Flores was convicted and sentenced to death for the June 1989 murder
of Eastern New Mexico University student, Angela Tyson, who was
working for the summer at a local video rental store.
Flores kidnapped Tyson as she was closing and leaving the store.
Flores forced Tyson into her car and then drove to a remote location
away from the city. There, he raped her and stabbed her repeatedly,
leaving her in the car, then fled the scene.
Flores turned himself in to the police the day her body was found,
confessing to the crime. Flores was a mexican foreign national with
no prior criminal record.
Texas Attorney General
Miguel Angel Flores Scheduled To
Flores was convicted and sentenced to death for
the June 1989 murder of Angela Tyson. Flores kidnapped Tyson as she
was leaving the video rental store where she worked in Borger,
Flores forced Tyson into her car and then drove to a remote
location away from the city. There, Flores raped Tyson. He then
stabbed her numerous times, killing her. Flores turned himself in to
the police the day Angela Tyson's body was found.
Flores turned himself in to police the day Angela
Tyson's body was found. Flores gave police four tape recorded
statements, confessing to the murder.
Flores told police that he and
Angela sat in her car for about ten minutes without talking and then
he took out a pocket knife and stabbed her.
DNA tests performed on
semen found on Tyson's body showed the DNA matched Flores. Flores'
car was found at the video store where he kidnapped Tyson.
December 8, 1993 - Texas Court of Criminal
Appeals affirmed Flores' conviction.
March 9, 1994 - Texas Court of Criminal Appeals denied rehearing.
October 11, 1994 - U.S. Supreme Court denied Flores' petition for
writ of certiorari.
June 5, 1995 - Flores filed an application for writ of habeas corpus
in state court. Based on the filing, the trial court recommended
denial of relief.
July 28, 1995 - Court of Criminal Appeals denied relief.
November 6, 1998 - District court denied relief based on the
petition for federal habeas corpus that Flores filed.
April 20, 2000 - Fifth Circuit Court of Appeals affirmed the
district court's denial of relief.
Flores has no prior criminal record and a
clemency petition with the Texas Board of Pardons and Paroles which
Miguel Flores was convicted of the June 28, 1989
kidnapping, rape and stabbing of an Eastern New Mexico University
Flores went to death row in 1990 for the slaying
of Angela Tyson, a beauty queen and outstanding college student in
Portales, N.M., who was working over the summer at a video rental
store in Borger in the Texas Panhandle.
Flores rented a movie from
the store, went home and began watching it but apparently became
fixated on Angela, and returned a short time later to await the
store's closing time.
Flores abducted Angela at knifepoint as she was
closing the store and forced her into her car. He drove her to a
remote area outside Borger, where he sexually assaulted her.
Angela's parents knew she would not be late coming home so her
father went out looking for her.
After the rape, Flores drove Angela to a spot
where they were seen by the victim's father. He approached the
driver's side of the car and Flores pushed Angela to the floorboard,
then tried to run down Angela's father with her car. Angela's father
tried to chase them, but lost track of the fleeing vehicle.
Flores drove back to Borger, where he parked the car and talked to Angela
for several minutes. When Angela began screaming, Flores stabbed her
with a pocket knife. She was stabbed 6 times in the chest and 4
times in the back. Her body was found in the front seat of her car
about 1 a.m. June 29, 1989.
Flores confessed to the murder and led police to
the rape site for additional evidence. Flores came within days of
being executed in 1995. On Aug. 5, 1995, Flores received a stay of
execution from U.S. District Judge William Wayne Justice.
Attorney John Jay Thorpe asked that the court
appoint him to represent Flores at the federal level and to put off
the execution. Justice granted Thorpe's request and gave him 180
days to prepare the petition that would challenge the
constitutionality of Flores' conviction and death sentence.
Texas Court of Criminal Appeals upheld Flores' conviction and death
sentence in December 1993 and denied an application for relief on
July 28, 1995, court documents show.
Tyson Family Won't Forgive Apologetic Flores
By Deon Daugherty
HUNTSVILLE (Morris News Service) - A convicted
killer whose supporters included the Mexican government and a host
of other international leaders was executed Thursday night.
Miguel Flores, 31, thanked his family and
attorneys for their faith as he was strapped to a gurney waiting for
the lethal injection. After turning his head to look at the parents
of his victim, 20-year-old Angela Tyson of Borger, he apologized to
them and told them he had said a prayer this day for them to find
peace. Gerald Tyson, father of the victim, shook his head.
After Flores was pronounced dead, Tyson and his
wife, Minnie, said they would not forgive Flores. "He took away too
much," Gerald Tyson of Borger said, adding that his family wanted
the world to know that Angela Tyson was a precious life. Other
friends of Tyson also were present for Flores' execution.
Flores was convicted and sentenced to the death
penalty by a Collin County jury in September 1990 for the 1989
abduction, rape and fatal stabbing of Angela Tyson in Borger. Angela
Tyson was an Eastern New Mexico University student and beauty
pageant finalist who was working in a Borger video store for the
Flores nodded to a warden to begin the lethal
flow. "God is waiting for me," he said. "God is waiting now."
Flores' only family witness was an aunt. His mother, grandfather and
other relatives waited nearby, "immobilized with grief," said his
attorney, Elizabeth Cohen. Flores' last meal was Mexican food.
He requested three beef enchiladas, three cheese enchiladas, Spanish
rice, a bowl of jalapenos, french fries, a cheeseburger, condiments,
three Dr Peppers, a banana split and four quesadillas.
Cohen and Flores' other supporters had been
hopeful for a call from Gov. George W. Bush to hold off the
execution for 30 days. The U.S. Supreme Court voted Thursday against
staying Flores' execution for 30 days. The court also had granted
three votes for a full review, which had been requested by Flores'
Justice John Paul Stevens, one of the four who
voted for a stay, didn't indicate whether he wanted to hear the
case, said Mark Warren, a spokesman for Flores' defense team. "Why
stay the execution if you don't want to hear the case?" Warren said.
In a death penalty case, four court votes for a hearing grants an
automatic stay of execution.
Flores' attorneys had renewed their request to
the governor for a 30-day reprieve, which the Texas board of pardons
and paroles recommended against late Wednesday.
The governor could
grant only a 30-day reprieve without a board recommendation for
clemency. But that time would have allowed his defense team to ask
for more information on the Supreme Court's decision, they said.
Just a day before, the Texas Board of Pardons and
Paroles voted unanimously not to recommend the governor grant a 90-day
reprieve or give Flores clemency.
Flores' attorneys said they found
the court ruling so "baffling" that they renewed their request for a
reprieve to have time to go back to the court and ask for an
explanation. "The only person in the world who can make a decision
about this is Gov. Bush, and this is exactly (like) what's going on
in Florida," Warren said Thursday afternoon. "Surely, Gov. Bush can
understand the need for a 'recount."'
Defense attorney Richard Ellis, who witnessed the
execution, said the governor's lack of action in this case sends a "very
dangerous signal" to the rest of the world regarding the U.S.
approach to violations of the Vienna Convention.
Flores' attorneys have argued that, at least in
part because Borger authorities didn't notify the Mexican consulate
of his arrest in 1989, his trial was unfair. Protesters lined a
block along with Huntsville Unit, chanting "justice" and "George
Bush is a serial killer."
Representatives of the Mexican and
Argentine consulates were present. Marco Dosal, a spokesman for the
Mexican consulate, said those leaders would continue to protest the
executions of Mexican nationals in Texas. With the execution of
Flores, 16 other nationals are on death row.
Flores' execution was the 35th this year, with
six more scheduled.
Killer on Death Row Asks For Justice, New
By Deon Daugherty
LIVINGSTON (Morris News Service) - Convicted of
capital murder and scheduled to die today, Miguel Flores isn't
asking for his life, only justice, he said. In a death-row interview
barely more than 24 hours before he is scheduled to receive a lethal
injection today for the rape and fatal stabbing of a college woman
11 years ago, Flores said Wednesday that he doesn't think he had a
sentencing hearing at all.
Flores was convicted and sentenced to the death
penalty by a Collin County jury in September 1990 for the the 1989
abduction, rape and fatal stabbing of 20-year-old Angela Marie Tyson,
an Eastern New Mexico University student and beauty pageant finalist
who was working in a Borger video store for the summer.
He and his supporters say an incompetent defense
attorney appointed by the court failed him during the sentencing
phase of his trial.
They argue that Amarillo attorney Gene Storrs
should have called character witnesses and disputed the statements
of a psychiatrist who testified for prosecutors that Flores would be
a threat to society.
Storrs has said that because the case is still
in the appellate stages, it wouldn't be ethical for him to comment.
The case is pending before the U.S. Supreme Court.
Flores' new defense attorney, Elizabeth Cohen,
and Mexican government leaders said that had Borger police notified
the Mexican consulate of Flores' arrest - as stipulated by the
Vienna Convention treaty both the United States and Mexico signed -
those leaders could have ensured he had a fair day in court. And
that's all Flores said he wants. "If everything - all of the
evidence - had been in front of the jury, and they gave me a death
sentence, then that would be justice," Flores said.
Part of the evidence Mexican officials now want
the governor, the Texas Board of Pardons and Paroles, and the court
to consider is the lack of violence in Flores' life prior to Tyson's
murder and during his time in prison. Flores, 31, has caused no
problems during his time on death row, said Texas Department of
Criminal Justice spokesman Larry Fitzgerald. Flores has worked in
the garment factory, which closed after an escape, and in the
cleaning detail in the Ellis Unit.
The former carpenter doesn't claim he is innocent
of Tyson's murder. He said he thinks he has blocked out the memory
of the killing. It frustrates him, he said, because neither he nor
his family can imagine him doing such a crime. "I can't explain it,"
he said. Flores' recent psychiatric evaluation suggests a "moderately
severe emotional disorder" and that he has a profile fitting people
with post traumatic stress disorder and traits of a "schizoid
Despite the findings of emotional troubles and
reported drug and alcohol abuse, Flores said a lot of things factor
into the mistakes people make. "I don't want to make it sound like
an excuse," Flores said, adding that he feels sorry for his crime
and sorry toward Tyson's family. "I probably couldn't apologize
enough," Flores said. "I hope they can forgive me one day. "If it
takes the death penalty tomorrow ... I just hope that they find
Flores' family and supporters asked for clemency
in his case. Tyson's family has spoken out against a life sentence
for Flores because under 1989 sentencing guidelines, he would be
eligible for parole in four years.
Flores pointed out that being
eligible for parole doesn't mean he would get it. And, he said,
being much older now, he thinks he could control whatever impulse
drove him to violence one summer night. While Flores' supporters
express anger at a system that they think executes only the poor,
Flores said he's not angry, just sad. And a little scared. "I
believe in God," Flores said. "What I'm scared of is not going to
heaven, you know?"
Texas Execution Information
Center by David Carson
Miguel Angel Flores, 31, was executed by lethal
injection on 9 November in Huntsville, Texas for the murder of a 20-year-old
In June 1989, Angela Marie Tyson was closing the
Borger video rental store where she was working that summer when
Miguel Flores entered and abducted her at knifepoint.
Flores forced Tyson into her car and took her to
a remote area where he raped her. He then took her back into town,
where he parked the car and talked to her for several minutes.
she began screaming, Flores stabbed her with a pocket knife six
times in the chest and four times in the back. He then left his
victim in her car and fled the scene. When Flores learned that
police were looking for him, he turned himself in and confessed to
Court testimony showed that Flores was infatuated
with Angela Tyson and visited the video store frequently on nights
she was working there. He was found guilty of capital murder and
sentenced to death by a jury.
On appeal, Flores' lawyers raised the point that
Flores, a Mexican citizen, was not informed of his right to
communicate with the Mexican consulate at the time of his arrest.
Over the next five years, state and federal courts ruled that
although this violated his consular rights under the Vienna
Convention, it did not invalidate Flores' conviction.
In 1995, Flores was set to be executed, but
received a stay from U.S. District Judge William Wayne Justice
because of the consular rights question. However, later appeals
verdicts and statements by the U.S. State Department confirmed the
earlier decisions that even though an international treaty was
violated, the federal government had no authority to prohibit a
state from carrying out an execution in such a case.
In the weeks leading up to the execution, the
Mexican government appealed to the U.S. Supreme Court, the State
Department, and the Texas Board of Pardons and Paroles to halt the
execution. The Mexican government did not deny Flores' guilt, but
asserted that he would have received fairer representation,
especially during the crucial sentencing phase, if he had been
informed of his consular rights.
Prosecutors said that Flores, who came to the
United States when he was four years old, graduated from American
schools, and spoke fluent English, claimed to be a U.S. citizen, and
that this nullified the Mexican government's case. Another appeal
argument had to do with a psychiatrist's testimony which warned that
Flores would be a future danger to society.
criticized this testimony because the psychiatrist never interviewed
or even met Flores. Prosecutors said that the psychiatrist could
make an accurate diagnosis based on the facts of the case, so a
personal interview was not necessary. Prosecutors also pointed out
that the defense did not allow the psychiatrist to interview Flores.
On death row, Flores said, "It's something that
happened, and it was bad. I'm very sorry for what I did." "I don't
feel I got a fair sentencing trial," Flores added. "If I had gotten
a fair trial and the jury returned the death sentence, I can accept
that. I'm asking for a life sentence, not to be released."
Two days before the Thursday execution, the Texas
parole board denied Flores' clemency request by an 18-0 vote. The
U.S. Supreme Court twice on Thursday denied his request for an
appeal by a 5-4 vote -- once about five hours before the execution
and again with less than an hour to go.
At his hour of death, Flores apologized to Angela
Tyson's relatives. "I want to say I'm sorry. I said a prayer today
for you so you can have peace. I hope you can forgive me," he told
them. As the lethal drugs took effect, he closed his eyes, sputtered,
and grunted. He was pronounced dead at 6:22 p.m.
United States Court of Appeals for the Fifth
MIGUEL ANGEL FLORES, Petitioner-Appellant,
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, Respondent-Appellee.
April 20, 2000
Appeal from the
United States District Court For the Eastern
District of Texas
HIGGINBOTHAM, EMILIO M. GARZA, and BENAVIDES,
Flores seeks habeas relief on two grounds.
First, he urges that he did not receive effective
assistance of counsel during the guilt and penalty
phases of his trial. Second, he urges that his
convictionshould be reversed for failure of the
state to advise Flores of his right to inform
Mexican consular officials of his arrest and
detention and to be informed of his rights under the
Vienna Convention on Consular Relations, April 23,
1963, TIAS 6820, 21 U.S.T. 77, 596 UNTS 261. The
district court denied relief.
* We reject the
claims of ineffective assistance of counsel for
essentially the reasons found by the district court.
The United States
Senate ratified the Vienna Convention on December
24, 1969. At that time, the provisions of the
Convention became binding on the individual states.
U.S. Const. arts. VI, cl. 2; art. II, 2, cl. 2. The
Vienna Convention provides:
if he so requests,
the competent authorities of the receiving State
shall, without delay, inform the consular post of
the sending state if, within its consular district,
a national of that state is arrested or committed to
prison or to custody pending trial or is detained in
any other manner. Any communication addressed to the
consular post by the person arrested, in prison,
custody or detention shall also be forwarded by the
said authorities without delay. The said authorities
shall inform the person concerned without delay of
his right under this sub-paragraph.
21 U.S.T. 78, Apr.
23, 1963, art. 36(b) (emphasis added).
On his arrest and
interrogation, Flores was not advised of his rights
under the Convention. It appears to be undisputed
that officials were aware of his citizenship. Flores
urges that a failure to abide by the terms of the
Convention is structural error and hence he need not
demonstrate that the violation prejudiced his right
to a fair trial; that there is no harmless error
analysis for structural defects. Alternatively,
Flores urges that the "violation" of the Convention
"seriously harmed" him. The argument continues that
while in custody, Flores was "compelled to make four
tape recorded statements" without an attorney, that
had the consulate been informed of his rights, the
consulate would have obtained a Spanish speaking
attorney for him. The State replies that Flores has
lived his life in the United States, was educated in
its public schools, and his first language is
English. Further, that he did not want assistance.
At the outset we
must confront the question of whether the Vienna
Convention conferred rights enforceable by
individuals. Here Flores points to our decision in
Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996). In
Faulder we observed that there had been a violation
of Faulder's Vienna Convention rights. However, the
panel found the omission to be "harmless error,"
which did not merit reversal:
court correctly concluded that Faulder or Faulder's
attorney had access to all of the information that
could have been obtained by the Canadian government.
While we in no way approve of Texas' failure to
advise Faulder, the evidence that would have been
obtained by the Canadian authorities is merely the
same or cumulative of evidence defense counsel had
or could have obtained.
We do not read our
opinion in Faulder as recognizing a personal right
under the Convention. Rather, the panel dispatched
the claim with its conclusion that any violation was
harmless. Any negative implication inherent in
rejecting the claim as harmless lacks sufficient
force to support a contention that the panel held
that the Convention created rights enforceable by
individuals. While we conclude that Faulder has not
decided the question, we do not reach its merits
because at best Flores's assertion is Teague barred.
The Supreme Court
in Breard v. Greene, 523 U.S. 371 118 S. Ct. 1352,
1355, 140L.Ed.2d 529 (1998), noted that "[t]he
Vienna [C]onvention . . . arguably confers on an
individual the right to consular assistance
following arrest." Thus, even the Court admits the
possibility that the Vienna Convention does not
confer such rights, and therefore, such a finding
would create a new exclusionary rule, which is
prohibited in a collateral habeas attack because of
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060
(1989). See Breard, 118 S. Ct. at 1354-55 (holding
that the Vienna Convention must be applied "in
conformity with the laws and regulations" of the
United States, including the rules for federal
EMILIO M. GARZA,
Circuit Judge, specially concurring.
EMILIO M. GARZA,
Circuit Judge, specially concurring.
As the majority
opinion notes, the district court carefully
considered, and denied, Flores's ineffective
assistance of counsel claim. I do not disagree with
the district court's thoughtful and well-reasoned
opinion; it is an inevitable consequence of the
relevant precedent in this area of the law, and we
could add little its to fine analysis. However, I
write separately to raise questions about the
authority on which that opinion is based, which
appears inconsistent with itself and, possibly, with
the dictates of the Constitution.
When one considers
the conduct of Flores's trial attorney, Gene Storrs,
it takes little inquiry to determine that this case
is troubling. Based on overwhelming evidence, Mr.
Storr's chances of convincing the jury of Flores's
innocence were minimal. Storr's only chance of
successfully defending Flores was to limit the
applicability of the death penalty. In this regard,
the best mitigating evidence Storr had was Flores's
complete lack of a criminal, juvenile, or
psychiatric record, evidence which directly
mitigated against Flores's alleged "future
dangerousness." Inexplicably, Storr failed to elicit
such evidence; in effect, he failed to elicit any
evidence in mitigation. But see infra note 8 (describing
Storr's cross-examination of Dr. Clay Griffith).
In and of itself,
Storr's failure in this regard may not have been as
devastating but for Dr. Clay Griffith's testimony,
which condemned Flores to death based on an "objective"
evaluation. Before testifying unequivocally that
Flores would be a "future danger," Dr. Griffith
never examined Flores, nor did he make his
evaluation based on psychological records or
psychological testimony. Rather, he sat at trial,
and based on the facts of the offense and Flores's
conduct during the trial (Flores did not testify),
Dr. Griffith came to an "expert" opinion on Flores's
lacking objective scientific testing or personal
examination defies scientific rigor and cannot be
described as expert testimony. It is simply
subjective testimony without any scientific validity
by one who holds a medical degree. Given the paucity,
indeed the complete lack, of mitigating evidence
presented in this case, Dr. Griffith's testimony
virtually compelled the jury's answer to the second
In short, the truly troubling facet of this case is
the sole evidence upon which the jury found Flores
to be a future danger: the testimony of a doctor who
had never met the defendant.
While permitted by
the Constitution, see Gregg v. Georgia, 428 U.S.
153, 177, 96 S. Ct. 2909, 2927, 49 L. Ed. 2d 859
(1976) (plurality opinion) ("It is apparent from the
text of the Constitution itself that the existence
of capital punishment was acceptedby the Framers."),
death is a sentence which differs from all other
penalties in kind rather than degree. See
Satterwhite v. Texas, 486 U.S. 249, 262, 108 S. Ct.
1792, 1801, 100 L. Ed. 2d 284 (1988) ("The awesome
severity of a sentence of death makes it
qualitatively different from all other sanctions.").
Death is the most final, and most severe, of
punishments. See Gregg, 428 U.S. at 187, 96 S. Ct.
at 2931, ("There is no question that death as a
punishment is unique in its severity and
the Eighth Amendment allows the death penalty as an
appropriate response to especially egregious crimes,
it also strictly regulates the procedures by which
death sentences are imposed and reviewed. See
Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954,
2957, 57 L. Ed. 2d 973 ("[T]he qualitative
difference between death and other penalties calls
for a greater degree of reliability when the death
sentence is imposed."); Caldwell v. Mississippi, 472
U.S. 320, 329, 105 S. Ct. 2633, 2639-40, 86 L. Ed.
2d 231 (1985) (asserting that the need for
reliability in death sentences "requires a
correspondingly greater degree of scrutiny of the
capital sentencing determination"). Sentencing
procedures for capital crimes, far more so than for
non-capital crimes, must be created and enforced in
a way that ensures "that the punishment will [not]
be inflicted in an arbitrary and capricious manner."
Gregg, 426 U.S. at 189, 96 S. Ct. at 2932.
jurisprudence guiding consideration of death penalty
cases has produced two cardinal principles. First,
the "eligibility" phase of a state's capital
sentencing scheme--the phase where a state
legislature decides which particular homicides could,
given sufficiently egregious circumstances, warrant
the death penalty--must "provide a meaningful basis
for distinguishing the few cases in which the
penalty is imposed from the many cases in which it
is not." Godfrey v. Georgia, 446 U.S. 420, 427, 100
S. Ct. 1759, 1764, 64 L. Ed. 2d 398, (1980) (citations
and internal quotation marks omitted); see also
Arave v. Creech, 507 U.S. 463, 474, 113 S. Ct. 1534,
1542, 123 L. Ed. 2d 188, (1993) ("[A] State's
capital sentencing scheme must genuinely narrow the
class of persons eligible for the death penalty . .
. [and] must provide a principled basis for doing
so.") (citations omitted). Accordingly, under this
restriction, a state's capital sentencing scheme
must limit a sentencer's discretion to impose the
death penalty, in a principled manner, to the most
extreme of cases as rationally defined by state law.
while in the "eligibility" phase sentencers are only
allowed to consider death as a possible punishment
in the most severe crimes, sentencers must be
allowed during the "selection" phase of a capital
sentencing scheme--the phase where a sentencer must
decide whether a particular individual found guilty
of a potentially capital offense should receive the
death penalty--to consider any available evidence
which might convince them that any defendant, no
matter how severe his offense or reprehensible his
past, should not be put to death. See, e.g.,
McCleskey v. Kemp, 481 U.S. 279, 304, 107 S. Ct.
1756, 1773, 95 L. Ed. 2d 262, (1987) ("[T]he
Constitution limits a State's ability to narrow a
sentencer's discretion to consider relevant evidence
that might cause it to decline to impose the death
sentence.") (emphasis in original); Lockett, 438
U.S. at 604, 98 S. Ct. at 2964 ("[T]he sentencer . .
. [cannot] be precluded from considering, as a
mitigating factor, any aspect of a
defendant'scharacter or record and any of the
circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.")
(emphasis in original); Jurek v. Texas, 428 U.S.
262, 271, 96 S. Ct. 2950, 2956, 49 L. Ed. 2d 929
(1976) ("A jury must be allowed to consider on the
basis of all relevant evidence not only why a death
sentence should be imposed, but also why it should
not be imposed."). As the Court held in McCleskey,
"[a]ny exclusion of the compassionate or mitigating
factors stemming from the diverse frailties of
humankind that are relevant to the sentencer's
decision would fail to treat all persons as uniquely
individual human beings." McCleskey, 481 U.S. at
304, 107 S. Ct. at 1774 (citations and internal
quotation marks omitted).
While states have
discretion to structure their capital sentencing
system as they please, the Supreme Court has made
clear that whatever form they choose,
individualization of the capital sentencing "selection"
hearing is constitutionally mandated. See Lockett,
438 U.S. at 605, 98 S. Ct. at 2965 ("Given that the
imposition of death by public authority is so
profoundly different from all other penalties, we
cannot avoid the conclusion that an individualized
decision is essential in capital cases."); Penry v.
Lynaugh, 492 U.S. 302, 317, 109 S. Ct. 2934, 2946,
106 L. Ed. 2d 256, 277 (1989) ("Our decisions
subsequent to Jurek have reaffirmed that the Eighth
Amendment mandates an individualized assessment of
the appropriateness of the death penalty."); Zant v.
Stephens, 462 U.S. 862, 879, 103 S. Ct. 2733,
2743-44, 77 L. Ed. 2d 235 (1983) ("What is important
at the selection stage is an individualized
determination on the basis of the character of the
individual and the circumstances of thecrime.") (emphasis
in original); Eddings v. Oklahoma, 455 U.S. 104,
112, 102 S. Ct. 869, 875, 71 L. Ed. 2d 1 (1982) ("[T]he
fundamental respect for humanity underlying the
Eighth Amendment . . . requires consideration of the
character and record of the individual offender and
the circumstances of the particular offense as a
constitutionally indispensable part of the process
of inflicting the penalty of death.") (citing
Woodson v. North Carolina, 428 U.S. 280, 303-04, 96
S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976)); Romano
v. Oklahoma, 512 U.S. 1, 6, 114 S. Ct. 2004, 2009,
129 L. Ed. 2d 1 (1994) ("States must ensure that
sentencing decisions rest on [an] individualized
inquiry under which the character and record of the
individual offender and the circumstances of the
particular offense are considered.") (citations and
internal quotation marks omitted); Buchanan v.
Angelone, 522 U.S. 269, 118 S. Ct. 757, 761, 139 L.
Ed. 2d 702, (1998) ("In the selection phase, we have
emphasized the need to allow abroad inquiry into all
relevant mitigating evidence to allow an individual
determination."). As the Court has made clear, this
requirement is not satisfied merely by procedures
which categorize a defendant's crime as worthy of
execution; rather, what is required is a completely
individualized process in which sentencers determine
whether imposing death on a particular defendant is
a rational and morally appropriate response to the
accused's crime and character. See Enmund v.
Florida, 458 U.S. 782, 801, 102 S. Ct. 3368,
3378-79, 73 L. Ed. 2d 1140(1982) (holding that
capital punishment "must be tailored to [the
defendant's] personal responsibility and moral guilt");
California v. Brown, 479 U.S. 538, 545, 107 S. Ct.
837, 841, 93 L. Ed. 2d 934 (1987) (O'Connor, J.,
concurring) ("[T]he individualized assessment of the
appropriateness of the death penalty is a moral
inquiry into the culpability of the defendant . . .
[and] should reflect a reasoned moral response to
the defendant's background, character, and crime . .
The Texas capital
sentencing scheme's mechanisms for assuring that the
"selection" phase of a capital sentencing hearing
involves an invidualized assessment of a defendant's
character and crime have beenreviewed by the Supreme
Court on many occasions.
At the time of Flores's conviction, once a defendant
had been found guilty of a capital felony in a case
in which the state of Texas sought the death
penalty, in the "selection" phase, jurors were asked
the following two questions:
Whether there is a
probability that the defendant would commit criminal
acts of violence that would constitute a continuing
threat to society; and
defendant actually caused the death of the deceased
or did not actually cause the death of the deceased
or did not actually cause the death of the deceased
but intended to kill the deceased or another or
anticipated that a human life would be taken.
TEX. CODE. CRIM.
P. ANN. art. 37.071(b). If the jury answered
affirmatively to the two "special issues," at the
time of Flores's conviction, the court would
sentence the defendant to death. See TEX. CODE. CRIM.
P. ANN. art. 37.071(g).
At the time Flores
was convicted, a Texas capital jury was not asked
explicitly whether there were any mitigating
circumstances which could lead them to impose a
sentence less than death. Since "[t]he Texas statute
d[id] not explicitly speak of mitigating
circumstances; it direct[ed] only that the jury
answer . . . questions," Jurek, 428 U.S. at 272, 96
S. Ct. at 2956,
the "sentencing" hearing entailed a "risk that the
death penalty w[ould] be imposed in spite of factors
which may call for a less severe penalty," Lockett,
438 U.S. at 605, 98 S. Ct. at 2965. Because of this
risk, the Court has held that each case must be
examined on its facts to make sure that any
potentially mitigating facts were not excluded from
the jury's consideration. See Jurek, 428 U.S. at
272, 96 S. Ct. at 2956; Penry, 492 U.S. at 316, 109
S. Ct. at 2945-46. As the Court described in Penry,
"[w]hen the choice is between life and death, that
risk is unacceptable and incompatible with the
commands of the Eighth and Fourteenth Amendments."
Penry, 492 U.S. at 316, 109 S. Ct. at 2945-46, 106
L. Ed. 2d at 284 (citing Lockett, 438 U.S. at 605,
98 S.Ct. at 2966).
Based on this
premise, the Court has considered various claims
that mitigating evidence was made irrelevant by the
Texascapital sentencing scheme, thus rendering the
scheme unconstitutional as applied. The Court has
held that Texas's "special issues" adequately
individualize the capital sentencing hearing because,
taken together, they allow juries "to consider the
mitigating aspects of the crime and the unique
characteristics of the perpetrator, and therefore
sufficiently provid[e] for jury discretion."
Lowenfield v. Phelps, 484 U.S. 231, 245 108 S. Ct.
546, 98 L. Ed. 2d 568 (1988); see also Jurek, 428
U.S. at 272, 96 S. Ct. at 2956. Specifically, in
Franklin, the Court upheld the Texas capital
sentencing system because issues concerning the
background of the defendant and their prior record (or
lack thereof) are relevant to the jury's
consideration of the second special issue. "In
resolving the second Texas Special Issue the jury
was surely free to weigh and evaluate petitioner's
disciplinary record as it bore on his 'character'--
that is, his "character as measured by likely future
behavior." Franklin, 487 U.S. at 182, 108 S. Ct. at
2332, 101 L. Ed. 2d at 168.
Supreme Court precedent, the Texas capital
sentencing statute adequately individualizes the
sentencing hearing of each defendant because his or
her background, prior criminal record, and character
are relevant to the second special issue: whether
the defendant would constitute a "continuing threat
In cases where the
State of Texas seeks the death penalty, the state
frequently introduces psychological testimony as "expert"
testimony to support its claim of future
dangerousness. Dr. Griffith is frequently the
state's star witness.
The Texas Court of Criminal Appeals has repeatedly
upheld the admissibility of such testimony in
general and the expert testimony of Dr. Griffith in
educational background, including the subspecialty
of forensic psychiatry, teaching experience, and
long-term private practice. This included examining
over 8,000 people charged with criminal offenses and
testifying in approximately 97 capital murder trials
in Texas and other states.
Clark v. State,
881 S.W.2d 682, 698 (Tex. Crim. App. 1994); see also
Massey v. State, 933 S.W.2d 141, 156-57 (Tex. Crim.
App. 1996) (noting that, by the time he testified in
Massey's trial, Griffith had testified in 146
capital murder cases). In general, the Court of
Criminal Appeals has held that "psychiatry is . . .
sufficiently advanced to permit predictions of
future violent behavior," Fuller v. State, 829 S.W.
2d 191, 195 (Tex. Crim. App. 1992) (en banc) (citingChambers
v. State, 568 S.W. 2d 313, 324 (Tex. Cr. App. 1978)
and Nethery v. State, 692 S.W. 2d 686, 708-09 (Tex.
Crim. App. 1985)), and generally admissible under
the Texas Rules of Evidence.
This court, see,
e.g. Little v. Johnson, 162 F.3d 855, 863 (5th Cir.
1998), as well as the Texas Court of Criminal
Appeals, often rests the admissibility of this type
of testimony on the precedent of Barefoot v.
Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d
1090 (1983). In Barefoot, the Supreme Court squarely
rejected the claim that the unreliability of
psychiatric predictions of future dangerousness
should render it inadmissible, asserting that:
If the likelihood
of a defendant committing future crimes is a
constitutionally acceptable criterion for imposing
the death penalty, which it is, 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, 103
S. Ct. at 3396. The Court held that, even assuming
that this evidence was unreliable, the adversary
system would redress this problem by creating a
credibility evaluation by the jury; the defense
could, through its own experts, challenge a state
psychiatrist's testimony in particular or the
practice of predicting future dangerousness in
general. See id. at 898, 103 S. Ct. at 3398 ("If [psychologists]
are so obviously wrong and should be discredited,
there should be no insuperable problem in doing so
by calling members of the Association who are of
that view and who confidently assert that opinion in
their amicus brief.").
The Court held that, faced with conflicting evidence
on the reliability of such predictions in general
and the future dangerousness of the defendant in
particular, the jury could adequately process the
information and come to a rational evaluation of the
community virtually unanimously agrees that
psychiatric testimony on future dangerousness is, to
put it bluntly, unreliable and unscientific. It is
as true today as it was in 1983 that "[n]either the
Court nor the State of Texas has cited a single
reputable scientific source contradicting the
unanimous conclusion of professionals in this field
that psychiatric predictions of long-term future
violence are wrong more often than they are right."
Id. at 920, 103 S. Ct. at 3409 (Blackmun, J.,
dissenting) (citing studies).
As those in the field have often noted, nothing
within the training of a psychiatrist makes him or
her particularly able to predict whether aparticular
individual will be a continuing threat to society.
See Brief of the American Psychiatric Association,
Barefoot v. Estelle, 463 U.S. 880 (1983) (hereinafter
"APA Br."), at 9 ("psychiatrists . . . bring no
special interpretative skills"). In fact, not even
the Barefoot majority could identify a "scientific"
basis for predictions of future dangerousness; its
opinion expressly rests on the analysis that "even a
lay person" could make such predictions. See
Barefoot, 463 U.S. at 896-97, 103 S. Ct. at 3383.
The inadequacy of
the science underlying Dr. Griffith's testimony
become strikingly apparent when considered relative
to scientific evidence generally admissible at trial.
In the federal courts, one does not become qualified
to provide "expert scientific" evidence merely by
virtue of possessing a medical or other advanced
degree; rather, "[t]he adjective 'scientific'
implies [that one's opinion has] a grounding in the
methods and procedures of science." Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
589-90, 113 S. Ct. 2786, 2795-96, 125 L. Ed. 2d 469,
(1993); see also Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 119 S. Ct. 1167, 1176-77, (1999) (approving
district court's rejection of expert scientific
testimony because despite the expert's
qualifications, including a masters degree in
mechanical engineering, 10 years in practice, and
prior testimony in similar cases, "it doubted, and
then found unreliable, the methodology employed by
the expert"). Under the Federal Rules of Evidence,
expert testimony is not admissible unless "an expert,
whether basing testimony upon professional studies
or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes
the practice of an expert in the relevant field."
Kumho, 119 S. Ct. at 1176, Seatrax, Inc. v. Sonbeck
Int'l, Inc., 200 F.3d 359, 371 (5th Cir. 2000).
To address this
particularized need for reliability in expert
scientific testimony, the Supreme Court has set out
five non-exclusive factors to assist trial courts'
determination of whether scientific evidence is
reliable, and thus admissible. Those factors are:
(1) whether the
theory has been tested,
(2) whether the
theory has been subjected to peer review and
(3) the known or
potential rate of error
(4) the existence
of standards controlling the operation of the
(5) the degree to
which the theory has been generally accepted by the
Daubert, 509 U.S.
at 593-94, 113 S. Ct. at 2796-97, see also Moore v.
Ashland Chemical Inc., 151 F.3d 259, 275 (5th Cir.
1998) (en banc), cert. denied __ U.S. __, 119 S. Ct.
1454, 143 L. Ed. 2d 541 (1999). On the basis of any
evidence thus far presented to a court, it appears
that the use of psychiatric evidence to predict a
murderer's "future dangerousness" fails all five
First, "testing" of thesetheories has never truly
been done, as "such predictions often rest . . . on
psychiatric categories and intuitive clinical
judgments not susceptible to cross-examination and
rebuttal." Barefoot, 463 U.S. at 932, 103 S. Ct. at
3414-15 (Blackmun, J., dissenting) (citing Dix,
Expert Prediction Testimony in Capital Sentencing:
Evidentiary and Constitutional Considerations, 19
AM. CRIM. L. REV. 1, 16 (1981)); see also APA Br. at
17 ("Because most psychiatrists do not believe that
they possess the expertise to make long-term
predictions of dangerousness, they cannot dispute
the conclusions of the few who do.").
Second, as is clear from a review of the literature
in the field, peer review of individual predictions
is rare, and peer review of making such predictions
in general has been uniformly negative. See, e.g.,
Grant Morris, Defining Dangerousness: Risking a
Dangerousness Definition, 10 J. CONTEMP. LEGAL
ISSUES 61, 85-86 (1999) (citing studies) ("More than
twenty years ago, Alan Stone acknowledged that
psychiatrists cannot predict whether a person will
engage in dangerous behavior with a certainty, or
beyond a reasonable doubt, or by clear and
convincing evidence, or even by a preponderance of
the evidence. As to clinically-based predictions of
dangerousness, the passage of time has not altered
the accuracy of Stone's judgment."). Third, the rate
of error, at a minimum, is fifty percent, meaning
such predictions are wrong at least half of the
time. See, e.g., Otto, supra note 11, at 64 & n.65.
Fourth, standards controlling the operation of the
technique are nonexistent. See APA Br. at 13 (noting
that "the professional literature demonstrate[s] no
reliable criteria for psychiatric predictions of
long-term future behavior"). Overall, the theory
that scientific reliability underlies predictions of
future dangerousness has been uniformly rejected by
the scientific community absent those individuals
who routinely testify to, and profit from,
predictions of dangerousness.
As some courts
have indicated, the problem here (as with all expert
testimony) is not the introduction of one man's
opinion on another's future dangerousness, but the
fact that the opinion is introduced by one whose
title and education(not to mention designation as an
"expert") gives him significant credibility in the
eyes of the jury as one whose opinion comes with the
imprimatur of scientific fact.
As has been previously recognized, when a medical
doctor testifies that "future dangerousness" is a
scientific inquiry on which they have particular
expertise, and testifies that a particular defendant
would be a "continuing threat to society," juries
are almost always persuaded. See, e.g., Satterwhite,
486 U.S. at 258, 108 S. Ct. at 1799 ("[Dr. Grigson's]
testimony stands out both because of his
qualifications as a medical doctor specializing in
psychiatry and because of the powerful content of
his message . . . that [the defendant] was beyond
the reach of psychiatric rehabilitation."); Barefoot,
463 U.S. at 916, 103 S. Ct. at 3407 (Blackmun, J.,
dissenting) ("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."); White v. Estelle, 554
F. Supp. 851, 858 (S.D. Tex. 1982) ("[W]hen this lay
opinion is proffered by a witness bearing the title
of 'Doctor,' its impact on the jury is much greater
than if it were not masquerading as something it is
not."). Jurors, faced with the responsibility of
determining whether an individual who committed at
least one murder will kill or otherwise commit
violence again, and threatened with the immeasurable
potential consequences of an incorrect determination,
are understandably likely to defer to an "expert"
determination which will eliminate those
consequences, even if its reliability is questioned
by another "expert." See APA Br. at 9 ("[I]t permits
the jury to avoid the difficult actuarial questions
by seeking refuge in a medical diagnosis that
provides a false aura of certainty."); Craig Haney,
Violence and the Capital Jury: Mechanisms of Moral
Disengagement and the Impulse to Condemn to Death,
49 STAN. L. REV. 1447, 1469-70 & n.113 (1997) ("In
this light, capital penalty trials sometimes become
forums in which grossly prejudicial and unreliable
predictions of future dangerousness are presented
with the imprimatur of state authority.") (citations
The testimony of
Dr. Griffith, who has never met Flores, is
particularly assailable. First, Griffith testified
that Flores's "character and crime" made him a
future danger without ever examining him. The
practice of predicting future dangerousness without
an individualized meeting with the subject is, while
acceptable under Supreme Court precedent, see
Barefoot, 483 U.S. at 903, 103 S. Ct. at 3400
condemnedby most in the field as inherently
unreliable and unscientific as well as unethical.
See APA Br. at 9, 18-26 ("Absent an in-depth
psychiatric examination and evaluation, the
psychiatrist cannot exclude alternative diagnoses;
nor can he assure that the necessary criteria for
making the diagnosis in question are met. As a
result, he is unable to render a medical opinion
with a reasonable degree of certainty."); see also
White, 554 F. Supp. at 858 ("The prevailing view
among psychiatrists and professional psychiatric
associations, a view to which this court subscribes,
is that to the extent that long-range dangerousness
can be predicted (a view not accepted by the
psychiatric community), an opinion as to an
individual's future penchant for violence which does
not follow extensive examination is not based on a
great deal of complex and in-depth information, is
not a professional, but a lay opinion."). In fact,
one psychiatrist notorious for predicting
dangerousness without examining the subject, Dr.
James Grigson, has been evicted from the American
Psychiatric Association for ignoring repeated
warnings to stop the practice. See, e.g., Jeffrey L.
Kirchmeier, Aggravating and Mitigating Factors: The
Paradox of Today's Arbitrary and Mandatory Capital
Punishment Scheme, 6 WM. & MARY BILL RTS. J. 345,
372 (1998) ("The expulsion, perhaps, was too late
for many defendants.").
In this case, not only did Griffith testify that he
could accurately predict a defendant's future
dangerousness from a hypothetical, but he also told
the jury that actually examining the defendant is "a
hindrance in comparison to a hypothetical question."
deduction, with certainty, that Flores would be a "future
danger," was based exclusively on the facts
surrounding Flores's crime. Griffith testified, in
relevant part, that:
First of all, this
very vicious hideous murder was unprovoked, no
evidence at all of any provocation, which means this
individual acted from within himself, inner urge,
not from any external stimulus . . . Over the years
that this type of personality has been studied, it
is very apparent that these people with this type of
personality who commit this type of murder are going
to be violent again.. . . This--this in itself is
enough to tell us that the person's going to be
violent in the future.
We go on with the
type of torture that he did to this young lady,
tortured her, raped her, and then stabbed her front
and back many times. This is a desire to kill. What
was behind this desire to kill I have no idea. We
don't know but it's a desire to kill.
Further, he goes
back to an area close to where he picked her up . .
. then he goes and gets a drink of water. He's not
concerned, not disturbed, and then he goes and lays
down and goes to sleep. Anybody that has any
conscience at all is not going to lay down and go to
sleep. He's not going to be comfortable. This man
shows no evidence from the information that I have
of any guilt, any remorse. . . .
All of these
things together tell me that this man will be
violent in the future and no matter where he is. It
doesn't make any difference. Sooner or later he's
going to be violent. You can't get worse than what
he did except in terms of numbers.
The Court of
Criminal Appeals noted that Griffith's conclusion
that Flores was not remorseful was based on the fact
that "[t]here was no evidence . . . from which he
could deduce any remorse or concern or the victim."
Flores, 871 S.W. 2d at 716. Given that Griffith
never spoke to Flores, the fact that he failed to
find "evidence" of any given personality trait is
not surprising. Griffith's testimony to the extent
that an individual with this "personality" would be
dangerousness, moreover, was based on the "personality"
of someone who would commit this unprovoked murder
in general, not Flores's personality in particular.
In fact, as noted
by the dissent on direct appeal, Dr. Griffith's
testimony on cross-examination revealed his feeling
that he could predict an individual's future
dangerousness merely by knowing their crime, and his
belief that anyone who committed capital murder in
general, or murder in the course of sexual assault
in particular, would be a 'future danger' simply for
the fact that they committed that particular crime.
See Flores, 871 S.W.2d at 724 (Clinton, J.,
dissenting). As Griffith testified, inter alia,
convicted of capital murder would, in your opinion
would, commit future acts of violence.
A: Yes, that's my
opinion. I would not want to, you know, say this for
somebody that I didn't know specifically about but
everyone that I know about, this is true.
Q: Have you ever
testified in a case wherein an individual has been
convicted of murder in conjunction with a rape that
he would not be a future threat to society and
commit future acts of violence?
A: I don't believe
Q: So, that is one
area that you are firm in?
Q: Okay. So them
basically your bottom line analysis is that the
crime itself is all it takes for you to make your
A: This is, yes,
what I started out saying.
Flores, 871 S.W.2d
at 724-5 (Clinton, J., dissenting).
In sum, Dr.
Griffith testified that Flores would be a "future
danger," without examining Flores, because one with
the "personality" to commit the crime Flores
committed would be a "continuing threat to society."
Based almost exclusively on this testimony, and
irrespective of Flores's complete lack of a criminal
record, family abuse, or truculent past, the jury
answered "yes" to the second special issue.
Accordingly, Flores was sentenced to death.
Flores's crime was
undeniably brutal. He waited for the victim outside
her workplace, forced her into his car, and drove to
a remote location where he sexually assaulted the
victim and stabbed her ten times. Under Texas law,
the facts of Flores's crime may alone have been
sufficient to uphold the jury's finding on the
second special issue. See Kunkle v. State, 771 S.W.
2d 435, 449 (Tex. Crim. App. 1986)(en banc) ("If the
offense was shown to be sufficiently cold-blooded or
calculated, then the facts of the offense alone may
support a finding that the defendant will pose a
continuing threat to society."); Dinkins v. State,
894 S.W. 2d 330, 358 (Tex. Crim. App. 1995) (en banc)
("we have typically required those circumstances to
be so heinous as to display a 'wanton and callous
disregard for human life'"). However, future
dangerousness, like any other element of the crime,
must be proven beyond a reasonable doubt. See Lewis
v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092,
3102, 111 L. Ed. 2d 606 (1990); Brooks v. State, 990
S.W. 2d 278, 284 (Tex. Crim. App. 1999) ("The burden
is on the State to prove the future dangerousness
issue beyond a reasonable doubt."). While a
reasonable jury could have found the facts
surrounding Flores's crime alone sufficiently
egregious to warrant the death penalty, without the
benefit of Griffith's "expert" opinion its decision
would have been significantly more difficult.
Flores does not
allege, nor does the record indicate, that under the
Texas capital sentencing scheme, a defendant is
prevented from presenting mitigating evidence, such
as the lack of a criminal, juvenile, or psychiatric
background, from the jury, should he or she (or, in
this case, his or her attorney) choose to do so.
However, to satisfy the Supreme Court's commands for
an individualized sentencing hearing, "[i]t is not
enough simply to allow the defendant to present
mitigating evidence to the sentencer. The sentencer
must also be able to consider and give effect to
that evidence in imposing sentence. Only then can we
be sure that the sentencer has treated the defendant
as a uniquely individual human being and has made a
reliable determination that death is the appropriate
sentence." Penry, 492 U.S. at 319, 109 S. Ct. at
2947, 106 L. Ed. 2d at 279 (emphasis added) (citations
omitted); see also Woodson, 428 U.S. at 304, 96 S.
Ct. at 2991 ("A process that accords no significance
torelevant facets of the character and record of the
individual offender or the circumstances of the
particular offense excludes from consideration in
fixing the ultimate punishment of death the
possibility of compassionate or mitigating factors
stemming from the diverse frailties of humankind. It
treats all persons convicted of a designated offense
not as uniquely individual human beings, but as
members of a faceless, undifferentiated mass to be
subjected to the blind infliction of the penalty of
Based on the above
analysis, one can glean a clear dichotomy. First,
under Supreme Court precedent, the Texas "special
issues" sufficiently individualize capital
sentencing hearings because the individuality of a
defendant's background is relevant to the jury's
consideration of the second special issue. However,
under the Texas evidentiary scheme, a psychiatrist's
"scientific" testimony that a defendant will be a "future
danger," even if given without examining the
defendant, and even if based solely on the crime a
defendant has committed, is not only sufficient to
sustain an affirmative answer to the second special
but is frequently the primary, or the only, reason
for a jury's affirmative answer.
I recognize the
viciousness of Flores's crime. I also recognize the
jury's statutory right to impose death as an
appropriate punishment. However, what separates the
executioner from the murderer is the legal process
by which the state ascertains and condemns those
guilty of heinous crimes. If that process is flawed
because it allows evidence without any scientific
validity to push the jury toward condemning the
accused, the legitimacy of our legal process is
threatened. The Supreme Court has made clear that
the constitutionality of a state's capital
sentencing scheme is dependent on the individualized
basis in which defendants are considered. I question
whether that concern for individuality exists under
a system which not only admits expert testimony
deduced without examining the subject but also, as
in this case, accepts the possibility that jurors
will allow that evidence, rather than factors more
personal to a defendant's crime and character, to
effectively condemn that individual to death.