Barefoot v. Estelle

Barefoot v. Estelle
Supreme Court of the United States
Argued April 26, 1983 Decided July 6, 1983
Full case name	Thomas A. Barefoot, Petitioner v. W. J. Estelle, Jr., Director, Texas Department of Corrections, Respondent
Citations	463 U.S. 880 (more) 103 S. Ct. 3383; 77 L. Ed. 2d 1090; 1983 U.S. LEXIS 110; 51 U.S.L.W. 5189; 13 Fed. R. Evid. Serv. (Callaghan) 449
Case history
Prior	697 F.2d 593 (5th Cir. 1983); cert. before judgment granted, 459 U.S. 1169 (1983).
Subsequent	Rehearing denied, 464 U.S. 874 (1983).
Holding
There is no merit to petitioner's argument that psychiatrists, individually and as a group, are incompetent to predict with an acceptable degree of reliability that a particular criminal will commit other crimes in the future, and so represent a danger to the community.
Court membership
Chief Justice Warren E. Burger Associate Justices William J. Brennan Jr. · Byron White Thurgood Marshall · Harry Blackmun Lewis F. Powell Jr. · William Rehnquist John P. Stevens · Sandra Day O'Connor
Case opinions
Majority	White, joined by Burger, Powell, Rehnquist, O'Connor
Concurrence	Stevens
Dissent	Marshall, joined by Brennan
Dissent	Blackmun, joined by Brennan, Marshall (parts I, II, III, IV)

Barefoot v. Estelle, 463 U.S. 880 (1983), is a United States Supreme Court case.^[1] The Court ruled on the merit of an argument that psychiatrists are not able to predict the future dangerousness of an individual criminal defendant with acceptable accuracy. The American Psychiatric Association submitted an amicus curiae brief in support of the defendant's position that such testimony should be inadmissible and urging curtailment of psychiatric testimony regarding future dangerousness and a prohibition of such testimony based on hypothetical data.^[2][3]

The significance of Barefoot as a precedent was its impact on how a court's threshold judgment on the merits of a constitutional claim could determine whether a habeas petitioner would be granted an automatic stay (of execution) when they were granted a certificate of appealability^[4] after establishing "a substantial denial of a federal right".^[5]: 162

Joseph L. Hoffmann analyzed the background of the habeas corpus procedure and the changing landscape signaled by the Court's decision in Barefoot v. Estelle which allowed an appeals court to use "expedited procedures in resolving the merits of habeas appeals":^[6][7]

probably the biggest problem with habeas in capital cases is the absence of a time limit...the State sets an execution date, even if it knows that the execution will not actually take place, because this is the only way to make the prisoner use up his federal claims by filing a habeas petition and requesting a stay. After the petition is filed, the habeas court grants a stay so it will have sufficient time to resolve the claims. If the court rejects the claims, the State sets another execution date, and the cycle resumes. The cycle ends only when the habeas court finally becomes confident enough, or angry enough, to reject a habeas petition without first granting a stay.

Thomas Barefoot (February 23, 1945 – October 30, 1984) was convicted in 1978 of murdering a police officer after having escaped from a jail in New Mexico. Two psychiatrists testified at the sentencing hearing that Barefoot would probably commit more violent acts in the future. As they had not personally examined Barefoot, their testimony consisted of responses to hypothetical questions based on facts taken from the proceeding. One psychiatrist called Barefoot a "criminal sociopath" and said there was no treatment for this condition and that Barefoot was likely to commit acts of violence in the future: he became known as "Dr. Death" for the frequency with which he testified in death penalty cases finding future dangerousness.^[8][9] The other psychiatrist testified that Barefoot had "a fairly classical, typical, sociopathic personality disorder." He placed Barefoot in the "most severe category" of sociopaths, and on a scale of one to ten, Barefoot was "above ten". The jury considered this as well as other evidence and imposed the death penalty.^[1] The sentence was affirmed by the Texas Court of Criminal Appeals (CCA).

Barefoot appealed to the Texas Court of Criminal Appeals which rejected his argument that this use of psychiatric testimony during the sentencing phase of his trial was unconstitutional and upheld the conviction and sentence.^[10] Barefoot filed a state habeas corpus petition which was denied on October 7 1981. He then filed a federal habeas petition at the United States District Court for the Western District of Texas raising the same objections to the use of psychiatric testimony. The execution was stayed and an evidentiary hearing held on July 28 1981. The district court denied the writ and vacated the stay on November 9 1982.

Although the District Court rejected his claims and denied the writ, it did issue a "certificate of probable cause" allowing Barefoot to petition the court of appeals for review of the psychiatric predictions. The Texas Court of Criminal Appeals denied a second writ of habeas corpus and denied a stay of execution. The Court of Appeals also denied a stay of execution, and Barefoot's execution was scheduled for January 25 1982. After the CCA on January 11 denied a motion for a stay, Barefoot filed a motion for a stay pending appeal at the Fifth Circuit Court of Appeals under 28 U.S.C. § 2252, which was denied on January 20:^[11]

We think, however, that the Supreme Court has, by implication at least, approved of psychiatric testimony in cases such as these. In Jurek v. Texas, the Supreme Court rejected the argument that requiring the jury to predict future behavior is so vague and uncertain as to be meaningless. While the Court did not deal specifically with what types of evidence the jury may hear, the Court stated that a jury is equipped to make such a determination.

The Court of Appeals also cited the Supreme Court decision Estelle v. Smith, 451 U.S. 454 (1981), which clarified in dicta that the Court was "in no sense disapproving the use of psychiatric testimony bearing on future dangerousness". Evaluating the merits of the appeal, and "finding no patent substantial merit, or semblance thereof, to petitioner's constitutional objections", the appeals court denied the motion for a stay.

The Supreme Court granted certiorari before judgment on January 24 on the question of "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-dentenced federal habeas corpus petitioner, and also the issues on appeal before the United States Court of Appeals for the Fifth Circuit".

The Supreme Court upheld the Fifth Circuit’s denial of Barefoot’s motion for a stay of execution, emphasizing that federal courts should not unnecessarily delay executions: "Federal courts are not forums in which to relitigate state trials." Barefoot claimed there was no final judgment when the Fifth Circuit denied his stay. The Court rejected this, clarifying that a summary disposition, like denying a stay, can also be a ruling on the merits of the appeal: "The granting of a stay should reflect the presence of substantial grounds upon which relief might be granted."

The "substantial showing of the denial of [a] federal right" became the standard for issuing probable cause certificates (called a certificate of appealability after legislative changes in 1996).^[5]: 165

The Court also ruled on the merits, rejecting the APA's brief stating that future dangerousness could only be predicted from a history of repetitive past violence, and the jury was already informed of these facts. The APA said the expert testimony could not provide any new information or insight to the jury.^[8]

The Court was not persuaded, reasoning that that clinical prediction testimony was not always wrong, and could be refuted by opposing experts, trusting the adversarial system to determine the accuracy of such statements: "Neither petitioner nor the [American Psychiatric Association] suggests that psychiatrists are always wrong with respect to future dangerousness, only most of the time."^[12]

Justice Blackmun wrote a scathing dissent stressing the unreliability of the expert testimony: "when the Court knows full well that psychiatrists' predictions of dangerousness are specious, there can be no excuse for imposing on the defendant, on the pain of his life, the heavy burden or convincing a jury of laymen of the fraud".^[13]

Although Blackmun upheld the constitutionality of the death penalty in Furman v. Georgia, and for 13 years never dissented in a death penalty case, he was so outraged the Court would allow medical testimony "so unreliable and unprofessional that is violates the canons of medical ethics" that his dissent Barefoot v. Estelle is recognized as a shift of his vote for death penalty cases. He dissented again in Darden v. Wainwright and, near the end of his tenure, Blackmun said he felt "morally and intellectually obligated simply to concede that the death penalty experiment has failed".

Barefoot was executed on October 30, 1984, at the age of 39. Barefoot continues to be an influential criminal procedure case.

Since 1908, a "certificate of probable cause" (CPC) has been required to appeal a district court's dismissal of a habeas petition, and in 1925 Congress expanded the appellate jurisdiction of circuit courts to grant the CPC. Then, in 1996 AEDPA replaced the CPC with the COA and codified the Barefoot standard.^[14][15]

The Supreme Court cabined Barefoot somewhat in Demosthenes v. Baal and Delo v. Stokes.^[16] Slack v. McDaniel held that the Barefoot standard applied to COA requests for procedural dismissals of "mixed petitions".^[14] Miller-El v. Cockrell (2003) held that when a constitutional claim is dismissed by a district court under AEDPA^[17] the same standard applies.

Barefoot is also a binding precedent for the admissibility of dangerousness predictions. Thus, circuit courts have consistently ruled against granting a COA for constitutional claims to challenge the admissibility of this type of testimony.^[18]: 294

The Barefoot decision was one of the most criticized Supreme Court decisions in modern history for admitting psychiatric testimony of future dangerousness.^[19] Even though psychiatric testimony predicting dangerousness is widely considered unreliable, the Daubert standard has not curbed dubious expert testimony in capital cases.

The Court's decision in this death penalty case was very important in influencing the legal opinion regarding psychiatric predictions of dangerousness, a position with which the American Psychiatric Association and other medical ethicists disagree, leading some experts to conclude that a psychiatrist making such statements verges on the brink of being a quack.^[20] Forensic experts state that psychiatric testimony on ultimate questions at law is unreliable due to the inherent limitations of current psychiatric clinical and experimental knowledge and practice.^[3] Nevertheless, courts have been willing to accept such testimony despite the lack of empirical evidence that these predictions of future dangerousness are accurate, and the Court's highly criticized reliance on the adversarial system continues to be the precedent applied by circuit courts.^[19]: 103

Ake v. Oklahoma held that indigent defendants who are unable afford to hire independent experts to rebut the dangerousness predictions of the state's psychiatric experts are entitled to state-paid assistance.^{[21][18]: 313}

Dr. James P. Grigson, one of the psychiatrists that testified in this case, was expelled from the American Psychiatric Association and the Texas Association of Psychiatric Physicians (TAPP) for making statements in testimony on defendants he had not examined. The TAPP said his expulsion was due not only to his replies to hypothetical questions but also for predicting dangerousness with 100% certainty.^[22]

• List of people executed in Texas, 1982–1989
• List of people executed in the United States in 1984

• Text of Barefoot v. Estelle, 463 U.S. 880 (1983) is available from: CourtListener Findlaw Google Scholar Justia Library of Congress Oyez (oral argument audio)
• Interview with Attorney Douglas Becker on his role in Barefoot v. Estelle
• Hastings - Barefoot v. Estelle