Free Response to Motion - 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-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, 2. RUDY CABRERA SABLAN, Defendants.

GOVERNMENT'S RESPONSE TO DEFENDANTS' MOTIONS TO PRECLUDE EXPERT TESTIMONY ON THE ISSUE OF FUTURE DANGEROUSNESS [Wm DP-25 and R-50]

The United States of America, by William J. Leone, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, responds as follows to 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]1 and Rudy Sablan's Motion to Preclude Expert Testimony on the Issue of Future Dangerousness [R-50].

The government does not object to William Sablan's Motion to Adopt Rudy Sablan's Motion to Preclude Expert Testimony on the Issue of Future Dangerousenss [Docket No. 1708].

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A. OVERVIEW In 1983, the Supreme Court decided Barefoot v. Estelle, 463 U.S. 880 (1983). The Court squarely rejected the argument that, because it is inherently unreliable, psychiatric testimony predicting future dangerousness should be barred from death penalty cases. In order to try to get around Barefoot v. Estelle, the defendants claim that things have changed since 1983 and that the Supreme Court's more recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), precludes expert testimony on future dangerousness. In fact, nothing has changed. Barefoot is still controlling law and compels the denial of both defendants' motions. The fact that Barefoot is controlling is reflected in what sources of authority the defendants must resort to in support of their motions ­ one district court opinion, United States v. Sampson, 335 F. Supp. 2d 166 (D. Mass. 2004), and one concurring appellate opinion. Flores v. Johnson, 210 F.3d 456, 458 (5 th Cir. 2000) (Garza, J., concurring). No other court has per se excluded expert testimony on future dangerousness. B. BAREFOOT V. ESTELLE At trial in Barefoot, the State of Texas called two psychiatrists who testified that the defendant would probably commit further acts of violence and represented a continuing threat to society. 463 U.S. at 884. There were three issues before the Supreme Court in Barefoot: (1) whether psychiatrists are incompetent to predict with an

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acceptable degree of reliability that a particular criminal will commit other crimes in the future; (2) whether psychiatrists should be barred from testifying about future dangerousness without having personally examined the defendant and in response to hypothetical questions; and (3) whether the psychiatric testimony about future dangerousness in that case was so unreliable that it constituted reversible error. 463 U.S. at 896. The Supreme Court stated that "we reject each of these arguments." Id. The Court explained: The suggestion that no psychiatrist's testimony may be presented with respect to a defendant's future dangerousness is somewhat like asking us to disinvent the wheel. In the first place, it is contrary to our cases. If the likelihood of a defendant committing further crimes is a constitutionally acceptable criterion for imposing the death penalty, which it is, Jurek v. Texas, 428 U.S. 262 (1976), and 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, out of the entire universe of persons who might have an opinion on the issue, would know so little about the subject that they should not be permitted to testify. Id. at 896-97. A critical factor in courts allowing expert testimony on the subject of future dangerousness is the fact that predictions of future dangerousness are routinely made in almost all criminal trials. As Justice Stevens explained in Jurek v. Texas, 428 U.S. 262, 274 (1976): [P]rediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct. Any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose.

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Because such predictions of future dangerousness are inherent to the criminal justice system, the defendants' request to bar such testimony would have broad consequences: "Acceptance of petitioner's position that expert testimony about future dangerousness is far too unreliable to be admissible would immediately call into question those other contexts in which predictions of future behavior are constantly made." Barefoot, 463 U.S. at 898. As a result, instead of barring such testimony, courts have relied upon crossexamination and rebuttal witnesses to point out limitations in future dangerousness predictions: "[T]he rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the fact finder, who would have the benefit of cross examination and contrary evidence by the opposing party." Id. at 898. Of course, if expert testimony about future dangerousness is as demonstrably unreliable as the defendants claim it is, they can effectively cross-examine a government expert and also call experts of their own to rebut it. For this reason, such evidence is not excludable under 18 U.S.C. § 3593(c) as having "probative value" that is "outweighed by the danger of creating unfair prejudice, confusing the issues or misleading the jury." 2 One remedy the defendants do not have,

"Vigorous cross-examination, presentation of contrary evidence and careful instruction on the burden of proof are traditional and appropriate means of attacking shaky but admissible evidence." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993). 4

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after Barefoot, is to ask for the categorical exclusion of expert testimony on the issue of future dangerousness. C. DAUBERT DOES NOT OVERRULE BAREFOOT Both defendants suggest that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), has somehow overruled Barefoot and precludes the admission of expert testimony on future dangerousness. See William Sablan's Motion to Strike Future Dangerousness [Wm DP-25] at 6 ("The Daubert decision dooms expert testimony on future dangerousness"); Rudy Sablan's Motion to Preclude [R-50] at 5 ("apply the standards of Daubert-Kumho to this category of `evidence' and exclude it"). Defendants, however, cannot cite a single case that has done so. The fact that Barefoot was not decided in the context of Rule 702 does not have the significance that defendants attribute to it. Two of the three issues addressed by the Court in Barefoot involved the reliability of psychiatric testimony regarding future dangerousness. Reliability and relevance are the two lynchpins under Rule 702. Daubert, 509 U.S. at 589. The defendants do not suggest that future dangerousness is not a relevant to the penalty phase. The fact that Barefoot did not find that psychiatric testimony regarding future dangerousness is so inherently unreliable so as to exclude it is directly translatable to Rule 702 despite the fact that Barefoot was not decided under Rule 702.

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In fact, the Court in Barefoot was presented with the same type of studies that the defendants cite on the unreliability of dangerousness predictions, but rejected them as the basis of excluding expert testimony. For example, the Court noted that the defendant presented expert testimony at a habeas corpus hearing that psychiatric predictions of future dangerousness were wrong two out of three times. 463 U.S. at 899 n. 7. The defendants do not cite any greater rate of error in more recent articles or studies twenty years after Barefoot was decided. Unlike the guilt phase of a case under the Federal Death Penalty Act, the penalty phase is not governed by the Federal Rules of Evidence. 18 U.S.C. § 3593(c). Under this section, "information is admissible [during the penalty phase] regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." For this reason, Daubert, which was explicitly premised on the Federal Rules of Evidence, is inapplicable to the penalty phase. Daubert makes clear that its criteria for determining admissibility derive specifically from Rule 702 with its dual prongs of relevance and reliability. Id. at 589592. While a court should take these criteria into account in determining the admissibility of evidence during the penalty phase it is only because they inform the court's balancing

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under Section 3593(c). As a result, Daubert does not exclude expert testimony regarding future dangerousness. Both defendants also request that the Court conduct a Daubert hearing in the event that the government gives notice that it will call an expert to testify about future dangerousness. Given that the rules of evidence do not apply during the penalty phase, such a hearing is not necessary or required. Compare United States v. Nichols, 169 F.3d 1255, 1262-64 (10 th Cir. 1999) (Daubert does not necessarily require a preliminary evidentiary hearing). Finally, William Sablan requests that the Court "strike future dangerousness." William Sablan's Motion to Strike Future Dangerousness [Wm DP-25] at 1, 6. It is not clear what he means by that phrase. Presumably he means striking future dangerousness from any aspect of the penalty phase. However, William Sablan fails to cite any case law for that sweeping proposition, nor is there any such authority. See Simmons v. South Carolina, 512 U.S. 154, 162 (1994) ("This Court has approved the jury's consideration of future dangerousness during the penalty phase of a capital trial, recognizing that a defendant's future dangerousness bears on all sentencing determinations made in our criminal justice system.") WHEREFORE the United Stated requests that William Sablan's Motion to Strike Future Dangerousness on the Grounds that Neither Experts Nor Lay Persons, Including

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Jurors, Are Capable of Reliably Predicting It [Wm DP-25] and Rudy Sablan's Motion to Preclude Expert Testimony on the Issue of Future Dangerousness [R-50] be denied.

Respectfully submitted this 27 th day of March, 2006.

WILLIAM J. LEONE United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 27th day of March, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANTS' MOTIONS TO PRECLUDE EXPERT TESTIMONY ON THE ISSUE OF FUTURE DANGEROUSNESS [Wm DP-25 and R-50] with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for William Sablan Patrick J. Burke [email protected]

Attorneys for Rudy Sablan Donald R. Knight [email protected] Forrest W. Lewis [email protected]

Nathan Dale Chambers [email protected] [email protected]

Susan Lynn Foreman [email protected]

Dean Steven Neuwirth [email protected]

s/ Donna Summers DONNA SUMMERS Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0406 E-mail address [email protected]

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