SCOTUS Denies Review to Texas Prisoner Sentenced to Death with Contested Junk Science

On October 30, 2023, the United States Supreme Court denied Texas death-sentenced prisoner Brent Brewer’s (pictured) petition for certiorari, clearing the way for his scheduled execution on November 9th. Mr. Brewer’s attorneys argue that unreliable “future dangerousness” junk science testimony from a psychiatrist who never even met Mr. Brewer resulted in his death sentence. Following the Supreme Court’s decision, attorneys for Mr. Brewer submitted a clemency application, detailing the fact that one of his jurors did not want to sentence him to death. The application also details Mr. Brewer’s good behavior, expressed remorse, and his religious journey. At trial, the prosecution called Dr. Richard Coons as an expert witness to opine about Mr. Brewer’s future behavior. Despite never meeting with Mr. Brewer, Dr. Coons testified that he would “probably” join a prison gang while incarcerated, depicting him “as a terminally dangerous menace to society.” After hearing Dr. Coons’ testimony, the jury sentenced Mr. Brewer to death.

In 2007, the U.S. Supreme Court vacated Mr. Brewer’s death sentence, citing the trial court’s failure to adequately allow the jury to consider mitigating factors, such as Mr. Brewer’s abusive childhood and continuous struggle with depression, anxiety, and substance abuse disorder. As a child, his lawyers allege that Mr. Brewer was severely abused by both his stepfather and biological father, even needing to defend his mother’s life with a broom handle. According to the Supreme Court’s decision in Brewer v. Quarterman, capital juries must be allowed to weigh mitigating evidence “in a reasoned, moral manner” when determining “whether a defendant is truly deserving of death.” At Mr. Brewer’s second trial, the state once again called Dr. Coons to testify, who again failed to meet Mr. Brewer before telling jurors that he would “more likely than not” commit acts of violence in the future.

At his second trial, Mr. Brewer’s attorneys argued that his prison behavior record was inconsistent with any prediction of violence.  Mr. Brewer had just four citations during his 10 years on death row — one for having too many towels in his cell. But Dr. Coons maintained that Mr. Brewer would likely kill again if the state did not kill him first, opining that “a huge amount” of prison violence is unreported, thus, Mr. Brewer’s infraction record did not reliably depict his dangerousness.

In 2010, the Texas Court of Criminal Appeals noted that Dr. Coons, who has testified in dozens of capital cases, was unable to cite any academic literature or research to substantiate his “self-developed” methodology. The court acknowledged that while Dr. Coons’ practice may be intuitive, it is not scientifically reliable. However, no courts have ruled that Dr. Coons’ testimony is a reversible error. Mr. Brewer’s current attorneys allege that his trial counsel failed to challenge Dr. Coons’ testimony, amounting to ineffective assistance of counsel.

Experts have long maintained that future dangerousness cannot be reliably determined and studies have confirmed that such predictions are unreliable. A 2013 statement from the American Bar Association Death Penalty Review Project called for Texas to “eliminate the use of ‘future dangerousness’ as a factor in capital sentencing, since the determination ‘often turns on unreliable scientific evidence.”

Mr. Brewer was sentenced to death for a crime that occurred more than 30 years ago.  In 1990, just a few weeks after being released from a hospital following an involuntary commitment after his grandmother discovered his suicide note, Mr. Brewer and his girlfriend, who he met while hospitalized, robbed and killed a flooring store owner after he agreed to give them a ride.