Billy Joe Wardlow Faces Execution in Texas Based on False Evidence of Future Dangerousness

Billy Joe Wardlow (pictured) was 18 years old, when he killed 82-year-old Carl Cole during a botched attempt to steal Cole’s car so that Wardlow and his girlfriend could pursue their fantasy of running away from their abusive homes in Carson, Texas to start a new life in Montana. Wardlow, who had no prior history of violence, has regretted his action ever since. In the cover story for the Winter 2020 issue of the magazine The American Scholar, Wardlow told veteran journalist and legal commentator Lincoln Caplan, “it was really, really, really stupid.”

The troubled teen of a brutally abusive mother had attempted suicide three times between turning age 15 and killing Cole. Just weeks before the murder, Caplan says, Wardlaw had tried to drive a stolen truck off a bridge. In the county jail awaiting trial, Wardlow at the suggestion of the sheriff wrote a dramatic confession that the prosecution used against him at trial: “Being younger and stronger, I pushed him off and shot him right between the eyes. Just because he pissed me off,” it said. While in custody, Wardlow attempted three more times to kill himself.

The Texas jury that sentenced Wardlow to death in 1995 heard nothing about his traumatic upbringing and emotional troubles. Instead, in a practice repeated in numerous Texas capital cases, it was provided false testimony by a prosecution expert that Wardlow “would constitute a continuing threat to society” if they spared him the death penalty and sentenced him to life. Wardlow currently faces an April 29, 2020 execution date. But—after interviewing Wardlow’s current lawyers and other Texas death row prisoners about the person Wardlow has become almost 25 years later and exploring the false testimony concerning his supposed future dangerousness—Caplan’s in-depth article argues that Wardlow should not be executed.

With defense counsel who presented virtually no case for life, Wardlow’s sentence depended upon whether the prosecution proved the state-law requirement that he posed a continuing threat to society. To prove that, prosecutors presented uncontested testimony from Royce Smithey, an investigator for the Texas Special Prosecution Unit, which prosecutes felonies committed within Texas prisons. Smithey falsely testified that Wardlow would be placed in the general prison population if the jury sentenced him to life, where his presence would put prison guards and others at risk.

Wardlow’s current lawyers have filed a petition that is currently pending before the Texas Court of Criminal Appeals arguing that Wardlow’s death sentence was obtained through false testimony and that the Texas death-penalty statute is unconstitutional because “[t]he prediction of future dangerousness called for by the Texas capital sentencing statute cannot reliably be made for a capital defendant under 21 years old.” They presented a statement from Frank G. Aubuchon, a former Texas Department of Criminal Justice [TDCJ] correctional officer and prison administrator, who said that Smithey’s testimony contained “multiple falsehoods [that] served to mislead the jury into believing that TDCJ would be completely unprepared to imprison Mr. Wardlow in a secure environment unless he received a death sentence. Based on my decades of experience as a TDCJ corrections officer, administrator, and prison classifications expert” Aubuchon wrote, ” I can say that this is categorically false.”

Wardlow maintains that he did not intend to kill Cole, but shot him in the head as the two struggled for Wardlow’s gun. Recounting the incident, a weeping Wardlow told Caplan, “you put a gun in someone’s face, they’re going to be terrified. So, really, two terrified people fighting over a gun is what it was. A terrified old man and a terrified kid. And the old man was winning. And when he started to take the gun out of my hand, I can remember I put my finger into the trigger, and pulled the trigger.”

Caplan argues that Wardlow’s behavior during his almost 25 years on death row refutes Smithey’s prediction that he would be a danger in prison. Wardlow, he says, “has become in middle age a trusted, peacemaking, and in many ways exemplary inmate—generous to others on death row, attentive to fellow prisoners and to others he exchanges letters with, and as engaged in the world as an inmate on death row can be who has spent much of the past 25 years in solitary confinement in a tiny cell.”

Experts have long equated predictions of future dangerousness with junk science and studies have repeatedly documented its unreliability. Texas prosecutors for years presented psychiatric testimony from Dr. James Grigson, who was eventually expelled from the American Psychiatric Association and the Texas Society of Psychiatric Physicians because of his false and unethical testimony on future dangerousness in death penalty cases. The Texas courts eventually barred the testimony of another psychiatrist, Dr. Richard Coons, who repeatedly testified “with near certainty” that defendants would pose a future danger if sentenced to life. Like Grigson, Coons reached his conclusions without even interviewing the defendants. Psychologist Dr. Walter Quijano provided false and racist testimony in seven Texas death-penalty cases that blacks and Latinos were more likely because of their race to commit future acts of violence.

In 2019, Texas executed Billie Wayne Coble, Travis Runnels, and Robert Sparks, three other prisoners whose death sentences had been tainted by false testimony by another Texas Special Prosecution Unit criminal investigator, A.P. Merillat.