these theories has never truly been done, as "such predictions often rest . . . on psychiatric categories and intuitive clinical judgments not susceptible to cross-examination and rebuttal." Barefoot, 463 U.S. at 932, 103 S.Ct. at 3414-15 (Blackmun, J., dissenting) (citing Dix, Expert Prediction Testimony in Capital Sentencing: Evidentiary and Constitutional Considerations, 19 AM.CRIM. L. REV. 1, 16 (1981)); see also APA Br. at 17 ("Because most psychiatrists do not believe that they possess the expertise to make long-term predictions of dangerousness, they cannot dispute the conclusions of the few who do."). Second, as is clear from a review of the literature in the field, peer review of individual predictions is rare, and peer review of making such predictions in general has been uniformly negative. See, e.g., Grant Morris, Defining Dangerousness: Risking a Dangerousness Definition, 10 J. CONTEMP. LEGAL ISSUES 61, 85-86 (1999) (citing studies) ("More than twenty years ago, Alan Stone acknowledged that psychiatrists cannot predict whether a person will engage in dangerous behavior with a certainty, or beyond a reasonable doubt, or by clear and convincing evidence, or even by a preponderance of the evidence. As to clinically-based predictions of dangerousness, the passage of time has not altered the accuracy of Stone's judgment."). Third, the rate of error, at a minimum, is fifty percent, meaning such predictions are wrong at least half of the time. See, e.g., Otto, supra note 11, at 64 & n.65. Fourth, standards controlling the operation of the technique are nonexistent. See APA Br. at 13 (noting that "the professional literature demonstrate[s] no reliable criteria for psychiatric predictions of long-term future behavior"). 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. As some courts have indicated, the problem here (as with all expert testimony) is not the introduction of one man's opinion on another's future dangerousness, but the fact that the opinion is introduced by one whose title and education (not to mention designation as an "expert") gives him significant credibility in the eyes of the jury as one whose opinion comes with the imprimatur of scientific fact. As has been previously recognized, when a medical doctor testifies that "future dangerousness" is a scientific inquiry on which they have particular expertise, and testifies that a particular defendant would be a "continuing threat to society," juries are almost always persuaded. See, e.g., Satterwhite, 48 U.S. at 258, 108 S.Ct. at 1799 ("[Dr. Grigson's] testimony stands out both because of his qualifications as a medical doctor specializing in psychiatry and because of the powerful content of his message . . . that [the defendant] was beyond the reach of psychiatric rehabilitation."); Barefoot, 463 U.S. at 916, 103 S.Ct. at 3407 (Blackmun, J., dissenting) ("In a capital case, the 4

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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."); White v. Estelle, 554 F.Supp. 851, 858 (S.D.Tex. 1982) ("[W]hen this lay opinion is proffered by a witness bearing the title of `Doctor,' its impact on the jury is much greater than if it were not masquerading as something it is not."). Jurors, faced with the responsibility of determining whether an individual who committed at least one murder will kill or otherwise commit violence again, and threatened with the immeasurable potential consequences of an incorrect determination, are understandably likely to defer to an "expert" determination which will eliminate those consequences, even if its reliability is questioned by another "expert." See APA Br. at 9 ("[I]t permits the jury to avoid the difficult actuarial questions by seeking refuge in a medical diagnosis that provides a false aura of certainty."); Craig Haney, Violence and the Capital Jury: Mechanisms of Moral Disengagement and the Impulse to Condemn to Death, 49 STAN. L. REV. 1447, 1469-70 & n.113 (1997) ("In this light, capital penalty trails sometimes become forums in which grossly prejudicial and unreliable predictions of future dangerousness are presented with the imprimatur of state authority.") (citations omitted). Id., at 464-466 (footnotes omitted). Mr. Sablan asks the Court to apply the standards of Daubert-Kumho to this category of "evidence" and exclude it. 18 U.S.C. 3593(c) ANALYSIS The Court must exclude evidence of an aggravating factor under 18 U.S.C. 3593(c) if the "probative value is outweighed by the danger of creating unfair prejudice, confusing the issues or misleading the jury." Expert testimony on future dangerousness falls into this prohibition. This issue was addressed by the court in United States v. Sampson, 335 F.Supp.2d 166 (D.Mass. 2004): Developments in the law and more recent scientific research suggest that expert testimony on future dangerousness would be inadmissible under the Federal Rules of Evidence and is also too unreliable to be admitted in the penalty phase of a capital case under the balancing test established by 18 U.S.C. § 3593(a). The same considerations suggest that it may be timely for the Supreme Court to reconsider whether jurors can ascertain future dangerousness in a 5

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particular case with sufficient certainty to satisfy the heightened "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). .... Thus, this court would probably have excluded any expert evidence offered on future dangerousness because its probative value would have been outweighed by the danger of creating unfair prejudice. See 18 U.S.C. § 3593(c). Such a decision would not have violated the court's duty to follow the Supreme Court's holding in either Jurek, which did not involve expert testimony, or Barefoot, which addressed whether the Constitution prohibited expert testimony on future dangerousness in a capital trial. See Barefoot, 463 U.S. at 899 n. 6, 103 S.Ct. 3383 ("The question before us is whether the Constitution forbids exposing the jury or judge in a state criminal trial to the opinions of psychiatrists about an issue that Justice Blackmun's dissent concedes the factfinders themselves are explicitly distinguished cases cited by the dissent because they were "decisions of federal evidence law" rather than "constitutional decisions." Id. Barefoot did not decide, and could not have decided, the admissibility of expert testimony on future dangerousness under federal evidentiary law; in particular, it did not address whether expert testimony would be admissible under the FDPA balancing test established by 18 U.S.C. § 3593(c). See Thomas Regnier, Barefoot in Quicksand: The Future of "Future Dangerousness" Predictions in Death Penalty Sentencing in the World of Daubert and Kumho, 37 Akron L.Rev. 469, 488 (2004) (noting potential application of Federal Rule of Evidence 403 to expert testimony on future dangerousness). Although this court was not required to decide whether to admit expert testimony on future dangerousness, exposure to this issue in deciding whether to admit other evidence of future dangerousness raised a serious question as to whether the Supreme Court would now find, as it did in Jurek, that a jury may constitutionally decide whether to impose the death penalty based on its prediction of a defendant's future dangerousness. Id., at 218, 220-221. If the government seeks to introduce expert testimony of the future dangerousness issue, Rudy Sablan requests a Daubert hearing and, after the hearing, an order excluding any such testimony from any penalty hearing in this case.

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Respectfully submitted, s/ Forrest W. Lewis Forrest W. Lewis FORREST W. LEWIS, P.C. 1600 Broadway, Suite 1525 Denver, Colorado 80202 Telephone: (303) 830-2190 Facsimile: (303) 830-1466 E-mail: [email protected] Donald R. Knight KNIGHT & MOSES, LLC 7852 S. Elati Street, Suite 201 Littleton, Colorado 80120 Telephone: (303) 797-1645 Facsimile: (303) 798-3872 E-mail: [email protected] CERTIFICATE OF SERVICE I hereby certify that the foregoing MOTION TO PRECLUDE EXPERT TESTIMONY ON THE ISSUE OF FUTURE DANGEROUSNESS (R-50) (Phase III) was electronically filed with the Clerk of the Court using the CM/ECF system on this 21st day of February, 2006, which will send notification of such filing to the to the following e-mail addresses: Brenda Taylor [email protected] Philip Brimmer [email protected] Michael Hegarty [email protected] Patrick J. Burke [email protected] Dean Neuwirth [email protected] Nathan D. Chambers 7 s/Polly Ashley [email protected] Susan L. Foreman [email protected]