The CCA today handed down its opinion on a capital murder punishment retrial that Alex Calhoun and I tried 2 years ago in Waco in the Billy Wayne Coble case.
After reading the opinion I must point out the success of Walter Reaves on appeal and co- counsel Alex Calhoun’s trial court work in the case. As I have related to many folks, Alex joined in a pitched battle with Dr. Coons in a very long Daubert/Kelly hearing at trial which of course we lost. In addition to Alex’s persistent work, I personally felt victorious because judge Johnson didn’t throw Alex in jail for contempt at the hearing. Our argument was that Dr. Coons should not be allowed to opine about whether Coble posed a “future danger.” The CCA quoted my jury argument on the issue of Dr. Coons’ methodological shorcomings at length:
And Dr. Cunningham talked about being a scientist and what that means. What that means is, I don’t just look at the evidence and make a wild guess. Okay. I’m not a tea-leaf reader. I’m not a guy who says, well, I’m just going to depend on my-my experience and say this person is a future danger-okay-without going back and checking my work, without quantifying things, without being able to say, you know, I’m correct to this certain quantum of correctness. . . . So he’s a scientist. A scientist comes up with an idea, a theory. Okay. He tests that theory. He doesn’t just test the theory, but he also gives his data to other scientists to look at, so they can test his theory. Then he goes back and double-checks his work. Then he thinks, now, maybe there’s a weakness in my own argument that I’ve already made. Let’s go back and double-check that weakness and see it that changes our numbers or does that reinforce our numbers. All right. So that’s what a scientist is supposed to do.
Do you remember Dr. Coons’s testimony? Dr. Coons, do you check your work? Not really. Dr. Coons, do you remember going back and looking at the records of people that you have predicted are going to be a future danger to see if they really were? Well, I’m sure I’ve done it, but I can’t tell you who I’ve done it with. In other words, he’s a guy who is completely uninterested in whether he’s correct or not. . . .
. . . How can he ever get better? How can he establish for the jury that his opinion is reliable? He can’t because he’s not a scientist. He’s a tea-leaf reader.
Skip and Alex won on that issue on appeal. The CCA agreed that Dr. Coons’ “I know it when I see it” testimony is not scientifically valid and should not have been admitted. Based upon the specific problems and omissions cited above, we conclude that the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coons’s methodology for predicting future dangerousness by clear and convincing evidence during the Daubert/Kelly gatekeeping hearing in this particular case. We conclude that the trial judge therefore abused his discretion in admitting Dr. Coons’s testimony before the jury. Of course the CCA then turned around and said the error was not reversible because there was ample other evidence of dangerousness. So the CCA snatched defeat from the jaws of victory. However, this is a battle capital defenders have been fighting for years and this is a real win for capital defenders statewide. Either Dr. Coons will have to come up with a scientifically valid basis for their predictions or they’ll have to get out of the business altogether. Great work Alex and Skip. For addtional analysis of this opinion: 10/16/10 Grits for Breakfast 10/19/10: Stand Down Texas posting with links to earlier discussion of future dangerousness in capital cases and the Texas Defender Service ‘s report on same