*1 HIGGINBOTHAM, Before EMILIO M. BENAVIDES, GARZA Circuit Judges.

PER CURIAM: Miguel Angel Flores seeks habeas relief First, grounds.1 urges on two he that he coun- did receive effective assistance of during guilt penalty phases sel Second, trial. urges his he that his convic- petition properly 1. The in the district court was admitted in the state trial. And was filed April became effec- 1996. The AEDPA clear so. error was not of April tive on and does not control magnitude constitutional the settled the case. law of the court and this court. It is colleague expresses Our over the concern inescapable lay jury fact that a is asked to admissibility expert regarding judge dangerousness. We cannot then dangerousness. the issue of future Flores has reject constitutionally infirm the admission ably appeal represented been on this judgment into evidence of the same made judgment counsel not claimed psychiatrist. a trained because this be reversed *2 the “violation” of the urges the Flores that for failure of reversed should be tion “seriously harmed” him. The inform right of his Convention Flores to advise state custody, in argument continues that while his arrest and officials of Mexican consular tape to make four “compelled Flores was rights of his and to be informed detention attorney, without an on Consular recorded statements” Convention under the Vienna 23, 1963, been informed of Relations, that had the consulate TIAS April have ob- rights, The district his the consulate would 596 UNTS 261. U.S.T. Spanish speaking attorney tained denied relief. court replies him. The State that Flores has States, life in was lived his the United I schools, in first public educated its his assis- reject the claims of ineffective We Further, that he did language English. the reasons essentially tance of counsel not want assistance. court. by found the district At we must confront the the outset the question of whether Vienna Conven- II by indi- rights tion conferred enforceable ratified the The States Senate United Here to our deci- points viduals. Flores December on Vienna Convention Johnson, 81 F.3d 515 sion Faulder time, of the Conven- provisions At that Cir.1996). (5th In Faulder we observed binding on the individual became tion of Fauld- that there had been a violation Const, VI, 2; II, cl. art. arts. states. U.S. However, rights. er’s Vienna Convention pro- § cl. 2. The Vienna Convention omission to be “harm- panel found the vides: error,” not merit reversal: less which did authori- requests, competent if he so correctly concluded court district [T]he shall, without receiving State ties of attorney Faulder’s had that Faulder or post of the delay, inform the consular that all of the information access to if, its consular dis- sending state within by obtained Canadi- could have been trict, arrested of that state is a national way in no we government. While custody prison or to or committed to to advise of Texas’ failure approve any detained in other pending trial or is Faulder, that the evidence addressed Any communication manner. authori- by the Canadian been obtained ar- by person post to the consular cumulative of merely the same or ties is rested, custody or detention prison, counsel had or evidence defense au- by the said also be forwarded shall have obtained. delay. The said au- without thorities person con- in Faulder thorities shall not read our We do inform delay right right his under the personal cerned without recognizing Rather, panel dispatched sub-paragraph. Convention. any that viola- claim with its conclusion 36(b) art. Apr. 21 U.S.T. Any negative implica- was harmless. tion added). (emphasis claim as rejecting tion inherent interrogation, Flores his arrest and On support a force to harmless lacks sufficient rights under the not advised of his that panel held contention undisputed appears Convention. rights enforceable created Convention citizenship. were aware of his that officials we conclude individuals. While by the that a failure to abide urges Flores we question, has not decided Faulder error is structural terms of the Convention at best merits because not reach its do hence he need not demonstrate Teague barred. Flores’s assertion a fair right to prejudiced violation his Greene, in Breard v. anal- Court trial; harmless error that there is no 1352, 1355, 371, Alternatively, defects. ysis for structural (1998), alleged Flores’s “future dangerousness.” “[t]he noted Vien arguably confers na Inexplicably, [Convention Storrs failed to elicit such right consular assis an individual evidence; effect, he failed to elicit Thus, following arrest.” even the tance mitigation. evidence in But see note infra possibility Vien Court admits (describing Storrs cross-examination of *3 rights, does not confer such na Convention Griffith). Clay Dr. therefore, finding create such itself, In and of failure in Storrs’s this rule, exclusionary prohibit which a new is regard may devastating not have been as attack in a collateral habeas because of ed Clay testimony, but for Dr. Griffith’s which Lane, Teague v. 489 U.S. (1989). Breard, condemned Flores to death based on an 1060, 103 L.Ed.2d 334 See (holding “objective” testifying at 1354-55 Vi evaluation. Before applied “in enna Convention must be con unequivocally that Flores would be a “fu- formity regulations” with the laws and danger,” ture Dr. never examined Griffith States, including the United the rules for Flores, nor did he his make evaluation relief). federal habeas psychological psycho- based on records or Rather, trial, logical testimony. he sat at AFFIRMED. and based on the facts of offense and GARZA, Judge, M. EMILIO Circuit (Flores during Flores’s conduct the trial concurring. specially testify), did not Dr. Griffith came to “expert” opinion on Flores’s future dan- notes, majority opinion As the the dis- gerousness. carefully considered, trict court and de- nied, Flores’s ineffective assistance of testimony lacking objective Such scienti- claim. I disagree counsel do not with the testing fic or personal examination defies thoughtful court’s district and well-rea- rigor scientific and cannot be described as opinion; it is an soned inevitable conse- expert testimony. simply subjective It is quence precedent of the relevant in this testimony validity by without scientific law, area of the and we could add little to one who degree. holds medical Given However, analysis. sep- its to fine I write lack, paucity, complete indeed the arately questions to raise about the au- case, mitigating evidence presented this based, thority on which that is Dr. virtually compelled Griffith’s and, appears which inconsistent with itself jury’s answer to the second possibly, with the dictates of the Constitu- short, truly troubling issue.1 facet tion. upon of this case is the sole evidence one considers the When conduct jury found Flores to be a future dan- Storrs, attorney, trial Flores’s Gene it ger: of a doctor who had inquiry takes little determine never met defendant. troubling. overwhelming case is Based on evidence, Mr. Storrs’s chances of convinc- of Flores’s innocence were I. minimal. only Storrs’s chance of success- Constitution, permitted by While see

fully defending Flores was to limit the 153, 177, Gregg v. Georgia, 428 U.S. applicability penalty. of the death In this (1976) S.Ct. 49 L.Ed.2d 859 regard, mitigating the best evidence Storrs (“It (plurality opinion) apparent is from complete had was Flores’s lack of a crimi- nal, record, juvenile, text of the Constitution itself that the evi- directly mitigated against dence which existence capital punishment was ac- admitted, State, Appeals testimony.” 1. As the Court of Criminal Griffith's Flores v. (en punishment (Tex.Crim.App.1993) "the State’s case at [Flores’] S.W.2d extent, banc). [hearing], upon to some rested Dr. circumstances, the death Framers.”),2 warrant gious is a sen death by the cepted meaningful basis penalty “provide penalties all other from which differs tence —must the few cases which distinguishing degree. See Satter rather than in kind many from the Texas, penalty imposed 486 U.S. white (1988) (“The Godfrey v. cases in which it is not.” Geor L.Ed.2d 284 1759, 1764, 420, 427, 100 gia, 446 U.S. S.Ct. a sentence of severity of awesome (citations (1980) and inter from all 64 L.Ed.2d 398 different qualitatively makes final, omitted); sanctions.”). see also quotation most nal marks Death is the other Creech, 463, 474, severe, punishments. Arave and most S.Ct. Gregg, 428 U.S. (“[A]

(“There as a capital sentencing that death scheme question is no State’s severity and unique per in its narrow the class of genuinely must punishment *4 ... irrevocability.”). penalty the death eligible sons for principled a basis for provide must [and] Eighth Amend Accordingly, while so.”) (citations omitted). According doing appro as an penalty allows the death ment restriction, capital a state’s ly, under this especially egregious response to priate limit a sentencer’s scheme must sentencing crimes, proce strictly regulates it also in a impose penalty, the death discretion to im are by which death sentences dures manner, to the most extreme of principled Ohio, v. Lockett and reviewed. See posed rationally defined state law. cases as 2957, 604, 2954, 586, 57 98 S.Ct. 438 U.S. (“[T]he qualitative difference L.Ed.2d 973 Second, however, “eligibili- in the while calls for penalties and other between death only are allowed to ty” phase sentencers reliability when degree a greater punishment possible death as a consider v. imposed.”); Caldwell sentence is death crimes, must sentencers most severe 320, 329, 105 S.Ct. 472 Mississippi U.S. phase of during the “selection” be allowed (1985) (as 40, 231 86 L.Ed.2d phase sentencing 2639 — scheme—the capital a reliability in the need for serting that a decide whether a sentencer must where correspond a “requires sentences death po- of a guilty individual found particular scrutiny ingly greater degree receive the tentially capital offense should determination”). Sen sentencing capital any consider available penalty- —-to crimes, far capital tencing procedures them that might convince evidence which crimes, must non-capital more so than defendant, how severe his no matter way in a be created and enforced past, his should reprehensible offense or [not] be punishment ensures “that the See, McCleskey e.g., death. put not be arbitrary capricious in an inflicted 107 S.Ct. Kemp, 481 U.S. 189, 96 S.Ct. Gregg, 428 U.S. at manner.” (1987) (“[T]he 262 Consti- 95 L.Ed.2d at 2932. narrow a ability tution limits State’s to consider relevant discretion guiding sentencer’s jurisprudence Supreme Court it to decline to might cause cases has evidence penalty of death consideration sentence.”) First, (emphasis the death impose principles. cardinal produced two Lockett, 98 S.Ct. 438 U.S. original); phase of a state’s “eligibility” (“[T]he be [cannot] sentencer phase where sentencing scheme—the mitigat- considering, as from particular precluded legislature decides state of a defendant’s could, egre- ing factor, any aspect sufficiently given homicides Collins, process due of law.' prived of life . .. without U.S. 510 2. See also Callins 1127, 1127, penalty to be clearly permits L.Ed.2d 435 the death S.Ct. This J., (1994) (Scalia, certiorari) ("The concurring in the denial of beyond imposed, doubt and establishes provides Amendment Fifth the 'cruel and penalty is not one of the death person held to answer for that ‘no shall be prohibited by the punishments’ unusual crime, presentment capital ... unless on Amendment.”). Eighth Jury be de- ... nor indictment of a Grand character or record and any constitutionally of the circum offense as a indispensable stances of offense that the defendant of the part process inflicting penal proffers as a for a death”) basis sentence less than ty Woodson v. North death.”) (emphasis original); v. Carolina, Jurek 280, 303-04, 428 U.S. Texas, 262, 271, 428 U.S. 2978, 2991, (1976)); 49 L.Ed.2d 944 Ro (1976) (“A 2956, L.Ed.2d 929 must Oklahoma, 1, 6, mano v. allowed be to consider on the basis of all 2004, 2009, S.Ct. only why relevant evidence not a death (“States sentencing must ensure that deci imposed, why sentence should be but also sions rest on individualized inquiry [an] imposed.”). As the Court under which the character and record of in McCleskey, “[a]ny held exclusion of the the individual offender and the circum compassionate or mitigating factors stem particular stances of the offense are con ming from the diverse frailties of human sidered.”) (citations quotation and internal kind that are relevant to the sentencer’s omitted); Angelone, marks Buchanan v. decision would fail to treat all persons as uniquely beings.” individual human (1998) (“In L.Ed.2d 702 the selection McCleskey, 481 U.S. at phase, we emphasized the need to (citations quotation and internal allow a broad inquiry into all relevant mit omitted). marks igating evidence to allow an individual de *5 states have While discretion to struc- termination.”). theAs Court has made capital sentencing system ture their as clear, this requirement is not satisfied they please, the Court has made merely by procedures which categorize a choose, clear that they whatever form in- execution; defendant’s crime worthy dividualization of the capital sentencing rather, what required completely is is a hearing “selection” is constitutionally process individualized in which sentencers Lockett, mandated. See 438 U.S. at determine whether imposing death on a (“Given at 98 S.Ct. imposi- the particular defendant is a rational and by public authority tion of death pro- is so morally appropriate response to the ac foundly different from all penalties, other cused’s crime and character. See En we cannot avoid the conclusion that an Florida, 782, 801, mund v. 458 U.S. individualized decision is essential in capi- 3368, 3378-79, 73 L.Ed.2d 1140 cases.”); tal Penry v. Lynaugh, 492 U.S. (1982) (holding capital punishment 302, 317, 2934, 2946, 109 S.Ct. 106 “must be tailored to per [the defendant’s] (“Our (1989) decisions responsibility sonal guilt”); and moral subsequent to Jurek have reaffirmed that Brown, 538, 545, 479 U.S. California Eighth the Amendment mandates an indi- 107 S.Ct. vidualized appropriate- assessment of the (O’Connor, J., (“[T]he concurring) individ ness of the penalty.”); death Zant v. Ste- ualized assessment of appropriateness the 862, 879, phens, 462 U.S. 103 S.Ct. of the penalty death is a inquiry moral (1983) (“What 2743-44, 77 L.Ed.2d 235 into the culpability of the ... defendant important at the stage selection in- [and] reflect a reasoned moral re dividualized determination on the basis of sponse to the defendant’s background, the character of the individual and the character, ”). and crime.... crime”) circumstances of the (emphasis in Oklahoma, original); Eddings v. 455 U.S. II. 104, 112, 102 S.Ct. 71 L.Ed.2d (1982) (“[T]he respect capital fundamental hu- Texas sentencing scheme’s manity underlying the mechanisms for Eighth assuring Amendment that the “selec- requires phase capital consideration of the charac- tion” of a sentencing hearing ter and record of the individual offender involves an individualized assessment of a and the particular circumstances of the defendant’s character and crime have been impose lead them to many stances which Supreme Court by the reviewed “[t]he than death. Since less sentence convic- time of Flores’s At the occasions.3 speak of explicitly not d[id] (cid:127)Texas statute had been found tion, a defendant once circumstances; directfed] mitigating felony in case which aof guilty ... questions,” jury answer only penal- sought of Texas state 2956,5 at Jurek, at U.S. were jurors phase, in the “selection” ty, a “risk hearing entailed “sentencing” two following questions: asked imposed penalty w[ould] that the death probability there is Whether may call for a less factors which spite criminal acts commit defendant Lockett, at penalty,” severe a continu- constitute that would violence risk, of this 2965. Because 98 S.Ct. at society; and threat to case must be held that each Court has actually caused the defendant Whether sure on its facts make examined or not deceased did death of the mitigating facts were any potentially the deceased death of actually cause the jury’s consideration. from excluded the death cause actually did not or Jurek, 96 S.Ct. at 428 U.S. at See to kill de- but intended deceased at 2956; Penry, 492 U.S. at anticipated that or another ceased Penry, described 2945-46. the Court As be taken. human life would “[wjhen life and choice is between 37.071(b). If art. incom death, unacceptable P. Ann. that risk is Tex.Code.CRIm. Eighth the two affirmatively to commands of patible answered Penry, issues,” time of Flores’s and Fourteenth Amendments.” “special 2945-46, 109 S.Ct. at conviction, sentence 492 U.S. at the court would Lockett, P. L.Ed.2d at death. defendant Tex.Code.Crim. 2966). 37.071(g).4 art. Ann. convicted, the Court premise, Tex- on this Based the time Flores At *6 mitigating claims various explicitly not asked considered jury was capital as by the Texas irrelevant made evidence was mitigating circum- there were whether inquiry 262, dangerousness” Texas, See, the "future 96 because 428 U.S. e.g., v. 3. Jurek 2950, (1976) defen- (finding jury to consider 929 did not allow 49 L.Ed.2d constitutional); v. back- procedures Estelle violent retardation and Texas dant’s mental 1866, Smith, 454, 68 101 S.Ct. Penry, 451 U.S. 492 U.S. ground mitigation. See in (1981) psychia- (holding that 359 L.Ed.2d 328, response, the Texas at 2952. In 109 S.Ct. dan- a defendant’s "future evaluation of trist's which question, another Legislature added and Sixth implicates the Fifth gerousness” "Whether, taking into con- jurors: now asks Estelle, Amendments); U.S. v. 463 evidence, Barefoot including the all of sideration (1983) 880, 3383, 1090 77 L.Ed.2d 103 S.Ct. offense, defendant’s circumstances psychological (allowing the use of personal the- background, character dangerous- alleged "future defendant’s on a defendant, is a there culpability of the moral 302, ness”); Penry Lynaugh, U.S. 492 v. 492 or circum- mitigating circumstance sufficient 2934, 302, 256 106 L.Ed.2d 109 S.Ct. U.S. of life a sentence warrant stances to (1989) procedure sentencing (holding sentence imprisonment rather than death give jury failing to allow to inadequate in was art. 37.071 imposed.” Tex.Crim. Proc.Code retar- mental mitigating effect to defendant’s 2(e)(1). defen- applicable current § While v. background); Franklin abusive dation and the death the state seeks dants for 2320, 164, 101 108 S.Ct. Lynaugh, 487 U.S. asked of question was not penalty, this (1988) (holding that the sentenc- jurors Flores’s case. mitigat- jury give ing allowed structure record); prison John- petitioner’s effect to Texas, v. is constitu- clearly son held 5.The Court 2658, 2670, (holding 125 L.Ed.2d adequate to limit the consideration tionally jurors allowed issue that the second jury’s "only to inform mitigating evidence youth accused adequately consider Special to the answers consideration evidence). mitigating murderer as Franklin, U.S. at questions.” Issue at 171. 101 L.Ed.2d Texas Penry, Supreme Court held the In applied "special issues” unconstitutional scheme, capital sentencing thus rendering constitute a “continuing threat society.” the scheme unconstitutional as applied. “special Court has held that Texas’s III. adequately

issues” individualize capital because, sentencing cases where the State of hearing togeth- taken Texas seeks penalty, the death er, frequently the state in- they juries allow “to consider the miti- psychological testimony troduces as “ex- gating aspects unique of the crime and the pert” testimony to support its claim of perpetrator, characteristics of the dangerousness. Dr. Griffith is fre- sufficiently providfe] jury therefore dis- quently the state’s star witness.6 The Phelps, cretion.” v. 484 U.S. Lowenfield Texas Appeals Court Criminal has re- peatedly upheld the admissibility of such Jurek, (1988); see also general and the expert testi- Franklin, Specifically, 5.Ct. at 2956. mony Dr. Griffith in particular, noting: upheld Court the Texas capital sentencing Dr. Griffith’s background, educational system because issues concerning the including the subspecialty of forensic background of the defendant and their pri- psychiatry, teaching experience, and (or thereof) or record lack are relevant to long-term private practice. This includ- jury’s consideration of the second spe- 8,000 ed examining over people charged cial resolving issue. “In the second Texas with criminal testifying offenses and Special Issue the surely free to approximately 97 capital murder trials weigh petitioner’s and evaluate disciplinary in Texas and other states. record as it bore on his ‘character’—that State, (Tex. Clark 881 S.W.2d is, his ‘character as measured likely Crim.App.1994); State, Massey see also Franklin, future behavior’.” 487 U.S. at 933 S.W.2d 156-57 (Tex.Crim.App. 108 S.Ct. at 101 L.Ed.2d at 168. 1996) that, (noting by the time he testified Accordingly, Court pre- trial, in Massey’s Griffith had testified in cedent, capital the Texas sentencing stat- cases). murder In general, the adequately ute individualizes the sentenc- Court of Criminal Appeals has held that ing hearing of each defendant because his “psychiatry is ... sufficiently advanced to or her background, prior record, criminal permit predictions of future violent behav and character are ior,” relevant to the State, second Fuller v. 829 S.W.2d *7 special (en issue: whether the banc) defendant (Tex.Crim.App.1992) (citing that, 701, 6. A brief search of the 1992) (en cases reveals in S.W.2d (Tex.Crim.App. 707 banc); produced published State, those cases which have 743, Spence v. 795 S.W.2d 762 opinions, "yes” Dr. (en banc); Griffith has testified (Tex.Crim.App.1990) to the Beathard v. occasions, State, twenty-two 423, second issue on 767 S.W.2d (Tex.Crim.App. 435 1989) (en banc); and "no” on State, zero occasions. See Miller v. Fearance v. 771 Johnson, 274, (5th Cir.2000); 486, 200 F.3d 287 1988) (en S.W.2d (Tex.Crim.App. 512 Johnson, 234, banc); State, Barber v. 307, 145 F.3d &235 n.9 Holland v. 761 S.W.2d 323 (5th Cir.1998); Johnson, Moody 1988); State, v. (Tex.Crim.App. 139 F.3d Pyles v. 755 477, (5th Cir.1998); Gardner, 98, 484 (en Ex Parte S.W.2d (Tex.Crim.App.1988) 118 189, banc); State, 195, 959 S.W.2d (Tex.Crim.App.1996); 190 Gardner v. 733 S.W.2d 198 State, 141, Massey (Tex. 1987) (en v. banc); State, 933 S.W.2d 156 (Tex.Crim.App. Mays v. State, Crim.App.1996); 937, 1986) Soria v. (en 933 S.W.2d 726 S.W.2d (Tex.Crim.App. 950 46, 1996); State, (Tex.Crim.App. banc); State, 686, 52 Netheiy Purtell v. v. 692 S.W.2d 709 360, 373, reh’g 761 granted 1985) (en S.W.2d banc); 1994 WL (Tex.Crim.App. Smith v. 18209, 145, State, appeal 393, new Pial 910 S.W.2d 683 S.W.2d (Tex.Crim.App. 408 after 1995, ref'd); (Tex.App.Eastland 1984) (en 146 pet. banc); State, Holloway Clark v. 691 State, 682, 608, v. 881 (Tex.Crim.App. 1984) S.W.2d 697 (en (Tex.Crim.App. S.W.2d 616 1994) (en banc); Barber, banc), Ex Parte 879 S.W.2d vacated 475 U.S. 106 S.Ct 1994) (en banc); (Tex.Crim.App. (1986); 891 89 L.Ed.2d Padgett, 908 Ex Parte 673 State, (Tex. McBride v. 1984), 862 S.W.2d (Tex.App.Dallas S.W.2d aff'd (enbanc); State, Crim.App.1993) 1986). Joiner v. (Tex.Crim.App. 717 S.W.2d chal- could, experts, through its own fense State, 568 S.W.2d v. Chambers in State, psychiatrist’s a state lenge Nethery v. and (Tex.Cr.App.1978) fu- predicting of practice or the (Tex.Crim.App. particular 708-09 692 S.W.2d id. at in general. dangerousness under the ture 1985)), admissible generally and (“If [psychologists] at 3398 Rules of Evidence.7 Texas be dis- wrong and should obviously so are Johnson, see, court, e.g. Little This insuperable no credited, there should (5th Cir.1998), as well as 855, 863 162 F.3d members of by calling doing so problem often Appeals, of Criminal Texas Court view and are of that who the Association testi type this of admissibility of rests in their opinion assert confidently who v. Es of precedent mony on Barefoot that, brief.”).8 held The Court amicus 3383, 77 telle, the reli- on conflicting evidence faced (1983). Barefoot, Su general predictions ability of such the claim rejected squarely Court preme of defendant dangerousness future predic unreliability psychiatric of adequately jury could particular, ren dangerousness future of tions to a and come the information process inadmissible, asserting that: it der of the defendant. evaluation rational commit- of a defendant If likelihood constitutionally virtually unani community is a The scientific crimes ting future imposing psychiatric mously agrees criterion acceptable is, is, if it is not it blunt put dangerousness penalty, future on sensibly lay person unscientific. for even impossible ly, unreliable “[njeither conclusion, it makes in 1983 that today at that was to arrive as it true psychi- has cited sense, any, to submit that if State of little nor the Texas the Court per- universe of contra atrists, the entire out of scientific source single reputable profes have an might conclusion of sons who dicting the unanimous little about issue, predic know so would in this field that sionals permit- not be they should are subject that future violence long-term tions testify. right.” they are ted often than wrong more (Blackmun, J., Id. The Court 896-97, at 3396. Id. studies).9 As those dissenting) this evidence that, assuming that even held noted, nothing within often field have unreliable, adversary system the him or makes training psychiatrist by creating problem redress whether predict able particularly the de- her jury; by the credibility evaluation Griffith, Dr. examination State, Storrs’s cross 8. 829 S.W.2d Fuller 7.In fruitless, vigorously chal- end banc), though in the 1992) (en the Court (Tex.Crim.App. predic- reliability psychological lenged the argument that analyzed the Appeals Criminal general. dangerousness in tions of dangerous testimony on future psychological of its inadmissible because should be ness recently reviewed among psychiatrists acceptance One commentator lack post-Bare- *8 on issue Analyzing psychological claim research the reliability. of lack gener- first 702 and that "whereas Evidence and concluded Rules of Criminal the Texas foot States, perhaps one out suggested that F. 1013 293 ation research Frye v. United and 705 engage in some predicted to pre people prior three (D.C.Cir.1923), relied on of Court go actually on to How violent behavior testimony. Id. kind of cedent ever, allowed so, suggest that one studies more recent "[w]e do to hold sure the court made predicted to be vio- people concerning every of two out express no view of course kind of engage some go to on yet discussed lent evidentiary rules not effect of relevant, Randy violent behavior.” legally Otto, Court subject.” The Id. law the case Ability Health Mental now On sentiments its has not reevaluated Profes- of A Com- Dangerousness”: replaced sionals “Predict overruled Frye has been ‘Dangerous- Pharmaceuticals, Inc., Interpretations mentary on Dow v. Merrell of Daubert 43, Literature, 63 18 ness” Psychol. L.Ed.2d 125 & Rev. U.S. Law. 509 (1994). & n.63 (1993). 469 464

particular individual will pert continuing testimony is not admissible “an unless society. threat to Brief of the Ameri- expert, whether basing testimony upon Psychiatric Association, can v. professional personal studies or experi Barefoot Estelle, 463 ence, U.S. 77 employs in the courtroom the same (1983) (hereinafter L.Ed.2d 1090 “APA level of rigor intellectual that characterizes Br.”), at 9 (“psychiatrists bring no practice of expert in the relevant skills”). fact, interpretative Kumho, 1176; field.” 119 S.Ct. Sea even the majority identify trax, Int’l, Inc., Inc. v. Sonbeck 200 F.3d Barefoot “scientific” basis predictions (5th Cir.2000).10 371 dangerousness; its opinion expressly rests To address particularized this need for analysis on the lay person” that “even a reliability in expert scientific testimony, could make predictions. such See Bare- Court has set out five non- 896-97, foot, 463 U.S. at 103 S.Ct. at 3383. exclusive factors to assist trial courts’ de- inadequacy underly- the science termination of whether scientific evidence Dr, Griffith’s become strik- reliable, and thus admissible. Those ingly apparent when considered relative to factors are: scientific generally evidence admissible at (1) whether theory tested, has been courts, trial. In the federal one does not (2) theory whether the has been sub- qualified become “expert to provide scien- jected peer publica- review and tific” evidence merely possess- virtue of tion, ing a medical or other degree; advanced (3) the known potential rate of error rather, adjective “[t]he implies ‘scientific’ (4) the existence of standards control- [that one’s a grounding has] in the ling the operation of the technique, methods and procedures of science.” Pharmaceuticals, Daubert v. Merrell Dow (5) degree to which the theory has Inc., 579, 589-90, generally been accepted by the sci- 2795-96, (1993); 125 see also entific community. Co., Carmichael, Kumho Tire Ltd. 1167, 1176-77, Daubert, S.Ct. 593-94, 509 U.S. at S.Ct. L.Ed.2d 238 (approving 2796-97; district see also Moore v. Ashland Chem rejection court’s of expert Inc., scientific (5th Cir.1998) testi- ical 151 F.3d — mony (en despite because expert’s banc), qualifi- U.S. -, cert. denied cations, including a masters degree in me- (1999). On chanical engineering, years in practice, basis of present evidence thus far prior cases, similar court, ed to a “it it appears that the use doubted, unreliable, and then found psychiatric evidence predict a murder methodology employed by the expert”). er’s dangerousness” “future fails all five Evidence, Under the Federal Rules of ex- First, Daubert factors.11 “testing” of these that, courts, It is well settled in the federal mount addressing concern in 10. the constitution- generally rules of evidence apply do not ality capital sentencing procedures. This sentencing hearing, even one in which the cannot be mere coincidence. See note infra penalty possibility. is a See United 11. Young, (5th States v. 981 F.2d 187-88 Cir.1992); Blackmun, mentioning bears that Justice Del Dep’t Vecchio Illinois Corrections, Daubert, the author of (7th also the F.3d author of 1387-88 Cir. 1994) (en banc) ("There harshly exception dissent no criticized Barefoot However, case."). the use rule in a evidence of future dan- *9 gerousness. Accordingly, cardinal concern of rules of several admissibility commenta- expert Daubert, questioned for tors testimony reliability, viability have see of the Bare- — 589, See, 509 ("[T]he majority's U.S. at analysis post 113 S.Ct. at 2794 -Daubert. foot judge trial e.g., must ensure that Erica Edgar and all scien & Beecher-Monas Garcia- Rill, tific testimony or evidence admitted is not The Law Judging & Brain: Scientific relevant, only reliable.") Intent, but para- also Evidence J.App. —is of Prac. & Process evidence, by even convincing or done, clear and as been truly never has theories clin- As to of the evidence. psychi- preponderance on often rest predictions “such judg- dangerousness, of predictions clinical ically-based intuitive and categories atric altered the to cross-examination time has not susceptible passage of ments Third, 463 U.S. Barefoot, judgment.”). of accuracy rebuttal.” Stone’s J., (Blackmun, dis- minimum, fifty error, at 3414-15 is at a rate of Dix, Expert Prediction (citing senting) are predictions meaning such percent, Eviden- Sentencing: Testimony Capital See, e.g., half of the time. wrong at least Considerations, 19 and Constitutional tiary Fourth, Otto, at 64 & n.65. supra note (1981)); also see L. Rev'. of the controlling operation Am.CRIm. standards (“Because psychia- most at 17 APA Br. APA Br. are nonexistent. See technique they possess do not believe trists litera- professional “the (noting that at 13 of predictions long-term to make expertise reliable criteria no demonstrate^] ture dispute they cannot dangerousness, future of predictions long-term psychiatric do.”).12 Sec- who few of the conclusions behavior”). Overall, theory that scien- the litera- review of ond, from a is clear of fu- reliability predictions underlies tific field, of individual review peer in the ture uniformly re- has been dangerousness ture rare, peer review is predictions absent community jected by scientific general making such predictions to, testify routinely who individuals those See, e.g., Grant uniformly negative. been from, dangerous- predictions of profit Risking Dangerousness: Morris, Defining ness. 10 J. Con- Definition, Dangerousness indicated, As 'Some courts (1999) Legal 85-86 temp. Issues (as expert all testimo- with here problem studies) (“More years ago, twenty than man’s of one introduction is not the ny) psychia- acknowledged that Stone Alan dangerous- on another’s future opinion person whether predict cannot trists is intro- ness, that the the fact but a cer- with behavior dangerous engage education title one whose doubt, by or duced a reasonable tainty, beyond or Barefoot, sentencing,” (“The (1999) acknowl- ] Court [Barefoot J., (Blackmun, dissenting) Psychiatric Association’s edged the American testimony dangerousness more forceful. even opposition to future becomes unreliability. None- extreme of its because theless, the Association that because it found describing what "scienti- case In a recent always psychiatrists were not claim that did as "ex- testimony” be admissible fic dangerousness respect wrong to future with trial, at- Stevens testimony” at Justice pert wrong they more were predictions only testimony — so type tempted to describe such would not exclude than not—it often inadmissible. as to scientifically be unreliable emphasis on testimony. of Daubert's light In example ‘junk science’ ”[a]n stated He however, rates, acceptable error Barefoot's too Daubert as be excluded that should H. questionable.”); Michael highly decision testimony phre- aof be the unreliable would Gottesman, to Join- to Daubert From Barefoot prove defen- purport to nologist who would Error, 40 Ariz. Play Double Triple L. er: dangerousness based on future dant's (“'Daubert be (1998) cannot Rev. General skull.” defendant’s of the contours Otto, Barefoot."); Randy On the squared with Joiner, Co. v. Electric to “Pre- Ability Mental Health Professionals (Ste- n.6, Commentary Inter- Dangerousness": A dict J., vens, known concurring). on all Based Literature, "Dangerousness” pretations of studies, in three one state that best (1994); 64 & n. 65 & Psychol. Rev. Law dangerous- predictions Giannelli, Crimi- ScienceThe “Junk C. Paul correct, certainty with say cannot one ness is Criminology Cases, 84 J.Crim. nal L. and phrenologist would testimony aof embracing (1993). light of the Court's based on the importantly, More less reliable. analysis, Justice Blackmun’s the Daubert train- psychologist's nothing within a fact that square impossible to that "[i]t statement expertise on her in him or prepare but purportedly scientific of this admission phrenologists’s dangerousness,” "future the Constitu- actually baseless appears no less scientific. reliability in paramount concern tion’s *10 (not to mention designation as an “ex commit violence again, and threatened pert”) gives him significant credibility with potential immeasurable conse- eyes jury of the as one whose quences of an determination, incorrect are comes with the imprimatur of scientific understandably likely to defer to an “ex- fact.13 As has been previously recognized, pert” determination which will eliminate when a medical doctor testifies “fu that consequences, those even if reliability its ture dangerousness” is a scientific inquiry questioned is by another “expert.” See on they which have particular expertise, (“[I]t APA Br. at 9 permits jury and testifies that a particular defendant avoid the difficult actuarial questions by a “continuing be threat to society,” seeking refuge in a diagnosis medical juries See, always persuaded. are almost provides a false certainty.”); aura of Craig Satterwhite, e.g., 486 U.S. at 108 S.Ct. Haney, Violence and the Capital Jury: (“[Dr. Grigson’s] testimony stands Mechanisms Moral Disengagement of out both because of qualifications his as a Impulse Death, to Condemn to medical doctor specializing in psychiatry StaN. L. Rev. 1469-70 & n.113 powerful because of the content his (“In this light, capital penalty trials some- message ... that [the defendant] was be times become forums grossly yond the reach of psychiatric rehabilita prejudicial and predictions unreliable tion.”); Barefoot, 463 U.S. at dangerousness are presented with (Blaekmun, J., S.Ct. at 3407 dissenting) imprimatur (cita- of state authority.”) (“In case, a capital specious omitted).14 tions of a psychiatrist, colored in eyes of an impressionable jury by the un- inevitable IV. touchability of a medical specialist’s words, The testimony Griffith, equates Dr. itself.”); with who White Estelle, Flores, never met (S.D.Tex. is F.Supp. particularly assailable. 1982) (“[W]hen First, Griffith lay opinion testified prof Flores’s “char- is by fered a witness acter and bearing crime” made him the title of a future dan- ‘Doctor,’ impact ger its without ever examining is much him. The greater than if it practice were not masquerading predicting future dangerous- not.”). something Jurors, faced ness without an meeting individualized with the responsibility is, of determining subject with the while acceptable under whether an individual who committed at Court precedent, Barefoot, see least one murder will kill or otherwise 3400,15 U.S. at 103 S.Ct. at con- case, 13. In this Dr. testimony began Griffith's er prison confined in society, or free in will qualifications, with his wherein he again, described expert kill and an says merely who the "scientific” inquiry. made, nature of the prediction He such no can be members of "psychiatry testified that is a branch jury charged of medi- by making law with specialty cine aor prediction in medicine which deals surely tempted will opt diagnosis with the and treatment of expert emotional who help claims he can them in or mental disorders people and evaluation performing duty, their predicts who dire they to see if any,” have and that consequences death."). because if put the defendant not "personality,” his the chances being of Flores n rehabilitated were "essentially none.” 15.The majority, giving credence to Barefoot Underwood, 14. See also Richard X-Spurt H. the scientific opinions given basis such Witnesses, 19 Am. J. Trial interview, without of an benefit individual Advoc. (1995) ("The higher case, the stakes in the that: asserted likely more the 'appeal authority' Medical may give men opinions their work.”); Mantell, Edward H. A Modest Pro- only patient of a they may state have posal Emperor: Psychiatric to Dress the & visited ... but they also in cases where Psychological Courts, Opinion in the have not themselves seen the patient, and Widen- (1994) ("Given er J. Pub. L. 65-66 a choice only symptoms particu- heard the expert between an says pre- who that he can lars of his state detailed witnesses other dict certainty defendant, wheth- trial. *11 hypo- to a comparison in hindrance is “a inherently field in the most by demned question.” thetical as un- as well and unscientific unreliable (“Absent Br. at 18-26 APA See deduction, ethical. with cer- Second, Griffith’s and examination psychiatric in-depth an “future dan- would be that Flores tainty, exclude cannot evaluation, psychiatrist facts on the exclusively was based ger,” he assure can nor diagnoses; testi- alternative crime. Griffith surrounding Flores’s making the criteria for necessary fied, that that: part, relevant in result, As a are met. question in diagnosis hideous all, very vicious this First of opinion medical to render unable he is no evidence unprovoked, was murder certainty.”); degree of reasonable this with which means any provocation, all of (“The at 858 White, F.Supp. himself, in- see also from within acted individual and psychiatrists among view stimulus any external prevailing not from urge, ner associations, a psychiatric type that this years professional ... Over the subscribes, is that studied, very court it is this been personality view to has dangerous- this long-range people that that these the extent apparent to (a accepted type this not who commit personality view predicted type be ness can to be violent going an community), murder are psychiatric enough itself for penchant future This—this again.... individual’s toas to going person’s us that extensive to tell not follow which does violence in the future. deal of violent great based is not examination information, that is not of torture type in-depth go and on with complex We her, fact, lady, In tortured young opinion.”). to lay he did this but a professional, front her her, then predicting and stabbed for raped notorious psychiatrist one is a desire This many times. the sub- back examining and without dangerousness to desire this was behind kill. What been evicted Grigson, has ject, Dr. James but don’t know We I have no idea. kill Association Psychiatric American from the kill. a desire to it’s stop warnings repeated ignoring for Kirchmeier, close an area Further, See, Jeffrey he back to goes L. e.g., practice. he up her then Factors: The he Mitigating picked to where and Aggravating He’s of water. a drink Arbitrary gets and Man- and goes Today’s Paradox of disturbed, and then Scheme, concerned, not 6 Wm. not Punishment datory Capital sleep. (“The goes lays down and Mary goes he Bill Rts. J. & all any conscience many Anybody for too late was perhaps, expulsion, sleep. go to lay down case, going defendants.”).16 only did is not not This comfortable. to be accurately going he He’s could testify that Griffith infor- from no evidence shows man dangerousness a defendant’s predict any guilt, have of that I mation told the he also but hypothetical, from a remorse.... the defendant examining actually jury that Texas and the hearings, the sentencing APA Congress at 3400 Id. at him Physicians ousted Psychiatric Edgar, Society Co. v. Empire Spring & at a "arriving (1878)). organizations their L.Ed. from examining the diagnosis without ti- notoriety him the earned Grigson's 16. Dr. indicating, question individuals generally Ron Rosen- Death.” tle “Dr. baum, witness, he expert testifying as an while Death, With Dr. Vanity Travels Fair, certainty that percent predict with began Grigson’s fame May at 206. in future violent engage individuals Dale the trial Randall testimony with his Beil, Psychiatrist Groups Expel Laura acts.” Adams, he was Grigson testified where Cases, Morning Murder Known for Dallas The Adams would percent certain one hundred A; Dr. Death Loses July News it was revealed again, after kill Accusations, Ethics Memberships Over by the falsified against Adams evidence July Star-Telegram Af- innocent. released as police, Adams was Fort-Worth A25. in hundreds Grigson ter testified things All of together these tell cally me that about but everyone that I this man will be violent about, future and know this is true. *12 no matter where he is. make doesn’t Q: you Have ever in a testified case any difference. or Sooner later he’s go- wherein an individual has been con-

ing to be violent. get You can’t worse victed of in conjunction murder than he what did except terms of rape that he would not be a future numbers. threat to society and commit future acts of violence? The Court of Criminal Appeals noted that A: I don’t believe so. Griffith’s conclusion that Flores was not remorseful was So, based the fact that Q: that is one area that you are “[t]here no was evidence ... from which firm in? he could deduce remorse or concern or Yes, A: sir. Flores, the victim.” 871 S.W.2d at 716. Q: Okay. So them your basically bot- Given that Griffith spoke Flores, never to tom line analysis is that crime the fact that he failed find to “evidence” of itself is all it takes for you to make any given personality trait is not surpris- your prediction? ing. Griffith’s to the extent that is, A: yes, This what I started out say- an individual with this “personality” would ing.

be dangerousness, moreover, was based on Flores, 871 (Clinton, J., S.W.2d at 724-5 the “personality” of someone who would dissenting). commit unprovoked murder in gener- sum, In al, Dr. Griffith testified that personality Flores’s Flores particular.17 would be a danger,” “future without exam- fact, as noted the dissent on direct Flores, ining because one “per- with the appeal, Dr. Griffith’s testimony on cross- sonality” to commit the crime Flores com- examination revealed his feeling he mitted be a “continuing threat to could predict an individual’s future danger- society.” Based almost exclusively on this ousness merely by knowing crime, their testimony, and irrespective of Flores’s and his belief that anyone who committed complete record, lack of a criminal family capital murder in general, or murder abuse, or past, truculent the jury answered the course of sexual in particular, assault “yes” to the special second issue.18 Ac- would be a “future danger” simply for the cordingly, Flores was sentenced to death. fact that they committed particular Flores’s crime was undeniably brutal. Flores, crime. See 871 S.W.2d at He waited for the victim outside her work (Clinton, J., dissenting). As Griffith testi- place, car, forced her into his and drove to fied, alia, inter a remote location where he sexually as Q: Anyone of capital convicted murder saulted the victim and her stabbed ten would, your opinion would, com- law, times. Under Texas the facts of mit future acts of violence. Flores’s crime may alone have been suffi Yes, A: my that’s I opinion. would not cient uphold to jury’s finding on the to, know, you

want say this for second State, issue. See Kunkle v. somebody that I didn’t know specifi- S.W.2d 449 (Tex.Crim.App.1986) 17. Griffith’s was also explanation based on no why as to this crime occurred. some items which found testified, were in Flores’s Griffith essentially, past that Flores’s car, mother’s and there was conflicting testi- determination; irrelevant was to his based on mony on whether those belonged items to incident, one heinous Flores continuing was a Flores. society. threat This determination was based on feeling Griffith’s that one with the respect, In this is a complete there disso- “personality” to commit this crime was inher- nance between Flores’s crime and his life dangerous. ently prior crime, to the juxtaposition gives sentence. appropriate to be shown (“If banc) offense (en 2947, 106 S.Ct. calculated, then U.S. cold-blooded sufficiently added) (citations (emphasis at 279 support may alone offense the facts Woodson, omitted); also see pose defendant finding (“A process Dinkins society.”); threat continuing facets relevant significance (Tex.Crim.App. no accords 330, 358 State, S.W.2d individ- record re the character banc) (“we typically 1995) (en circumstances hei or the so offender ual circumstances those quired from consider- excludes callous offense particular a ‘wanton display *13 toas nous of punishment However, ultimate ”). fu the fixing life’ ation for human disregard or compassionate of element possibility any other the like death dangerousness, ture di- the from stemming a beyond factors proven mitigating crime, must be of the all treats Jeffers, humankind. of frailties Lewis verse doubt. reasonable offense designated a convicted persons State, beings, human individual (1990); uniquely Brooks as not L.Ed.2d 606 faceless, undifferenti- (Tex.Crim.App.1999) aof members as but S.W.2d blind the the to prove subjected to State to be on the mass (“The is ated burden death.”). a rea beyond penalty issue of the infliction dangerousness jury doubt.”). reasonable aWhile sonable can analysis, one the above Based surrounding facts the found have First, Su- under dichotomy. clear a glean sufficiently egregious alone Flores’s crime “special Texas the precedent, Court preme the without penalty, death the to warrant capital individualize sufficiently issues” its “expert” Griffith’s benefit individu- the because hearings sentencing significantly been have would decision rele- is background a defendant’s ality of difficult. more sec- the jury’s consideration the to vant However, the under issue. special ond V. scheme, psychiatrist’s evidentiary Texas nor does allege, not does Flores a defendant testimony that “scientific” cap- Texas indicate, that record without given if even danger,” a “future be is scheme, defendant sentencing ital if defendant, even examining the evi- mitigating presenting from prevented a defendant crime solely on based criminal, juve- of a lack dence, as the such to sustain only sufficient committed, not is from the background, nile, psychiatric or second to the answer affirmative an case, his (or, or she he jury, or the primary, frequently issue,19 but is Howev- so. to do attorney) choose her affirmative jury’s reason only, com- Court’s Supreme er, satisfy the to answer. sentencing individualized mands Flores’s viciousness recognize I to al- enough simply not is hearing, “[i]t statuto- jury’s recognize I also crime. mitigating present defendant low appropriate anas death impose ry right The sentencer sentencer. to the evidence However, separates what give punishment. to consider able also must legal is the murderer from sen- executioner imposing evidence that effect ascertains state by which process be sure we can Only then tence. crimes. heinous guilty those condemns defendant has treated sentencer it allows because flawed process that If and has being human individual uniquely validity any scientific without evidence determination a reliable made defen- offered Appeals fact, of Criminal Court as the danger to continuing constitute exception, dant noted, subject to one extreme here n.3& Flores, S.W.2d society.” found that we true "it is cases). [to to be insufficient any case evidence State where dangerousness] prove future push toward condemning the ac-

cused, the legitimacy of legal our process

is threatened. Court has

made clear that the constitutionality of a

state’s sentencing scheme depen-

dent on the individualized basis in which

defendants are considered. I question

whether that concern for individuality ex-

ists under a system which not only admits

expert testimony deduced without examin- subject also, but case, as in this

accepts the possibility jurors will al-

low evidence, rather than factors personal

more to a defendant’s crime and

character, to effectively condemn that indi-

vidual to death.

Isaias TOSCANO-GIL, Petitioner-

Appellee,

E.M. TROMINSKI, District Director,

Immigration & Naturalization Ser

vice; Janet Reno, Attorney Gen eral; United States America, Re

spondents-Appellants.

No. 99-40123.

United States Court of Appeals,

Fifth Circuit.

April

Lisa S. Brodyaga (argued), Refugio Del Grande, Rio Benito, San TX, Lucas Gut- tentag (argued), American Civil Liberties Foundation, Union Immigrants Rights Project, Francisco, CA, San for Petitioner- Appellee.