3. Barefoot v. Estelle[199]
Barefoot v. Estelle, a death penalty appeal arising from a case
decided by the Texas Court of Criminal Appeals,
[200]
represents an extreme case of restricting an individual's liberty for the safety
of society.
[201] Barefoot is a prevention
case because the underlying substantive issue was whether Texas had proved that
Thomas Barefoot was so dangerous to society as to merit the death penalty.
[202]
The trial court used the "beyond a reasonable doubt"' standard, which is constitutionally
required in
*360 criminal adjudications.
[203]
However, this provided scant protection for Barefoot because the state was only
required to prove that there was some "probability"' that Barefoot posed a risk
of future dangerousness.
[204] In effect,
the state's burden of proof was so slight that Barefoot could have been put
to death as a regulatory restriction.
[205]
Barefoot had burned down a bar and then shot and killed a police
officer investigating the arson. The jury convicted him of capital murder of
a police officer. After the conviction phase of the trial, the same jury heard
evidence on the question of whether Barefoot should be put to death.
[206]
To sentence a person to death in Texas, the state must show: 1) that the killing
was intentional;
[207] 2) that it was without
reasonable provocation;
[208] and 3) that
the defendant poses a threat of future dangerousness.
[209]
The state must prove each of these elements beyond a reasonable doubt to satisfy
traditional procedural due process concerns.
[210]
The state relied on psychiatric testimony to establish future
dangerousness, calling two psychiatrists, Drs. John Holbrook and James Grigson,
to testify at the punishment stage of the trial. Each doctor was posed a hypothetical
fact situation based on the evidence in the case and asked if the individual
described in that question would probably commit future acts of violence that
would constitute a continuing threat to society. Each doctor testified that,
in his opinion, the hypothetical criminal would continue to be dangerous.
[211]
In addition to this expert testimony, numerous lay witnesses testified that
"'appellant's reputation in their
*361 communities for being a peaceful
and law-abiding citizen was bad."'
[212] The
judge then sentenced Barefoot to death.
In his appeal to the Court of Criminal Appeals, the defendant
raised several questions about the conduct of his trial.
[213]
The issue that is central to the jurisprudence of prevention is the effect of
the term "probability"' in the test for future dangerousness. Defendant argued
that thisterm should have been defined in the jury instructions.
[214]
In addition, defendant asserted that, since they had not examined him, the psychiatrists
should have been precluded from testifying in response to a general hypothetical.
[215]
He also questioned the qualifications of psychiatrists as a group to predict
dangerousness.
[216] The Court of Criminal
Appeals rejected all of appellant's points of error.
[217]
The United States Supreme Court also rejected the defendant's
challenge that psychiatrists as a group are incompetent to determine dangerousness
to a sufficient degree of certainty.
[218]
The Court reasoned that psychiatrists are no less reliable than laypersons,
and that lay testimony is sufficient to establish future dangerousness.
[219]
The Court addressed the issue of the degree of accuracy necessary for determining
dangerousness:
Dr. John Monahan, upon whom one of the State's experts relied
as "the leading thinker on this issue"' concluded that "the 'best' clinical
research currently in existence indicates that psychiatrists and psychologists
are accurate in no more than one out of three predictions of violent behavior
over a several-year period among institutionalized populations that had both
committed violence in
*362 the past . . . and who were diagnosed as mentally
ill."'
[220]
The Court pointed out that Dr. Monahan did believe there were
circumstances in which prediction is "empirically possible and ethically appropriate,"'
[221]
but it is difficult to accept that the determination in Barefoot would fit these
circumstances.
[222] The experts did not even
examine defendant, but instead rendered their opinions based on hypothetical
questions.
[223] The Court held that the use
of hypothetical questions to establish future dangerousness is proper
[224]
because the admissibility of such testimony is supported by the Federal Rules
of Evidence.
[225] The Court refused to find
that death penalty cases pose special evidentiary problems.
[226]
The Court's approach imposed upon the defendant the harsh burden of convincing
a lay jury
[227] to disregard the expert testimony
of the state's psychiatrists.
[228]
*363 Barefoot is an extreme example of judicial deference
to expert decisionmaking. The Texas legislature avoided due process challenges
to its death penalty guidelines by preserving the facade that a jury may only
recommend death after determining beyond a reasonable doubt that the defendant
posed a future danger,
[229] while, in reality,
an expert determines "whether there is a probability"' that the defendant will
be dangerous in the future.
[230] Since, on
the face of the statute, any probability would do, it is the expert who effectively
decides whether the defendant is dangerous enough to die. The jury only decides
whether it believes the expert. Thus, "beyond a reasonable doubt"' is transformed
into an "any evidence at all"' standard.
[231]
Putting aside the policy that death penalty cases deserve special
standards,
[232] Barefoot allows a person
to be put to death on little more
[233] than
a chance that he or she poses a threat to society.
[234]
While this is an extreme result, it may nonetheless be rational. The issue of
future dangerousness is not reached until the defendant is convicted with full
due process protections of capital murder. Constitutionally, Texas could sentence
the defendant to death without further findings. Instead, it requires the defendant's
life to be balanced against the potential threat that he or she poses to society.
Balancing individual liberty against potential
*364 harm to society is
the fundamental expert determination in public health jurisprudence.
Harsh as the result in Barefoot is, the expert decision making
occurred only after a full criminal trial. In the subsequent prevention cases,
beginning with Schall v. Martin, the Supreme Court extended the role of the
expert to the determination of whether a person should be confined at all. These
cases have erased the bright line between dangerousness based on criminal activity
and dangerousness based on health and safety concerns. The Supreme Court based
its abandonment of this traditional distinction on the application a societal
self-defense analysis.
[199] 463 U.S. 880, reh'g
denied, 464 U.S. 874 (1983).
[200] Barefoot v. State,
596 S.W.2d 875 (Tex. Crim. 1980), reh'g denied. At the time this case was heard,
the Court of Criminal Appeals was the court of last resort for criminal cases
in Texas.
[201] This discussion is
not meant to endorse the Supreme Court's decision in Barefoot.
[202] Barefoot v. State,
463 U.S. at 888.
[203] Texas Code Crim. Proc.
Ann. art. 37.071 (Vernon 1981), requires that the jury find: "(c) The state
must prove each issue submitted beyond a reasonable doubt, and the jury shall
return a special verdict of 'yes' or 'no' on each issue submitted."
[204] "Appellant contends
that the trial court erred by refusing to define 'probability' in its charge
to the jury at the punishment stage of the trial. This Court has previously
held that such a definition is not required."' Barefoot v. State, 596 S.W.2d
at 887.
[205] This case only applies
to persons convicted of capital murder. Conversely, under Texas law a capital
murderer may not be put to death unless the state can establish future dangerousness.
By allowing Texas to use a regulatory standard of proof for this determination,
the Supreme Court is endorsing regulatory executions.
[206] Barefoot v. Estelle,
463 U.S. at 883-84 & n.1.
[207] Texas Code Crim. Proc.
Ann., art. 37.071 (Vernon 1981), requires that the jury find: "(1) whether the
conduct of the defendant that caused the death of the deceased was committed
deliberately and with the reasonable expectation that the death of the deceased
or another would result."
[208] Texas Code Crim. Proc.
Ann., art. 37.071 (Vernon 1981), requires that the jury find: "(3) if raised
by the evidence, whether the conduct of the defendant in killing the deceased
was unreasonable in response to the provocation, if any, by the deceased."
[209] Texas Code Crim. Proc.
Ann., art. 37.071 (Vernon 1981), requires that the jury find: "(2) whether there
is a probability that the defendant would commit criminal acts of violence that
would constitute a continuing threat to society"'.
[210] See supra note 138
and accompanying text.
[211] Barefoot v. State,
596 S.W.2d at 887.
[213] The Texas Court of
Criminal Appeal noted:
Appellant contends that the trial court erred by failing to
instruct the jury at the guilt-innocence stage of the trial on the law of circumstantial
evidence, denying his motion for change of venue, overruling his challenges
for cause of three prospective jurors, refusing his request for additional peremptory
challenges, admitting evidence of extraneous offenses, failing to define "probability"'
in the charge at the punishment stage, and overruling his objections to the
testimony of two witnesses as to the probability he would commit acts of violence
in the future. Appellant also contends that art. 37.071, V.A.C.C.P., is unconstitutionally
vague.
Id. at 878.
[214] The Court of Criminal
Appeals, relying on King v. State, 553 S.W.2d 105 (Tex. Crim. App. 1977), affirmed
the trial court's refusal to give an instruction defining probability. 596 S.W.2d
at 878.
[215] Id. at 887. In his
appeal to the U.S. Supreme Court, the defendant also attacked the authority
of psychiatrists to determine future dangerousness. See Barefoot, 463 U.S. at
896-97.
[217] Id. at 889: "The evidence
that we have already summarized in this opinion is amply sufficient to support
the jury's verdict and the court did not err in overruling appellant's motion
for an instructed verdict."
[219] Id. (citing with approval
Jurek v. Texas, 428 U.S. 262, 274-76 (1976)).
[220] Barefoot, 463 U.S.
at 899-900 n.7 (citing "Tr. of Hearing"' at 195 (quoting J. MONAHAN, THE CLINICAL
PREDICTION OF VIOLENT BEHAVIOR 47-49 (1981) (emphasis in original). The United
States Supreme Court found the issue of the proper standard of proof for future
dangerousness to be of secondary importance. In the Court's view, the primary
issue was whether the handling of the habeas corpus petition in this death penalty
case had been proper. Most of the Supreme Court's opinion is concerned with
"the question presented by the application, namely, the appropriate standard
for granting or denying a stay of execution pending disposition of an appeal
by a federal court of appeals by a death-sentenced federal habeas corpus petitioner
. . . . " Id. at 887 (quoting Barefoot, 459 U.S. 1169 (1983)).
[221] Barefoot, 463 U.S.
at 889-901 n.7.
[222] "Doctor Grigson . .
. has been used by the state of Texas for dozens of sentencing hearings in death
penalty cases and virtually each time had testified that the defendant was incorrigibly
dangerous, thus permitting them to be sentenced to death. Texas newspapers have
labeled him 'Doctor Death."' Reuters News Service, May 18, 1981.
[223] Barefoot, 463 U.S.
at 885.
[224] Id. at 903 (citing
Spring Co. v. Edgar, 99 U.S. 645, 657 (1879) (use of hypothetical questions
in place of testimony based on expert's personal evaluation of evidence is proper)).
[226] "Although cases such
as this involve the death penalty, we perceive no constitutional barrier to
applying the ordinary rules of evidence governing the use of expert testimony."'
Id.
[227] Texas provides indigents
$500 for the costs of investigation and engaging expert witnesses. Id. at 899
n.5. At the time the Barefoot case was originally tried, the "going rate"' in
Texas for preparation and trial testimony exceeded $1500 for a physician expert.
[228] See Justice Blackmun's
dissent for a detailed analysis of the problems in refuting pseudo-scientific
testimony. Id. at 916-38. The United States Supreme Court acknowledged the danger
of expert testimony in Satterwhite v. Texas, 108 S. Ct. 1792, 1796 (1988):
The controversy in Estelle v. Smith [451 U.S. 454 (1981)] also
centered on the expert testimony of Dr. James P. Grigson. In that case, as in
this, Dr. Grigson appeared as a witness for the State in a capital sentencing
proceeding and testified that the defendant was a severe sociopath who would
continue to commit violent crimes in the future. He based his testimony upon
a psychiatric examination of the defendant that he had conducted pursuant to
court order. The problem in the case was that defense counsel were not given
advance notice that Dr. Grigson's psychiatric examination, encompassing the
issue of their client's future dangerousness, would take place. We recognized
that, for a defendant charged with a capital crime, the decision whether to
submit to a psychiatric examination designed to determine his future dangerousness
is "literally a life or death matter"' which the defendant should not be required
to face without "the guiding hand of counsel."
Id. (quoting Estelle v. Smith, 451 U.S. at 471 (quoting Smith
v. Estelle, 602 F.2d 694, 708 (5th Cir. 1979) and Powell v. Alabama, 287 U.S.
45, 69 (1932))).
[229] Texas Code Crim. Proc.
Ann., art. 37.071 (Vernon 1981), quoted in Barefoot, 463 U.S. at 883-84 n.1.
[230] Barefoot, 416 U.S.
at 916-19.
[231] Barefoot had not been
convicted of any crimes of violence in the past. There was testimony that he
had broken out of jail in New Mexico where he was being held on charges of sexual
assault. The state also presented witnesses to his bad character, but they testified
as to general character, rather than specific events that would allow the jury
to independently evaluate Barefoot's proclivities. Barefoot, 463 U.S. at 917
(Blackmun, J., dissenting.)
[232] Justice Blackmun's
dissent refers to Woodson v. North Carolina, 428 U.S. 280, 305 (1976) as a statement
of the traditional policy for death penalty determinations:
Death, in its finality, differs more from life imprisonment
than a 100-year prison term differs from one of only a year or two. Because
of that qualitative difference, there is a corresponding difference in the need
for reliability in the determination that death is the appropriate punishment
in a specific case.
Id. at 924 (Blackmun, J., dissenting (quoting Woodson, 428 U.S.
at 305)).
[233] While the jury must
answer yes to three special issues to trigger the imposition of the death penalty,
two of these issues are also elements of capital murder. These elements would
already have been established in the determination of guilt phase of the trial.
See Barefoot, 463 U.S. at 916-17 n.l (Blackmum, J., dissenting).
[234] "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.
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