CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, November 9, 2023

Perlin et al. on Barefoot and the Death Penalty Trial

Michael L. PerlinTalia Roitberg HarmonMaren Geiger, and Moana Houde-Camirand (New York Law School, Niagara University, Niagara University, Department of Criminal Justice and Willamette University College of Law) have posted “Their Futures, So Full of Dread”: How Barefoot’s Contamination of the Death Penalty Trial Process Continues on SSRN. Here is the abstract:
Forty years ago, in its most roundly-criticized criminal procedure decision in modern history, the Supreme Court, in Barefoot v. Estelle (463 U.S. 880 (1983)), a decision premised on testimony by the responses to a hypothetical of a witness who had never directly evaluated the defendant, ruled that such testimony as to future dangerousness – testimony that had concluded there was a “100% chance” the defendant would commit more crimes if released into society -- was permissible. Over a stinging dissent by Justice Blackmun, the Supreme Court had ruled in Barefoot that it was not constitutional error for psychiatrists to testify that the defendant –whom they had never interviewed nor evaluated -- “would probably commit further acts of violence and represent a continuing threat to society.” The problems caused by Barefoot plague the legal system today, especially since we have learned more about the meaning of “dangerousness” in this context, the accuracy of predictivity, the use of assessment instruments, the heuristics used by jurors in coming to conclusions about dangerousness, and more.

In the years since Barefoot, the Supreme Court has returned to related questions of evidence admissibility on multiple occasions, most notably (for the purposes of our inquiries) in Daubert v. Merrill Dow Pharmaceuticals Inc. (509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael (526 U.S. 137 (1999)) These cases and their progeny, however, have had “negligible impact” on post-Barefoot litigation.

We know that the Fifth Circuit has been abysmal in enforcing decisions that grant criminal defendants in death penalty cases even minimal rights in cases involving adequacy of counsel and imposition of the death penalty on defendants who were either intellectually disabled or seriously mentally ill. We wrote this paper to assess how that Circuit has construed Barefoot for the past forty years.

The cases we discuss fall mainly into these groupings:
• Cases that rely on the shibboleth that the adversary process can be counted on to, in Justice White’s unfortunate phrase, “separate the wheat from the chaff.
• Cases that reject Daubert’s potential impact on the holding of Barefoot, in some instances finding specifically that Daubert has no application to capital cases.
• Cases that reject adequacy-of-counsel arguments based on Strickland v. Washington , and
• Cases that involve the so-called “battle of the experts.”

We argue that, in spite of the Fifth Circuit’s decisions on this question, Daubert and Kumho have implicitly overruled Barefoot in this context, and that lower courts should acknowledge this. We then construe these findings through the lens of therapeutic jurisprudence (TJ), focusing on the Court’s failure to take seriously defendants’ Strickland-based arguments and its obeisance to the adversarial process cliche, concluding that continued adherence to Barefoot mocks TJ principles.

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