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 9^th. 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.