Texas: Longtime expert witness unreliable, court says

Dr. Richard Coons has testified in more than 150 death penalty cases on whether those found guilty would pose a significant future threat.

In his decades working as a forensic psychiatrist, Dr. Richard Coons of Austin has testified at dozens of death penalty trials across Texas in which he opined about how defendants would behave in the future.

In Travis County, prosecutors called him in the past year to testify during the sentencing trials of killers Milton Gobert and Paul Devoe. Coons pronounced that, in his expert opinion, both men would be a future danger. They both received the death penalty.

Coons' paid testimony at those trials and others could get new scrutiny after the Court of Criminal Appeals ruled last week in a Waco death penalty case that Coons' methodology for predicting future dangerousness is not reliable.

The court upheld Billy Wayne Coble's death sentence in the killings of his wife's mother, father and brother, ruling that other evidence presented at sentencing supported the McLennan County jury's findings.

The ruling, however, was a significant victory for capital defense lawyers statewide who for years have fought to persuade courts to prohibit the testimony of Coons and other forensic psychiatrists. The lawyers say such testimony offers nothing more than opinions.

"If you are going to be an expert, you should have some scientific basis of what you are testifying about," said Russ Hunt Jr., a Georgetown lawyer who represented Coble at trial. Coons "basically just says, 'Trust me. I'm a doctor. I know it when I see it,' " Hunt said.

In an interview Monday, Coons, 70, defended his work and said he recently stopped taking death penalty cases. During his more than 30-year career, he has sided with the defense many times in death penalty evaluations, Coons said.

He said he has consulted with lawyers in about 150 capital cases and testified at trial in about 50. Coons has rebutted the testimony of other psychiatrists, including the one who testified for Coble at trial, who used an actuarial method that factors in prison crime statistics in deciding whether the defendant will be dangerous in the future.

"A huge amount of (prison crime) goes unreported," Coons said Monday .

For someone to be sentenced to death in Texas, juries must find that there is a probability they pose a continuing threat to society by committing continuous acts of violence and that there are no mitigating factors to warrant a sentence of life in prison.

The U.S. Supreme Court ruled in 1983 in Barefoot v. Estelle that psychiatrists are competent to give opinions on the first question: the so-called future dangerousness of the defendant.

The testimony often comes after a psychiatrist interviews the defendant and evaluates pertinent documentation from the case, including their medical and criminal history. But even when the defendant is not interviewed, psychiatrists are sometimes allowed to give an opinion on a hypothetical scenario, usually one that matches the facts of the case at issue.

At Coble's trial, Coons testified that he has developed his own methodology to come to a conclusion on future dangerousness, one in which he considers factors such as the person's conscience, criminal history and attitudes toward violence.

"These factors sound like common sense ones that the jury would consider on its own," Judge Cathy Cochran wrote in the opinion for the court. Cochran noted that Coons could not show how his past predictions have fared or whether the factors he has considered are validated by any research.

In a dissenting opinion, Judge Sharon Keller said expert witnesses with some specialized knowledge should be allowed to testify about it to aid the jury in reaching a conclusion. Coons' experience and educational background "place him in a better position than the average juror."

Coble was convicted of capital murder in 1990. He had a new sentencing trial in 2008, and his lawyers argued that his stellar behavior on death row in the intervening years shows he is not dangerous.

Coons testified at the new sentencing trial that he had not reviewed his original notes of Coble's sentence. But Coons said he came to the same conclusion that he had in 1990 -- that Coble is dangerous.

Alexander Calhoun, another one of Coble's trial lawyers, said before cross-examining Coons at the 2008 trial, he reviewed many transcripts of Coons' testimony in prior cases.

Although the trial judge in that case allowed Coons' testimony, Calhoun said he thinks the record of his questioning impressed the appeal's judges. "It's overdue that the court found that he was unreliable," Calhoun said.

Philip Wischkaemper , a deputy public defender at a West Texas regional public defender's office for capital cases, said that prosecutors might hesitate to use testimony similar to Coons' in the future.

He also said that some cases on death row in which Coons testified might be newly scrutinized. Wischkaemper said it's unclear now whether any of those efforts would be successful and could depend on whether lawyers at trial objected to Coons' testimony at the time.

There are 6 people on death row out of Travis County. Prosecutors could not immediately recall all of the cases in which Coons testified.

Gobert was convicted earlier this year in the 2003 killing of Mel Kernena Cotton, his ex-girlfriend's friend.

Devoe was convicted a year ago in the killing of two teenagers in Jonestown. Officials said those deaths were part of a six-person killing spree in 2007.

Before he told the jury Devoe would pose a future danger, Coons testified, "I didn't see an ounce of remorse from this fellow when I evaluated him."

In that case, as well as Gobert's, the jury heard exhaustive testimony of both defendants' history of physically abusing women. Prosecutor Bryan Case said that testimony would have been enough to sustain a death sentence, even without Coons' testimony.

Source: Austin American-Statesman, October 19, 2010