EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, September 21, 2009

The Guy Is So Dangerous: Supreme Court Of Virginia Finds Virginia Courts Did Not Err In Future Dangerousness Rulings In Death Penalty Appeal

A man is convicted of murder. During the capital sentencing hearing, the prosecution presents evidence regarding the man's future dangerousness, i.e., evidence that the man would present a future danger if not given the death penalty. This danger, however, would be limited to the danger presented to prison guards and other inmates because the jury's only sentencing options are the death penalty and life imprisonment without the possibility of parole. The man wants to drive this point home to the jury by having the court appoint him an expert to, inter alia, testify that his opportunities for serious violence toward others would be greatly reduced based upon the conditions of his confinement. The court denies his motion. Has the court acted properly?

According to the recent opinion of the Supreme Court of Virginia in Morva v. Commonwealth, 2009 WL 2973006 (Va. 2009), the answer is "yes." In Morva, William Charles Morva brought such a motion, seeking to have forensic psychologist Dr. Mark D. Cunnigham (or a similar expert) appointed on his behalf "to rebut the Commonwealth's claim that Morva was a future danger to society and to provide the jury with an assessment of the likelihood that Morva would commit violence if he were sentenced to life in prison." 

In Dr. Cunningham's declaration, provided as an attachment to the motion, Dr. Cunningham stated, "A reliable individualized assessment can be made of the likelihood that Mr. Morva will commit acts of serious violence if confined for life in the Virginia Department of Corrections." He further acknowledged that he would testify concerning "[g]roup statistical data (i.e., base rate data)” because the “rates of violence in similarly situated groups is critically important to a reliable violence risk assessment and forms the anchoring point of any individualized risk assessment.” If appointed, he would testify that “[r]isk is always a function of context,” and consideration of interventions that can be brought to bear on inmates in the Virginia Department of Corrections would be an important part of the violence risk assessment he would perform. He would also testify that “[t]here are conditions of confinement available in the Virginia Department of Corrections that substantially negate the potential/occurrence of serious violence” and that “[s]hould Mr. Morva be identified as a disproportionate risk of violent or disruptive conduct by the Virginia Department of Corrections, super-maximum confinement could be brought to bear.”

Dr. Cunningham further stated “it is necessary to specify the conditions of confinement in order to make a reliable violence risk assessment and to address the implicit inference of the Commonwealth in alleging [a] continuing threat that it is incompetent to securely confine the defendant in the future.” He noted that he would testify that “[u]nder an administrative maximum level of confinement at Red Onion or other ultra-high security unit, an inmate is single-celled and locked down twenty-three hours daily, with individual or small group exercise, and shackled movement under escort. Under such conditions of security, opportunities for serious violence toward others are greatly reduced.” He opined that “[s]uch increased security measures would act to significantly reduce the likelihood of Mr. Morva engaging in serious violence in prison.”

In the letter from Dr. Cunningham accompanying the motion to reconsider, Dr. Cunningham stated that group statistical data regarding similarly situated inmates interpreted in light of characteristics specific to Morva is relevant to future prison conduct. He also expounded upon the scientific validity of making individual assessments based upon group data. He reiterated that risk is always a function of context or preventative interventions and that increased security measures could significantly reduce the likelihood that Morva would engage in serious violence in prison. He opined that informing the jury of the capabilities of the Virginia Department of Corrections to bring higher levels of security to bear was necessary to provide an individualized risk assessment.

After the lower courts denied this motion, the Supreme Court of Virgina agreed, noting that, pursuant to Virginia statutes,

[t]o be admissible, evidence relating to a prison environment must connect the specific characteristics of the particular defendant to his future adaptability in the prison environment....It must be evidence peculiar to the defendant's character, history, and background in order to be relevant to the future dangerousness inquiry....Conditions of prison life and the security measures utilized in a maximum security facility are not relevant to the future dangerousness inquiry unless such evidence is specific to the defendant on trial and relevant to that specific defendant's ability to adjust to prison life....

Increased security measures and conditions of prison life that reduce the likelihood of future dangerousness of all inmates is general information that is irrelevant to the inquiry....The generalized competence of the Commonwealth to completely secure a defendant in the future is not a relevant inquiry. Our precedent is clear that a court should exclude evidence concerning the defendant's diminished opportunities to commit criminal acts of violence in the future due to the security conditions in the prison.

According to the Virginia Supremes, this fact proved fatal to Morva's claim because

[t]he fact that being an inmate in a single cell, locked down twenty-three hours a day, with individual or small group exercise, and shackled movement under escort would greatly reduce opportunity for serious violence toward others, is not particular to Morva. It is true for any other inmate as well, and it is evidence of the effectiveness of general prison security, which is not relevant to the issue of Morva's future dangerousness. Whether offered by an expert, or anyone else, evidence of prison life and the security measures used in a prison environment are not relevant to future dangerousness unless it connects the specific characteristics of a particular defendant to his future adaptability in the prison environment....

According to Dr. Cunningham, general factors concerning prison procedure and security that are not individualized as to Morva's prior history, conviction record, or the circumstances of his offense are essential to Dr. Cunningham's expert opinion on prison risk assessment. Pursuant to our precedent, Dr. Cunningham's proposed testimony concerning prison life is inadmissible.

Two justices, however, dissented, finding that

while the "focus" of the future dangerousness determination is statutorily directed to the defendant's past criminal record, prior history, and circumstances surrounding the commission of the offense, these statutes do not, and in [our] view constitutionally could not, limit the defendant's right to produce relevant evidence either in defense of the Commonwealth's assertions regarding the future dangerousness determination by the jury or the jury's ultimate consideration to impose the death sentence rather than a life sentence without the possibility of parole.

I think that I side with the dissenting justices. Regardless of the wording of the applicable statutes, I don't see how a court could prevent a defendant from presenting evidence regarding the conditions of his confinement to rebut the prosecution's contentions of future dangerousness (especially when death is on the line). It would seem to me, at a minimum, that mechanistically applying statutes to exclude this evidence would violate a defendant's right to present a defense.



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