Free Motion to Strike - 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 Action No. 00-CR-0531-D UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants.
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William Sablan's Motion To Strike Future Dangerousness On The Grounds That Neither Experts Nor Lay Persons, Including Jurors, Are Capable Of Reliably Predicting It [Wm DP-25] __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, respectfully requests the Court to strike future dangerousness because jurors are incapable of reliably predicting it, and to prohibit expert witnesses from offering opinions on future dangerousness because they too are incapable of reliably predicting it. As grounds, counsel state: 1. After the Supreme Court held Texas' system for imposing capital punishment unconstitutional in Branch v. Texas, which was decided along with Furman v. Georgia, 408 U.S. 238 (1972), the Texas Legislature enacted new legislation. The constitutionality of this legislation was upheld in Jurek v. Texas,
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428 U.S. 262 (1976). One aspect of the Texas statute required the jury to answer "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Id. at 269. Justice Stevens wrote: It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. Id. at 274-75. As examples of such decisions, Stevens noted judicial decisions regarding bail, decisions by the "sentencing authority" as to punishment, and decisions by parole authorities regarding release. Id. 2. Even on its face, this conclusion is suspect. Although "sentencing authority" may include some jury decisions, the vast majority of sentencing decisions are made by trial judges. Thus, the examples provided are actually decisions by people who are "in the business" of making such predictions of future criminal conduct on a daily basis, and more importantly, none of the decisions are of the magnitude of deciding whether a defendant should live or die. Moreover, Steven's conclusion is inconsistent with the Court's observations in Gregg v. Georgia, 428 U.S. 153 (1976), which was announced on the same day as Jurek. There, the Court wrote that "[s]ince the members of a jury will have had little, if
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any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given." Gregg, 428 U.S. at 192. Thus, Jurek evaded the heart of the matter, that is, although decisions based upon predictions of future conduct can be made, can they be made reliably. 3. Much has changed since the 1976 Jurek decision. Studies have been conducted that indicate jurors cannot accurately predict future dangerousness. See e.g. Marquart et al., Gazing into the Crystal Ball: Can Jurors Accurately Predict Dangerousness in Capital Cases? 23 Law & Society Review 449. (A copy is attached.) As noted in 2004 by Federal District Judge Wolf, "[t]here are relatively recent studies that suggest that it is not just difficult for jurors to predict reliably whether a murderer is likely to commit violent crimes again, but that it is impossible." United States v. Sampson, 335 F. Supp.2d 166, 222 (D. Mass. 2004). He thus concluded that "it may be timely for the Supreme Court to reconsider whether jurors can ascertain future dangerousness in a particular case with sufficient certainty to satisfy the heightened `need for reliability in the determination that death is the appropriate punishments in a specific case.'" Id. at 218 (quoting Woodson v. North Carolina, 428 U.S. 280 (1976)). 4. In Jurek, the testimony presented regarding future dangerousness consisted of lay witnesses who testified to the defendant's bad reputation in the
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community. Since that time, however, prosecutors have started to use psychiatrists and psychologists to testify as "experts" on the question of whether the defendant is likely to commit serious violent acts in the future. These opinions are often offered in response to hypothetical questions and without having examined the defendant personally. Such evidence withstood a constitutional challenge in Barefoot v. Estelle, 463 U.S. 880 (1983). There, relying on Jurek, the Court stated that "if it is not impossible for even a lay person sensibly to arrive at that conclusion, it makes little sense, if any, to submit that psychiatrists, . . . would know so little about the subject that they should not be permitted to testify." Barefoot, 463 U.S. at 897. Thus, Jurek's unstated and incorrect assumption that jurors could assess future dangerousness accurately became the basis for allowing "expert" testimony on the issue. 5. Such expert testimony, however, is not reliable either. The American Psychiatric Association ("APA") filed an amicus brief in Barefoot informing the Court that "[t]he unreliability of psychiatric predictions of long-term future dangerousness is by now an established fact within the profession." Id. at 920. "The APA's best estimate is that two out of three predictions of long-term future violence made by psychiatrists are wrong." Id. As Justice Blackmun, joined by Justices Brennan and Marshall, noted in his dissent, "[t]he Court does not dispute
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this proposition . . . and indeed it could not do so; the evidence is overwhelming." Id.1 He ultimately concluded: The Court holds that psychiatric testimony about a defendant's future dangerousness is admissible, despite the fact that such testimony is wrong two times out of three. The Court reaches this result ­ even in a capital case ­ because, it is said, the testimony is subject to cross-examination and impeachment. In the present state of psychiatric knowledge, this is too much for me. One may accept this in a routine lawsuit for money damages, but when a persons' life is at stake ­ no matter how heinous his offense ­ a requirement of greater reliability should prevail. In a capital case, the 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. Id. at 916. 6. Fortunately, Barefoot is not controlling here. As Judge Wolf noted, the Supreme Court signaled that the evolution of events might cause it to revise its decision by stating that it was "unconvinced, at least as of now, that the adversary process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness, particularly when the convicted felon has the opportunity to present his own side of the case." Sampson, 335 F.Supp.2d at 218 (quoting Barefoot, 463 U.S. at 901). Moreover, "Barefoot did not decide, and

Justice Blackmun thereafter cited a multitude of studies in support of his statement.
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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 [Federal Death Penalty Act] balancing test established by 18 U.S.C. § 3593(c)." Id. at 220. 7. Ten years after Barefoot, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). The Daubert decision dooms expert testimony on future dangerousness. See Flores v. Johnson, 210 F.3d 456, 464 (5th Cir. 2000) (Garza, J. concurring) ("it appears that the use of psychiatric evidence to predict a murderer's `future dangerousness' fails all five Daubert factors"). William hereby adopts Rudy Sablan's Motion to Preclude Expert Testimony on the Issue of Future Dangerousness (R-50) and incorporates its arguments and requests herein by reference. (William is simultaneously filing a separate motion to adopt R-50.) 8. Not only does expert testimony on future dangerousness fail the five Daubert factors, it is excludable under the FDPA as more unfairly prejudicial than probative. § 3593(c). WHEREFORE, William requests this Court to strike future dangerousness on the grounds that jurors cannot reliability predict it and/or to prohibit any expert testimony on future dangerousness due to its unreliability.
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Dated: February 27, 2006 Respectfully submitted, Patrick J. Burke Dean Neuwirth Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on February 27, 2006, I electronically filed the foregoing Motion To Strike Future Dangerousness On The Grounds That Neither Experts Nor Lay Persons, Including Jurors, Are Capable Of Reliably Predicting It [Wm DP-25] with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: s/ Susan L. Foreman Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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