Correspondence from Rhyne to Clerk

    NO. 82-6080

IN THE
UNITED STATES SUPREM E COURT

OCTOBER TERM, 1982

THOMAS A. BAREFOOT,

V.
Petitioner

W. J. ESTELLE, JR., DIRECTOR,
TEXAS DEPARTM ENT OF CORRECTIONS

Respondent

On W rit Of Certiorari To 
The United S tates Court Of Appeals 

For The F ifth  Circuit

BR IEF FOR RESPONDENT

JIM MATTOX 
Attorney General of Texas

DAVID R. RICHARDS 
Executive Assistant 

Attorney General

DOUGLAS M. BECKER 
Assistant Attorney General 
Chief, Enforcement Division

P.O. Box 12548, Capitol Station 
Austin, Texas 78711 
(512) 475-3281



QUESTIONS PRESENTED

(1) W hat is the appropriate standard for granting or 
denying a stay of execution pending disposition of an 
appeal by a federal Court of Appeals by a death sentenc­
ed federal habeas corpus petitioner?

(2) Was Petitioner deprived of due process of law by 
the prosecution’s use of hypothetical questions posed to 
expert psychiatric witnesses regarding Petitioner’s 
future dangerousness at the punishment phase of his 
bifurcated trial?



11

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................................ i

TABLE OF AUTHORITIES............................................................ iv

OPINIONS BELOW ..........................................................................1

JURISDICTION ............................................................................... 1

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED......................................................2

STATEMENT OF THE CASE .......................................................... 2

A. Procedural History .................................................................2

B. The Evidence at Petitioner’s State Trial .............................5

1 .The Guilt of Innocence Stage of T rial............................... 5

2 .The Punishment Phase of Trial....................................... 11

C. The Evidence at the Federal Evidentiary
Hearing................................................................................... 17

SUMMARY OF ARGUMENT ........................................................ 22

A. The Stay Issue .......................................................................22

B. The Hypothetical Question IsSue ........................................ 25

ARGUMENT ..................................................................................... 26

I. A STAY OF EXECUTION SHOULD NOT BE
GRANTED PENDING THE APPEAL OF A DEATH 
SENTENCED STATE PRISONER IN FEDERAL 
HABEAS CORPUS UNLESS HE PRESENTS AN ISSUE 
WITH A SEMBLANCE OF PATENT SUBSTANTIAL 
MERIT CREATING A REASONABLE JUDICIAL 
DOUBT AS TO HIS LIKELIHOOD OF SUCCESS ON 
APPEAL .............................................................................26



Ill

A .The Statutory Scheme Enacted by Congress Governing 
Habeas Corpus Appeals Contemplates that a Stay of Ex­
ecution may be Denied to a Death Sentenced Habeas Cor­
pus Petitioner who has been Granted aCertificate of Pro­
bable Cause to A ppeal.................................................... 26

B .This Court’s Important Authorities Support the Proposi­
tion that the Granting of a Certificate of Probable Cause 
Should Not Entitle a Death Sentenced Habeas Corpus 
Petitioner to an Automatic Stay of Execution Pending 
Appeal ...............................................................................32

C .Considerations of Logic and Equity Militate Against the 
Granting of Automatic Stays of Execution to Death 
Sentenced Habeas Corpus Petitioners who have Obtained 
Certificates of Probable Cause to A ppeal.......................38

II. PETITIONER WAS NOT DEPRIVED OF DUE PRO­
CESS OF LAW BY THE USE OF HYPOTHETICAL
QUESTIONS POSED BY EXPERT PSYCHIATRIC
WITNESSES AT THE PUNISHMENT PHASE OF HIS
BIFURCATED CAPITAL TRIAL ................................... 40

A. The Texas Statutory Scheme and the Court’s Prior Pro­
nouncements Illustrate the Appropriateness of Expert 
Psychiatric Testimony at the Punishment Phase of a 
Texas Capital MurderTrial ............................................. 40

B. Expert Predictions of Future Dangerousness are Reliable
in Cases Such as Petitioner’s ........................................... 43

C. The Probative Value of the Expert Testimony in Peti­
tioner’s Case was not Outweighed by any Prejudicial Im­
pact ...................................................................................47

CONCLUSION 50



IV

INDEX OF AUTHORITIES

CASES Page

Abduc u. Lane, 468 F.Supp. 33 (E.D, Tenn.), 
aff’d, 588 F.2d 1178 (6th Cir. 1978).............................................. 28

Barefoot v. E ste lle ,_____ U.S._____ ,
103 S.Ct. 841(1983)......................... ’..............................................5

Barefoot v. Estelle, 697 F.2d 593 
(5th Cir. 1983).........................................................................passim

Barefoot v. Estelle, No. W-81-CA-191 
(W.D. Tex. 1982) .......................................................................  135

Barefoot v. State, 596 S.W.2d 875 
(Tex.Crim.App. 1980) ..........................................................  2

Barefoot v. Texas, No. 80-5320,
_____ U.S._____ (1980) ..................................................................3

Booker v. Wainwright, 675 F.2d 1150 
(11th Cir. 1982) .............................................................................  37

Brooks v. Estelle, 697 F.2d 586
(5th Cir. 1982) .....................................................................  24,36,37

Buttrum v. Georgia,_____ U.S._____ ,
103 S.Ct. 801 (1983)........................... ’..........................................44

Carafas v. LaVallee, 391 U.S. 324 (1968)...................................  23,33

Chessman v. Dickson, 275 F.2d 604 
(9th Cir. 1960) ..................................................................... 28

Clements v. Wainwright, 648 F.2d 979 
(5th Cir. 1981) .................................................................................29

Dobbert v. Strickland, 670 F.2d 938 
(5th Cir. 1982) .............................................................................  37

Drummond v. Fulton County Department of 
Family and Children's Services,
532 F.2d 1001 (5th Cir. 1976) ......................................................  30



V

Estelle v. Smith, 451 U.S. 454 (1981) ................... 21,22,26,42,43,44

Evans v. Bennett, 440 U.S. 1301 (1979).......................................... 40

Farrell, Ex parte, 189 F.2d 540 (1st Cir.), 
cert, denied sub nom. Farrell v. O'Brien,
342 U.S. 839(1951) ....................................................................... 28

Florida Businessmen for Free Enterprise v.
City of Hollywood, 648 F.2d 956
(5th Cir. 1981) .................................................................................30

Foster v. Field, 413 F.2d 1050
(9th Cir. 1969) ...............................................................................  28

Gardner v. Florida, 430 U.S. 349 (1977).......................................... 43

Garrison v. Patterson, 391 U.S. 464 (1968)................................. 23,33

Gay v. Graham, 269 F.2d 482
(10th Cir. 1959) .............................................................................  28

Goode v. Wainwright, 670 F.2d 941 
(11th Cir. 1982) .............................................................................  37

Gordon v. Secretary of State of Wisconsin,
462 F.Supp. 307 (E.D. Wise. 1978) .............................................. 28

Green v. Georgia, 442 U.S. 95 (1979) .............................................. 43

Gregg v. Georgia, 428 U.S. 153 (1976) ............................................ 43

Holloway v. State, 613 S.W.2d 497 
(Tex.Crim.App. 1981)(en banc) ......................................................43

Jackson v. South Carolina, 498 F.Supp. 186
(D.S.C. 1979) .................................................................................  28

Jurek v. Texas, 428 U.S. 262 (1976) .....................................  26,41,42

Kleczka v. Massachusetts, 259 F.Supp. 462
(D.C. Mass. 1966)........................................................................... 31

Lambert v. Barrett, 159 U.S. 660 (1895) 32



VI

Miller v. Turner, 658 F.2d 348
(5th Cir. 1981) .................................................................................36

Miranda v. Arizona, 384 U.S. 463 (1966) ........................................ 42

Modesto v. Nelson, 296 F.Supp. 1375 
(N.D. Cal. 1969) ...............................................................................37

Mulligan v. Zant, 531 F.Supp. 458 
(M.D. Ga. 1982) ...............................................................................37

Nolan v. Nash, 316 F.2d 776 (8th Cir.), 
cert, denied, 375 U.S. 924 (1963)..................................................  28

Nowakowski v. Maroney, 386 U.S. 542 (1967)..................... 23,29,33

O'Bryan v. Estelle, 691 F.2d 706 
(5th Cir. 1982) ..........................................................  24,30,32,36,37

Page v. United States Parole Commission,
651 F.2d 1083 (5th Cir. 1981) ........................................................36

People v. Murtishaw, 631 P.2d 446 
(Cal. 1981 )(enbanc) .........................................................................48

Pratt v. Maine, 408 F.2d 311
(1st Cir. 1969).................................................................................  28

Rogers v. Peck, 199 U.S. 425 (1905) ................................................  32

Ruiz v. Estelle, 660 F.2d 555
(5th Cir. 1981) .................................................................................30

Ruiz v. Estelle, 666 F.2d 854
(5th Cir. 1982) ...............................................................................  30

Shaw v. Martin, 613 F.2d 487
(4th Cir. 1980) .................................................................................37

Simpson v. Teets, 248 F,2d 465
(9th Cir. 1957) ...............................................................................  28

Stewart v. Beta, 454 F.2d 268
(5th Cir. 1971), cert, denied,
406 U.S. 925(1972) ....................................................................... 29



vii

Tate v. United States, 359 F.2d 245 (1966) ...................................  28

United States v. Restro, 529 F.Supp. 579 
(W.D. Pa. 1982) ...............................................................................37

United States ex rel, Stewart v. Ragen,
231 F.2d 540 (7th Cir. 1956) ........................................................  28

Younger v. Harris, 401 U.S 37 (1971) ............................................ 32

CONSTITUTIONS, STATUTES, AND RULES

Constitutions

U.S. Const, amend. VI .........................................................................2

U.S. Const, amend. V II I .......................................................................2

U.S. Const, amend. X I V .......................................................................2

Statutes

28U.S.C. §1915(a)..........................................................   2

28 U.S.C. §2101( e ) .................................................................................1

28U.S.C. §2251 ..............................................................  2,23,30,31,32

28 U.S.C. §2253 .............................................................................  1,2,4

28 U.S.C. §2254 .................................................................................  22

14 Stat. 386 (codified at Rev. Stat. §766,
2d. ed. 1878) ...................................................................................  32

Tex. Code Crim. Proc. Ann. art. 11.07 .............................................. 3

Tex. Code Crim. Proc. Ann. art. 37.07 ........................................  2,40

Tex. Code Crim. Proc. Ann. art. 37.071 ................................ 2,40,41

Tex. Code Crim. Proc. Ann. art. 37.071(f) ......................................... 2

Tex. Code Crim. Proc. Ann. art. 43.14 ............................................... 4



via

Tex. Penal Code Ann. §19.03(a)(l)................................................2,41

Rules

S.Ct.R. 18 ...............................................................................................

Rule 4(a), Federal Rules of Appellate Procedure ............................. 1

Rule 8, Federal Rules of Appellate Procedure................................. 1

Rule 22(b), Federal Rules of Appellate Procedure . 2,23,29,30,32,35

Rule 52, Federal Rules of Appellate Procedure............................. 44

R. 701, Federal Rules of Evidence ..................................................49

Other Authorities

American Psychiatric Association Amicus Curiae 
Brief in Estelle v. Smith, No. 79-1127 .............................  21,22,44

Brooks, “The Dangerous Patient: Legal Aspects.”
Feb. 24, 1976 (paper presented at the 

New York School of Psychiatry’s Law 
and Public Policy Workshop,
Poughkeepsie, N .Y ).......................................................................47

J. Cocozza & H. Steadman, “The Failure of 
Psychiatric Predictions of Dangerousness:
Clear and Convincing Evidence,”
29 Rutgers L. Rev. 1084 (1976) .............................................. 44,47

G. Dix, “The Death Penalty, ‘Dangerousness,’
Psychiatric Testimony, and Professional
Ethics,” 5 Am.J.Crim.L. 151 (1977) ...................................... 47,48

H. Blackmun, “Allowance of In Forma 
Pauperis Appeals in Section 2255 and
Habeas Corpus Cases,” 43 F.R.D. 343 (1967) ...........................  29

Kozel, Boucher, and Garofalo, “The Diagnosis and 
Treatment of Dangerousness,”
18 Crim. & Delinq. J. 371 (172) ....................................................47

Monahan, The Clinical Prediction of Violent 
Behavior (1981) .............................................................................45



ix

9 Moore’s Federal Practice, para. 208.07 
(2d ed. 1982) ...................................................................................  35

Rofman, Askinazi & Fant, “The Prediction of 
Dangerous Behavior in Emergency Civil 
Commitments,” 137 Am.J.Psych. 9 (1980) ...............................  46

D. Schwartz, “The Proper Use of the Psychiatric 
Expert,” in Scientific and Expert Evidence 
(ed. by E. Imwinklerid, 2d ed. 1981) ............................................48

Shaw, “Dangerousness: A Paradigm for Exploring 
Some Issues in Law and Psychology,”
33 Am. Psych. 224 (1978) ............................................................  46

Steadman & Cocozza, “The Dangerousness 
Standard and Psychiatry: A Cross 
National Issue in the Social Control
of the Mentally 111” (1980)............................................................  44

Steadman, Cocozza & Melick, “Explaining the 
Increased Crime Rate of Mental Patients:
The Changing Clientele of State Hospitals,”
135 Am.J.Psych. 816 (1978) ........................................................  46

Stone, “Comment,” 132 Am.J.Psych. 829 (1975) ......................... 47

J. Wigmore, Treatise on Anglo-American System 
of Evidence in Trials at Common Law
(3rd ed. 1940) .................................................................................  49

11 Wright & Miller, Federal Practice and 
Procedure, §2905(1973) ..............................................................  35



NO. 82-6080
IN THE

UNITED STATES SUPREME COURT 
_____________ OCTOBER TERM, 1982______________

THOMAS A. BAREFOOT,
Petitioner

W. J. ESTELLE, JR., DIRECTOR,
TEXAS DEPARTM ENT OF CORRECTIONS

Respondent
On W rit Of Certiorari To The United States Court Of 

Appeals For The Fifth Circuit
BRIEF FOITr ESPONDENT

TO THE HONORABLE JUSTICES OF THE SUPREME 
COURT:

NOW COMES W. J. Estelle, Jr., Director, Respondent 
herein, by and through his attorney, the Attorney 
General of Texas, and submits this his brief: 

OPINIONS BELOW
The unpublished opinion of the district court in 

Barefoot v. Estelle, No. W-81-CA-191 (W.D. Tex. 1982) 
is reproduced in the joint appendix, hereinafter, “JA ,” 
a t 5. The opinion of the United States Court of Appeals 
for the Fifth Circuit is published as Barefoot v. Estelle, 
697 F.2d 593 (5th Cir. 1983), and is also reproduced at 
JA  16.

JURISDICTION
The district court entered its memorandum opinion 

and judgm ent adverse to Petitioner on November 9, 
1982 (JA 14, 15). Petitioner filed notice of appeal on 
November 24, 1982, and obtained a certificate of pro­
bable cause to appeal on December 13, 1982. Thus, 
jurisdiction was properly conferred upon the United 
States Court of Appeals for the Fifth Circuit by virtue of 
Rule 4(a), Federal Rules of Appellate Procedure; Rule 
22(b), Federal Rules of Appellate Procedure; and 28 
U.S.C. §2253.

Petitioner filed his petition for writ of certiorari in this 
Court on January 24, 1983. The same day, the Court ex­
ercised its jurisdiction under 28 U.S.C. §2101(e), and 
S.Ct.R. 18, to review a case pending in a federal court of 
appeals before judgm ent “upon a showing th a t the case



- 2 -

is of such imperative public importance as to justify  the 
deviation from normal appellate practice and require im­
mediate settlem ent in this Court.”

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED

Petitioner asserts th a t this case involves U.S. Const, 
amends. VI, V III, and XIV, He further relies upon and 
sets forth in an appendix to his brief 28 U.S.C. 
§§1915(a), 2251 & 2253, as well as Rules 8, 22(b), Federal 
Rules of Appellate Procedure. Also involved is Tex. 
Code Crim. Proc. Ann. art. 37.071, reproduced in Peti­
tioner’s appendix to his brief.

STATEMENT OF THE CASE
A. Procedural History
On August 9, 1978, Petitioner was indicted by the 

grand jury of Bell County, Texas, for capital murder 
under Tex. Penal Code Ann. §19.03(a)(1), murder of a 
peace officer acting in the lawful discharge of his official 
duty. The crime was alleged to have been committed on 
August 7, 1978. State u. Barefoot, Cause No. 26,812. 
Jury  selection began on October 31, 1978. The guilt or 
innocence phase of Petitioner’s trial, bifurcated like all 
criminal trials in Texas under Tex. Code Crim. Proc. 
Ann. art. 37.07, began on November 14, 1978. On 
November 17, 1978, the jury returned a unanimous ver­
dict of guilt. The docket sheets reflect tha t final 
argum ents of counsel were concluded at 12:45 p.m. and 
th a t the jury  returned its verdict of guilt a t 2:15 p.m.

On November 20, 1978, the punishment phase of trial 
began. Evidence concluded and the jury retired to 
deliberate a t 10:12 a.m. on November 21, 1978. The jury 
returned its unanimous death verdict a t 11:12 a.m. the 
same day. Under Tex. Code Crim. Proc. Ann. art. 
37.071(f), an automatic appeal was taken to the Texas 
Court of Criminal Appeals. The en banc Court of 
Criminal Appeals affirmed the judgm ent seven-two on 
March 12, 1980. Barefoot v.State, 596 S.W.2d 875 
(Tex.Crim.App. 1980). Two dissenting judges would 
have reversed the conviction for the erroneous admis­
sion of extraneous offenses. Barefoot v. State, 596 
S.W.2d at 889 (dissenting opinion of Clinton, J.). 
Thereafter, Petitioner was sentenced to die by injection 
before sunrise on September 17, 1980.



-3-

This Court entered a stay of execution pending the fil­
ing of a petition for writ of certiorari on July 29, 1980.
Barefoot v. Texas, IJ.S______ (1980). The petition
was filed under Cause No. 80-5320 on August 27, 1980, 
and on June 29, 1981, the Court denied the petition and 
dissolved the stay of execution. On August 14, 1981, 
Petitioner was again sentenced to death by the trial 
court, which set his execution sometime before sunrise 
on October 13, 1981.

Petitioner next filed an application for writ of habeas 
corpus in state  court pursuant to Tex. Code Crim. Proc. 
Ann. art. 11.07 on September 29, 1981. This application 
was denied by the Texas Court of criminal Appeals on 
October 7, 1981.

On October 9, 1981, Petitioner filed his first federal 
habeas corpus application in the United States D istrict 
Court for the W estern D istrict of Texas, Austin Divi­
sion. Barefoot v. Estelle, No. A-81-CA-422. On October 
9, 1981, Petitioner’s execution was stayed pending con­
sideration of his application for writ of habeas corpus. 
Subsequently his application was transferred to the 
Waco Division of the W estern D istrict as Barefoot u. 
Estelle, No. W-81-CA-191. The district court initially set 
evidentiary hearings for April 26, 1982, and June 10, 
1982, both of which were postponed. Respondent, aware 
of Petitioner’s dilatory preparation for these hearings 
and th a t motions for continuance were avoided only 
because of the district court’s propitious sua sponte con­
tinuances, on June 17, 1982, was moved to renew the 
motion to expedite consideration th a t he had originally 
filed on January 22, 1982. Respondent also asked for an 
immediate evidentiary hearing and appointment of local 
counsel.

On June 17, 1982, the district court set an evidentiary 
hearing for July 28, 1982. On June 24 and 25, 1982, the 
district court entered a series of four orders ruling upon 
Respondent’s motions. The district court granted 
Respondent’s motion for an evidentiary hearing. He 
granted Respondent’s motion to require the filing of a 
pre-trial order by July 12, 1982. The court also granted 
Respondent’s renewed motion to expedite considera­
tion:

Petitioner is ORDERED to be ready for the



-4-

hearing on Ju ly  28, 1982. If he is not, present 
counsel shall be dismissed and new counsel ap­
pointed a t th a t time.

Finally, the district court ordered the parties to issue all 
necessary subpoenas by July 12, 1982.

The evidentiary hearing transpired as scheduled on 
July 28, 1982. On November 12, 1982, the district court 
entered its findings of fact and conclusions of law (JA 5) 
and judgm ent (JA 15) adverse to Petitioner. Respondent 
moved to vacate the previously entered stay of execu­
tion and the court granted th a t motion on December 8, 
1982. Petitioner filed notice of appeal and an application 
for a certificate of probable cause on November 24,1982. 
On December 13, 1982, the district court found probable 
cause for an appeal under 28 U.S.C. §2253 and Rule 
22(b), Federal Rules of Appellate Procedure.

On December 20, 1982, the sta te  convicting court 
sentenced Petitioner to die sometime before sunrise on 
January 25, 1983, pursuant to Tex. Code Crim. Proc. 
Ann. art. 43.14. The same day, Petitioner filed an 
original application for writ of habeas corpus in the 
Texas Court of Criminal Appeals. I t  was denied the next 
day. On January 11, 1983, Petitioner filed a motion for 
stay of execution in the Texas Court of Criminal Ap­
peals. I t  was denied the same day.

Three days later, on January 14, 1983, Petitioner filed 
an application for stay of execution pending appeal in 
the United States Court of Appeals for the Fifth Circuit. 
The Fifth Circuit scheduled oral argument for January 
19, 1983, allowing Petitioner’s attorney “unlimited time 
to discuss any m atter germane to the decision before 
u s.” (JA 17). After having studied the briefs and the 
record, the court on January 20, 1983, entered an opi­
nion holding that there was no patent substantial merit, 
or semblance thereof, to any of Petitioner’s constitu­
tional objections, and denied the motion for stay of ex­
ecution. Barefoot v. Estelle, 697 F.2d 593 (5th Cir. 1983); 
JA  16.

On January 24, 1983, Petitioner filed his petition for 
certiorari in this Court. Following the submission of 
Respondent’s response, Petitioner’s supplemental mo­
tion for stay of execution, and Respondent’s supplemen-



-5-

tal response, the Court on January 24, 1983, entered an 
order treating the application as a petition for writ of 
certiorari before judgment, and granted certiorari.
Barefoot v. Estelle, _____ U.S_____ _ 103 S.Ct. 841
(1983).

Meanwhile, Petitioner had filed in the district court, 
under Cause No. W-81-CA-191, what he styled a motion 
for stay of execution. The sole substantive ground of 
this motion is tha t a witness presented by the prosecu­
tion at trial, Mary Richards, had perjured her testimony 
with knowledge and a t the insistence of the prosecution. 
The district court scheduled an evidentiary hearing for 
the afternoon of January 24, 1983, in El Paso, Texas. 
After learning th a t this Court had stayed Petitioner’s 
execution, the district court postponed the evidentiary 
hearing in tha t cause until February 10, 1983. Among 
the numerous witnesses who testified was Mary 
Richards. A decision adverse to Petitioner in tha t cause, 
which was renumbered as W-83-CA-53, was rendered on 
March 28, 1983. Petitioner’s motion in this Court to 
stay further proceedings in the district court is pending.

Petitioner has also sought to stay further proceedings 
in the Fifth Circuit, which has established a moderately 
expedited briefing schedule for other issues th a t Peti­
tioner might wish to raise in his appeal from the adverse 
adjudication in No. W-81-CA-191. The Fifth Circuit on 
March 3, 1983, denied Petitioner’s motion to stay  fur­
ther appellate proceedings in tha t forum. Petitioner’s 
motion to stay such proceedings is also presently pen­
ding before the Court.

B. The Evidence at Petitioner’s State Court Trial
1. The Guilt or Innocence Phase of Trial.

On August 7, 1978, Donnie Ray Tiller and Robert 
Roberson lived in a trailer in Killeen, Texas. Residing 
with them  were Radene Layto, Deborah Forbes and 
Petitioner, who began living at the trailer in June under 
the assumed name of Darren Collier (SF 1399-1408). 
During the summer of 1978, Petitioner asked Tiller 
many times to get him a gun (SF 1412) and often talked 
to both Tiller and Roberson about wanting to commit 
robberies in Harker Heights, Texas, a city contiguous to 
Killeen (SF 1414, 1512). Petitioner also told Tiller tha t 
he had been roughed up during an arrest for public in-



- 6 -

toxication in Harker Heights and tha t Tiller would be 
reading about him in the newspaper for killing a Harker 
Heights police officer (SF 1413-14).

A t approximately 2:00 p.m. on August 6, 1978, Peti­
tioner told Tiller tha t he planned to rob the Oasis Club in 
Harker Heights on the morning of August 7, 1978, and 
to create a diversion for the police by setting fire to or 
blowing up a building in Harker Heights (SF 1415-18). 
Petitioner left the trailer a t 4:00 p.m. August 6,1978 (SF 
1419-20) and a t 4:00 a.m. on August 7, 1978, Tiller went 
to work at the Yellow Cab Company in Killeen, as a 
dispatcher (SF 1423).

Robert Roberson was also employed by the Yellow 
Cab Company (as a driver) and began work a t 5:00 p.m. 
on August 6 and finished a t 4:15 a.m. on August 7 (SF 
1514-15). He returned to the trailer a t 4:30 a.m. and 
went to bed with Deborah Forbes (SF 1516). Petitioner 
then arrived a t the trailer, aroused Roberson out of bed 
and asked him for a ride to Harker Heights. Petitioner 
was wearing a white T-shirt, Levi blue jeans, and a pair 
of pointed toe boots. In his possession were a homemade 
bomb, a plastic milk jug, and a fully loaded .25 
automatic pistol, which he carried in his back pocket (SF 
1517-21). Roberson agreed to drive Petitioner to Harker 
Heights and on the way Petitioner told him th a t he was 
going to blow up the Silver Spur located on Highway 
190 in Harker Heights (SF 1522). Roberson drove Peti­
tioner to Mickey’s Number Four, a drive-in grocery in 
Harker Heights near the Silver Spur, so th a t Petitioner 
could buy some gasoline. Refusing to carry Petitioner to 
the Silver Spur, Roberson left him armed with a .25 
caliber pistol and a gallon of gasoline at the drive-in 
store and returned to the trailer with the homemade 
bomb which Petitioner inadvertently had left in the car 
(SF 1524-28).

A t 5:15 a.m. John Edwards, a soldier a t Fort Hood, 
Texas, who resided in Harker Heights, left for Fort 
Hood driving his usual route, which took him past the 
Silver Spur (SF 1158-68). As Edwards drove towards 
Business Highway 190 and approached the Silver Spur, 
he observed flames coming from the roof of the club and 
Petitioner facing the fire standing on the edge of the



-7-

parking lot next to Highway 190 (SF 1168-74). No one 
else was present in the area (SF 1171-72). As Edwards 
started  to turn onto Business Highway 190, Petitioner 
turned and ran across the highway (SF 1174-77). Ed­
wards drove to the police station, informed the police 
about the fire, and then returned to the scene of the fire 
(SF 1179-83). As he was driving down Business 
Highway 190 towards the fire, he observed Petitioner 
running down the highway towards the intersection of 
Amy Lane (SF 1194-97). A t the scene of the fire, E d­
wards observed a fire inspector remove a melted plastic 
jug from the roof of the burning building (SF 1189-90). 
Edwards then informed the eventual murder victim, Of­
ficer Carl Levin, of what he knew about the fire, in­
cluding observing Petitioner at the scene of the fire and 
later again near Amy lane. The uniformed officer then 
left in his marked patrol car down Highway 190 towards 
Amy Lane (SF 1194-97).

Michael Thrash, a soldier a t Fort Hood, lived on Amy 
Lane. A t 5:35 a.m. on August 7, 1978, he left for Fort 
Hood on foot walking down Amy Lane. While walking, 
he observed a patrol car with emergency flashers on, 
parked on Amy Lane a t the intersection of Valley Road 
(SF 1219-27). The spotlight of the patrol car was on 
some bushes and Thrash observed a man wearing blue 
jeans and a white T-shirt (SF 1245) walk out of the 
bushes into the spotlight and approach the uniformed 
police officer, who was standing next to the patrol car 
(SF 1228-31). As the two were talking within two feet of 
each other, the man who appeared out of the bushes shot 
the police officer in the head without provocation at 
point blank range (SF 1237-43). The officer fell to the 
ground and the assailant fled, running down Valley 
Road. Thrash ran to the patrol car to help the officer, 
summoned assistance over the police radio, and pursued 
the assailant a short distance before losing him (SF 
1243-46).

Carl Levin, the police officer, died beside his patrol car 
(SF 1253) with his gun still strapped in his holster (SF



- 8-

1331). A single shell casing was found between his body 
and his patrol car (SF 1252). The autopsy revealed that 
Levin died from a bullet fired a t close range tha t entered 
the left side of his forehead two inches above his left 
eyebrow and passed through his brain (SF 1743-53). The 
projectile was recovered (SF 1752) and ballistic tests 
established tha t it was fired into the head of Carl Levin 
from a distance of 3-6 inches (SF 1780).

Mary Richards lived on Valley Road near the intersec­
tion of Amy Lane and while in bed before 5:45 a.m., she 
heard two shots. According to her testimony, Richards 
looked out of her bedroom window facing the street and 
observed a man resembling Petitioner wearing a white 
T-shirt (SF 1277) running down Valley Road away from 
Amy Lane (SF 1258-69). While Richards stated that she 
could not positively identify the fleeing man, she 
described him as about five feet five inches to five feet 
seven inches tall, having a muscular build and wavy, 
coarse hair, and pointed out Petitioner as resembling 
him (SF 1265-69).

A t approximately 10:45 a.m. the same morning, after 
hearing the news on the radio, Donnie Ray Tiller receiv­
ed a phone call a t the office of the Yellow Cab Company 
from Petitioner (SF 1426-28). Regarding the shooting of 
the police officer in Harker Heights earlier tha t morn­
ing, (SF 1432), Petitioner told Tiller ”1 shot him. I killed 
the mother fucker. I shot him in the head.” (SF 1429). 
Petitioner asked what he should do and stated that he 
was calling from the Gibson’s Store on Highway 190 
and tha t he would call back. After this conversation, 
Tiller related to Detective Carl Trippet of the Killeen 
Police Departm ent the substance of the phone call (SF 
1430).

Later the same morning, three police officers went to 
the trailer belonging to Tiller and Roberson looking for 
Petitioner and awoke Roberson. Petitioner was not there 
and after the officers left, Roberson went back to bed, 
only to be awakened again — this time by Petitioner (SF 
1529-32). Petitioner was dressed like he was when



-9-

Roberson last saw him, wearing a white T-shirt, blue 
jeans and boots, but his face, mustache and white 
T-shirt were speckled with blood (SF 1523-33). Peti­
tioner was in a state  of panic (SF 1534). Roberson told 
him that the police were looking for him. Petitioner then 
told Roberson tha t he had to get out of town because 
“he wasted a cop, that he killed a cop.’’ (SF 1533). Rober­
son asked him how he killed the police officer and Peti­
tioner dem onstrated how he committed the crime by 
putting  his hand in his back pocket, pulling his hand out 
and putting  his finger against Roberson’s head a t the 
place tha t corresponded to the bullet wound on the head 
of the slain officer (SF 1534-35). Petitioner then washed 
up, changed clothes wearing blue jeans, a brown knit- 
shirt, and a jean vest and left the trailer (SF 1534-38).

Later tha t morning, Petitioner met Francisco Her­
nandez on a street in downtown Killeen. Petitioner told 
Hernandez that he had lost his job and got kicked out of 
the Star Motel where he was staying with a friend (SF 
1599-1602). Hernandez invited Petitioner to his home 
where Petitioner ate lunch, slept in the afternoon and 
stayed the night (SF 1604-10). The next morning, 
August 8, 1978, Hernandez listened to a news broadcast 
on the radio describing Petitioner and then inquired, 
“T hat’s you they’re looking for.’’ Petitioner replied, “ I 
am the one tha t they’re looking for, but I didn’t kill no 
policeman.” Hernandez asked Petitioner to turn himself 
in, but he refused (SF 1612-14). Hernandez then asked 
Petitioner to leave and Petitioner shaved off his 
mustache and changed into another shirt tha t Her­
nandez gave him (SF 1615-16). They then left Killeen 
and went to the bus station in Belton, Texas, where Peti­
tioner decided to take the next bus to Houston. Her­
nandez left Petitioner in Belton and hitchhiked to 
Austin, where he went to the police station and informed 
the police th a t the bus carrying Petitioner would arrive 
in Houston a t 11:30 p.m. (SF 1617, 28).

Two Texas Rangers and three Houston Police Officers 
arrested Petitioner in the Houston Greyhound Bus Sta-



- lo­

tion shortly after 11:20 p.m. on August 8, 1978 (SF 
1662-72). A fully loaded .25 caliber automatic pistol was 
found in his right rear pocket (SF 1675-80). Ballistic 
tests conclusively revealed tha t the projectile tha t killed 
Officer Carl Levin and the shell casing found beside the 
body of the slain officer were fired from the pistol found 
in Petitioner’s pocket (SF 1781-82).

To show Petitioner’s motive for killing Officer Levin, 
the prosecution presented evidence th a t Petitioner had 
been arrested and indicted in New Mexico for the of­
fenses of sexual penetration of a minor and kidnapping 
and tha t while waiting for trial on those charges, he 
escaped from jail.1 Mike Roach testified tha t he was a 
peace officer in Grants, New Mexico, and tha t on Oc­
tober 29, 1977, he arrested Petitioner in New Mexico for 
the offense of sexual penetration of a minor and took 
him before a m agistrate (SF 1113-17).

Judge John Horececk testified that he is a m agistrate 
of Valencia County, New Mexico, and tha t on November 
1, 1977, he arraigned Petitioner for the offense of sexual 
penetration of a minor and kidnapping; th a t he informed 
him tha t the maximum penalty for the sexual penetra­
tion was life imprisonment; tha t the punishment for kid­
napping was from five to fifteen years imprisonment; 
and th a t he committed Petitioner to the Valencia Coun­
ty  jail in lieu of $100,000.00 bond (SF 1118-22).

There was further testim ony th a t Petitioner and 
another prisoner on January 19, 1978, escaped from the 
Valencia County Jail by knocking a hole in their cell 
wall, entering an adjoining cell, and fleeing out a window 
th a t  they  rem oved (SF 1122-25; 1138-42). Ronald 
Childress testified that he represented Petitioner upon 
the indictment in Cause No. 4374-C pending against him

1. The prosecution gave Petitioner notice on October 16, 1978, 
that the State intended to prove that he was charged by indictment 
with the offense of rape and kidnapping of a child and that while 
waiting trial in New Mexico on those charges, he had escaped from 
jail (Tr. 193).



- 11 -

for sexual penetration of a minor and kidnapping and 
th a t the case was set for trial for the week of January 30, 
1978 (SF 1125-31).

The prosecution introduced into evidence a copy of the 
indictment in Cause No. 4374-C, styled The State o f 
New Mexico v. Thomas A ndy Barefoot, charging Peti­
tioner with rape, sexual abuse and kidnapping of a child 
(SF 2233); a copy of the arraignment in Cause No. 
4374-C (SF 2235); a copy of the indictment in Cause No. 
CR78-40, styled The State o f New Mexico v. Thomas 
Barefoot, charging Petitioner with escape (SF 2236); and 
a copy of the warrant for Petitioner’s arrest for escape 
tha t issued in Cause No. CR78-40 (SF 2237).

2. The Punishment Phase of Trial

The prosecution proved th a t Petitioner had been 
previously convicted of the following offenses:
(1) Possession of an unregistered firearm on October 
24, 1975, in Cause No. 75-164 in the United States 
D istrict Court for the W estern District of Oklahoma for 
which Petitioner was sentenced to one year in prison (SF 
1964-66, 2349);
(2) Possession of amphetamines on December 2, 1974, 
in Cause No. 36858 in the 15th Judicial D istrict Court of 
LaFayette Parish, Louisiana for which he was sentenced 
to 5 years, the imposition of which was suspended for 5 
years on the condition tha t he serve one year in jail and 5 
years on probation (SF 1968-71, 2394);
(3) Distribution of marihuana on December 2, 1974, in 
Cause No. 37573 in the 15th Judicial D istrict Court of 
LaFayette Parish, Louisiana, for which he was sentenc­
ed to serve 5 years, the imposition of which was 
suspended for 5 years on the condition he serve one year 
in jail and 5 years on probation (SF 1968-71, 2395);
(4) Possession of marihuana in Cause No. 36859 on 
November 26, 1974, in the 15th Judicial D istrict Court 
of LaFayette Parish, Louisiana, for which he was 
sentenced to serve 6 months in jail (SF 1971-72, 2526); 
and



- 12 -

(5) Carrying a concealed weapon in Cause No. 37572 in 
the 15th District Court of LaFayette Parish, Louisiana, 
on November 26, 1974, for which he was sentenced to 
serve 6 months in jail (SF 1973-74, 2525).

The prosecution also offered evidence of Petitioner’s 
reputation for peaceful and law abiding citizenship. The 
S tate proved through numerous witnesses that Peti­
tioner had a bad reputation for being a peaceful and law 
abiding citizen in 1969 when he resided in Morgan City, 
Louisiana (SF 1975-78); in 1972 in New Iberia, Louisiana 
(SF 1978-79); in 1973 in LaFayette, Louisiana (SF 
1980-82); in 1973 and 1974 in New Iberia and LaFayette, 
Louisiana (SF 1983-87); in 1975 in Oklahoma City, 
Oklahoma (SF 1988-90); in 1976 in Odessa, Texas (SF 
1991-94); in 1977 in Woodward, Oklahoma (SF 
1995-2000); in 1977 in Neodesha, Kansas (SF 2001-03); 
and in 1977 in Valencia County, New Mexico (SF 
2004-09).

The prosecution also presented psychiatric testimony 
a t the punishment phase. Dr. John T. Holbrook stated 
tha t he had previously testified for both the prosecution 
and the defense in death penalty cases (SF 2072, 2103). 
He had never interviewed Petitioner (SF 2073, 2101). 
The prosecutor then formulated a lengthy hypothetical 
question to Holbrook (SF 2074-88). In the first part of 
the hypothetical question, Holbrook was asked to 
assume tha t a man from 1969-1978, when he was bet­
ween twenty-four and thirty-three years of age, had 
gained a bad reputation for being a peaceful and law 
abiding citizen in numerous communities in five states. 
He asked Holbrook to assume tha t the man had been 
convicted of the same crimes of which Petitioner has 
been convicted (SF 2074-77). The prosecutor then re­
counted essential details of the murder of which Peti­
tioner had ju st been convicted, including the cir­
cumstances tha t Petitioner had planned to commit drug 
related crimes (SF 2078); tha t he had used an alias (SF



-13-

2079); tha t he had stated th a t he was going to kill a 
Harker Heights police officer (SF 2080); that he had 
com m itted  d rug  re la ted  crim es; th a t  he was 
unemployed; tha t he had boasted of other crimes he had 
committed (SF 2081); tha t he had stated he planned to 
commit a robbery and murder someone; tha t he had ob­
tained a gun and a bomb for tha t purpose; tha t he had 
murdered a police officer in the manner th a t Petitioner 
had murdered Officer Carl Levin (SF 2082-86); tha t he 
had adm itted the crime to others and had expressed no 
remorse for his victim (SF 2088); and tha t he had then 
attem pted to flee the community.

Holbrook testified tha t the facts of the hypothetical 
question established th a t the subject was “unable to 
establish any sort of normal kind of relationship to 
society’’ (SF 2092) and tha t he was not “capable of 
relating to any of the normal institutions th a t most peo­
ple live by ...” (SF 2093). He further testified that the 
subject had demonstrated an “ascending sort of scale of 
criminal behavior ...” and th a t it did not sound as 
though incarceration would be rehabilitative. He noted 
th a t the subject had used aliases (SF 2094); was an “ex­
trem ely  se lf-serv ing  p e rso n ” (SF 2094); was 
manipulative of others; was intent on committing 
serious crimes; and that he had boasted of crimes he had 
committed (SF 2095).

Holbrook testified that these are the characteristics of 
a criminal sociopath (SF 2097), which he described as:

1. Exhibiting criminal anti-social behavior (SF 2098);
2. “Extremely self-centered and self-serving”;
3. “Unable to form loyalties to the normal institu ­

tions such as family, friends, politics, law, religion,” or 
others;

4. Lying and manipulatively using others;
5. Exhibiting a pattern  of violence (SF 2099); and
6. Escaping or running away from legal and other 

problems.
Holbrook testified tha t there is no effective treatm ent 

for such persons (SF 2100).



-14-

On cross-examination, the defense emphasized that 
Holbrook had never examined Petitioner (SF 2101) and 
tha t Holbrook had heard no evidence in the case (id.). 
Accordingly, Holbrook did not know if the facts of the 
hypothetical were true in Petitioner’s case and he adm it­
ted tha t if they were not, th a t would affect his answer 
(SF 2104). He was forced to admit tha t the American 
Psychiatric Association had published a task force 
report stating  tha t the prediction of future violence is 
unreliable (SF 2103).

Dr. Jam es P. Grigson, a psychiatrist, stated  tha t he 
had testified for the defense as well as the prosecution in 
other cases (SF 2110). He had never examined Petitioner 
(SF 2110, 2132). After hearing essentially the same 
hypothetical question tha t had been posed to Holbrook 
(SF 2113-26), he testified tha t the facts of the 
hypothetical question showed a “fairly classical, typical 
sociopathic personality disorder.’’ (SF 2128). He 
testified tha t persons with such a disorder typically 
demonstrate lack of conscience; “repeatedly break the 
rules”; “con, manipulate and use people”; and are only 
interested in self-gratification. He testified th a t the sub­
ject of the hypothetical was a rather severe sociopath 
(SF 2129); th a t there was no effective treatm ent for such 
persons; and th a t the probability that the subject of the 
hypothetical question would commit future acts of 
criminal violence posing a continuing threat to society 
was “at one hundred percent and absolute.” (SF 2131).

On cross-examination, the defense emphasized tha t 
Grigson had never examined Petitioner (SF 2132) and 
tha t he had not been present during trial. Accordingly, 
Grigson adm itted he did not know if the facts in the 
hypothetical were true in Petitioner’s case and tha t if 
they were not, tha t might affect his opinion (SF 
2132-33). He also adm itted tha t he was not familiar with 
the American Psychiatric Association task force report 
and that he was not familiar with a large number of ar-



-15-

ticles and publications about which defense counsel 
sought to question him. Similarly, defense counsel asked 
Grigson about his familiarity with a large number of 
professional journals publishing articles relevant to 
Grigson’s testimony, and Grigson stated tha t he did not 
read any of them (SF 2135-36).

Two prosecutors and both defense counsel made clos­
ing argum ent to the jury at the punishment phase of 
trial. A ssistant D istrict A ttorney Jam es Leitner made 
no mention whatsoever of the psychiatric testimony 
during his argum ent (SF 2145-56).

Defense counsel Gerald Brown vigorously attacked 
Holbrook’s and Grigson’s testimony (SF 2156-66). He 
argued th a t based upon the evidence, the jury should 
know tha t psychiatrists cannot predict human behavior 
with any degree of certainty. In light of the professional 
literature and studies, as well as the American 
Psychiatric Association task force report (SF 2157), the 
psychiatric profession particularly cannot predict future 
dangerousness with any degree of reliability. He em­
phasized tha t the s ta te ’s expert witnesses had never ex­
amined Petitioner (2158), and th a t the hypothetical 
facts did not support their diagnosis. He also argued 
tha t even if Petitioner were a sociopath, it did not 
necessarily follow that he would commit future acts of 
violence against society (SF 2160). He argued a t some 
length tha t the factual basis of the hypothetical ques­
tions was false (SF 2160-65), arguing particularly tha t 
based upon the evidence, it had not been shown that 
Petitioner was especially egocentric or manipulative; 
tha t he had avoided employment; th a t he was a schemer 
or a planner; tha t he was the prime planner of the escape 
from New Mexico; or tha t he was a trouble maker in jail.

During his closing argument, defense counsel Steven 
B lythe (SF 2166-71) mentioned the psychiatric 
testimony briefly in a portion of his argument. He, too,



- 16-

emphasized th a t the prosecution’s psychiatrists had 
never examined Petitioner and that they had not talked 
to numerous other persons whose knowledge of Peti­
tioner might have fundamentally altered the psychiatric 
testimony, such as Petitioner’s family, prison or jail of­
ficials, school officials, neighbors, or friends. He argued 
tha t psychiatrists who would testify under such cir­
cumstances were unethical.

Finally, D istrict A ttorney Cappy Eads (SF 2172-83) 
presented his summation. He emphasized tha t the jury 
m ust decide the credibility of the expert witnesses (SF 
2175). He admitted, “ I do not have a crystal ball to come 
into this courtroom. I cannot tell you exactly w hat’s go­
ing to happen...” (SF 2176). After emphasizing the pro­
fessional credentials of Holbrook and Grigson, he told 
the jury:

“Now, again, you can weigh their testimony 
and you can say well, I want to put a certain 
amount of credence here or a certain amount 
here. But th a t’s what the doctors told you and 
if in anyway the hypothetical question which I 
read to Dr. Grigson was in anyway inaccurate 
or contained anything which you as a jury felt 
to be untrue, then certainly you disregard that 
question.”

(SF 2178). He then argued the import of the evidence 
presented at the guilt or innocence and punishment 
phases of trial.

The docket sheets reflect the jury deliberated no more 
than one hour before returning a verdict of death. The 
trial court had instructed the jury, among other things, 
as follows:

“The burden of proof is on the State. You are 
the exclusive judges of the facts proved, of the



-17-

credibility of the witnesses, and of the weight to 
be given to the testimony...

You are further instructed tha t in determin­
ing each of these special issues you may take in­
to consideration all of the evidence submitted 
to you in the full trial of the case...

There has been introduced the testimony of 
certain witnesses who purport to be skilled in 
their line of endeavor. Such witnesses are 
known in law as expert witnesses. An expert 
witness is one who is skilled in any certain 
science, art, business, or profession and 
possessed a peculiar knowledge acquired by 
study, observation and practice. You, the jury, 
are instructed tha t you may consider the 
testimony of these witnesses and give it such 
weight and value as you think it should have, 
bu t the weight and value to be given their 
testimony is for you to determine.

The testimony of any expert, like th a t of any 
other witness, is to be received by you and 
given such weight and value as you deem it is 
entitled to receive.”

JA  4.

C. The Evidence at the Federal Evidentiary Hearing

A t the evidentiary hearing on July 28, 1982, four ex­
p e r t  w itn e s se s , tw o  p s y c h ia t r i s ts  and  tw o 
psychologists, testified. The first, Dr. Fred L. Fason, 
testified for Petitioner. (R. 7). His testimony was 
permeated by his philosophical opposition to the kind of 
testim ony given by Holbrook and Grigson at 
Petitioner’s trial, and by his distaste for forensic 
psychiatrists generally. For example, he criticized Dr.



- 18 -

Holbrook, who had “a very fatalistic philosophy of look­
ing a t individuals ... w ithout hope.” (Id.) Although 
agreeing tha t predictions of future dangerousness are 
most reliable for those who have committed repeated 
acts of violence in the past, Fason nevertheless said:

“That is why I don’t think psychiatrists should 
be involved in this situation. I think it ought to 
be up to the ju ry .”

(R. 90). Although Fason said that he believed in capital 
punishment, he expressed a doubt tha t he could ethical­
ly testify a t the punishment phase of a capital trial in 
Texas because he believed in imposing the death penalty 
“for what somebody has done, not for what somebody 
says they are.” (R. 47).

Although Fason had interviewed only a small number 
of suspected criminals, and adm itted tha t he was 
familiar with none of the major research regarding the 
prediction of future violent behavior (R. 75-76), he 
denied tha t any psychiatrist might be more expert than 
he in the field of sociopathic psychiatry. (R. 61, 64). In 
fact, he proclaimed, “ I am more expertise [sic] in the 
field of forensic psychiatry than most of the individuals 
who specialize in i t .” (R. 65). When questioned why he 
denied a reasonable possibility of special expertise in 
this area of psychiatry, whereas he adm itted it in others 
such as pediatric psychiatry, he agreed with the sta te­
ment that psychiatrists who deal with criminals “as a 
group don’t measure up to psychiatrists such as 
yourself.” (R. 68).

Nevertheless, Fason agreed with Dr. Holbrook’s six or 
seven criteria for the diagnosis for sociopathy (R. 32, 
86). He adm itted tha t evidence of a bad reputation for 
being a peaceful and law abiding citizen in numerous 
communities “m ight” have psychiatric meaning in con­
junction with the other facts of the hypothetical ques-



-19-

tion (R. 23), and he stated tha t involvement in the drug 
community “would increase my suspicion, in reviewing 
the history, tha t he is sociopathic.’’ (R. 24). He stated 
tha t the hypothetical question contained enough facts 
to make an impression, but not a diagnosis. (R. 35-40). 
He admitted, in fact, th a t based upon the facts contain­
ed in the hypothetical question, “My most probable 
diagnosis, my impression would be sociopathic per­
sonality disorder, antisocial type, severe.” (R. 39; see, R. 
42-43). He stated that he could form such an “impres­
sion” to a ninety percent certainty. (R. 22, 56). He 
agreed tha t his impression was “identical to [Grigson’s 
and Holbrook’s] diagnosis.” (R. 56).

Fason adm itted tha t regarding Grigson’s testimony 
about the ineffectiveness of treatm ent or the possibility 
of change for sociopaths, “There is some tru th  in that, 
and by and large we do not have effective means of 
treating the sociopathic personalities.” (R. 48, 90). He 
added, however, the treatm ent of sociopaths “is expen­
sive, it carries with it a low order of success, and it takes 
someone who is extremely skilled in the treatm ent of the 
sociopath.” (R. 28). As an example of someone who had 
been cured of sociopathy, he cited the son of a wealthy 
neighbor who was cured after treatm ent lasting three 
years at a cost of $300,000.00 (R. 29).

Dr. Wendell Lee Dickerson, a psychologist, testified 
for Petitioner tha t he, too, could not ethically testify 
upon the basis of hypothetical questions at the punish­
ment phase of a capital trial. (R. 108). Based upon the 
facts of the hypothetical question, Dickerson was asked 
whether he agreed with Fason’s impression th a t Peti­
tioner was a sociopathic personality, antisocial type, 
severe. Dickerson replied, “ I think he gave a reasonably 
accurate assessment of th a t.” (R. 116). After declining 
“to make any diagnostic impression of Mr. Barefoot,” 
(id. ), Dickerson was asked:



- 20 -

“Q [by A ssistant A ttorney General Becker]:
I ’m not asking you to diagnose him in the cour­
troom. I am asking you to take the hypothetical 
question as if you would a question on the 
medical board examination, and whether th a t is 
the diagnosis you would make.

A: [by Dickerson]: That would be my first, my 
first stop, you bet.

Q: And you would think tha t you were cor­
rect?

A: I would think there was a doggone good 
chance I was.

Q: Dr. Fason said he would be around ninety 
percent sure. How about you?

A: I probably wouldn’t go quite th a t high, 
but the sentiment expressed there I would 
agree with.”

(R. 116-17).
Dr. George Parker, a psychologist, testified for 

Respondent. After enumerating the criteria for a 
diagnosis of sociopathy (R. 186 et seq.), Parker testified 
that there was sufficient information in the hypothetical 
question to form an opinion whether the subject were a 
sociopath (R. 188) and whether he would continue to 
commit future acts of violence posing a danger to socie- 

Dickerson also adm itted  th a t the results of 
Petitioner’s Minnesota Multiphasic Personality Inven­
tory, available before Petitioner’s trial and at the 
evidentiary hearing but not seen or relied upon by Drs. 
Holbrook or Grigson, supported the same diagnosis. (R. 
127).



- 21 -

ty. (R. 189-90). He stated the probability at ’’somewhere 
around ninety percent,” (R. 190), and later stated  that 
he could make such an assessment with “high con­
fidence.” (R. 194). He stated tha t Drs. Holbrook and 
Grigson and their methods are “are in the realm of ac­
cepted psychological practice.” (R. 204). Although 
acknowledging tha t some psychiatrists, based upon 
some studies, do not believe tha t future dangerousness 
can be reliably predicted, Parker agreed with the posi­
tion of the American Psychiatric Association as stated 
in its amicus curiae brief in Estelle v. Smith, 451 U.S. 
454 (1981):

“A clinician might be fairly confident tha t 
violent behavior would recur, as for example 
where a paren t’s past behavior clearly and 
repetitively evidences physical abuse of his or 
her children, but as the task  force noted the 
relatively high degree of reliability in these 
cases is a function of knowing tha t the base rate 
of such behavior, tha t is the rate of repetitive 
past violent acts, is very high with a person 
under scrutiny. I t would not be necessary tha t 
the patient be mentally ill or suffering from a 
psychiatric disorder in order to predict that 
such behavior will recur.”

(R. 202-03). He agreed tha t a number of studies have 
characterized predictions of future dangerousness as 
futile “because those studies have selected people who 
do not have a steady persistent history of committing 
acts of violence.” (R. 201). He enumerated a number of 
these studies (R. 196-199), adding tha t John Monahan is 
the “leading thinker on this issue.” (R. 195). Thus, 
Parker testified, predicting future dangerousness 
among mental patients generally is highly unreliable; 
convicted felons provide a better pool; and felons who 
have repeatedly committed violent crimes in the past 
are the group about which predictions of future 
dangerousness are most reliable. (R. 196-203).



- 2 2 -

Finally, Parker testified tha t he believes it a proper 
professional role for a psychologist to inform the jury  in 
a capital case of the conclusions he has reached based 
upon his training and experience. (R. 215).

Dr. Richards Koons, a psychiatrist, testified that 
there are psychiatric specialists in sociopathy who are 
more expert that other psychiatrists in making that 
diagnosis and predicting future dangerousness. (R. 
228-29). He discussed the criteria for such a diagnosis 
and prediction (R. 238-41), and said he believed tha t the 
hypothetical question contains adequate information to 
make ju s t such a diagnosis. (R. 231). He assessed the 
probability of future dangerousness on the facts of the 
hypothetical question as “quite high” (R. 231),
although, ’’Now, I wouldn’t state it as one hundred per­
cent and absolute. ” (R. 232). He agreed tha t predictions 
of future violence become more reliable when there is a 
repetitive, persistent history of past acts of violence, as 
the American Psychiatric Association stated in its 
amicus curiae brief in Estelle v. Sm ith. (R. 247). Finally, 
Koons testified tha t there is little hope of successful 
treatm ent of such persons because medical science can­
not “instill conscience where none exists as an adult.” 
(R. 234).

SUMMARY OF ARGUMENT

The Stay Issue

Petitioner’s argum ent that a death sentenced habeas 
corpus petitioner who obtains a certificate of probable 
cause to appeal under 28 U.S.C. §2253 and Rule 22, 
Federal Rules of Appellate Procedure, is automatically 
entitled to a stay of execution pending his appeal, 
should be rejected. First, such a position is a t odds with 
the sta tu tory  scheme enacted by Congress governing 
appeals in federal habeas corpus cases filed under 28 
U.S.C. §2254. Although the prior statu tory  scheme ex-



-23-

plicitly granted such automatic stays, the revisions of 
these sta tu tes evinces a legislative intent tha t in some 
cases, a stay of execution should be denied notw ithstan­
ding the granting of a certificate of probable cause to ap­
peal.

W hether the request for a stay pending appeal is con­
sidered in the context of Rule 8, Federal Rules of Ap­
pellate Procedure, or 28 U.S.C. §2251, providing for the 
stay of state court proceedings in certain circumstances, 
staying a state  execution in a death penalty case is a 
serious incursion upon the sta te  judicial process invok­
ing im portant comity concerns. Such an incursion is un­
justified unless the petitioner can present at least one 
issue with a semblance of patent substantial merit 
creating at least a reasonable judicial doubt as to his 
likelihood of success on appeal. Otherwise, the granting 
of a stay is a useless judicial act, creating further un­
necessary and unwarranted delay in the execution of the 
sentence in the face of an appeal whose result is foreor­
dained.

This result is consonant with this Court’s major prior 
pronouncements upon the m atter, including Garrison v. 
Patterson, 391 U.S. 464 (1968); Carafas v. LaVallee, 391 
U.S. 324 (1968); and Nowakowaski v. Maroney, 386 U.S. 
542 (1967). These authorities stand for the proposition 
tha t once a habeas petitioner has obtained a certificate 
of probable cause to appeal, his appeal m ust be disposed 
of in accordance with the ordinary procedures of the rele­
vant court of appeals, and the habeas petitioner m ust 
have notice of such procedures. The petitioner must 
have the same opportunity for briefing and oral argu­
ment accorded other litigants.

All these requirements were fully met in this case. In 
requesting a stay pending appeal, Petitioner ran the 
same risk as other appellate litigants that by virtue of 
his failure to convince the Court of Appeals tha t his case



-24-

contained a substantial issue, denial of the stay might 
render his appeal moot. Two recent prior authorities of 
the Fifth Circuit, O'Bryan v. Estelle, 691 F.2d 706 (5th 
Cir. 1982), and Brooks v. Estelle, 697 F.2d 586 (5th Cir. 
1982), placed Petitioner fully on notice of the procedures 
tha t would be followed. Finally, Petitioner was given 
ample opportunity to brief and orally argue every issue 
tha t might support the granting of the stay.

The Fifth wircuit procedures followed in this case are 
not demonstrably different from those followed in other 
courts of appeals. The allegedly contrary authorities 
relied upon by Petitioner were cases involving either a 
substantial issue or an issue as to which the court of ap­
peals had inadequate time to determine its substantiali­
ty. The Fifth Circuit has granted stays of execution in 
both circumstances.

There is no good reason to alter the procedures follow­
ed by the Fifth Circuit in this case. Petitioner properly 
laments the strains upon the sta te  and federal judicial 
systems, as well as counsel on both sides, inherent 
within the last minute legal flurries characteristic of ex­
ecutions. As Petitioner admits, however, eventually in 
many cases the time for an execution will come; those 
identical strains will be placed upon the state  and 
federal judicial system s at tha t point. Petitioner 
presents no solution to this problem; he simply seeks to 
postpone it.

Meanwhile, the states suffer irreparable injury by the 
passing of every day tha t its constitutionally obtained 
death sentences are not carried out. The unconscionable 
delays attendant to death penalty litigation in this coun­
try frustrate  society’s mandate; promote the public 
perception tha t the law cannot be carried out; destroy 
whatever deterrent effect the imposition of the death 
penalty might otherwise have; and unfairly penalize 
prisoners with unconstitutional convictions who remain 
on death row for interminable lengths of time.



-25-

There is every reason to believe tha t justice is pro­
moted, not defeated, by imposing upon death sentenced 
habeas petitioners a higher burden to obtain a stay than 
tha t required for obtaining a certificate of probable 
cause. Often grounds for relief arise only when an execu­
tion becomes imminent. In this case, for example, a 
witness at Petitioner’s trial, apparently moved by the 
impending execution, contacted Petitioner’s attorneys 
and told them th a t the prosecution had coerced her to 
commit perjury at his trial. This ground became one of 
the two upon which Petitioner urged the Fifth Circuit to 
stay his execution. The claim has now been resolved 
adversely to Petitioner following an evidentiary hearing 
in district court. The record reflects that such speedy 
resolution of this vexing claim would not have occurred 
if Petitioner’s execution had been stayed automatically 
when he obtained his certificate of probable cause to ap­
peal.

The Hypothetical Question Issue

Emphasizing the special need for reliable evidence at 
the punishment phase of capital trials, Petitioner argues 
th a t psychiatric predictions of future dangerousness are 
always unreliable and tha t in this case, any probative 
value of such expert testimony was outweighed by its 
unfairly prejudicial impact upon the jury. The record 
reflects tha t these assertions are untrue.

Both the evidence at the evidentiary hearing in 
district court and the professional literature fully sup­
port the finding of the district court and the Court of 
Appeals tha t expert predictions of future dangerousness 
are reliable where there is a repetitively persuasive p a t­
tern of past acts of criminal violence. I t was shown at 
Petitioner’s trial tha t during the nine years preceding 
his trial, he had acquired a bad reputation for being a 
peaceful and lawabiding citizen in eight communities in 
five different states. This evidence can only be



- 26 -

characterized as depicting an extensive, repetitive p a t­
tern of violent criminal acts. During the same period, he 
was convicted of numerous crimes, some involving 
drugs and others involving illegal weapons. In addition 
to these im portant components of the hypothetical ques­
tions the prosecution posed to its expert psychiatric 
witnesses a t trial, the circumstances of the crime itself 
supported the experts’ opinion tha t the subject of the 
hypothetical question was a sociopath, antisocial type, 
severe, who would probably continue to commit future 
acts of violence posing a danger to society.

Indeed, all four experts a t the evidentiary hearing in 
district court agreed with this opinion with a high 
degree of certainty, although Petitioner’s experts ex­
pressed ethical and philosophical concerns about 
psychiatrists who give such testimony.

S u ch  e x p e r t  te s t im o n y  r e g a r d in g  fu tu r e  
dangerousness is highly relevant in the Texas statu tory  
capital punishment scheme, which this Court approved 
in Jurek v. Texas, 428 U.S. 262 (1976). In Jurek and in 
Estelle v. Sm ith, 451 U.S. 454 (1981), the Court endorsed 
the use of expert testimony upon the issue of future 
dangerousness. P etitioner’s complaint th a t such 
testimony has an unfairly prejudicial impact upon the 
jury is without substance. The experts in Petitioner’s 
case were subject to the same cross-examination, im­
peachment, and rebuttal as experts in other cases. The 
explicitly stated criteria for the experts’ responses to 
the hypothetical questions allowed for the presentation 
of m itigating evidence th a t might have changed their 
opinions. None was presented, presumably because it 
did not exist. Moreover, Petitioner was free to present 
evidence tha t the prosecution’s expert testimony was 
not only erroneous, but outside the realm of accepted 
psychiatric practice, as he now argues.



-2 7-

In fact, Petitioner was free to present virtually every 
criticism he now makes of such testimony. His jury  was 
specifically instructed to assess the credibility of all 
witnesses, including experts, and to give only such 
weight to such testimony tha t the jury felt appropriate. 
To nullify the jury verdict now could only appear as an 
expression of lack of faith in the American system  of 
criminal jurisprudence, which accords to the jury the 
judgm ents Petitioner now asks this Court to make.

ARGUMENT

I. A STAY OF EXECUTION SHOULD NOT BE 
GRANTED PENDING THE APPEAL OF A 
DEATH SENTENCED STATE PRISONER 
IN FEDERAL HABEAS CORPUS UNLESS 
HE PRESENTS AN ISSUE WITH A 
SEMBLANCE OF PATENT SUBSTANTIAL 
MERIT CREATING A REASONABLE  
J U D I C I A L  DOUBT AS TO HIS  
LIKELIHOOD OF SUCCESS ON APPEAL.

Petitioner asserts th a t the granting of a certificate of 
probable cause to a death sentenced habeas corpus peti­
tioner creates an entitlement to a stay of execution pen­
ding appeal. This suggestion is a t odds with the intent 
of Congress as evidenced by the statu tory  scheme 
enacted governing the conduct of habeas corpus ap­
peals; this Court’s prior authorities; and considerations 
of logic and equity.

A. The Statutory Scheme Enacted by Con­
gress Governing Habeas Corpus Appeals 
Contemplates that a Stay of Execution 
may be Denied to a Death Sentenced 
Habeas Corpus Petitioner who has been 
Granted a Certificate of Probable Cause to 
Appeal.



-28-

The gist of Petitioner’s argum ent is th a t as a m atter 
of law, a stay of execution should be granted to a death 
sentenced habeas corpus petitioner who has been 
granted a certificate of probable cause to appeal. 
Because Congress has failed to provide for such an ex­
ception to the general rules governing these m atters, it 
does not exist.

Congress has provided th a t a habeas corpus petitioner 
denied relief may not appeal unless the district court or 
the court of appeals grants a certificate of probable 
cause. 28 U.S.C. §2253; Rule 22(b), Federal Rules of Ap­
pellate Procedure. Mr. Justice (then Judge) Blackmun in 
his famous article, has noted the varying formulations 
of the standard required to grant a certificate of pro­
bable cause. 2 These varying formulations continue to 
find expression in the caselaw to d ay .3 The Fifth Circuit

2. Mr. Justice Blackmun’s article notes that some of the cases re­
quire an absence of frivolity. E.g., Tate v. United S t tes, 359 F.2d 
245, 250 (1966); Simpson v. Teets, 248 F.2d 465, 466 (9th Cir. 1957); 
Nolan v. Nash, 316 F.2d 776 (8th Cir.), cert, denied, 375 U.S. 924 
(1963). Others refer to a demonstrable lack of substance. E.g., 
Chessman v. Dickson, 275 F.2d 604, 606 (9th Cir. 1960) (any 
substance at all); Gay v. Graham, 269 F.2d 482, 487 (10th Cir. 1959) 
(no substantial question); United States ex rel. Stewart u. Ragen, 
231 F.2d 312, 313 (7th Cir. 1956) (“some substantial question wor­
thy of consideration”); Ex parte Farrell, 189 F.2d 540, 543 (1st Cir), 
cert, denied sub nom. Farrell v. O'Brien, 342 U.S. 839 (1951) (“un­
substantial or clearly without merit”).

3. E.g., Foster v. Field, 413 F.2d 1050, 1051 (9th Cir. 
1969)(whether the appeal is “without merit” or presents “a substan­
tial question”); Pratt v. Maine, 408 F.2d 311, 312 (1st Cir. 
1969)(whether the appeal is “without precedent, cited or 
otherwise”); Jackson v. South Carolina, 498 F.Supp. 186, 191 
(D.S.C. 1979)(whether the appeal is “frivolous”); Abduc v. Lane, 468 
F.Supp. 33, 38 (E.D. Tenn.), aff’d, 588 F.2d 1178 (6th Cir. 
1978((whether the appeal is “plainly frivolous” or “constitutes a 
substantial question worthy of further consideration”); Gordon v. 
Secretary of State of Wisconsin, 462 F.Supp. 307, 308 (E.D. Wise. 
1978)(whether the appeal presents a “substantial question”).



-29-

has held tha t a certificate should be granted where there 
is “a substantial showing of the denial of a federal 
righ t.” Stewart v. Beto, 454 F.2d 268, 270 n.2 (5th Cir. 
1971), cert, denied, 406 U.S. 925 (1972); see, Clements v. 
Wainwright, 648 F.2d 979 (5th Cir. 1981).

I t  appears th a t Mr. Justice Blackmun’s observation 
in 1967 remains true today:

If there is a difference in these expressions I 
suspect tha t it is of no significance. In most of 
these cases relief is denied. Certainly, if a m at­
ter is frivolous, it is clearly without probable 
cause. Thus, the cases which speak of frivolity, 
such as those from our own [Eighth] Circuit, 
would arrive at the same conclusion on a more 
substantive standard.

II. Blackmun, ‘‘Allowance of In Forma Pauperis Ap­
peals in Section 2255 and Habeas Corpus Cases,” 43 
F.R.D. 343, 352 (1967). The granting of a certificate of 
probable cause by a district court may not be vacated by 
a Court of Appeals. Nowakowski v. Maroney, 386 U.S. 
542 (1967).

The Fifth Circuit has viewed stays of execution in 
habeas corpus cases as governed by Rule 8, Federal 
Rules of Appellate Procedure. The considerations gover­
ning the granting of a stay pending an appeal in this cir­
cumstance are the following:

In general, a court, in deciding whether to issue 
a stay, m ust consider: (1) whether the movant 
has made a showing of likelihood of success on 
the merits, (2) whether the movant has made a 
showing of irreparable injury if the stay is not 
granted, (3) whether the granting of the stay 
would substantially harm the other parties, and 
(4) whether the granting of the stay would serve 
the public interest.



-30-

O 'Bryan v. Estelle, 691 F.2d 706, 708 (1982), citing R uiz  
v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982); R uiz v. 
E stelle, 660 F.2d 555, 565 (5th Cir. 1981); Florida 
Businessmen for Free Enterprise v. City of Hollywood, 
648 F.2d 956, 957 (5th Cir. 1981); Drummond v. Fulton 
County Department o f Family and Children's Services, 
532 F.2d 1001, 1002 (5th Cir. 1976). The Court in 
O’Bryan instructs:

While “the m ovant need not always show a 
’probability’ of success on the m erits,” he m ust 
“present a substantial case on the m erits when 
a serious legal question is involved and show 
th a t the balance of the equities, [i.e., the other 
three factors] weighs heavily in the favor of 
granting the s ta y .” (emphasis in original).

O'Bryan v. Estelle, 691 F.2d at 708.

The Court of Appeals was justified in proceeding 
under Rule 8, Federal Rules of Appellate Procedure. On 
October 14, 1981, the district court granted Petitioner’s 
application for stay of execution, the same day it was fil­
ed. After the district court entered final judgm ent 
adverse to Petitioner on November 12, 1982, Respon­
dent filed a motion to vacate the stay of execution on 
December 2, 1982. This motion was granted on 
December 8, 1982. If the Fifth Circuit had stayed this 
order pending an appeal, the result would have been to 
stay Petitioner’s execution.

Petitioner and several amici curiae argue tha t con­
sideration of a stay should be governed by 28 U.S.C. 
§2251:

A justice of judge of the United States before 
whom a habeas corpus proceeding is pending, 
may, before final judgm ent or after final judg­
ment of discharge, or pending appeal, stay any 
proceeding against the person detained in any



-31-

State court or by or under the authority of any 
State for any m atter involved in the habeas cor­
pus proceeding.

After the granting of such a stay, any such pro­
ceeding in any S tate court or by or under the 
authority of any State shall be void. If no stay 
is granted, any such proceedings shall be as 
valid as if no habeas corpus proceedings or ap­
peal were pending.

I t  is worth noting tha t Petitioner in the court below 
placed no reliance upon 28 U.S.C. §2251.

In tru th , there is authority for the proposition tha t 28 
U.S.C. §2251 applies only to the stay of state  court 
judicial proceedings, not to the service or execution of 
sta te  sentences. Kleczka v. Massachusetts, 259 F.Supp. 
462 (D.C. Mass. 1966). This view is strengthened by the 
specific language of §2251, which provides tha t a stay 
entered under its auspices has the effect of voiding any 
further state  court proceeding.

Nevertheless, if 28 U.S.C. §2251 indeed provides the 
proper focus of analysis, its statu tory  predecessor pro­
vided for an automatic stay of execution pending appeal:

[Pjending such proceedings or appeal, and until 
final judgm ent be rendered therein, and after 
final judgm ent of discharge in the same, any 
proceeding against such person so alleged to be 
restrained or his or liberty in any State court, or 
by or under the authority of any State, for any 
m atter or thing so heard and determined, or in 
process of being heard and determined, under 
and by virtue of such writ of habeas corpus, 
shall be deemed null and void.



-32-

14 Stat. 386 (codified a t Rev. Stat. §766, 2d ed. 1878). 
See, Rogers v. Peck, 199 U.S. 425, 436 (1905); Lambert u. 
Barrett, 159 U.S. 660, 662 (1895).

Because the revision of this sta tu te  as 28 U.S.C. §2251 
fails to provide for an autom atic stay of execution, Con­
gress has evinced the intent tha t such stays not be 
automatic.

Regardless of the outcome of the argum ents concern­
ing the precise standard for the granting of a certificate 
of probalbe cause to appeal as compared to the precise 
standard for the granting of an injunction pending ap­
peal, whether under Rule 8 or §2251, it is nevertheless 
clear tha t the former requires a lesser showing than the 
latter. Obviously, there are cases where a petitioner may 
satisfy the lesser burden but not the greater. Because 
Congress has failed to provide that the outcome of these 
cases should be different where a death sentenced 
habeas corpus petitioner is the movant, plainly the 
legislative intent is th a t there is no entitlement to a stay 
of execution in a case like his.

B. This Court’s Important Authorities Support the 
Proposition that the Granting of a Certificate of Pro­
bable Cause Should Not Entitle a Death Sentenced 
Habeas Corpus Petitioner to an Automatic Stay of Ex­
ecution Pending Appeal.

Regardless whether the proper focal point of analysis 
is Rule 8, Federal Rules of Appellate Procedure, or 28 
U.S.C. §2251, plainly the nature of the relief effectively 
afforded under either provision is an injunction against 
the execution of orders entered by the sta te  judiciary. 
Such injunctive relief is a serious incursion upon the 
state judicial process, evoking many of the concerns ex­
pressed in Younger v. Harris, 401 U.S. 37 (1971), and 
other pronouncements of the Court. The standard an­
nounced by the Fifth Circuit in O'Bryan v. Estelle, 691



-33-

F.2d 706 (5th Cir. 1982), and followed in Barefoot v. 
Estelle, 697 F.2d 593 (5th Cir. 1983), seems appropriate 
in either circumstance.

That standard, and the procedures which im­
plemented it in the Fifth Circuit, also seems appropriate 
in light of this Court’s pronouncements on the subject. 
In Nowakowski v. Maroney, 386 U.S. 542 (1967), the 
Court held tha t an appeal proceeding after the issuance 
of a certificate of probable cause cannot be aborted by 
the denial of leave to appeal in forma pauperis. An in­
digent habeas petitioner m ust be afforded the same 
rights as a non-indigent petitioner. In Carafas v. 
LaVallee, 391 U.S. 234 (1968), the Second Circuit Court 
of Appeals dismissed an appeal in one sentence after a 
certificate of probable cause had been granted. This 
Court held:
Although Nowakowski does not necessarily require that 
the Court of Appeals give the parties full opportunity to 
submit briefs and argument in an appeal which, despite 
the issuance of the certificate of probable cause, is 
frivolous, enough m ust appear to demonstrate the basis 
for the court’s summary action.

Carafas v. LaVallee, 391 U.S. a t 242.

Finally, in Garrison v. Patterson, 391 U.S 464 (1968), 
the district court denied a certificate of probable cause 
to appeal but granted a temporary stay of execution. 
After receiving a three page document requesting a fur­
ther stay of execution, the Tenth Circuit issued an order 
granting the certificate of probable cause and, “in the 
next sentence, affirming the District Court’s denial of 
habeas corpus.” Garrison v. Patterson, 391 U.S. a t 465. 
This Court reversed:

Carafas requires the Courts of Appeals to give 
sufficient indication that an appeal has been 
disposed of on the merits, but nothing in



-34-

Nowakowski and nothing we say here prevents 
the Courts of Appeals from considering the 
questions of probable cause and the merits 
together, and nothing said there or here 
necessarily requires full briefing and oral argu­
ment in every instance in which a certificate is 
granted. We hold only tha t where an appeal 
possesses sufficient merit to w arrant a cer­
tificate, the appellant m ust be afforded ade­
quate opportunity to address the merits, and 
tha t if a summary procedure is adopted, the ap­
pellant m ust be informed, by rule or otherwise, 
tha t his opportunity will or may be limited. 
W ithin this general framework, the promulga­
tion of specific procedures is a m atter for the 
Courts of Appeals.

Garrison v. Patterson, 391 U.S. a t 466-67.

In this case, the procedures followed by the Fifth Cir­
cuit complied with all these requirements. First, Peti­
tioner had a full opportunity to brief and orally argue 
the m erits of his case. He alleges tha t after the Texas 
Court of Criminal Appeals denied his final application 
for writ of habeas corpus and stay of execution on 
December 21, 1982, he was not notified until January 7, 
1983.4 (Brief for Petitioner at 3). He filed his application 
for stay in the Fifth Circuit on January 14, 1983. On 
January 17, the court scheduled oral argum ent on the 
application for January  19. He complains th a t this 
amounted to inadequate opportunity to brief and argue 
the m erits of his case (Brief for Petitioner a t 25).

Such a contention is meritless. Petitioner chose to pre­
sent two issues supporting his motion for stay: the use 
of hypothetical questions posed to expert witnesses at 
the punishment phase of his trial, and the allegedly per-

4. Nothing in the record supports this assertion.



-35-

jurious testim ony of a w itness a t his tria l, M ary 
Richards. The former of these issues had been briefed on 
his direct appeal to the Texas Court of Criminal Ap­
peals; in this Court on a petition for writ of certiorari 
seeking a reversal of that judgment; in one of his state 
habeas corpus applications; and extensively in the 
federal district court below. Obviously this issue has 
been fully briefed on numerous occasions.

The allegedly perjurious testimony of Mary Richards 
was a new issue, but Petitioner was aware of it on 
December 27, 1982, when, without informing or giving 
notice to Respondent’s counsel, he took the deposition 
of Richards in Austin, Texas. Briefs upon the motion for 
stay of execution were filed in the Fifth Circuit on 
January 18, 1983. Accordingly, Petitioner had twenty- 
two days to prepare the substance of his argument 
regarding this witness. Petitioner was also free to pre­
sent any other issues previously presented to the 
district court, all of which had been previously exten­
sively briefed. There is, therefore, no substance to the 
assertion tha t Petitioner was deprived of any opportuni­
ty  to fully brief any issue he desired.

Second, Petitioner had ample notice of the procedures 
employed by the Fifth Circuit. First, since he cited no 
other authority, he was presumably proceeding under 
Rule 8, Federal Rules of Civil Procedure. If so, he was 
bound to know th a t he was not entitled to a stay of ex­
ecution unless he could meet the burden of showing a 
substantial case on the merits involving a serious legal 
question. He was bound to know, tha t he, like other ap­
pellate litigants, m ust bear the risk of the mooting of his 
appeal if he is unable to obtain a stay pending appeal. 
See, 11 Wright & Miller, Federal Practice and Procedure, 
§2905 a t 325 et seq. (1973); 9 Moore’s Federal Practice, 
para. 208.07 at 8-26 et seq. (2d ed. 1982). He was bound 
to know th a t such a result would no more unfairly 
obliterate his right of appeal than it unfairly obliterates 
the right of appeal of any other appellant who suffers ir­
reparable injury and the mooting of his appeal by virtue



-3 6-

of his failure to convince the court of appeals th a t he 
presents a substantial question for review.

If this was not enough, then Petitioner was bound to 
know tha t the Fifth Circuit in O'Bryan v. Estelle, supra, 
had announced th a t a death sentenced habeas corpus 
petitioner m ust present a substan tia l issue with a 
reasonable likelihood of success on the merits in order to 
obtain a stay of execution. The same standard was ap­
plied in Brooks v. E stelle, 697 F.2d 586 (5th Cir. 1982). 
The Fifth Circuit’s action in Brooks was upheld by this 
Court in Brooks v. Estelle, 51 U.S.L.W. 3469 (U.S., Dec. 
6, 1982).

Third, the Fifth Circuit specifically informed Peti­
tioner tha t he should fully brief any issue he believed 
might support a stay of execution, and tha t a t oral argu­
ment he would be allotted unlimited time to present any 
issue he believed would support a stay. In fact, a t oral 
argument, over Respondent’s protest, he was allowed to 
argue the issue pertaining to the knowing use of per­
jured testimony by the prosecution, which was not an 
issue th a t could be presented for appeal because it had 
not been presented to the district c o u rt.6

Following oral argument, the judges of the Fifth Cir­
cuit sequestered themselves before rendering an opinion 
the following day. The court used varying, but similar, 
language a t various points in the opinion denying the 
motion for stay. The court stated th a t Petitioner had 
failed to present “a substantial case on the merits of any 
serious legal question.” Barefoot v. Estelle, 697 F.2d 
593, 595 (5th Cir. 1983); JA  17. The court stated tha t it 
had found “ no c o n s titu tio n a l im perfec tions of 
substance.” {Id.). Finally, the court concluded:

Finding no patent substantial merit, or semblance 
thereof, to petitioner’s constitutional objections, we 
m ust conclude and order th a t the motion for stay 
should be DENIED.

5. The Fifth Circuit follows the common practice that an issue 
not presented in district court cannot be presented for the first time 
on appeal. E.g., Miller v. Turner, 658 F.2d 348, 350 (5th Cir. 1981); 
Page v. United States Parole Commission, 651 F.2d 1083, 1087 (5th 
Cir. 1981).



-37-

Barefoot v. Estelle, 697 F.2d a t 600; JA  26.
The standard applied by the Fifth Circuit in Peti­

tioner’s case is not demonstrably different from the 
standard it has applied in other cases or the standard ap­
plied by other Courts of Appeals in death penalty cases. 
In O'Bryan v. Estelle, 691 F.2d 706 (5th Cir. 1982), the 
Fifth Circuit granted a stay of execution, finding tha t a 
substantial question was raised in the appeal, and tha t 
the court was unable to give the question adequate 
review in the three days remaining before O’B ryan’s 
scheduled execution. Similarly, in Brooks v. Estelle, 697 
F.2d 586, 588 (5th Cir. 1982), the Fifth Circuit denied a 
stay of execution “because there was no substantial 
question concerning the correctness of the d istric t 
court’s judgm ent.”

Recently in Mulligan v. Zant, 531 F.Supp. 458 (M.D. 
Ga. 1982), a district court adopted and utilized the 
“ substantial likelihood of success” test in denying an 
eleventh-hour application for stay of execution. Because 
the court found “no substantial likelihood” that the 
petitioner was entitled to federal habeas relief, the stay 
of execution was denied. In Shaw u. Martin, 613 F.2d 
487 (4th Cir. 1980), the Eleventh Circuit stated tha t a 
“ facial showing” of the substance of a claim presented 
was necessary in order to justify  a stay. Indeed, in cases 
where federal courts have granted stays of execution 
pending appeal, in each, substantial questions have been 
identified. E.g., Booker v. Wainwright, 675 F.2d 1150 
(11th Cir. 1982); Goode u. Wainwright, 670 F.2d 941 
(11th Cir. 1982); Foster v. Strickland, 515 F.Supp. 22 
(N.D. Fla. 1981); Modesto v. Nelson, 296 F.Supp. 1375 
(N.D. Cal. 1969); see also, United States v. Restro, 529 
F.Supp. 579 (W.D. Pa. 1982).

In other cases, a court of appeals has concluded th a t it 
had inadequate time to determine whether a substantial 
issue were presented. For example, in D obbert v. 
Strickland, 670 F.2d 938, 940 (5th Cir. 1982), the court 
said:

I t  was apparent to the Court tha t a responsible 
review of the district court proceedings could not be 
accomplished prior to the scheduled time for execu­
tion of sentence.

Because the court had inadequate time to make that 
determination, a stay was granted.



-3  8 -

The Fifth Circuit did not apply, and Respondent does 
not advocate, any different standard in this or other 
death penalty cases. If there is inadequate time for a 
court of appeals to conclude in good faith th a t no 
substantial issue is presented in support of a motion for 
stay of execution, then the motion should be granted. 
Although the dilatory filing of a motion for stay of ex­
ecution might be grounds for censuring or otherwise 
disciplining a petitioner’s counsel, Respondent does not 
aver th a t it is a basis for denying a motion for stay. 
Also, if a court of appeals entertains a reasonable 
judicial doubt as to the possible outcome of an issue on 
the merits, a stay should be granted. If not, however, 
the granting of a stay appears as a useless judicial act of 
wasteful futility. The burden Respondent asks the Court 
to place upon death sentenced habeas petitioners is not 
a heavy one. If it cannot be met, then there is no reason 
to defeat society’s m andate and delay the inevitable.
C. Considerations of Logic and Equity Militate 

Against the Granting of Automatic Stays of Ex­
ecution to Death Sentenced Habeas Corpus Peti­
tioners who have Obtained Certificates of Pro­
bable Cause to Appeal.

I t  is first suggested tha t the states have little or no in­
terest in expeditiously carrying out executions tha t 
have been ordered as a result of state  judicial pro­
ceedings culminating in multiple determinations th a t no 
constitutional error infects the defendants’ trials. (Brief 
of Amicus Curiae American Bar Association at 23). 
Respondent strongly contests this suggestion. In death 
penalty cases, more than any other, delay defeats 
justice. Petitioner stands convicted of a capital offense 
committed almost five years ago. Since then, the validi­
ty  of his conviction and sentence have been in constant 
litigation. The merits of Petitioner’s claims have been 
before state  and federal courts for full review no fewer 
than eight times. Petitioner’s execution previously has 
been stayed to permit full litigation of his claims. The 
m erits of Petitioner’s grounds for federal habeas corpus 
relief were extensively briefed by the parties in the 
district court and in the court of appeals. The district 
court conducted a full and fair evidentiary hearing to 
enable Petitioner to support any evidence and argument



-39-

in support of his claims. Following the hearing and sub­
mission of proposed findings of fact and conclusions of 
law by the parties, the court issued an extensive opinion, 
discussing in detail each claim raised by Petitioner.

The State of Texas has a substantial interest in bring­
ing these proceedings to a close, and in the enforcement 
of its valid and lawful judgment. Further unnecessary 
delay now diminishes any deterrent effect the death 
penalty might otherwise have. I t  erodes public con­
fidence in the judiciary, and promotes the view tha t the 
law cannot be carried out. Delay is a pernicious influence 
in the law, and never more so than in death penalty 
cases.

Petitioner and the American Bar Association as 
amicus curiae lament the last minute legal flurries that 
exert unfortunate strains upon the sta te  and federal 
judicial systems, as well as counsel on both sides. 
Respondent also regrets this reality, but respectfully 
subm its that it is unavoidable. At some point, execu­
tions will be carried out. I t  is more than a little fatuous 
to suggest th a t last minute legal flurries will not occur if 
the Court will but grant Petitioner’s request and 
establish, as a m atter of law, that a stay of execution is 
automatic upon a death sentenced habeas corpus peti­
tioner’s first journey through the federal appellate 
habeas corpus system. Petitioner cannot seriously sug­
gest tha t if he is granted such a stay during his first set 
of appeals, tha t he will sit quietly by thereafter and 
make no efforts a t the last minute to stop his execution 
after his first set of appeals has been concluded. Mr. 
Justice Rehnquist has addressed the problems:

There may be good reasons for the delay, but 
there is also undoubtedly what Mr. Justice 
Holmes referred to in another context as a 
’’hydraulic pressure” which is brought to bear 
upon any judge or group of judges and inclines 
them to grant last minute stays in m atters of 
this sort ju st because no mortal can be totally 
satisfied tha t within the extremely short period 
of time by such a late filing he has fully grasped 
the contentions of the parties and correctly 
resolved them.



-40-

Evans v. Bennett, 440 U.S. 1301, 1307 (1979). Petitioner 
presents no plan to avoid these unfortunate pressures; 
he seeks only to postpone them as long as possible.

Finally, there is good reason to believe tha t justice is 
promoted, not defeated, by undergoing such pressures 
now rather than later. In the instant case, for example, 
the issue pertaining to the allegedly perjurious trial 
witness, Mary Richards, surfaced only after the execu­
tion of Petitioner became imminent. I t  was only then 
tha t Richards came forward and offered herself to Peti­
tioner’s attorneys. Fortunately, the m atter has now 
been wholly resolved, following an evidentiary hearing 
held in district court. Barefoot v. Estelle, No. 
W-83-CA-53 (W.D. Tex. 1983). If Petitioner’s execution 
had not been imminent, however, the m atter would have 
lain quietly for an indeterminate additional period of 
time. Obviously passage of time in the face of claims 
such as this renders more difficult the ascertainment of 
truth.

Respondent suggests tha t there are many ameliority 
effects of proceeding as swiftly as possible to justice, 
without compromising the quality of that justice. Those 
considerations further support Respondent’s contention 
that stays of execution should not be automatic in death 
penalty cases merely because the petitioner has secured 
a certificate of probable cause to appeal.

II. PETITIONER WAS NOT DEPRIVED OF 
DUE PROCESS OF LAW BY THE USE OF 
HYPOTHETICAL QUESTIONS POSED 
TO E X P E R T  P S Y C H I A T R I C  
WITNESSES AT THE PUNISHMENT 
PHASE OF HIS BIFURCATED CAPITAL 
TRIAL.

A. The Texas S tatutory  Scheme and the Court’s 
Prior Pronouncements Illustrate the Ap­
p ro p r ia te n e s s  of E x p e r t  P s y c h ia tr ic  
Testimony at the Punishment Phase of a 
Texas Capital Murder Trial.

In capital cases, like all criminal cases, Texas follows a 
bifurcated procedure in which there are separate guilt or 
innocence and punishment stages of trial. Tex. Code 
Crim. Proc. Ann. arts. 37.07, 37.071. Article 37.071



-41-

deals specifically with the procedure to be followed dur­
ing the punishment stage of a capital trial. After the 
defendant has been convicted of capital murder under 
Tex. Penal Code Ann. §19.03, the trial proceeds under 
Article 37.071 to determine whether the defendant will 
receive the sentence of life imprisonment or death. At 
the close of the punishment hearing, three special issues 
are subm itted to the jury. The first relates to whether 
the defendant’s conduct that caused the death of the 
deceased “was committed deliberately and with the 
reasonable expectation tha t the death of the deceased or 
another would result.” The second relates to whether 
’’there is a probability tha t the defendant would commit 
criminal acts of violence tha t would constitute a conti­
nuing threat to society.” The third, subm itted to the 
jury only if raised by the evidence, inquires whether the 
conduct of the defendant in killing the deceased “was 
unreasonable in response to the provocation, if any, by 
the deceased.”

The prosecution m ust prove each issue beyond a 
reasonable doubt, and the jury is required to return a 
special verdict of ”yes” or “no” on each issue submitted. 
The jury may not answer ”yes” unless it agrees 
unanimously, and it may not answer any issue “no” 
unless ten or more jurors agree. If the jury returns an af­
firmative finding on each issue, the trial court m ust 
sentence the defendant to death, but if the jury returns a 
negative finding on any of the issues, the court m ust 
sentence the defendant to life imprisonment in the 
Texas Departm ent of Corrections. Article 37.071 also 
provides for automatic review by the Texas Court of 
Criminal Appeals upon any conviction and sentence of 
death.

This Court upheld this statu tory  scheme in Jurek u. 
Texas, 428 U.S. 262 (1976). The Court there rejected the 
argum ent tha t requiring the jury to predict future 
behavior “is so vague as to be meaningless.” Jurek at 
274. The Court had no occasion to enumerate specifical­
ly the nature of the evidence the jury might appropriate­
ly hear, but the Court was unequivocal in its conclusion 
that a jury is capable of making such a determination 
reliably:



-42-

W hat is essential is th a t the jury have before it 
all possible relevant information about the in­
dividual defendant whose fate it m ust deter­
mine.

Jurek a t 276. Specifically regarding the prediction of 
future dangerousness, the Court held:

[Prediction of future criminal conduct is an 
essential element in many of the decisions 
rendered throughout our criminal justice 
system. The decision whether to admit a defen­
dant to bail, for instance, m ust often turn  on a 
judge’s prediction of the defendant’s future 
conduct. And any sentencing authority m ust 
predict a convicted person’s probable future 
conduct when it engages in the process of deter­
mining what punishment to impose. For those 
sentenced to prison, these same predictions 
m ust be made by parole authorities. The task 
tha t a Texas jury m ust perform in answering 
the sta tu tory  question in issue is thus basically 
no different from the task  performed countless 
times each day throughout the American 
system of criminal justice, (footnotes omitted)

Jurek a t 275-76.
The Court spoke more directly to the issue of 

psychiatric testimony at the sentencing stage of the 
Texas capital trial in Estelle v. Sm ith, 451 U.S. 454 
(1981). The Court disapproved of the use of such 
testim ony when based upon an interview with the defen­
dant without prior notification to defendant’s counsel 
and with no appropriate warnings to the defendant 
under Miranda v. Arizona, 384 U.S. 463 (1966). The 
Court added, however:

“ [U]nder the Texas capital sentencing pro­
cedure the inquiry necessary for the ju ry ’s 
resolution of the future dangerous issue is in no 
sense confined to the province of psychiatric ex­
perts.”

451 U.S. a t 473. The Court continued:
“While in no sense disapproving the use of 

psychiatric testimony bearing on the issue of 
future dangerousness, the holding in Jurek was



-43-

guided by recognition tha t the inquiry man­
dated by Texas law does not require resort to 
medical experts.”

Id.
I t  bears emphasis that the import of Petitioner’s posi­

tion, combined with the holding in Estelle v. Sm ith, is to 
bar the prosecution from ever presenting psychiatric 
testimony at the punishment phase of Texas capital 
trials. Under Estelle v. Sm ith, the sta te  cannot compel 
the defendant to submit to a psychiatric examination for 
the purpose of assessing his future dangerousness, 
possibly even where the defendant himself presents 
such testimony. Estelle v. Smith, 451 U.S. a t 466 n.10, 
468, 472. And if a mental health professional cannot 
testify upon the basis of hypothetical questions, “we 
would be giving the defendant the right to prevent any 
and all psychiatric testim ony on the issue of 
dangerousness except psychiatric testimony in his own 
favor.” Barefoot v. Estelle, 697 F.2d a t 598; JA  22.
B. Expert Predictions of Future Dangerousness 

are Reliable in Cases Such as Petitioner’s.
Respondent recognizes the special need for reliability 

of evidence presented at the punishment phase of a 
capital trial. E.g., Green v. Georgia, 442 U.S. 95 (1979); 
Gardner v. Florida, 430 U.S. 349 (1977); Gregg v. 
Georgia, 428 U.S. 153 (1976). 6 Based upon evidence 
presented at the evidentiary hearing in district court, 
both the district court and the court of appeals found 
th a t psychiatric predictions of future dangerousness are 
reliable under circumstances presented in this case. This 
Court has no basis to hold such findings clearly er-

6. The holding in these cases provide scant support for Peti­
tioner. In Green, important evidence was withheld from the jury’s 
consideration. In Gardner, the defendant was deprived of any op­
portunity to confront or rebut a confidential pre-sentence investiga­
tion report. Similarly, in Holloway v. State, 613 S.W.2d 497 
(Tex.Crim.App. 1981)(en banc), the defendant was effectively 
deprived of any opportunity to rebut the hearsay basis of an 
expert’s non-hypothetical testimony. In this case, the complete 
foundation of the expert hypothetical testimony was revealed to the 
jury; the defense was unfettered in its cross-examination, and was 
given every opportunity to present impeaching and rebuttal 
evidence.



-44-

roneous under Rule 52, Federal Rules of Appellate Pro­
cedure. 7

The fallacy in P e titio n er’s position is apparent. 
Studies attem pting to predict future behavior generally 
and future dangerousness specifically have frequently 
been unsuccessful. Many of these studies were discussed 
at the evidentiary hearing. 8 (R. 194-204). I t  has indeed 
proven difficult to predict future dangerousness among 
any segment of the population tha t does not have a 
repetitive pervasive history of past violence. 9 The 
Am erican P sych ia tric  A ssociation recognized th is 
distinction years ago in its amicus curiae brief filed in 
this Court in Estelle v. Sm ith, 451 U.S. 454 (1981):

“ In some circumstances, of course, a clinician 
might be fairly confident tha t violent behavior 
would recur, as for example where a paren t’s 
past behavior clearly and repetitively evidences 
physical abuse of his or her children. But, as the 
Task Force noted, the relatively high degree of 
reliability in these cases is a function of know­
ing tha t base rate of such behavior tha t is, the 
rate o f repetitive past violent acts — is very 
high for the person under scrutiny.” (emphasis 
added)

Am icus curiae brief of American Psychiatric Associa­
tion in Estelle v. Sm ith, No. 79-1127, a t 13.

7. Cf Buttrum v. Georgia, _____ U.S_______ 103 S.Ct. 801, 802
(1983), in which Mr. Justice Marshall dissented to the denial of cer­
tiorari and stated, “It is well recognized that predictions of violent 
behavior are generally unreliable even under the best of cir­
cumstances.” Even so, Mr. Justice Marshall would have granted 
certiorari because the only testimony presented by the prosecution 
at the penalty stage of trial was non-hypothetical expert testimony 
“that was based in substantial part on hearsay statements that 
were not in evidence ... and were not subject to cross-examination.” 
Id. The testimony in this case suffers none of these defects.

8. E.g., Steadman & Cocozza, “The Dangerousness Standard and 
Psychiatry: A Cross National Issue in the Social Control of the 
Mentally 111.” (1980).

9. This same difficulty is apparent in the studies discussed in J. 
Cocozza & H. Steadman, “The Failure of Psychiatric Predictions of 
Dangerousness: Clear and Convincing Evidence,” 29 Rutgers L. 
Rev. 1084 (1976), relied upon by Petitioner.



45-

This view was echoed a t the evidentiary hearing. The 
leading thinker in this field was conceded to be Pro­
fessor John Monahan and the leading work, M onahan’s 
monograph, The Clinical Prediction o f Violent Behavior 
(1981). Monahan states repeatedly in tha t work that 
where there are repetitive past acts of violence, predic­
tion of future violent behavior becomes increasingly 
more reliable. In his preface, Monahan wrote:

“A t several points in its gestation, The Clinical 
Prediction o f Violent Behavior had a subtitle. When 
I was beginning the monograph, it was ‘Why You 
Can’t Do I t .’ About half way through writing it, I 
changed the subtitle to ‘How To Do I t  And Why 
You Shouldn’t . ’ By the time I was finished, I was 
toying with ‘How To Do I t  And When To Do I t .’ 
The development of my thinking on the prediction 
of violence is reflected quite well in these changes: 
from an empirical distaste for the task, to an ethical 
aversion to engaging in it, to a reluctant concession 
tha t there may be circumstances in which predic­
tion is empirically possibly and ethically ap­
propriate.’’

The Clinical Prediction o f Violent Behavior a t v.
Those circumstances include persons such as Peti­

tioner:
“ [TJhere is a growing body of empirical evidence 

suggesting that, for the small group of habitually 
violent persons, the probability of future violence is 
raised considerably.’’

(emphasis in original) Id. a t 14-15. Moreover, “ If there is 
one finding tha t overshadows all others in the area of 
prediction, it is tha t the probability of future crime in­
creases with each prior criminal act.’’ Id. a t 71.

Finally, Monahan wrote:
“ If the base rate of violent behavior in a given 

population is very low, prediction becomes an ex­
tremely difficult task. As Megargee (1976, p. 18) has 
it, ‘(m)ental health professionals should limit 
themselves to predicting dangerous behavior in 
high base-rate populations such as those who have 
already engaged in repeated violence.”

Id. a t 87. Thus, the plethora of studies purporting to



-46-

prove tha t future violence cannot be reliably predicted 
have failed to select as a sample persons with high rates 
of past repetitive violent behavior. 10 As the district 
court found:

“The m ajority of psychiatric experts agree tha t 
where there is a pattern  of repetitive assaultive and 
violent conduct, the accuracy of psychiatric predic­
tions of future dangerousness dramatically rises. 
The accuracy of this conclusion is reaffirmed by the 
expert medical testimony in this case a t the eviden­
tiary hearing. Dr. George Parker, a psychologist, 
testified for Respondent tha t professional literature 
indicates th a t predicting fu ture dangerousness 
am ong random  m ental pa tien ts  or even felons 
generally is not terribly accurate. The prediction of 
future dangerousness, however, becomes easier as 
the pattern  and history of violence becomes more 
repetitively persuasive.”

(JA 13).
This finding was upheld on appeal by the Fifth Cir­

cuit:
“The evidence before the federal district court 

supported its  conclusion th a t the accuracy of 
psychiatric predictions of future dangerousness 
dramatically rises where there has been a pattern  of 
repetitive assaultive and violent conduct. The ma­
jority of psychiatric experts accept tha t view.” 

Barefoot u. Estelle , 697 F.2d at 596; JA  20.
The facts of the hypothetical question presented such 

a history. I t  is shown first through the extensive 
testimony from witnesses in numerous communities in

10. Two studies discussed at the evidentiary hearing (R. 197, 201) 
as more successfully predicting future violence by virtue of selec­
tion of such a pool sample are Shah, ’’Dangerousness: A Paradigm 
for Exploring Some Issues in Law and Psychology,” 33 Am. Psych. 
224 (1978), and Rofman, Askinazi, & Fant, “The Prediction of 
Dangerous Behavior in Emergency Civil Committment,” 137 
Am.J.Psych. 9 (1980). Another, Steadman, Cocozza & Melick, “Ex­
plaining the Increased Crime Rate of Mental Patients: The Chang­
ing Clientele of State Hospitals,” 135 Am.J.Psych. 816 (1978), is 
cited in support of this identical proposition in the amicus curiae 
brief at 14-15 n.9 filed by the American Psychiatric Association in 
this case.



-47-

five states th a t Petitioner’s reputation was bad for be­
ing a peaceful and law abiding citizen, a reputation that 
can only evince repeated, widespread acts of criminal 
violence. His criminal history contained evidence of acts 
of violence or potential violence, such as unlawfully car­
rying illegal weapons. The history is accentuated by the 
circumstances of the crime itself, involving arson, a t­
tem pted robbery and murder.

Accordingly, it is not surprising that all four experts 
a t the federal evidentiary hearing comfortably predicted 
th a t Petitioner would continue to commit future acts of 
violence posing a danger to society. Their certainty 
ranged from somewhat less than ninety p e rcen t11 to not 
quite so high as one hundred percent. Indeed, in Pro­
fessor Dix’s article heavily relied upon by Petitioner, he 
stated  th a t an antisocial sociopath is “aggressively 
hostile toward the established mores of the community 
and often works out his hostility by taking what he 
wants when he wants it, without regard for his victim ,” 
G. Dix, ’’The D eath  P en a lty , D angerousness, 
Psychiatric Testimony, and Professional E th ics,” 5 
A m .J.C rim .Law  151, 186-88 (1977), citing  Kozel, 
Boucher, and Garofalo, “The Diagnosis and Treatm ent 
of Dangerousness,” 18 Grim. & Delinq. J. 371, 380 
(1972).
C. The Probative Value of the Expert Testimony in 

Petitioner’s Case was not Outweighed by any Pre­
judicial Impact.

Petitioner and the American Psychiatric Association 
as amicus curiae also argue tha t the prejudicial impact 
of such testimony, presumably even assuming its 
reliability, outweighs it probative value because it is im­
possible to cross-examine effectively psychiatric ex­
perts. This argument is meritless. There are numerous 
texts upon the proper modes of cross-examination of ex-

11. One commentator has suggested that psychiatric testimony 
must be at least approximately ninety percent certain to support a 
verdict where the applicable evidentiary standard requires proof 
beyond a reasonable doubt. Brooks, “The Dangerous Patient: Legal 
Aspects,” Feb. 24, 1976 (paper presented at the New York School of 
Psychiatry’s Law and Public Policy Workshop, Poughkeepsie, 
N.Y.), cited in Cocozza & Steadman, supra, at 1084 n.l; Stone, 
“Comment,” 132 Am.J.Psych. 829, 831 (1975).



-48-

pert witnesses; all apply equally to the kind of expert 
testimony presented in this case. See, e.g, D. Schwartz, 
“The Proper Use of the Psychiatric E xpert” , in Scien­
tific and E xpert Evidence, (ed. by E. Imwinklerid, 2d ed. 
1981) a t 1219, 1237-45. Indeed, virtually every criticism 
of such expert testimony set forth in the briefs of Peti­
tioner and the various amici curiae either was or could 
have been presented a t trial in Petitioner’s case.

The view has also been expressed tha t it is impossible 
to present effective rebuttal testimony where the nature 
of such rebuttal testimony would not be tha t the pro­
secution’s experts have erred in their diagnosis, but tha t 
no such proper diagnosis is medically possible. Respon­
dent is mystified by this criticism. I t  would seem much 
easier, not more difficult, to persuade a jury  th a t expert 
testimony is not credible where the contrary evidence 
shows not merely tha t the experts’ testimony is wrong, 
but, as Professor Dix has suggested, th a t it stands upon 
the brink of quackery. G. Dix, “The Death Penalty, 
’Dangerousness,’ Psychiatric Testimony and Profes­
sional E thics,” 5 Am.J.Crim.L. 151, 172 (1977).

Petitioner is equally wrong in stating tha t he could 
not have impeached or rebutted the experts’ testimony 
by showing “ tha t Barefoot was married, had children, 
loved his family and they him, when to church, 
graduated from high school or had friends.” Brief for 
Petitioner at 38. These are precisely the sorts of social 
institutional ties th a t both experts a t trial testified 
would militate against their opinion (SF 2092-93, 
2097-99, 2128-29). Petitioner, however, presented no 
such evidence, presumably because it did not exist, and 
so was unable to impeach the experts upon this basis. 
Thus, Petitioner had every opportunity to present in 
this context all of the m itigating evidence tha t he now 
erroneously asserts he could not present.

Petitioner relies heavily upon People v. Murtishaw, 
631 P. 2d 446 (Calif. 1981)(en banc), as supporting his 
position. In fact, it supports Respondent’s. First, the 
California Supreme Court recognized the validity of 
predictions of future dangerousness in cases such as 
Petitioner’s:

A reliable prediction might also be conceivable if the
defendant had exhibited a long-continued pattern  of



-49-

criminal violence such th a t any knowledgeable 
psychiatrist would anticipate future violence. 

People v. Murtishaw, 631 P.2d at 470. Second, the court 
found th a t the prejudicial impact of such testimony 
outweighed its probative value under the California 
sta tu tory  scheme, where a determination of future 
dangerousness “is a t best only marginally relevant to 
the task a t hand.’’ Id. a t 469. Under the Texas statu tory  
scheme, which is quite different, such testimony is 
highly relevant to the special issues the jury m ust deter­
mine. 12

Finally, the court was willing to find prejudicial error 
where the “ ju ry  deliberated  two full days before 
deciding on the death penalty, suggesting tha t the issue 
of penalty was close.” Id. a t 471. The jury in Petitioner’s 
trial deliberated a t most one hour before returning a ver­
dict of death.

Accordingly, there is no good reason to treat the ex­
pert testim ony in this case differently from expert 
testim ony in other cases. There is no reason to depart 
from the well recognized rule that the use of expert 
testimony is ordinarily a m atter of state  evidentiary 
law. J. Wigmore, Treatise on Anglo-American System of 
Evidence in Trials a t Common Law, §6e (3d ed. 1940). 
Under the Federal Rules of Evidence, admission of ex­
pert testimony is governed by R. 701 et seq., Federal 
Rules of Evidence. The annotations to that rule contain 
extremely few reversals, even on direct appeal, for er­
roneously adm itted expert testimony. I t follows tha t a 
finding of constitutional error at a sta te  trial upon the 
same basis should be even more difficult. As the district 
court succinctly stated:

12. Respondent is puzzled by Petitioner’s emphasis upon the 
special importance of future dangerousness in the Texas statutory 
scheme as compared to those of other jurisdictions. Brief for Peti­
tioner at 31-34. This importance proves the relevance and probative 
value of expert testimony upon future dangerousness and increases 
the degree of prejudice Petitioner must show in order to exclude 
such testimony.



-50-

[I]t is a fundamental premise of our entire system  of 
criminal jurisprudence th a t the purpose of the jury is to 
sort out the true testim ony from the false, the im portant 
m atters from the unim portant m atters, and, when called 
upon to do so, to give greater credence to one p a rty ’s ex­
pert witnesses than another’s. Such m atters occur 
routinely in the American judicial system, both civil and 
criminal. If the s ta te ’s psychiatrists a t trial erred in be­
ing over confident as to their diagnosis of Petitioner, 
then Petitioner should have presented impeaching 
evidence or rebuttal testimony.

(JA 14).

CONCLUSION

For these reasons, Respondent respectfully prays that 
the judgm ent of the United States Court of Appeals for 
the Fifth Circuit be affirmed.

Respectfully submitted,

JIM MATTOX 
Attorney General of Texas

DAVID R. RICHARDS
Executive Assistant 

Attorney General

DOUGLAS M. BECKER 
Assistant Attorney General 
Chief, Enforcement Division

P.O. Box 12548, Capitol Station 
Austin, Texas 78711 
(512) 475-3281

Attorneys For Respondent