Executed August 8, 2001

The Texas Board of Pardons and Paroles
Executive Clemency Section
8610 Shoal Creek Blvd
Austin, TX 78757

Re: Mack Oran Hill 

Dear Members of the Board: 

Mack Oran Hill, TDC #000961, is scheduled to be executed on Wednesday, June 6, 2001. On behalf of the American Civil Liberties Union, we urge the Board to exercise its discretionary power in favor of staying Mr. Hill's execution and granting him a clemency hearing. We base this request on very disquieting information, largely unaddressed by any court in Mr. Hill's case, indicating that prosecutorial misconduct and fatally flawed "expert" testimony played major roles in Mr. Hill's conviction, sentencing, and appeals. 

If Mr. Hill is granted a clemency hearing, his counsel will present compelling evidence that the individual who prosecuted Mr. Hill's case at the trial level secretly offered leniency to State witnesses without advising either the Court or defense counsel, and subsequently falsified evidence of his actions. According to several corroborating sources, including the witnesses themselves, the prosecutor approached at least three of the State's witnesses against Mr. Hill prior to their testimony. He then suggested that they would be "taken care of" in connection with their own pending criminal matters but asked them to deny publicly they had reached any "deal." Following their testimony against Mr. Hill, they in fact received lenient treatment from the prosecutor's office. Because the prosecutor failed to advise either the Court or defense counsel of these understandings, the three witnesses' obvious bias Ð i.e., their incentive to provide testimony damaging to Mr. Hill Ð could not be explored in cross-examination before the jury. 

After the trial, when allegations of "deals" between the prosecutor and these three witnesses began to surface, the prosecutor tape-recorded a telephone conversation he had with counsel for one of the witnesses. Introducing this tape at Mr. Hill's habeas corpus proceeding, the prosecutor argued that it showed the witnesses' counsel agreed there was no deal between the prosecutor and the witness. The counsel who was taped, however, testified that large portions of the taped conversation were deleted in their entirety and other portions were selectively edited to create the misimpression that no deal was struck when in fact one was. Not only was this counsel's testimony unrebutted, but there are very credible allegations that the same prosecutor has secretly struck similar deals in several other cases, as Mr. Hill's counsel could demonstrate at a clemency hearing. 

A stay and grant of a clemency hearing is independently justified on another ground as well: the jury's exposure to fatally flawed "expert" testimony, during the penalty phase of the case, to the effect that Mr. Hill posed a future danger of violence. In Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 529 (1993), and other cases, the U.S. Supreme Court has warned that unscientific "expert" testimony should not be permitted into evidence because the likelihood of error cannot justify the disproportionately weighty impact that such testimony can have on juries. The principal test for whether testimonial evidence is scientific or not is its reliability. 

In Mr. Hill's case, two psychiatrists retained by the prosecutor's office offered their expert opinions that Mr. Hill posed a danger of violence in the future. There can be little doubt that the basis for their opinions was unreliable. Both the American Psychiatric Association and the Texas Association of Psychiatric Physicians have found the practice of predicting future dangerousness to be unscientific, unreliable, and unethical. Indeed, in its amicus brief, the American Psychiatric Association stated that two out of three psychiatric predictions of long-term future dangerousness were incorrect Ð an error rate that could not satisfy any scientific standard. One of the testifying psychiatrists was actually expelled from the American Psychiatric Association and the Texas Association of Psychiatric Physicians because of his persistence in purporting to predict future dangerousness. Significantly, moreover, neither of the two psychiatrists in Mr. Hill's case personally examined Mr. Hill for purposes of their testimony. The courts of Texas demand that a higher standard of reliability be met, particularly in a capital case such as this. 

The ACLU opposes capital punishment in all cases as a barbarous anachronism and in violation of the U.S. Constitution. In Mr. Hill's case, persuasive evidence of prosecutorial misconduct and fundamentally flawed "expert" testimony Ð issues that have generally not been addressed by any court in this case to date Ð cast a dark shadow over these capital proceedings. In light of these most serious concerns, we urge the Board to stay Mr. Hill's execution and grant him a clemency hearing at which the underlying facts can be addressed in more detail. 

Sincerely, 

Diann Rust-Tierney
ACLU Capital Punishment Project 

William Harrell
ACLU of Texas 

James V. Dick
Pro Bono Counsel
Squire, Sanders & Dempsey L.L.P.