Griffith v. State

BAIRD, Judge,

concurring and dissenting.

I agree there was no error at the guilt phase of appellant’s trial. Accordingly, I concur in the decision to affirm the conviction. However, the trial judge erred, at the punishment phase, in denying appellant’s request for funds to employ an expert witness to assist appellant in challenging and cross-examining the State’s punishment expert. Accordingly, I would sustain the second point of error, reverse the judgment of the trial court and remand for a new punishment hearing. Because the majority does not, I dissent.

I.

Dr. Allen Brantley worked for the Behavioral Sciences Unit of the Federal Bureau of Investigation (FBI) and was hired by the State to testify at the punishment phase of trial that appellant would constitute a future danger to society. Specifically, the State intended to use Brantley to perform what he termed a “threat analysis” or “threat assessment technique” which would “compare the defendant to profiles of certain serial killers and discuss [appellant’s] similarity to such individuals.” The intended purpose of this technique was to help law enforcement identify unknown offenders through a system of profiling. 1

Appellant filed two motions requesting funds to employ Dr. Theodore Blau, a psychologist. Attached to the first motion was a copy of Brantley’s testimony in another capital murder case. The testimony was provided to show the trial judge why Blau was necessary to assist in understanding and rebutting Brantley’s methodology. The second motion provided the trial judge with a copy of Blau’s resume and his fee agreement.

At the hearing on these motions, the judge asked defense counsel why the two psychologists already retained by appellant, Dr. Young and Dr. Freedman, could not provide the assistance appellant needed to rebut Brantley. Defense counsel explained that books written by former FBI analysts said the threat analysis technique was primarily forensic and not psychological. In fact, it is undisputed the technique was developed as an investigative tool to assist police with identification of suspects when the actual identity of an offender was unknown, and as a predictor of what suspects might do next in the context of serial crimes.

Moreover, Young and Freedman were retained to evaluate appellant for two isolated and very specific psychological problems. Young, who had significant experience evaluating and treating men who abuse their spouses, as well as experience working in the Institutional Division of the Texas Department of Criminal Justice, was appointed, at appellant’s request, specifically to “... test and evaluate the [defendant with a view to explaining the etiology of [defendant's abuse of women.” Likewise, because appellant’s life seemed to “unravel” after he was suspended from the police force, Freedman, who specializes in evaluations of police officers, “especially those whose lives deteriorate after separation from law enforcement,” was appointed at appellant’s request to evaluate the psychological impact of appellant’s suspension from the police force. Since the Court appointed Young and Freedman because the scope of their expertise was narrow and specific to appellant’s problems, and because Brantley was hired by the State to *298 testify on a technique that was forensic and not psychological in nature, it is clear neither Young, nor Freedman, were in a position to assist appellant in rebutting Brantley’s testimony.

Furthermore, appellant made a strong showing in both of his motions and at the hearing on these motions that Blau could prove Brantley’s “threat analysis” or “threat assessment technique” was not scientifically validated and had never been subjected to peer review on the question of reliability. Critically, appellant established that Blau was in a unique position to provide this information because he helped the FBI develop the threat analysis technique for its intended junction and could provide valuable insight into the methodology. Appellant insisted that if appointed, Blau would provide the court with proof that Brantley’s testimony is inadmissible and “... that no federal court has ever accepted or admitted the testimony of Dr. Brantley and his colleagues.” Further, “[h]e will also testify that no scientific study that has ever analyzed this threat assessment technique has ever found it reliable. He will set forth in detail why this technique is not scientifically validated and therefore, not reliable.” Additionally, appellant told the judge that, as a practical matter, Blau’s “assistance is necessary because he can access and provide copies of all of the scientific studies that have examined this issue.”

Even though appellant believed Blau would convince the judge that Brantley’s testimony was inadmissible, he argued that, in the event Brantley’s testimony was admitted, given the complex nature of the technique, the defense will need the expert assistance of Blau to effectively cross-examine Brantley as well as to testify as to the methodology of the technique. The motions to appoint Blau were denied.

Brantley testified for the State at the punishment phase at which time appellant objected again to Brantley’s methodology as novel and not scientifically validated, unreliable, not relevant because it is repetitive of evidence already before the jury, not capable of assisting the jury, and consequently inadmissible. These objections were overruled. Appellant also filed a written bill of exceptions detailing what Blau would have testified to and how he would have helped appellant challenge and cross-examine Brantley’s testimony.

II.

In Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985), the United States Supreme Court held that due process entitles an indigent defendant to the appointment of a competent expert who can assist in the evaluation, preparation, and presentation of the defense when the defendant makes a preliminary showing that the issue for which he seeks expert assistance is “likely to be a significant factor at trial.” Williams v. State, 958 S.W.2d 186, 192 (Tex.Cr.App.1997); Rey v. State, 897 S.W.2d 333, 339 (Tex.Cr.App.1995); and, DeFreece v. State, 848 S.W.2d 150 (Tex.Cr.App.1993). This holding is premised upon the notion that an indigent is entitled to “meaningful access to justice” which means he should have “access to the raw materials integral to the building of an effective defense” thus ensuring “a proper functioning of the adversary process.” Williams, 958 S.W.2d at 192 . The Supreme Court explained while “... the court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, it has often reaffirmed that fundamental fairness entitles indigent defendants to ‘an adequate opportunity to present their claims fairly within the adversary system,’ and we have required that such tools be provided to. those defendants who cannot afford to pay for them.” Ake, 470 U.S. 68, 77 , 105 S.Ct. 1087, 1093 , 84 L.Ed.2d 53 (1985).

The Ake Court held because the State had a psychiatrist to testify as to Ake’s future dangerousness, the trial judge erred in denying Ake the means of presenting evidence to rebut the State’s expert by not appointing Ake a psychiatrist. In Williams , we stated that “[wjhile the Ake case dealt with the appointment of a psychiatrist, it is now without question that Ake requires the appointment of an expert regardless of his field of expertise.” 958 S.W.2d at 192 . See also, Rey, 897 S.W.2d at 338 .

*299 Similarly, Brantley was offered by the State as an expert who would allegedly provide “scientific” analysis of appellant’s future dangerousness. What makes appellant’s case even more compelling than Ake is the fact that the State’s expert planned to establish appellant’s future dangerousness not on accepted psychiatric testimony, but on a novel technique, developed for a different purpose than its intended use in appellant’s case. We explained in Rey :

There is no principled way to distinguish between psychiatric and non-psychiatric experts. The question in each case must be not what field of expert knowledge is involved, but rather how important the scientific issue is in the ease, and how much help a defense expert could have given.

897 S.W.2d at 338 (citing Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir.1987), cert. denied, 487 U.S. 1210 , 108 S.Ct. 2857 , 101 L.Ed.2d 894 (1988)). Thus, the decision whether the appointment of an expert would be helpful, or whether the trial was fundamentally unfair without the expert’s assistance is dependant on the nature of an expert’s field and the importance and complexity of the issue. Williams, 958 S.W.2d at 192 ; and, Rey, 897 S.W.2d at 338 .

In this light, it is clear the trial judge should have granted appellant’s Ake motions. First, it does not matter that Blau was not a psychiatrist because, as explained supra, Ake has been interpreted to require the appointment of an expert regardless of his field of expertise. Rey, 897 S.W.2d at 338 . Second, in regard to the criteria explained in Rey , it is unquestionable the issue of future dangerousness is of utmost importance during the punishment phase of a capital murder trial, and thus an issue deserving of expert assistance. 2 The third factor, which appellant documented well, was the complexity of the issue for which he needed expert assistance. Indeed, appellant explained he needed Blau specifically, because he, along with Brantley, developed the very technique at issue and could prove Brantley’s testimony was not scientifically validated, had never been subject to peer review as to reliability, that no study reviewing the technique has ever found it to be reliable, that it was created for a purpose not the same as its intended use in the present case, and, that it had never been relied on, or even admitted in federal court.

*300 Because the trial judge erred in denying appellant’s motion requesting funds to employ Blau, this case should be remanded to the trial court for a new punishment hearing. TexCode Crim. Proc. Ann. art. 44.29(c). Because the majority does not, I dissent.

OVERSTREET and PRICE, JJ., join this opinion.

. Brantley testified he did not intend to “profile” appellant, but rather intended to "assess” appellant. However, Brantley admitted his methodology for this "assessment” did not involve any psychological interviews of appellant. Rather, Brantley stated he intended to testify "the probability of Mr. Griffith committing future acts of violence consistent with his past history is high” based on “the crime scene, crime scene photos, investigative reports, interviewing with surviving witnesses, former girlfriend, looked at all protocol, autopsy records, everything I could get my hands on is what I looked at.”

. Precedent recognizes the importance of expert testimony on the issue of future dangerousness. See, Barefoot v. Estelle, 463 U.S. 880, 896-903 , 103 S.Ct. 3383, 3396-3399 , 77 L.Ed.2d 1090 (1983). See also, Barefoot v. State, 596 S.W.2d 875, 887 (Tex.Cr.App.1980); and, Robinson v. State, 548 S.W.2d 63, 66 (Tex.Cr.App.1977). And, on appeal, we have repeatedly recognized the importance of such expertise when determining the sufficiency of the evidence to support an affirmative answer to the future dangerousness punishment issue. Ellason v. State, 815 S.W.2d 656 (Tex.Cr.App.1991); Huffman v. State, 746 S.W.2d 212 (Tex.Cr.App.1988); Beltran v. State, 728 S.W.2d 382 (Tex.Cr.App.1987); Warren v. State, 562 S.W.2d 474 (Tex.Cr.App.1978).

Additionally, this Court indicated in Rey, 897 S.W.2d at 341 :

In cases holding that a sufficient showing was not made under Ake , the defendant typically has failed to support his motion with affidavits or other evidence in support of his defensive theory, an explanation as to what his defensive theory was and why expert assistance would be helpful in establishing that theory, or a showing that there was a reason to question the State's expert and proof.

This was not the case here, as appellant provided ample support in both of his motions.

Furthermore, the majority opinion contends appellant did not need the assistance of Blau because Brantley denied that he would rely upon profiling techniques. Ante at 287. However, the relevant question is whether the State called Brantley as an expert witness specifically for his expertise in “threat analysis." The answer to that question is obviously yes. Brandey would not have testified in the instant case but for this expertise. And because his expertise was in a unique and complex technique which stems from an ambiguous discipline, appellant was entitled to expert assistance on this same technique.

Finally, I pause to mention there is evidence in the record that the State was in fact attempting to elicit a "profile” from Brantley, and that Brantley appears to have been “profiling” appellant but calling it an "assessment:”

BRANTLEY: Well, in my opinion based upon the totality of everything that I had access to and everything I reviewed and all the people I talked to it’s my opinion that the probability of the offender here, Mr. Griffith, engaging in future acts of violence consistent with his past behavior is quite high.

STATE: Did you discover any profile regarding sexual motivations of Mr. Griffith?

BRANTLEY: You said — you used the word profile.

STATE: I'm sorry. Assessment.