‘Expertise’ on Trial

In matters where lives may be at stake, should a person who presents himself as an expert have to prove expertise? Were we talking about pilots or heart surgeons, the answer would surely be yes. But when it comes to psychiatric testimony in death penalty cases, at least in Texas, the answer seems to be no.

Two federal courts are examining cases in which Texas judges have allegedly allowed psychiatrists to present unprofessional speculation about the state of mind and the dangerousness of defendants in capital crimes. The issue affects more than Texas, but that’s where the spotlight is right now.

The U.S. Supreme Court, examining the case of the severely retarded John Paul Penry, and a federal appeals court, reviewing an appeal for Joe Lee Guy, convicted of a 1993 robbery-murder, are not directly examining the expertise of prosecution witnesses. They are only assessing procedural details like whether judges gave proper instructions to juries on how they should weigh psychiatric evidence. Even so, the appeals shed light on a troubling fact: Texas judges allow psychiatrists to reach sweeping conclusions about defendants without following scientific guidelines or ethical standards set by medical authorities like the American Psychiatric Assn.

Earlier this month, Times staff writer Henry Weinstein interviewed one Texas psychiatrist, E. Clay Griffith, who said he had testified in more than 145 death penalty cases in Texas, almost always for the prosecution. He concluded that most of the defendants, including Joe Lee Guy, were dangerous to society, without actually meeting them. Although Griffith had been presented to jurors as a dispassionate, scientific witness, he said in the interview “I didn’t lose any” of the cases in which he testified. Hardly dispassionate.

In 1993 the U.S. Supreme Court, incensed by what it saw as junk science used by “expert” witnesses in a product liability trial, ruled that trial judges should act as gatekeepers, requiring expert witnesses to provide some proof that they are following scientific methods.

The 1993 ruling applied only to federal judges in civil trials, but it inspired many states to raise the bar for expert testimony in their own civil and criminal courts. Judges in many states, including California, have compelled psychiatrists to at least base their conclusions on the criteria in the profession’s bible, the Diagnostic and Statistical Manual of Mental Disorders.

While Texas has been the nation’s laggard, many other states have been criticized for giving psychiatric testimony too much sway in criminal cases. For instance, when Sol Wachtler, a former chief judge of the New York Court of Appeals, was himself arrested in the late 1990s for threatening a former girlfriend, he did not challenge psychiatric testimony against him. When asked why, he said: “The prosecution is always able to find [a psychiatrist] who agrees with him. I’m not saying all psychiatrists are hired guns, but that is the suspicion.”

Not all of this suspicion is the fault of the courts. Professional societies also need to take more responsibility for judging and providing guidelines for expert psychiatric witnesses.

Texas prosecutors argue that any restriction on expert witnesses would violate the spirit of a 1983 Supreme Court decision that said that since juries and judges make unscientific judgments about a defendant, psychiatrists should not be barred from doing so.

The 1983 ruling recognized that science in real life will always have a measure of subjectivity. However, Texas officials are wrong to use the ruling as an excuse to avoid reforming the way in which expert testimony is introduced in court and explained to jurors. There is nothing wrong with separating accepted science from ordinary opinion, especially when a life is at stake.