The StandDown Texas Project

Trial Judge Recommends Reversal of Cathy Lynn Henderson Convcition

Today's Austin American-Statesman reports, "Judge: New evidence should overturn Henderson's capital murder conviction."  It's by Chuck Lindell.

The state's highest criminal court should overturn the capital murder conviction of Cathy Lynn Henderson, once two days from execution for the 1994 death of an infant she was baby-sitting, a Travis County judge has recommended.

District Judge Jon Wisser said scientific discoveries into the causes of head trauma similar to the injury suffered by 3-month-old Brandon Baugh — and a change of heart from the prosecution's star witness, former medical examiner Roberto Bayardo — mean no reasonable juror would convict Henderson if presented with the new evidence at trial.

"Testimony of the state's chief experts was, at bottom, scientifically flawed," Wisser wrote in findings dated May 14 and delivered Tuesday to the Court of Criminal Appeals.

After reviewing evidence via testimony and briefs, Wisser recommended that the appeals court dismiss Henderson's conviction and return her case to Travis County, where she may face "any indictment or charges" that prosecutors choose to pursue in the child's death.

The appeals court will determine whether to accept Wisser's recommendation. It can rule on his submission, request further briefing or schedule oral arguments. A decision on Henderson's fate is likely to be months away.

And:

Henderson, 55, had claimed that Brandon died after slipping from her arms and falling about four feet to the concrete floor of her Pflugerville-area home. She said she panicked, then buried the boy's body in a Bell County field before fleeing to Missouri, where she was found and arrested 11 days later.

The search for the boy's body and hunt for Henderson dominated headlines in February 1994.

At Henderson's trial a year later, Bayardo testified that it was "impossible" to attribute the boy's extensive head injury to an accidental fall. The only explanation, he said, was a deliberate and forceful blow struck by Henderson, adding that Brandon would have had to fall from "higher than a two-story building" to sustain a similar injury.

But in an affidavit included in Henderson's 2007 appeal, Bayardo said advancements in the understanding of pediatric head injuries indicate that relatively short falls onto a hard surface could produce injuries similar to those he discovered during Brandon's 1994 autopsy.

"I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an intentional act or an accidental fall," Bayardo said.

Dr. John Plunkett, one of five defense experts to testify before Wisser, said doctors were commonly taught that short falls could not cause serious injury or death in infants. However, scientific studies since 2001 have shown that falls of less than four feet can be lethal, producing complex skull fractures and other damage, said Plunkett, a Minnesota forensic pathologist who studied fatal playground accidents.

Plunkett concluded that no expert could prove that Brandon's death was an accident. "However, because of the new scientific information and analysis now available ... neither may anyone prove that Ms. Henderson intentionally caused it," he said in an affidavit to Wisser.

Also:

Henderson was two days from a June 13, 2007 execution date when the Court of Criminal Appeals ruled 5-3 to halt proceedings — directing Wisser, who had presided over Henderson's trial, to examine testimony from defense experts and Bayardo's recantation.

It is unclear how Wisser's conclusions will be received by the appeals court, an all-Republican nine-member body known as a tough venue for defense lawyers.

Three judges would not have delayed Henderson's execution in 2007— Sharon Keller, Barbara Hervey and Michael Keasler — saying defense lawyers did not meet criteria for a second appeal.

The AP filing is, "Judge: Condemned woman should have verdict nixed," by Nomaan Merchant.  It's via the Fort Worth Star-Telegram.

Henderson maintained that she accidentally dropped the boy onto a concrete floor in her home in Pflugerville, north of Austin. During her trial, the chief medical examiner in Travis County argued that the boy could not have been so badly injured in a short fall. Dr. Roberto Bayardo said Brandon would have had to fall from a height taller than a two-story building.

But Bayardo, now retired, changed his mind more than a decade later. He submitted an affidavit in 2007, saying new information about pediatric head trauma showed that his conclusion was incorrect and that a short fall could have caused the boy's injuries.

The Texas Court of Criminal Appeals halted Henderson's execution that June, two days before she was scheduled to die. She has remained on death row ever since.

And:

"The court finds that if Dr. Bayardo's re-evaluation had been presented to the jury in 1995, no rational juror could have or would have convicted (Henderson) of capital murder beyond a reasonable doubt in light of this new evidence," Wisser wrote.

Earlier coverage of the Cathy Lynn Henderson case begins at the link.  Related posts are in the forensics index.  Several notable older posts include:

• Autopsy Errors One More Troubling Trend
• Yamil Berard's Five-Part Medical Examiner Series Concludes
• Yamil Berard on Texas Autopsy Controversies
• The Case of Cynthia Case - More Bad Forensics

The Long, Questionable History of George Denkowski

"Death Sentence Reviews Leave Unsettled Issues," is the title of Brandi Grissom's report in the Texas edition of the Sunday New York Times.  It also appears at the Texas Tribune.

Stanley Schneider was shocked last year when Texas’ highest criminal court sent his death row client an early Christmas gift of sorts, ordering the trial court to re-examine evidence from a psychologist who had decided that John Reyes Matamoros was mentally fit to face execution.

“We were hopeful their sending it back would mean something,” Mr. Schneider said.

But his hope flagged in March when, he said, two Harris County state district judges virtually rubber-stamped Dr. George Denkowski’s findings in the cases of Mr. Matamoros and a fellow death row inmate, Steven Butler. Dr. Denkowski, the psychologist who testified in the cases of 14 current Texas death row inmates that the convicted men were mentally fit for execution, was reprimanded last year after other psychologists and defense lawyers filed a complaint alleging that he had used discredited evaluation methods.

Lawyers for Mr. Matamoros and Mr. Butler, who have filed objections with the Texas Court of Criminal Appeals, say any findings by Dr. Denkowski should be disregarded. They said that the trial court judges — who are husband and wife — simply adopted Dr. Denkowski’s conclusions instead of examining reams of evidence from other psychologists that they said proved their clients were mentally retarded and ineligible for the death penalty.

“This is a perfect example of the state taking science and trying to prostitute it,” Mr. Schneider said, adding, “The role of the courts is to protect us from junk science.”

And:

The Supreme Court of the United States ruled in 2002 that states could not execute people who were mentally retarded. The court allowed states to decide on guidelines for determining whether a person was mentally retarded. Texas courts have adopted a three-part definition that requires the convicted inmate to have below-average intellectual function, to lack adaptive behavior skills and to have had these problems since an early age.

Dr. Denkowski conducted tests to determine whether defendants who might face the death penalty aligned with those definitions. But other psychologists and defense lawyers complained that he artificially inflated intelligence scores to make defendants eligible for the death penalty. (Dr. Denkowski’s lawyer has said that he vigorously denies having violated any psychology board rules and that he used his best clinical judgment in making forensic evaluations.)

Last year, the Texas Board of Examiners of Psychologists agreed to a settlement with Dr. Denkowski in which it reprimanded him, but he did not admit guilt. He agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints.

Since that reprimand, the Texas Court of Criminal Appeals has asked trial courts to review at least six cases that included Dr. Denkowski’s work to determine what effect it had had on the case.

Defense lawyers argue that Dr. Denkowski’s conclusions should be completely excluded from those reviews.

“You can talk all day long about how you don’t want junk science used in these cases, but when you’re confronted with it, you have to take active steps to make sure it hasn’t contaminated the case,” said Kathryn Kase, executive director of the Texas Defender Service, which represents death row inmates.

The Butler and Matamoros cases are the first to be returned to the Court of Appeals.

Earlier coverage of George Denkowski and the Butler and Matamoros cases begins at the link.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.  Related posts are in the mental retardation index.

Commentary on the Buck & Skinner Cases

"Duane Buck, Race and Capital Punishment," is the title of Andrew Rosenthal's Loyal Opposition blog post at the New York Times.

This post is devoted to the Supreme Court’s declining this week to review the Texas death-penalty case of Duane Buck.

Based on the duelling short opinions from Justices Samuel Alito Jr. (who voted with the majority to deny) and Sonia Sotomayor (who filed a dissent to explain why she voted to hear the case), it seems that this life-and-death matter turned on a single fact: A freighted question that Mr. Buck’s lawyer asked 14 years ago.

And:

The point is that the prosecutor zeroed in on race, and asked the jury to consider it as a factor in predicting Mr. Buck’s future dangerousness. It was that invitation that led the jury to impose what Justice Sotomayor calls “a death sentence marred by racial overtones.”

Given that a man’s life was at stake here, I think the Supreme Court justices could have gotten their heads out of minutiae and let Mr. Buck’s case have a rehearing.

"Hank Skinner case must be reviewed," is the Fort Worth Star-Telegram editorial from the Saturday paper.

Skinner's appellate attorneys noted that a law passed by the Legislature in May, based partly on this case, gives an inmate the right to request that the convicting court order testing of biological material for DNA even if the items were not entered into evidence during the original trial.

The criminal appeals court said in its order, "Because the DNA statute has changed, and because some of those changes were because of this case, we find that it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case."

It was an investigation in 1999 and 2000 by students at Northwestern's Medill School of Journalism that unearthed some of the disturbing facts now being used in Skinner's appeal. Since then, an arduous legal process has prevented an execution while his legal team tries to force the justice system to do all it can to discover the truth.

That should be the state's ultimate goal in any case, but especially one in which a man has been sentenced to die.

Earlier coverage of the cases of Duane Buck and Hank Skinner at the links.

Walter Quijano and the Duane Buck Case

Today's Houston Chronicle carries the editorial, "Texas Youth Commission made a bad hire."

Psychologist Walter Quijano has become notorious for testifying as a prosecution witness in Texas capital murder trials that black defendants are more likely to commit future violence than other ethnic groups. Now it turns out that he has also been on the payroll of the Texas Youth Commission for years, evaluating youthful offenders at TYC facilities in East Texas.

State Sen. John Whitmire, the Houston Democrat who chairs the Senate Criminal Justice Committee, says he was tipped off by members of the justice advocacy group Texas Appleseed that Quijano worked for the TYC. Whitmire, who has led the fight to reform the scandal-plagued Texas juvenile justice system, says Quijano's views on race should disqualify him from working with troubled youth.

"If someone had not brought that to my eyes, I would not have known that at this point in time they're still using this guy," said Whitmire. He wonders how TYC officials missed the controversy that erupted two months ago over Quijano's racially tinged testimony in convict Duane Buck's trial. It led the U.S. Supreme Court to temporarily stay Buck's execution before rejecting his appeal.

And:

We share Sen. Whitmire's exasperation that TYC officials approved contracts with a psychologist whose race-related court statements have triggered legal controversies as long ago as 2000. Then-Texas Attorney General and current U.S. Sen. John Cornyn denounced Quijano's testimony for improperly injecting race into numerous criminal justice proceedings.

The Root carries journalist E.R. Shipp posts, "What's Next for Duane Buck on Death Row?"

Buck is not someone I would invite home to Sunday dinner; nor is he someone to whom I would send care packages. He is no hero by any means, despite the fact that his lawyer from the Texas Defender Service says that he is remorseful. This is the thing: His case was tainted by racial evidence pressed upon the jury by the prosecutor.

Prominent Texans -- lawyers (including one who prosecuted him), a former governor, members of the clergy, civil libertarians -- are asking the district attorney, Patricia Lykos, to delay setting an execution date and to schedule a new sentencing hearing for Buck. "The State of Texas cannot condone any form of racial discrimination in the courtroom," these leaders wrote to Lykos. "The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary."

The NAACP is among the national organizations involved in Buck's case. "We believe that racism is still rampant in how the death penalty is administered," said Steven Hawkins, an executive vice president of the NAACP and the organization's leading expert on capital punishment.

By the way, Buck is not looking to go home; he knows that he belongs behind bars for life. "He realizes he needs to do time for his crime," Black said. "He is incredibly sorry and remorseful."

Earlier coverage of Duane Buck's case begins at the link; also, it includes more on Quijano's TYC work.

News Coverage & Analysis of the Buck Cert Denial

"Buck case involved a terrible crime but a flawed capital sentencing process," is the editorial in today's Fort Worth Star-Telegram.

The U.S. Supreme Court delayed the execution of Texas Death Row inmate Duane Buck on Sept. 15 to review his request for a new punishment hearing, but on Monday the justices announced they wouldn't look further into his constitutional claims.

Two separate opinions showed what took so long.

It appears the justices were wrestling over which side injected racially tinged testimony at Buck's sentencing and whether the answer to that question essentially sealed his fate.

But the court seems to have missed the point: Race shouldn't sway a jury's decision about whether a convicted killer receives the death penalty, and the possibility that it might have in Buck's case justifies a new hearing.

This isn't a matter of sympathy but of fairness.

And:

Buck's crime was terrible. But his sentencing was flawed -- a former attorney general even said so. If the death penalty is to have credibility, procedures must be as fair and error-free as possible. A Supreme Court mandate isn't required for Texas to correct this mistake.

Andrew Cohen posts, "In The End, Supreme Court Says No to Duane Buck," at the Atlantic.

The reason there is such a gap between the realities of capital punishment in America and the media coverage of those realities isn't hard to figure or explain. The nation's attention span is notoriously scattered and short. It takes fidelity to the long view -- and a great deal of patience and attention to detail -- to grasp the many ways in which the modern death penalty "experiment" has failed so many people on so many different levels for so many reasons.

An individual story -- like the saga of Troy Davis which ended in September -- occasionally floods the national conscience. Millions of people get involved, on either side of the debate, and the scholars, advocates and tribunes who inhabit the world of capital punishment get to pronounce their points to an interested audience. But then that audience moves on to the next thing (the media either leading or following the hordes) without ever staying around long enough to bring meaningful change to state death penalty regimes.

And:

Here is the piece I wrote in September about how Texas officials, including Gov. Rick Perry, had blown off Buck's request for equal protection under law. And here is the piece I wrote about him shortly thereafter when the Supreme Court, to the surprise of many, temporarily stayed his execution. Now that stay is over, it won't be long before Buck gets a new execution date. If, as a news consumer, you tuned in only to September's news about Buck you might think that justice was done in the case -- after all, the Supreme Court halted the execution, didn't it? But if you still think that today you would be wrong.

"Supreme Court Denies Duane Buck Appeal," by Brandi Grissom for the Texas Tribune.

The high court stayed Buck's execution in September to consider his appeal. His lawyers argued that because psychologist Dr. Walter Quijano told jurors that the fact Buck is black meant he was more likely to be violent in the future, he ought to be granted a new trial without race-related testimony.

The same psychologist gave similar testimony in six other death row cases. And in 2000, then-Attorney General John Cornyn admitted the state erred in allowing the race-related testimony in Buck's case and the others. In each case, except Buck's, the defendants were given new trials to determine their sentences. They all were re-sentenced to the death penalty.

"Supreme Court refuse to review role race played in Texas sentence," is the AP filing via the Washington Post.

Justice Samuel Alito said that might have been enough for a reversal if Dr. Walter Quijano had been a prosecution witness.

“But Dr. Quijano was a defense witness, and it was petitioner’s attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness,” said Alito, who was joined by Justices Antonin Scalia and Stephen Breyer in his statement.

Justices Sonia Sotomayor and Elena Kagan said they wanted the court to hear the appeal, saying the death sentence was “marred by racial overtones and a record compromised by misleading remarks and omissions.”

“Because our criminal justice system should not tolerate either circumstance — especially in a capital case — I dissent and would vote to grant the petition,” Sotomayor said.

"Supreme Court Declines Duane Buck Death Row Case," by Nina Totenberg for NPR.

In 1995, Buck, who is African-American, was convicted of killing two people and shooting a third. During the sentencing phase of his trial, psychologist Walter Quijano was called by the defense. Although Quijano testified that Buck would not pose a continuing threat to society if incarcerated, he also testified that blacks and Hispanics are statistically more likely than whites to commit future crimes.

When the prosecutor cross-examined Quijano, the psychologist testified that being black "increases the future dangerousness for various complicated reasons." Buck was ultimately sentenced to death by lethal injection.

"Supreme Court Denies Cert in Capital Case with ‘Racial Overtones’; Dueling Opinions Issued," at ABA Journal by Debra Cassens Weiss.

The Christian Science Monitor has "Was race a factor in Texas death sentence? Supreme Court declines case," by Warren Richey.

"Race-Tainted Death Sentence: Appeal Denied," by Jenée Desmond-Harris at the Root.

Mike Sacks writes, "Supreme Court Punts Death Penalty Case: Sotomayor, Alito Square Off On Decision Not To Hear Argument," at Huffington Post.

The Statement on Denial of Cert by Justice Alito and the Dissent by Justice Sotomayor are available in Adobe .pdf format.

Earlier coverage of Duane Buck's case begins with yesterday's post.

Community Leaders Call on DA to Address Buck Sentence

The letter from community leaders to Harris County District Attorney Pat Lykos is available in Adobe .pdf format.  Attorneys for Duane Buck issued a news release announcing the letter, "More than 60 Civil Rights and Faith Leaders, Elected Officials, Former Prosecutors, and Past ABA Presidents Call On Harris County D.A. To Provide Remedy in Case of Duane Buck."

Prominent individuals from Texas and across the country are calling on Harris County District Attorney Patricia Lykos to remedy the sentence in a death penalty case involving the government’s reliance on the defendant’s race at sentencing. Duane Buck was scheduled to be executed on September 15, 2011, when the U.S. Supreme Court intervened. Today, the Court denied Mr. Buck’s petition for writ of certiorari.

At Mr. Buck’s capital murder trial in 1997, the State relied upon evidence that African-Americans are more likely to be dangerous as a basis for asking his jury to sentence him to death. District Attorney Lykos now has the discretion to remedy this error.
 
Prominent Texans calling for District Attorney Lykos to provide a remedy include seven members of the Texas Legislature; former Texas Governor Mark White; former Bexar County District Attorney Sam Millsap and Harris County Assistant District Attorney Linda Geffin (who served as a prosecutor in Mr. Buck’s case); seven Past Presidents of the Harris County Criminal Lawyers Association and current President Earl Musick; President of the Texas NAACP Gary Bledsoe; Archbishop Joseph A. Fiorenza of the Galveston-Houston Archdiocese; Pastor James Nash of Houston Ministers Against Crime; and Southwest Regional Director of the Anti-Defamation League Martin B. Cominsky.
 
In a letter delivered to District Attorney Lykos on September 28, 2011, the signatories wrote: “We write to you today, as elected officials, civil rights leaders, faith leaders, legal professionals, past ABA presidents, a former governor, and concerned citizens dedicated to protecting the integrity of the criminal justice system, to request that you refrain from seeking an execution date in Duane Buck’s case until the parties and courts have been given adequate opportunity and time to address the troubling issues in Mr. Buck’s case. We believe that no one should be executed whose death sentence was based on racially-biased evidence.”
 
Other distinguished signatories include John Payton, Director-Counsel of NAACP Legal Defense & Educational Fund, Inc.; Wade Henderson, President and CEO of The Leadership Conference on Civil and Human Rights; Deborah Lauter, National Civil Rights Director of the Anti-Defamation League; and past American Bar Association Presidents Philip Anderson, William Ide, Carolyn Lamm, and Roberta Ramo.

On May 5, 1997, Mr. Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. A third person, Phyllis Taylor, was shot but survived her wound. Ms. Taylor is also a signatory to the attached letter. She has forgiven Mr. Buck and does not wish to see him executed.
 
During Mr. Buck’s trial, the prosecutor relied on evidence from psychologist Walter Quijano that being an African-American increased the likelihood one would be dangerous in the future. In its closing argument, the government vouched for the credibility of Dr. Quijano’s opinion and urged the jury to rely on it to find that Mr. Buck would be dangerous. The jury found him to be a future danger and he was sentenced to death.  As Justice Sotomayor noted in her dissent from the denial of certiorari, “the prosecution invited the jury to consider race as a factor in sentencing.”
 
On June 9, 2000, while Mr. Buck’s case was pending on appeal, then-Attorney General of Texas John Cornyn issued a press release acknowledging error in the cases of six individuals whose death sentences had been unconstitutionally based on the government’s reliance on race as a factor in sentencing. The Attorney General identified Mr. Buck’s case as one of those six cases. He further stated that Texas would not contest federal appeals in those cases, and stated that if the attorneys for the identified defendants raised claims challenging the government’s reliance on race at sentencing, the Attorney General would waive all procedural defenses available to it.
 
Despite this concession, Mr. Buck is the only defendant of the six identified by Mr. Cornyn who has not been granted a new sentencing trial free from the government’s reliance on his race as a basis for requesting a death sentence.
 
“The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary,” the letter to District Attorney Lykos reads. “Refraining from setting an execution date for Mr. Buck until the courts have a meaningful opportunity to address the fundamental injustice in his case will help restore public confidence in the criminal justice system.”

Earlier coverage of the Supreme Court's denial of Buck's request for  a review of his case is at the link and begins earlier coverage of his case.  In the next post, I'll link to extensive news coverage of the Court's action.

Supreme Court Rejects Appeal by Duane Buck

The U.S. Supreme Court this morning rejected the petition of Duane Buck.  The statement by Justice Alito is available in Adobe .pdf format, as is a dissent by Justice Sotomayor.

Texas Defender Service has issued a "Statement from Attorney for Duane Buck in Response to Today's Denial of his Appeal to the U.S. Supreme Court."   Kate Black is Buck's attorney:

 “We are disappointed that the U.S. Supreme Court has for now declined to review Duane Buck’s case and will not be considering whether the reliance on Mr. Buck’s race as a basis for asking the jury to sentence him to death violated the Constitution. It is now up to the State of Texas to ensure that Mr. Buck receives a sentencing hearing that is not impacted by the color of his skin.

ABC News has posted, "Supreme Court Denies Appeal on Race Tainted Death Penalty Case," by Ariane de Vogue.

 The U.S Supreme Court declined today to grant the appeal of a Texas death row inmate who claims race was improperly taken into consideration during the sentencing phase of his trial.

Duane Buck’s guilt for the death of his former girlfriend was never at issue, but Buck sought a new sentencing hearing because of testimony that contended that he posed a greater danger because he is black.

On Sept. 15, the court had halted Buck’s scheduled execution in order to review his case. But today, over the dissent of at least two justices, the court declined to rule in Buck’s favor.

Several justices took the rare step of publishing their reasoning in the case.

Buck’s lawyers had argued in the lower court that he should not be executed because Texas relied on improper racial testimony that was a basis for his capital sentence. At trial, psychologist Dr. Walter Quijano testified that Buck was African American and his race increased the likelihood of his being dangerous in the future.

And:

The case was complicated by the fact that other inmates in other cases had been granted new sentencing hearings by the State of Texas because of similar testimony by Quijano. But Alito, Scalia and Breyer said, “The fact remains that this case is different from all the rest.”  The justices said, “This is the only case in which it can be said that the responsibility for eliciting the offensive testimony lay squarely with the defense.”

Justice Sonia Sotomayor, joined by Justice Elena Kagan, issued a written statement objecting to the court’s denial of Buck’s appeal. “Today the court denies review of a death sentenced marred by racial overtones,” Sotomayor wrote. She said that while the defense had called Quijano as a witness, the context of the prosecutions questions were “markedly different.”

On direct examination Sotomayor wrote, “Quijano referred to race as a part of his overall opinion that Buck would pose a low threat to society were he imprisoned.”

But the prosecutor revisited the issue, Sotomayor said, “in a question specifically designed to persuade the jury that Buck’s race made him more dangerous and that, in part on this basis, he should be sentenced to death.” Kate Black, and attorney for Duane Buck, who works for the Texas Defender Service released a statement after the Supreme Court’s decision.

Earlier coverage of Duane Buck's case begins at the link; there's also more on Walter Quijano, who provided the testimony on future dangerousness at Buck's trial.

 

An Update on Walter Quijano

The Texas Tribune posts, "Texas Ends Deal With Psychiatrist Over Race Testimony," this afternoon.  It's by Brandi Grissom.

The Texas Youth Commission terminated its contract Friday with a psychiatrist who testified repeatedly in death penalty cases that Hispanic and black men were more likely to be dangerous in the future. The termination followed a Texas Tribune inquiry into the agency's six-year agreement with the doctor.

Despite more than a decade of court controversy in six death penalty cases, including one that was stayed by the U.S. Supreme Court last month because of the testimony Walter Quijano provided, the TYC began using the psychiatrist in 2005. The Tribune obtained the contracts under public information laws. The TYC most recently renewed its agreement with Quijano last month, just days before the high court stayed the execution of Duane Buck because of Quijano's testimony.

Upon receiving a public information request from the Tribune regarding the Quijano contracts, TYC officials said Wednesday that they had recently learned of Quijano’s testimony and that the agency was "reviewing its agreements for Dr. Quijano’s services.”

State Sen. John Whitmire, D-Houston, wrote the agency a letter Friday demanding that the TYC stop using Quijano's services. And he urged TYC officials to review every case Quijano was involved with.

“I find it extremely alarming that someone with Mr. Quijano’s bias has had any control over their health care and well-being,” wrote Whitmire, who is chairman of the Senate Criminal Justice Committee.

And:

Starting as early as 1991, Quijano provided testimony during the punishment phase in six death penalty cases. He told jurors about factors that could make a person more likely to be a danger to society in the future. Quijano explained that African American and Hispanic men were more likely to be violent again.

In 2000, then-Texas Attorney General John Cornyn admitted the state had erred in the 1996 trial of Victor Hugo Saldana, along with six other death penalty cases, in which Quijano testified regarding race and future dangerousness.

"Because the use of race in Saldano's sentencing seriously undermined the fairness, integrity, or public reputation of the judicial process, Texas confesses error," Cornyn wrote in a court filing.

Earlier coverage of Quijano's work in death penalty cases begins at the link.

Fairness in the Justice System

That's the title of an editorial in today's Austin American-Statesman on the Duane Buck case.

Once again, the most avid supporters of capital punishment in Texas should be pleased that a scheduled execution has been stopped, at least temporarily.

And:

Buck had consumed his last meal and was praying when prison officials notified him at about 7:40 p.m. Thursday that the Supreme Court had stopped his execution. The high court now must decide whether to review an appeal of the case. We see no reason why it should not.

"Praise the Lord!" Buck told the prison official who brought the news. "God is worthy to be praised. God's mercy triumphs over judgment. I feel good."

It is indeed difficult to feel good about what makes a murderer feel good. But all Texans — perhaps especially those who support capital punishment — should feel good about this decision. Those who favor the death penalty — a penalty we oppose because of the fallibility of our justice system and the humans who act within it — should live in fear of the execution of an innocent person or anything that inflicts noxious racial overtones.

What Cornyn said in 2000 rings just as true today:

"The people of Texas want and deserve a system that affords the same fairness to everyone."

Earlier coverage of Duane Buck's case and stay of execution begins at the link.

Editorial Comment on the Buck Stay

"Stay of Execution," is the title of the New York Times editorial.

After granting a stay of execution to Duane Buck just hours before he was to be put to death in Texas on Thursday, the Supreme Court must now review the case or, at the very least, order a lower federal court to consider Mr. Buck’s plea for a new sentencing hearing. It cannot allow a terrible injustice to stand.

Mr. Buck, an African-American, was convicted of murder in 1997. At the sentencing phase of his trial, a psychologist who was an expert witness said “yes” when asked if “the race factor, black,” increased the chances that Mr. Buck would do something dangerous again.

In Texas, this is a pivotal question: if the state does not prove “future dangerousness” beyond a reasonable doubt, it cannot sentence a convict to death. The prosecution got the answer it wanted and urged the jury to rely on this testimony. The jury sentenced Mr. Buck to death.

And:

The gross racism in Mr. Buck’s case is proof again that the death penalty is cruel and unusual because it is arbitrary and discriminatory, as well as barbaric, and must be abolished.

The Fort Worth Star-Telegram editorial is, "Texas death penalty case shows that details of fairness are crucial."

The Star- Telegram Editorial Board has repeatedly said that, because capital punishment is irreversible, the process that leads to it must always be as fair, thorough and constitutionally errorless as possible.

No system is perfect, and it would be unrealistic to assume that it would be, even in cases calling for the death penalty. That makes it all the more important that when it is obvious a mistake has been made that could determine life or death, we do all in our power to correct it.

A clear error occurred in Buck's case when improper testimony was included. A new sentencing hearing could correct it. And Texas and other states that continue to use the death penalty should continue working to make the process fair and error-free.

Earlier coverage of George Buck's flawed death sentence begins at the link.  I'll be posting a roundup of news coverage, tomorrow.

A Countdown for Duane Buck

Duane Buck's attorneys have filed a Cert Petition and a Motion for Stay with the U.S.Supreme Court.

With his execution scheduled to take place in just over an hour, there is still commentary being posted on the case for a halt.

Andrew Cohen posted, "Perry Fundraises in Iowa as Tonight's Prisoner Execution in Texas Moves Forward," at Atlantic three hours ago.

Twice in the past 20 hours the courts (state and federal) have rejected arguments to stop the execution. Buck's attorneys now have filed papers with the United States Supreme Court seeking relief from the justices. Emergency jurisdiction over matters emanating from the 5th Circuit are initially handed by Justice Antonin Scalia. He is the "circuit judge" for that judicial circuit. He will presumably pass around Buck's petition to his colleagues to see if there are enough votes for a stay. It is rare, but not unheard of, for the justices to intervene in Texas death penalty cases. They did so in 2009 in the case of Hank Skinner, a case involving DNA evidence, a matter which is still pending after the Supreme Court's ruling earlier this year in Skinner's favor.

Although the Texas clemency process has a disgraceful history -- again, I urge you to read Alan Berlow's memorable 2003 piece in The Atlantic on how Alberto Gonzales and George W. Bush fouled things up -- Gov. Perry and his colleagues have fought against making the vital process more transparent.

The updated AP report by Michael Graczyk is, "US Supreme Court asked to halt Texas execution amid questions about racial reference at trial," via the Washington Post.

Buck’s attorneys went to the Supreme Court after losing appeals in lower courts. A clemency request to the Texas Board of Pardons and Paroles, all of whom are Perry appointees, also failed.

Assistant Attorney General Edward Marshall told the Supreme Court Buck’s appeals were attempts to relitigate claims that every court, including the Supreme Court, already rejected.

“The record in Buck’s case reveals that no constitutional violation occurred during his sentencing trial,” he told the justices.

Perry was not in the state Thursday, meaning any final order to delay would technically come from Lt. Gov. David Dewhurst. However, Perry’s office frequently points out that he remains the governor and in contact with Austin while traveling.

Mike Walz, communications director for Dewhurst, said Thursday he would not comment “while any legal actions are still pending.” Perry generally has adhered to the same policy.

Also, this afternoon, the Washington Post has posted, "A victim’s plea for clemency for Duane Buck,"
by Phyllis Taylor, at its On Faith blog.  It's a must-read.  Here's an extended excerpt:

From the moment the crime happened, Duane has been deeply remorseful and taken full responsibility for the suffering he caused. Anyone who knows Duane understands that he was not himself on that terrible day in July 1995 when, under the influence of drugs and alcohol, he shot me and Debra Gardner and Kenneth Butler, who tragically did not survive.

Duane has been like a brother to me since well before the crime occurred. We spoke right after I was released from the hospital following the shooting.  Duane expressed profound sorrow and disbelief at his actions. My Christian faith has taught me to forgive even the most horrible transgressions, and so I did just that. I forgave Duane that very day.

Last week in Austin, Texas, I shared my story of forgiveness with Governor Rick Perry’s legal counsel. I asked Governor Perry to listen to my call for mercy and halt Duane’s September 15 execution. Duane must be held accountable, but he does not need to be executed for justice to be served.

While in prison, Duane has been a model prisoner who has not had one single disciplinary problem. He has spent his days reflecting, atoning, and deepening his faith in God.

Turning to God has also helped me deal with my own grief – grief that will only be worsened if Duane’s execution goes forward. My faith teaches me that we must love one another and honor all life. I hope that Governor Perry, himself a man of faith, follows these lessons and stops the cycle of violence from continuing.

Duane’s execution would be particularly unjust because Duane’s race played a role in why he was sentenced to death. The prosecution presented evidence to the jury that Duane would be a future danger because he is African-American. Indeed, Duane’s trial prosecutor also recently appealed to Governor Perry to halt the execution to ensure that Duane receives a fair sentence.

Earlier coverage of the Duane Buck case begins at the link.

If Buck's execution procedes, it would be Texas' 11th execution of the year.  It would be the state's 475th post-Furman execution since 1982.

Tonight's execution would be the 236th conducted under the administration of Rick Perry.  He became Governor of Texas upon the resignation of George W. Bush in December 2000.  152 men and women were executed in five years under Governor Bush's tenure.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.

To date, there have been 33 executions in the nation this year; 1,267 post-Furman executions since 1977. 

Reprieve Request Filed For Duane Buck; Perry Out of State

The letter requesting a 30-day reprieve for Duane Buck is available in Adobe .pdf.

The updated AP report is, "Inmate's lawyers ask Perry to halt Texas execution."  It by Will Weissert, via CBS News.

If courts continue to reject Buck's appeals, only Perry could delay the lethal injection by invoking his authority to issue a one-time 30-day reprieve for further review. Perry's actions are being closely watched, particularly by death penalty opponents, after he said during a presidential debate that he has never been troubled by any of the executions he's overseen as governor.

"Perry won't preside over scheduled Texas execution," is the Los Angeles Times post by Molly Hennessy-Fiske reporting in Houston.

Texas Gov. Rick Perry apparently will not be the one to preside over Thursday's scheduled execution of an African American man who was sentenced to die after jurors were told that blacks are more likely to pose a future danger to the public.

Duane Edward Buck, 48, was convicted of fatally shooting two people near Houston in 1995. His attorney says he is entitled to a new sentencing hearing based on the racially charged testimony, but unless a final appeal attempt is successful, Buck will become the 11th inmate executed in Texas this year,  the Houston Chronicle reports.

Buck's stepsister, Phyllis Taylor, who was wounded in the shooting, has reportedly forgiven him and wants his death sentence commuted to life in prison. She met with staffers from Perry's office last week, according to Buck's attorney.

"We still are hopeful the governor will grant a 30-day reprieve to allow state officials time to work together to ensure that Mr. Buck receives a sentencing hearing untainted by issues of race,” said Kate Black, Buck's Houston-based attorney, in an interview with The Times. She is representing the inmate pro bono through the nonprofit Texas Defenders Service.

During last week's GOP presidential debate, Perry responded to a question about Texas'  234 executions during his tenure as governor by saying that he "never struggled" with the issue because "the state of Texas has a very thoughtful, very clear process in place."

But Perry will not be presiding over Buck's execution, according to Lucy Nashed, a Perry spokeswoman.

Perry is out of state, so the responsibility falls to Lt. Gov. David Dewhurst, a Republican campaigning for the seat being vacated by longtime Republican Sen. Kay Bailey Hutchison, Nashed told The Times.

Dewhurst has presided over previous executions in the governor's absence, according to spokesman Mike Walz. Dewhurst declined to comment about the Buck case late Wednesday, Walz said.

The LA Times also has, "Texas Gov. Rick Perry Is Asked To Halt Execution," by David G. Savage.

Texas Gov. Rick Perry is being asked to stop Thursday's scheduled execution of an African American murderer who was sentenced to die after jurors were told that blacks are more likely to pose a future danger to the public.

Duane Edward Buck faces execution for shooting two people near Houston in 1995 while under the influence of drugs, but his attorneys say the racially charged testimony calls for a new sentencing hearing.

"No one should be executed based on a process tainted by considerations of race," Kate Black, a lawyer for Buck, said Tuesday. "The decision as to whether Mr. Buck's execution will go forward now lies squarely with Gov. Perry, who has the power to issue a 30-day reprieve."

Journalist Renee Feltz, who spent years in Texas, writes, "Will the Next Man Rick Perry Executes Die Because He's Black?"  It's at the Nation.

Harris County prosecutor Linda Geffin was working late last week when she took a break and saw a Facebook post from a Texas death row attorney whose client, Duane Buck, faced imminent execution. Geffin had been part of the team that helped send Buck to death row; it was the only capital case she'd ever worked on, and as she recalls, it “left a big impression on me.” More than a decade had passed since the case, so she decided to re-read the court transcripts, including a hundred or so pages of testimony from state psychologist Walter Quijano. Then she came across this passage:

    Q. You have determined that the sex factor, that a male is more violent than a female because that's just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?

    A. Yes.

Geffin thought, “that's pretty clearly inappropriate, not to mention morally and ethically wrong." Indeed, Buck's attorney was trying to save his life based on his unequal treatment on the basis of race. On September 9, Geffin wrote a letter [1] to Governor Rick Perry and the Texas Board of Pardons and Paroles calling for Buck’s execution to be halted. "No individual should be executed without being afforded a fair trial, untainted by considerations of race," she wrote.

On Tuesday, September 13, the Board of Pardons and Paroles rejected Buck's appeals for clemency. He is now scheduled to die on Thursday, September 15 unless Perry grants him a 30-day reprieve. It will be the 236th execution overseen by Perry during his tenure as governor.

There is also fresh commentary on the case. "Race-Based Execution: Rick Perry on the Spot," is by Jenee Desmond-Harris at the Root.

Perry, who is seeking the Republican presidential nomination, was asked during a GOP debate last week about Texas' 234 executions during his nearly 11 years as governor. He said he "never struggled" with the issue because "the state of Texas has a very thoughtful, very clear process in place." It's hard to imagine how he could possibly have to struggle to see that the process he admires so much has gone outrageously wrong in this case.

"Man To Die Thursday Partially Due To Race," by Deborah Mathis at Black America Web.

Unless Justice swoops down from the heavens like a Texas tornado, the Lone Star state is going to kill again tomorrow.

Unless Gov. Rick Perry can put his presidential travels on hold long enough to sign a sheet of paper that will stay the executioner's hand, this will be Duane Buck's last day on Earth.

Duane Buck was convicted in the 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Ray Butler, in Houston. Buck also shot his sister that morning, but she survived. His lawyers said he was out of his mind on drugs when he pulled the trigger.

Apparently, Buck's conviction is the only bottom line that matters to the Texans that hold his fate in their hands. How he landed on death row doesn't matter to them.

But it matters to the U.S. Constitution, which Perry and his Tea Party pals claim to love first and foremost. If there is one tie that binds the eclectic devotees of the Tea Party, it is their worship of the Constitution.

In Buck's case, as in others, one has to wonder whether Perry has ever read it or if he understands it because the Constitution has something to sobering to say about how Buck was sentenced to death. The Fourteenth Amendment guarantees equal protection and due process - rights that Buck clearly did not enjoy in that Harris County, Texas courtroom years ago.

In Texas, jurors may consider a defendant's potential for "future dangerousness," an assessment that, in itself, seems constitutionally iffy, since it is based on speculation and punishes people for what a group of strangers think - not know - will happen.

"Duane Buck, Rick Perry and the politics of death," by Alexander Cockburn is at First Post.

What mostly has people marveling is Quijano's career stint in the 1990s as an "expert witness". Buck's was the only case where he was called by the defence. Expert witnessing is a trade – often a very profitable one - in which by far the most desirable characteristic is predictability. A truly expert witness for the defence would have regarded it as his first duty to reassure the jury of Buck's lamb-like character, utterly inconsistent with possibly lethal recidivism.

"Expert" covers many a bizarre resume. One famous expert witness unearthed a few years back by the Chicago Tribune had made it her costly speciality to identify nose and lip prints – a forensic skill which apparently lacked any reliable foundation.

Juries like a well-spoken expert witness, flourishing forensic data. The popularity of shows like CSI has enhanced the reputation of forensic "experts", even though much forensic testimony, up to and including finger-prints, is disfigured by mishandled evidence, mendacity and incompetence.

Earlier coverage of the Duane Buck case begins at the link.

Andrew Cohen on the Buck Case - and What It Means

The noted legal analyst posts, "Coming Thursday: Another Texas Execution Under Perry," at the Atlantic.  As usual, it's a must-read.  Here's an excerpt from the beginning:

The federal trial judge in a case issues her vital ruling before the capital defendant's lawyers have completed their argument. A local prosecutor who helped convict the death row inmate now pleads with the state parole board to give the guy a new sentencing trial. Defense attorneys say that lawyers for the Attorney General's office are lying to the court. And the governor who can help stop this parade of horribles, Gov. Rick Perry, earns public cheers for his chillingly remorseless stand on capital punishment.

Welcome to Texas, to its death penalty regime, and to the excruciating case of Duane Edward Buck.

Buck is scheduled to be executed Thursday in Huntsville for a double murder he committed in Houston in 1995. No one contests his guilt. Instead, his lawyers say that Texas owes him a new sentencing trial because his first one was unlawfully tainted by race. An expert witness at his trial in 1997 impermissibly told jurors that Buck would be more dangerous in the future because he is black. As I chronicled last week, the six other men in Texas whose trials were similarly tainted all got new sentencing hearings after then-Attorney General John Cornyn conceded the state's error in 2000. Buck, however, has not.

Texas now is opposed to Buck's request. It is squeezing him because it can and because it is politically expedient to do so. The state claims that Buck did not timely raise the issue on appeal in federal court. Even though each of the other men were subsequently re-sentenced to death -- and even though that would be a likely outcome in Buck's case -- Texas says the time for Buck's judicial relief has come and gone. Even though the state helped each of the other men vindicate their constitutional rights, it will not do so in Buck's case. At a time when other states are moving away from capital punishment, this is how far to the right Texas has come on the death penalty since 2000.

On Tuesday afternoon, the Texas Board of Pardons and Paroles denied Buck's clemency request. Here is the extent of the Board's findings and conclusions: "After a full and careful review of the application and any other information filed with the application, a majority of the Board has decided not to recommend a 120-day Reprieve and Commutation of Death Sentence to Lesser Penalty." That's it. The complete document is two pages long -- the cover letter is three short paragraphs ending with the salutation, "Sincerely," by Clemency Director Maria Ramirez.

Earlier coverage of Duane Buck's case begins at the link.

More on the Duane Buck Case

There is additional coverage today on prosecutor Linda Geffin's call for a halt to Duane Buck's execution, in a letter to the Board of Pardons and Paroles.

Allan Turner writes, "Houston killer should be spared, prosecutor says," for the Houston Chronicle.

With killer Duane Buck just days away from execution, a prosecutor who helped send the Houston auto mechanic to death row has joined clergymen, lawyers and one of Buck's shooting victims in demanding that his life be spared.

Linda Geffin, now chief of the Harris County Attorney's special prosecutions unit, was one of two assistant district attorneys who successfully argued against Buck in his 1997 trial. Buck, 48, was convicted for the July 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck is to be put to death Thursday.

In a letter to the Texas Board of Pardons and Paroles, which is considering a petition to recommend to Gov. Rick Perry that Buck's death sentence be commuted to life in prison, Geffin said she "felt compelled to step forward."

Geffin cited a 2000 press release from then-Texas Attorney General John Cornyn stating Buck's case was among six that may have been tainted by punishment-phase testimony from psychologist Walter Quijano. Federal appeals courts ordered new punishment hearings for five of them because the expert witness made inappropriate assertions about race.

All ultimately were again sentenced to death and one has been executed.

At the time, Buck's case was still in state court and was never granted a new hearing.

"Mr. Buck committed a terrible crime and he must be punished," Geffin wrote in the Friday letter. "But the attorney general was right when he said that it is 'inappropriate to allow race to be considered as a factor in our criminal justice system.'"

"Duane Buck Prosecutor Urges Clemency," is the title of Brandi Grissom's Texas Tribune post.

"When a defendant’s race is introduced as a factor in guilt or sentencing – even inadvertently – the integrity of the case is compromised," said Mark MacDougall, a pro bono lawyer at Akin Gump, who often works with indigent defendants in death penalty cases. "The only remedy is a new trial. This is never more critical than in a capital murder case."

As his execution date approaches, Buck's lawyers are calling on the Texas Board of Pardons and Paroles and Gov. Rick Perry to grant clemency and allow a new trial to determine his sentence. Last week, one of Buck's surviving victims urged clemency on his behalf.

Today, Linda Geffin, who served as second chair during the initial Buck prosecution, wrote a letter calling on Perry and the parole board to halt the execution and allow for a new trial untainted by racial questions.

"It is regrettable that any race-based considerations were placed before Mr. Buck's jury," she wrote. "No individual should be executed without being afforded a fair trial, untainted by considerations of race."

Earlier coverage of Duane Buck's race-tinted sentence begins with yesterday's post.

Buck Prosecutor Calls for Execution Halt

The prosecutor's letter to the Board of Pardons and Paroles is available in Adobe .pdf format.

Texas Defender Service has issued a news release, "Prosecutor in Case Where Government Relied on Race Testimony at Trial Urges Texas Officials to Stop Duane Buck's Execution."

Houston, Texas, September 12, 2011 - Today, a former Harris County Assistant District Attorney who prosecuted Duane Buck is urging state officials to halt Mr. Buck's execution next week because "[n]o individual should be executed without being afforded a fair trial, untainted by considerations of race." Linda Geffin, who served as second-chair prosecutor in the State of Texas vs. Duane Buck in 1997, sent a letter this morning to Governor Rick Perry, the Texas Board of Pardons and Paroles, Attorney General Greg Abbott, and Harris County District Attorney Patricia Lykos, urging them to intervene and stop Mr. Buck?s September 15 execution.

In her letter, Ms. Geffin says she "felt compelled to step forward" after reading about the clemency petition and a motion in federal court recognizing that former Attorney General John Cornyn had previously acknowledged the "improper injection of race in the sentencing hearing in Mr. Buck's case."

On May 5, 1997, Mr. Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. A third person, Phyllis Taylor, was also shot, but survived her wound. Ms. Taylor has forgiven Mr. Buck and does not want him executed.

During Mr. Buck's trial, psychologist Walter Quijano testified, based on several factors, that he did not believe Mr. Buck would be dangerous in the future. On cross-examination, the prosecutor elicited improper testimony from Dr. Quijano that the fact that Mr. Buck was African-American increased the likelihood of his being dangerous in the future. The State urged the jury in its closing argument to rely on Dr. Quijano's testimony. The jury did so, found that Mr. Buck would be a future danger, and he was sentenced to death.

After Mr. Buck's trial, but while his case was pending on appeal, on June 9, 2000, in a highly-unusual move, then-Attorney General John Cornyn issued a press release calling for the retrial of six individuals who had been sentenced to death based on improper introduction of, and reliance on, race as a factor in sentencing. The Attorney General identified Mr. Buck's case as one of those six cases, stated that Texas would not contest federal appeals in those six cases, and that if the attorneys for the six identified defendants raised claims challenging the government's reliance on race at sentencing, the Attorney General would not object.

Then-Attorney General Cornyn first confessed error based on the government's reliance on Dr. Quijano's testimony in the case of Victor Saldaño. The Attorney General stated: "As I explained in a filing before the United States Supreme Court...it is inappropriate to allow race to be considered as a factor in our criminal justice system....[T]he United States Supreme Court agreed. The people of Texas want and deserve a system that affords the same fairness to everyone."

Despite this concession, the improper racial testimony in Mr. Buck's case has not been redressed.  Mr. Buck is the only one of the six death row inmates identified by the Attorney General who was not granted an opportunity to have a colorblind sentencing.

The clemency petition, which was filed on August 31, asks the Texas Board of Pardons and Paroles and Governor Perry to intervene.  In it, attorneys for Mr. Buck state: "Five out of the six cases in which Attorney General John Cornyn conceded error resulted in new sentencing hearings. Mr. Buck has not received the same corrective process. The State of Texas cannot and should not tolerate an execution on the basis of an individual?s race, particularly where this State?s highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case."

Ms. Geffin?s letter concludes: "I now join Phyllis Taylor, the surviving victim, in asking for the intervention of the Board of Pardons and Paroles, Governor Rick Perry, Attorney General Greg Abbott and Harris County District Attorney Patricia Lykos. All of these parties should be motivated, as I am, to do everything within their power to ensure that our justice system is not tainted by unconstitutional considerations of race."
- - - - -
 
The clemency petition and an interview with surviving victim Phyllis Taylor can both be viewed.at: 

Steven Kreytak posts, "Harris County prosecutor asks for halt to execution," for the Austin American-Statesman.

A prosecutor who worked to secure the death sentence against a Harris County killer scheduled to be executed on Thursday is asking officials to stop the execution.

Linda Geffin, who was the second chair prosecutor in the 1997 prosecution of Duane Buck and is now a supervisor in the Harris County Attorney’s office, has joined Buck’s lawyers in declaring that his sentencing hearing was unfair because of racially tinged testimony.

Buck was one of seven state death row inmates who then-Texas Attorney General John Cornyn in 2000 said received unfair sentencing trials because of the testimony of psychologist Walter Quijano. Quijano regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic, testimony he based on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state’s general population.

Six defendants identified by Cornyn as having their trials tainted by Quijano’s testimony have since received new sentencing trials. Each was once again sentenced to death. Buck, who killed two people, including his ex girlfriend, in 1995, has not received a new sentencing hearing.

Buck’s lawyers with the Texas Defender Service have filed a clemency petition with the Texas Board of Pardons and Paroles and have asked Gov. Rick Perry, current Attorney General Greg Abbott and Harris County District Attorney Pat Lykos to intervene and stop the execution. They have also asked a federal judge to intervene.

"Former prosecutor in Duane Buck case asks state to halt execution," is the title of Sommer Ingram's Dallas Morning News post.

A former prosecutor in death-row inmate Duane Buck's case is urging state officials to stop the execution scheduled for Thursday.

Linda Geffin, former Harris County District Attorney who served as second-chair prosecutor in Buck's case, this morning sent a letter to state officials saying that Buck's execution cannot go forward because of the racially-tainted testimony that was a part of his trial.

"No individual should be executed without being afforded a fair trial, untainted by considerations of race," Geffin wrote in the letter addressed to Gov. Rick Perry , the Texas Board of Pardons and Paroles, Attorney General Greg Abbott and current Harris County District Attorney Patricia Lykos.

Buck fatally shot two people and injured another in 1995. During his trial in 1997, psychologist Walter Quijano told jurors that Buck was more likely to be violent in the future because he was black. His case was one of seven that former Texas Attorney General John Cornyn wanted reviewed because of the state's unconstitutional reliance on race.

New punishment hearings were ordered for all six other cases, but Buck's slipped through the cracks in what his attorneys call another mishandling of the death penalty in Texas. They argue that Buck can't be put to death when being black is part of what secured his sentence.

Earlier coverage of Duane Buck's case begins with the preceding post.

More Commentary on the Duane Buck Case

Houston Chronicle columnist Patti Kilday Hart writes, "Where's justice in the execution process?"

Yet testimony about the "future dangerousness" of death penalty defendants still keeps the gears of Texas' execution machine turning. This week, Houstonian Duane Buck is scheduled for execution, partly based on testimony by Conroe psychologist Dr. Walter Quijano.

Ironically, Quijano was called to the witness stand by defense attorneys for Buck. Though he was found guilty of a deadly shooting rampage, his attorneys hoped to prove the tragedy, in which Buck's estranged girlfriend and another man were killed, was an act of rage not likely to be repeated.

But under cross-examination, Quijano acknowledged to prosecutors that certain factors are associated with violent crime. For instance, the prosecutor asked, "The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?"

"Yes," Quijano replied.

The jury concluded that Buck, a black man, would continue to be violent, and sentenced him to death.

And:

Last week, Buck's appellate attorneys filed a motion for clemency with the Texas Board of Pardons and Paroles, which could recommend that Gov. Rick Perry commute Buck's sentence to life without parole.

The case exposes structural flaws in our death penalty law. Testimony involving "junk science" regarding arson has been allowed, as demonstrated in the Cameron Todd Willingham case. There is mounting evidence that eyewitness testimony is unreliable.

Today's Chronicle also carries an OpEd by Thurgood Marshall School of Law prof Lupe Salinas, a former criminal district court judge in Harris County who assessed three death sentences. It's titled, "Race factors taint death case."

Our state could be on the verge of gaining the dubious distinction of executing a person based on the color of his skin. On Thursday, Texas is poised to execute Duane Buck unless the courts or state officials, including Gov. Rick Perry, intervene.

"The race factor, black … increases the future dangerousness for various complicated reasons." That is what a psychologist told a jury of 12 Texans at the capital murder trial of Buck. Such blatant racial prejudice may read like a relic of the past - but Buck faces execution in a matter of days, despite the racism that infected his case.

And:

Lawyers for Buck have asked Gov. Perry, the Harris County District Attorney's Office and the Office of the Attorney General of Texas to intervene.

All of these parties should act to ensure that an execution in Texas is not tainted by racism. It is important to guarantee that capital punishment is not applied in a discriminatory manner.

Attorney General Cornyn said it best: "The people of Texas want and deserve a system that affords the same fairness to everyone." Let us hope that our state officials and the courts act with these sentiments in mind and halt Duane Buck's execution.

Earlier coverage of Duane Buck's case begins at the link.

Halt Execution Where Race Tainted Judgment

That's the title of an editorial in today's Houston Chronicle. regarding the Duane Buck case.

The case poses a test of leadership for Texas governor and Republican presidential candidate Rick Perry. Will he do the right thing and stop the execution, either through clemency or a reprieve, or will he take the politically expedient course and let a judicial miscarriage roll forward?

Buck's guilt in the shooting deaths of his ex-girlfriend and her boyfriend is not in doubt. In Texas, however, homicides resulting from crimes of passion often result in life or lengthy sentences rather than the death penalty. A key issue in such death sentence cases is the likelihood of the defendant committing future violent acts, and it is on that point that Buck's sentence is irrevocably flawed.

Buck was one of six Lone Star capital murder defendants sent to death row using testimony from former Texas jail system chief psychologist Walter Quijano that blacks and Hispanics were more likely to become repeat offenders. In Buck's case, Quijano had initially testified that he would likely not pose a future danger to society. But under aggressive cross-examination by the prosecutor, he agreed that being African-American enhanced the possibility of future violence.

After the Texas Court of Criminal Appeals ruled that there was no fundamental error in admitting race-based testimony, John Cornyn, the Texas attorney general at the time and now a U.S. senator, filed a brief with the U.S. Supreme Court on behalf of defendant Victor Hugo Saldano. Cornyn argued, "It is inappropriate to allow race to be considered as a factor in our criminal justice system." The high court agreed, and the convict and four of the other defendants received new punishment hearings. In a legal oversight, Buck did not.

And:

As Cornyn said back in 2000, "The people of Texas want and deserve a system that affords the same fairness to everyone. "

We hope Gov. Perry shares those sentiments.

Earlier coverage of Duane Buck's case begins with the preceding post.

News Coverage of Duane Buck News Conference

Today's Dallas Morning News carries, "Lawyers fight racially based Texas death sentence."  It's written by Sommer Ingram.

Attorneys for a Texas man who was sentenced to death after a state witness relied on race in his testimony are fighting to get his sentence changed, or at least get him a new hearing.

When Duane Edward Buck was on trial for capital murder in 1997, a psychologist told jurors that because Buck was black, he was more likely to be violent in the future.

His case was one of seven that former state Attorney General John Cornyn wanted reviewed because of the state’s unconstitutional reliance on race.

New punishment hearings were ordered for the other cases, which were at the federal appellate stage. But because Buck’s case was still in state court, it slipped through the cracks.

He was never given a retrial and is scheduled to die Sept. 15 for the murders of Debra Gardner and Kenneth Butler.

He also shot Phyllis Taylor, who survived and is now asking for Buck’s life to be spared.

Attorneys for Buck call his case another in a series of chronic mishandlings of the death penalty in Texas, the nation’s busiest death penalty state.

“This case is an affront to justice,” Kate Black, a lawyer for Buck, said at a Capitol news conference Wednesday. “This is just another shocking example of the fundamental flaws in the Texas death penalty. Racism played an intolerable role in a life-or-death decision.”

And:

Anthony Graves, a Texas exoneree who spent 18 years behind bars for murders he didn’t commit, is speaking out in Buck’s favor.

“I am the perfect example of our flawed system in Texas,” Graves said. “This is a case of basic racial profiling, and I’m asking everyone who can to jump up and scream that this is enough.”

"Lawyers, Victim Seek Clemency for Death Row Inmate," is the title of Lara Lapin's Texas Tribune report.

Phyllis Taylor survived the 1995 shooting spree that ended with two others dead and Duane Buck on death row. Buck is scheduled to be executed on Sept. 15. Today, Taylor urged the Texas Board of Pardons and Paroles, Gov. Rick Perry, Attorney General Greg Abbott and Harris County District Attorney Patricia Lykos to halt the execution.

“This execution would only add to my pain, and it wouldn’t give me closure," said Taylor, who survived a shot in the chest. "I would ask that Duane Buck’s life be spared. I feel that he deserves a fair trial.”

Buck was convicted in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. During his 1997 trial, psychologist Walter Quijano testified that because Buck was black, he was more likely to be a violent threat in the future. Quijano gave similar testimony in six other death row cases.

In 2000, then-Attorney General John Cornyn admitted that all of the cases, including Buck’s, were tainted by constitutional error because the government relied on race as a consideration for the death sentence.

Cornyn said it was “inappropriate to allow race to be considered as a factor in our criminal justice system,” and promised to “continue to do everything [he could] to assure Texans of [the Office of the Attorney General’s] commitment to an equitable criminal system,” according to court documents.

And:

Buck’s lawyers asked Perry, Abbott, Lykos and the board to commute his sentence or grant a 120-day reprieve to allow time for the parties to work together.

Abbott’s office did not immediately provide comment. The Harris County district attorney’s office has said it would not intervene.

In the next post, the Houston Chronicle calls for justice in the case.  Earlier coverage of Duane Buck's case begins at the link. 

The clemency petition for Duane Edward Buck is available via Sribd.  Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Duane Buck Seeks Relief in Federal Court

Texas News Service reports, "New Filings in "Racially Biased" TX Execution Case."  It's written by PeterMalof.

Attorneys for a Texas man scheduled for execution in eight days are asking a federal judge to order a new sentencing trial, contending that Duane Buck's 1997 sentencing was unconstitutional.

Buck's was one of seven death-penalty cases that then-Attorney General John Cornyn wanted reviewed for what he called an "egregious error": An expert witness told juries that certain races were more likely to be dangerous in the future. While the other six eventually received new trials, Buck, who is African-American, "slipped through the procedural cracks," according to Andrea Keilen, executive director of the Texas Defender Service.

"The bottom line is that his trial was tainted by this racist evidence. So we're asking that he have a fair opportunity, in front of a jury that's not biased by this sort of thing, to argue for his life."

She says the Buck case highlights how the death penalty is sometimes applied unfairly, even after the question of guilt or innocence has been settled.

"Days from death house, killer seeks clemency," by Allan Turner in the Houston Chronicle.

In the summer of 2000, then-Texas Attorney General John Cornyn made an astounding admission: A psychiatrist's testimony in six capital murder cases - including that of Houston defendant Duane Edward Buck - wrongly had introduced race as a factor for consideration in the trials' punishment phases.

New punishment hearings were ordered for five of the men whose cases were on appeal in federal courts. But Buck, scheduled to be executed Sept. 15 for the July 1995 murders of his ex-girlfriend Debra Gardner and her friend Kenneth Butler, never got a new punishment hearing in what his lawyers contend was an oversight.

Now, Buck's Texas Defender Service Lawyers are asking the state Board of Pardons and Paroles to recommend that Gov. Rick Perry spare his life.

"The state of Texas cannot and should not tolerate an execution on the basis of an individual's race, particularly where this state's highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case," the clemency petition, by lawyers David Dow and Katherine Black, argues.

Alternately, the petition asks for a 120-day reprieve to pursue a new sentencing hearing. Although the other five killers received new hearings, all again were sentenced to death. One has been executed.

The problem in Buck's case arose when Dr. Walter Quijano, a defense psychiatrist, testified that the killer would not likely pose a future danger to society if imprisoned. "Future danger" is a key question jurors must consider before assessing a death sentence.

On cross-examination, however, the doctor agreed to a prosecutor's assertion that being African-American enhanced chances for future violence. That comment became a key factor in the state's push for execution.

Today's federal court filing is available via Sribd.

Earlier coverage of Duane Buck's case begins at the link. 

The clemency petition for Duane Edward Buck is available via Sribd.  Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Bob Ray Sanders on the Buck Case

Fort Worth Star-Telegram columnist Bob Ray Sanders writes, "Not a place for considering a person's race."

There is no question that Duane Edward Buck killed two people and wounded a third victim in a 1995 shooting in Houston.

But there are two nagging questions concerning Buck's case that we must ask:

1) Should he have received the death penalty for his crimes?

2) Would he have been sentenced to death had his race not become a major factor in the trial's punishment phase?

Buck, 48, is scheduled to be executed Sept. 15 in the Texas death chamber in Huntsville.

His is a unique case, one in which former Texas Attorney General John Cornyn (now a U.S. senator) supported a retrial on punishment because of the unfair testimony of a psychologist.

And:

Buck's lawyers also are asking that the Harris County district attorney's office and Texas Attorney General Greg Abbott intervene to have Buck's execution date withdrawn.

"This case represents an obvious injustice that must be remedied by prosecutors, the courts or by Governor Perry and the Board of Pardons and Paroles," said attorney Kate Black. "If Mr. Buck is executed, not only will Texas have violated the Constitution, it will have violated its citizens' basic moral values by permitting an execution to be carried out that is based on an individual's race."

Surely the state will not let this execution proceed.

Earlier coverage of the Duane Buck case begins at the link.  The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

News Coverage of the Duane Buck Clemency Petition

Today's Austin American-Statesman reports, "Petition: Condemned man's sentence racially tinged."  It's written by Steven Kreytak.

In 2000, then-Texas Attorney General John Cornyn said seven death row inmates had been unfairly sentenced to death because improper racial testimony had been presented at their trials.

"It is inappropriate to allow race to be considered as a factor in our criminal justice system," Cornyn, now a U.S. senator, said at the time.

Six of those inmates later got new sentencing hearings. But a seventh — Duane Edward Buck, convicted of a 1995 Harris County double murder — did not. Buck, 48, is scheduled to die Sept. 15.

On Wednesday, Buck's lawyers petitioned the Texas Board of Pardons and Paroles and Gov. Rick Perry to stop the execution.

Buck's lawyers with the Texas Defender Service have also asked current Attorney General Greg Abbott and Harris County District Attorney Pat Lykos to agree to cancel the execution date, said Andrea Keilan, director of the service.

"It's very rare to see an attorney general concede error in a capital case, much less a series of capital cases," Keilan said. "It shouldn't be controversial, and yet no one has stepped forward" to give Buck a new sentencing trial.

The seven cases identified by Cornyn were all tainted by testimony by psychologist Walter Quijano, who regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic. He based his testimony on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state's general population.

His testimony was intended to inform the key decision by juries in assessing the death penalty in Texas: whether the defendant would be a likely future threat to society.

"Lawyers Seek Reprieve for Inmate Based on Race Testimony," by Brandi Grissom for the Texas Tribune.

When Duane Edward Buck was on trial for capital murder in Houston in 1997, Dr. Walter Quijano told jurors that the fact he was black meant Buck was more likely to be violent in the future.

The same psychologist gave similar testimony in six other death row cases. In each, the defendants were given new trials to determine their sentences.

Buck, though, has not received a retrial and is scheduled to die Sept. 15 for the 1995 shooting deaths of Debra Gardner and Kenneth Butler. Today, Buck's lawyers asked Gov. Rick Perry and the Texas Board of Pardons and Paroles to stop the scheduled execution to allow a new trial without racial references.

“If Mr. Buck is executed, not only will Texas have violated the constitution, it will have violated its citizens’ basic moral values by permitting an execution to be carried out that is based on an individual’s race,” Kate Black, a lawyer for Buck, said in a statement.

In 2000, then-Attorney General John Cornyn admitted the state had erred in seven death row cases — including Buck's — in which prosecutors elicited testimony from Quijano indicating that their racial or ethnic background made them more inclined to commit more violent crimes.

And:

Cornyn’s office did not immediately respond to a request for comment on the Buck case.

Buck’s lawyers said that he has not received a new trial because of procedural stumbling blocks, and they asked Perry and the board to commute his sentence or grant a 120-day reprieve. “The State of Texas cannot and should not tolerate an execution on the basis of an individual’s race, particularly where this State’s highest legal officer has acknowledged the error, not only in similarly situated cases, but in thiscase,” they wrote in the petition filed today.

Earlier coverage of Duane Buck's case begins at the link.

The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Duane Buck & Tainted Future Dangerousness Testimony

Once again, expert witness testimony about future dangerousness provided during the sentencing phase of a Texas capital murder trial is at issue.

Texas Defender Service has issued a news release, "Texas Set to Execute Man Despite Improper Racist Evidence, Presented by Prosecution at Trial.  Attorneys urge prosecutors, courts, and Governor Perry to halt execution in case in which prior Attorney General John Cornyn admitted error."

Today, attorneys for Duane Edward Buck filed a clemency petition with the Texas Board of Pardons and Paroles urging the Board and Governor Perry to intervene and halt the execution of Mr. Buck, scheduled for September 15, 2011.

On May 5, 1997, Mr. Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. A third person, Phyllis Taylor, was also shot, but survived her wound. Ms. Taylor has forgiven Mr. Buck and does not wish to see him executed.

During Mr. Buck’s trial, psychologist Walter Quijano was called by the defense and testified, based on several factors, that he did not believe Mr. Buck would be dangerous in the future.  On cross-examination, the prosecutor elicited improper testimony from Dr. Quijano that the fact that Mr. Buck was African-American increased the likelihood of his being dangerous in the future.  The State urged the jury in its closing argument to rely on Dr. Quijano’s testimony.  The jury did so, found that Mr. Buck would be a future danger, and he was sentenced to death.

After Mr. Buck’s trial, but while his case was pending on appeal, on June 10, 2000, in a highly-unusual move, then-Attorney General John Cornyn issued a press release calling for the retrial of six individuals who had been sentenced to death based on improper introduction of, and reliance on, race as a factor in sentencing.  Mr. Cornyn identified Mr. Buck’s case as one of those six cases. Then-Attorney General (now Senator) Cornyn stated that Texas would not contest federal appeals in those six cases and that if the attorneys for the six identified defendants amended their appeals to include objections to Dr. Quijano’s testimony, the Attorney General would not object.

Then-Attorney General Cornyn first confessed error based on the testimony of Dr. Quijano in the case of Victor Saldaño. Attorney General Cornyn stated: “As I explained in a filing before the United States Supreme Court...it is inappropriate to allow race to be considered as a factor in our criminal justice system....[T]he United States Supreme Court agreed. The people of Texas want and deserve a system that affords the same fairness to everyone.”

The six cases in which the Attorney General conceded error were those of Gustavo Garcia, Eugene Broxton, John Alba, Michael Gonzales, Carl Blue, and Duane Buck.  In the other five cases, courts granted new sentencing trials to the inmates to allow them fair trials untainted by consideration of race.

Despite this concession, Mr. Buck’s case has slipped through the cracks.  For complicated reasons related to the intricate litigation process in post-conviction proceedings, the issue related to the improper racial testimony and arguments in Mr. Buck’s case has not been redressed.  Mr. Buck is the only one of the six death row inmates identified by the Attorney General who was not granted an opportunity to have a colorblind sentencing.  Mr. Buck now faces execution on September 15, 2011.

The clemency petition filed today asks the Texas Board of Pardons and Paroles and Governor Perry to intervene.  In it, attorneys for Mr. Buck state: “Five out of the six cases in which Attorney General John Cornyn conceded error resulted in new sentencing hearings.  Mr. Buck has not received the same corrective process. The State of Texas cannot and should not tolerate an execution on the basis of an individual’s race, particularly where this State’s highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case.”

Lawyers for Mr. Buck are also asking the Harris County District Attorney’s Office and the Attorney General of Texas to intervene and withdraw Mr. Buck’s execution date.  “This case represents an obvious injustice that must be remedied by prosecutors, the courts or by Governor Perry and the Board of Pardons and Paroles,” said Kate Black, counsel for Mr. Buck. “If Mr. Buck is executed, not only will Texas have violated the constitution, it will have violated its citizens’ basic moral values by permitting an execution to be carried out that is based on an individual’s race.”

The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

The Cost Factor in Washington State

Today's Seattle Times reports, "King County's death-penalty dilemma: Soaring cost worth it?"  It's written by Jennifer Sullivan.  Here's an extended excerpt from the beginning of the article:

The cost of prosecuting two men and a woman accused of two of the most heinous crimes in King County in recent years is $656,564 and counting.

The cost of defending them is even higher: $4.3 million, and also climbing.

Like other counties in the state, King County is struggling with the rising cost of criminal justice, which has forced Prosecutor Dan Satterberg to eliminate the jobs of 36 prosecutors since 2008. But while budget constraints have forced some counties to all but abandon death-penalty cases, King County currently has two active capital cases.

A third, last year's prosecution of Conner Schierman for killing a Kirkland family of four in 2006, has thus far cost the county $2.4 million.

The county's current death-penalty cases include the prosecution of Christopher Monfort, who is accused of ambushing two Seattle police officers, killing one, on Halloween night 2009. Two other defendants, Michele Anderson and Joseph McEnroe, could also face execution if convicted of the slayings of six members of Anderson's family on Christmas Eve 2007.

While trials for the three defendants are months off, defense lawyers are racking up costs for expert witnesses, investigators, forensic analysis and other elements crucial for death-penalty trials. In the meantime, prosecutors, police officers and crime-lab analysts are also tallying up costs while prepping for the trials.

Portland-based defense attorney Jeff Ellis, who handles death-penalty cases across the country, said the high costs of prosecuting death-penalty cases — which can also include years of appeals — has resulted in a drop in death-penalty cases. King County, with two cases, is an anomaly, he said.

"There is a downturn in the number of death-penalty sentences being sought and imposed because of the costs associated with them," Ellis said. "What's happening now [in King County] is a reverse of what's happening nationwide."

Related posts are in the cost index.  Earlier coverage from Washington begins at the link.

NPR Examines Use of Psychological Assessment Tool

The NPR report by Alix Spiegel is, "Can A Test Really Tell Who's A Psychopath?"  Here's an excerpt from this must-read: 

Canadian psychologist Robert Hare began studying psychopaths in the 1960s, and it's easy to forget now — in part because Hare's work has made the concept of the psychopath so commonplace — but a half-century ago, research on psychopaths was considered both obscure and largely irrelevant to understanding crime.

Back then, Hare says, there was a very clear consensus about where crime came from: Criminals were made, not born.

"In those days, social factors, environmental factors were the explanation for all crime," Hare says. "When you're born, you're a blank slate, and I can train you to be anything you want — a doctor, a dentist."

Hare, for one, didn't fully buy this. He thought inborn personality was important. He says that as a psychologist, when he looked at people, he just saw incredible differences in temperament: differences in impulsivity, differences in the capacity for empathy, for feeling guilt.

"We have individual differences in intelligence," Hare says. "Well, we should have individual differences in the personality traits that are responsible or related to crime."
Robert Hare, the psychologist who created the PCL-R test for psychopaths, at first resisted giving the checklist to people in the criminal justice system. But he ultimately agreed to publish the test officially so anyone could use it.

Hare set out to dissect the personality traits that might predispose people to criminality. To do this, he recruited the help of inmates at a prison some 30 miles down the road from his office at the University of British Columbia.

"The offenders in those days had hardly ever been studied," Hare says, "and they were very interested in what I was doing. They would all volunteer. And in fact, one of the head inmates there — the one at the top of the heap — actually held a public address (because in those days they could congregate in groups of four or five hundred) and said, 'Look, this sounds interesting, I'm in.' And then everybody else said, 'I'm in, too.' "

Hare set up a lab and started pumping out studies on the prisoners.

And:

Ultimately, this work led Hare to theorize that people with psychopathic personalities were essentially emotionally deaf. They simply did not have the capacity to feel, in a firsthand way, emotions like empathy and love and remorse.

"It's sort of like trying to explain to a colorblind person what the color red is," Hare says. "Can we teach a colorblind person how to see red, what red is? You can have all the dictionary definitions you want, but the person will never quite get it."

The NPR series is a topic of a post at  the Forensic Psychologist blog post, "PCL-R inventor wringing his hands over forensic misuse."

The first part of NPR's series on the psychopathy industry aired today and the transcript is now online (HERE), along with my sidebar essay on the cultural history of psychopathy (HERE). Most fascinating to me is recent efforts by Robert Hare, inventor of the popular Psychopathy Checklist-Revised (PCL-R), to distance himself from growing evidence of its misuse in forensic contexts:

    While Hare remains a strong believer that his test works well for the kind of basic scientific research that it was originally designed for, he and others have begun to wonder if it does as good a job outside the lab.

    "I'm very concerned about the inappropriate use of this instrument for purposes that have serious implications for individuals and for society," Hare says. "It shouldn't work that way."

    In fact, Hare says, he is so disturbed by some of what he has seen as he has traveled through America training psychologists in use of the PCL-R, that he sometimes has trouble focusing on the way his test could be affecting people's lives.

    "I think about this periodically, and I probably try to suppress it," Hare says. "I do disassociate myself from it. I mean, if I thought about every potential use or misuse of the instrument, I probably wouldn't sleep at all."

Hare goes even further in a series of interviews with journalist Jon Ronson, author of the new book, The Psychopath Test. Over late-night drinks at hotel bars, he tells the author that he is especially chagrined at the PCL-R’s use by poorly trained and biased evaluators in Sexually Violent Predator (SVP) cases in the United States:

    “ ‘I tried to train some of the people who administer it. They were sitting around, twiddling their thumbs, rolling their eyes, doodling, cutting their fingernails – these were people who were going to use it.’

NPR has also assembled, "Expert Panel: Weighing The Value Of A Test For Psychopaths," by Patrick Waters.

Many psychologists believe that psychopaths are almost bound by nature to commit crime. So if psychopaths can be accurately identified, their menace to society can be contained. That's the hope, at least.

But there is real debate about how to diagnose a psychopath and the usefulness of the tools available to do it. A test developed by psychologist Robert Hare called the Psychopathy Checklist-Revised, or PCL-R, is widely used in the criminal justice system -- before trial, during sentencing and even in parole and death-penalty decisions -- to evaluate a person's psychopathic tendencies.

Some psychologists believe the PCL-R is a critical tool in predicting which offenders pose the greatest risk. Others see the test as too vulnerable to human bias and question its place in the criminal justice system. We asked three experts in the field of forensic psychology to weigh in.

The individual essays are:

• Masking Bias With Science by Karen Franklin
• Identifying The Bad Apples by Henry Richards
• An Unreliable And Stigmatizing Tool by John Edens

Related posts are in the mental illness and expert witnesses indexes.

Still More on Denkowski Payments From Harris County

Mike Tolson posts, "Psychologist takes slap on wrist, forfeits lucrative niche practice," at the Houston Chronicle MedBlog.

Fort Worth psychologist George Denkowski lost not only a large share of public credibility when he agreed to accept a slap on the wrist from the Texas State Board of the Examiners of Psychologists, but he also forfeited a lucrative niche practice doing evaluations of capital murder defendants or death row inmates whose lawyers are making a claim of mental retardation.

How lucrative? Invoices from Harris County show payments of more than $307,000 to Denkowski from 2003 through 2008. The good news for the good doctor is that business was dwindling anyway. Most of those murderers or alleged murderers with so-called Atkins claims have already been evaluated. Only a small portion of the new capital murder defendants likely will make such claims, and Harris County capital murder trials where the death penalty is sought have reached historic lows anyway.

The evaluations became necessary following a 2002 decision by the U.S. Supreme Court that spared those with mental retardation from execution. Not surprisingly, many inmates and defendants around the country raced to the courthouse asserting retardation. A small percentage achieved success. Most of those claims required fresh evaluations from psychological experts.

Denkowski became the go-to psychologist for local prosecutors. Most of the time - about 80 percent - he found that the subject was not retarded, which helped preserve 16 death sentences from Harris County. In four cases, he agreed with defense lawyers, resulting in life sentences for their clients. But along the way, Denkowski's methods became controversial. Many other experts in the field said no science existed to justify his unusual approach, which often involved adjusting IQ scores upward because certain "adaptive behaviors" showed the subjects were really smarter than they first appeared.

And:

"This is no less a matter of scientific concern than what we found out was happening with the crime lab," Kase said, referring to faulty forensics uncovered at the Houston Police Department's crime lab nearly a decade ago. "We began to review all of those cases. Why wouldn't we do that here? And unlike most of those cases, these are cases where men's lives are at stake. This man was raising scores on psychological instruments based on factors not used in psychology."

Earlier coverage of the Denkowski sanction begins at the link.

More Denkowski Revelations

Brandi Grissom posts, "County Used Doctor After Methods Challenged," at the Texas Tribune.  Here's an extended excerpt:

Harris County paid Dr. George Denkowski, a forensic psychologist who was reprimanded earlier this month and agreed never again to perform death row evaluations in Texas, more than $300,000 to test defendants for intellectual disabilities from 2002 until 2008. And the county continued to pay Denkowksi even after a judge harshly rebuked his work, according to documents obtained by the Texas Defender Service.

Denkowski, a Fort Worth psychologist, evaluated 14 current Texas death row inmates and two who have been executed. His methods, though, came under intense scrutiny from defense lawyers and from other psychologists, who said Denkowski used flawed techniques that artificially inflated disability scores, making defendants eligible for the death penalty. The evaluations started after the U.S. Supreme Court in 2002 ruled that states could not execute mentally disabled people.

As part of a settlement, the Texas State Board of Examiners of Psychologists this month issued a reprimand against Denkowski. He did not admit wrongdoing, but he agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him. An attorney for Denkowski has said he vigorously defends his practice.

The Harris County invoices, which the Texas Defender Service obtained through a public information request, include more than $20,000 the county paid to Denkowksi after a judge issued a scathing denouncement of the psychologist's methods and commuted the death sentence of inmate Daniel Plata to life in prison. From 2005 to 2007, Harris County paid Denkowski more than $20,000 to evaluate whether Plata was so mentally disabled he would be ineligible for the death penalty. Denkowski said Plata was not mentally disabled, and he was sentenced to death. But in September 2007, Harris County state district judge Mark Ellis concluded that, "Dr. Denkowski invalidated the norms of the test by committing errors in administration and scoring." 

Despite the judge's ruling, Harris County used Denkowksi at least three more times, paying him more than $20,000 collectively in those cases, including one in which he concluded the defendant would be eligible for the death penalty. "For years, the Harris County district attorney's office turned a deaf ear to leading authorities who asserted that Denkowski's methodologies were not grounded in accepted science,” said Kathryn Kase, an attorney for Plata.

A column in Connecticut's Norwich Bulletin mentions the Denkowski sanction.  "Court takes great care to protect mentally disabled," is by Richard Meehan.

Since the reinstatement of the death penalty in 1976, the issue of executing mentally disabled defendants has created controversy and debate. In 1986, the Supreme Court weighed Florida’s procedure for reviewing the competency of mentally disabled condemned defendants and prohibited the execution of mentally incompetent offenders.

The court’s five-member majority held that the Eighth Amendment’s cruel and unusual punishment clause prohibited the execution of an insane person. It did not define insanity, but ruled that a person must be aware of the impending execution and the prisoner must understand why he or she was going to be executed.

Mental health professionals urged a comprehensive psychological assessment in the process, rather than a single interview conducted only by psychiatrists. The court determined that the condemned should be permitted to present evidence from defense mental health experts as well.

The debate did not end there, however. In 1989, the court again addressed the issue that mental disability would be considered as a mitigating factor. The court rejected the claim that the Eighth Amendment prohibits the execution of the disabled. Instead, it ruled the jury should have been allowed to consider the defendant’s mental disability as a mitigating factor in weighing the punishment.

In 2002, the court revisited the issue and ruled that the application of the death penalty for the disabled is per se “cruel and unusual,” overturning its earlier decision.

Drawing on earlier language that the basic concept underlying the Eighth Amendment is the dignity of man, Justice John Paul Stevens concluded that a review of legislation in 19 states and the federal government established a consistency of the direction of change and as powerful evidence that society views mentally disabled defendants as “categorically less culpable than the average offender.”

And:

This week, the Texas State Board of Examiners of Psychologists issued a reprimand to Dr. George Denkowski, a psychologist who has examined and cleared 14 death row prisoners for execution. Denkowski has agreed not to conduct such evaluations in future cases and to pay a fine of $5,500.

Earlier coverage of the Denkowski sanction begins at the link. 

The 1986 Supreme Court ruling referenced in the column is Ford v. Wainwright, dealing with competency to be executed.  The 2002 ruling is Atkins v. Virginia; more on the two ruliings via Oyez.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Related posts are in the mental retardation index.

More Commentary on the Denkowski Sanction

Genevieve Hearon writes the OpEd, "Texas must not execute the mentally retarded," for the Austin American-Statesman.  It appeared in the Saturday edition.  Hearon is the founder of Capacity for Justice, an organization that works to address court evaluation requirements in judicial determinations for defendants with intellectual disabilities, mental illnesses and co-occurring issues in the criminal justice system.

As the mother of four beautiful children, one of whom had "mental retardation" (the current preferred term is "intellectual disabilities") and another who was diagnosed with schizophrenia at the age of 15, I know how difficult it can be for some people with intellectual disabilities to take care of themselves and navigate the challenges of daily life. The criminal law treats people with "mental retardation" differently, and it should.

Although Atkins is settled in law, Texas allowed a testifying expert, George Denkowski, to supplant Atkins' methodology with his own added requirement of upping IQ scores based on the defendant's ethnic environment. In my view, this addition invited inaccuracies, errors in subjectivity, discrimination and denied equal treatment under the law.

Texas is now in grave danger of inadvertently executing men with mental retardation(ID). Although Denkowski was recently no longer permitted to testify as to Atkins evaluations, he provided testimony in at least 14 cases of men currently on Texas death row, including two who are in line to receive execution dates.

Texas is now in grave danger of inadvertently executing individuals with intellectual disabilities.

There are a few areas in life and law where mistakes cannot be tolerated. One of those areas is the death penalty.

Since there are now questions as to whether some men have mental retardation, my view is that the courts need to hear their claims anew. At least provide for a demonstration of their records, IQ scores and the testimony of a disinterested expert who addresses the Atkins positions. Death by lethal injection because of flawed evaluation would be a mockery of "justice for all". If the Legislature needs to pass legislation to clear the way for these men's claims, it has an urgent moral duty to act.

And:

Based on my personal experience and decades of service and policy participation in the behavioral health care field advocating on behalf of people with intellectual disabilities and mental health issues, I am hard-pressed to imagine a more disturbing and regressive action than executing a person who is mentally retarded under Atkins. In the eyes of the law, to do so would be unconstitutional. In our hearts, it would be inhumane and immoral.

The courts must take a second look at the cases where Denkowski conducted the evaluations for mental retardation. This is the only way to avoid unconscionable, irreversible mistakes.

"Courts Resist Revisiting 'Junk Science' Convictions," is the Texas News Service report written by Peter Malof.

After a forensic psychologist was banned this month from making retardation evaluations in Texas courts, defense attorneys hoped to reopen past convictions that used his now-discredited testimony. But with courts extremely wary of revisiting any closed case, it may take legislative action to force them to bend to scientific consensus.

Current law allows for re-reviewing cases when DNA evidence might change the outcome. Kathryn Kase, a death-penalty lawyer who directs the Trial Project at the Texas Defender Service, supports legislation that would apply to additional types of evidence.

"We need to extend the law, so that changes in science, or the practice of shoddy science, allows a person to go back and seek re-testing and re-review."

A bill pending in the state House goes half-way, says Kase, who wants it amended to not only incorporate current science, but also the problem of "junk science."

The banned psychologist, George Denkowski, provided testimony that helped convict at least 14 prisoners on death row, who he claimed had normal intelligence. Kase is convinced that at least some of them are, in fact, mentally retarded. Executing the mentally retarded has been forbidden since a U.S. Supreme Court ruling in 2002.

Kase says, in matters of life and death, there's no room for casual, sloppy, or fraudulent science.

Earlier coverage of the Denkowski sanction begins at the link

A San Antonio Case Ends

"Former death row inmate agrees to life without parole," is the San Antonio Express-News report written by Craig Kapitan.

A former youth pastor who spent three years on death row for the murder of his pregnant teen girlfriend was given a new sentence Thursday: life in prison without parole.

In exchange for prosecutors no longer seeking the death penalty, Adrian Estrada, 27, agreed to forgo all rights to appeal the case.

A jury sentenced Estrada to death in 2007 for the Dec. 12, 2005, stabbing and strangulation of Stephanie Sanchez, 17. He had been a youth pastor at El Sendero Assembly of God when he impregnated the teen several times, according to testimony from his trial.

But during the sentencing phase, an expert for the state accidentally gave misleading information to jurors on the danger Estrada could pose to society in the future, the Texas Court of Criminal Appeals ruled last year. The appellate court ordered the punishment phase retried.

Defense lawyer Brian Stull, a North Carolina-based staff attorney for the American Civil Liberties Union's Capital Punishment Project, appeared to struggle with emotion Thursday as he read aloud a letter his client had written to the victim's family.

“I understand my actions have caused many people tremendous amounts of pain,” Estrada wrote. “I regret many things I did, particularly the way I treated (Sanchez).”

Estrada was too nervous to read the letter himself, Stull said.

And:

Although he's the first, Estrada might not be the only death row inmate who gets a second chance at punishment because of the erroneous testimony of prison expert A.P. Merillat, said Stull of the ACLU.

Merillat told jurors in the Estrada case that after 10 years in prison, Estrada could potentially be given a lower, less restrictive inmate classification that might result in him being put in the prison's general population. To give the death penalty, jurors have to decide a defendant would be a future danger to society, including fellow prison inmates.

Jurors mentioned the testimony in a note to the judge while deliberating.

“He has made the same error in other cases,” Stull said of Merillat. “We think it could have wide-ranging ramifications. Each case has to play itself out in court.”

The ACLU Capital Punishment Project, which represented Estrada, issued a news release, "ACLU Client Agrees To Life In Prison After Death Sentence Thrown Out Because Of False Testimony.  Death Penalty System In Texas And Across Country Riddled With Flaws And Errors."

An American Civil Liberties Union client whose death sentence was thrown out last year after the highest criminal court in Texas ruled it was based on the false testimony of a state expert agreed today to a new sentence of life in prison.

Adrian Estrada’s death sentence was thrown out last June after the Texas Court of Criminal Appeals found that A.P. Merillat, who investigates prison crimes for Texas, wrongly testified that, if allowed to live, Estrada could receive a prisoner classification that would allow him to leave the prison grounds. This testimony led the jury to find that Estrada posed a future threat to society. Merillat, who has testified in numerous other death penalty cases in Texas, told prosecutors after Estrada’s sentence was thrown out, “I don’t know if my presence in your courthouses would serve you or your cases well.”

“Death sentences such as Mr. Estrada’s that are based on false or misleading testimony are just one of the many fatal flaws of the U.S. death penalty system,” said Brian Stull, an attorney with the ACLU Capital Punishment Project. “The nation’s death penalty system is riddled with error and death sentences are handed out in unfair and unjust manners. This case provides clear evidence of the urgent need for Texas and all other death penalty states to abolish capital punishment and replace it with the sentence of permanent imprisonment.”

Jurors in Estrada’s 2007 sentencing trial were incorrectly told by Merillat that if Estrada were given a sentence of life without parole instead of the death penalty, he could be eligible for a classification level that would allow him to leave the prison grounds after 10 years of imprisonment. Two juror notes strongly suggested that Merillat’s false testimony led to their decision to sentence Estrada to death.

In a 66-page ruling issued in June, Jude Barbara Hervey of the Texas Court of Criminal Appeals wrote, “This information, now properly before this court, demonstrates there is a fair probability that appellant’s death sentence was based upon incorrect testimony as evidenced by the jury’s notes. We believe that the Supreme Court would find this to be constitutionally intolerable.”

Estrada agreed to his new sentence before state District Court Judge Sid Harle in Bexar County, TX.

Related posts are in the expert witnesses, mitigation, and sentencing indexes.

Democracy Now on the Denkowski Sanction

"'Dr. Death' Agrees to Stop Evaluating Mentally Disabled Texas Death Row Prisoners," is the Democracy Now segment, today.  You can watch the video at the link.

Last Friday, Texas reprimanded a psychologist who used what critics say were unscientific methods to examine at least 25 Texas death row prisoners for intellectual disabilities, two of whom were later executed. Dr. George Denkowski was the go-to psychologist for prosecutors who wanted to prove defendants were not mentally handicapped—and therefore eligible for the death penalty. Democracy Now! first covered Dr. Denkowksi in January 2010 in a video report by Renée Feltz that accompanied her story for The Texas Observer magazine. For an update, we’re joined by Texas Defender Service attorney, Kathryn Kase, and by Dr. Jerome Brown, the psychologist filed the complaint that ultimately resulted in Denkowksi’s agreement to stop evaluating people in criminal cases.

The participants include:

Kathryn Kase, attorney with the Texas Defender Service. Dr. George Denkowski said her client, Daniel Plata, was eligible for execution but a judge later said the evaluation was full of "fatal errors" and commuted Plata’s death sentence to life.

Dr. Jerome Brown, a clinical psychologist who worked as an expert for the defense on five death penalty cases in which Denkowski worked for the prosecution. He filed the complaint that ultimately led Denkowksi to stop evaluating people in criminal cases.

Renee Feltz, new Democracy Now! producer. Her exposé of Dr. Denkowski for The Texas Observer magazine, supported by The Investigative Fund at the Nation Institute, was a finalist for a 2010 Investigative Reporters and Editors Award.

Earlier coverage of the Denkowski sanction begins at the link.  Renee Feltz' earlier reporting, noted above,  is at the link.

Commentary on the Denkowski Sanction

Michael Landauer posts, "We don't kill the mentally retarded. But how do we decide if someone can be executed?" at the Dallas Morning News Death Penalty blog.

A very troubling story in the New York Times late last week. It seems that the psychologist who "examined" death row inmates to determine if they were mentally retarded has been reprimanded for, well, quackery.

As part of a settlement, the Texas State Board of Examiners of Psychologists issued a reprimand against Dr. George Denkowski, whose testing methods have been sharply criticized by other psychologists and defense lawyers as unscientific. Dr. Denkowski agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him.

So what did the good doctor do that other, better doctors and researchers had a problem with? He ignored established tests for determining mental capacity and substituted his own, which he says corrected for cultural differences. Hey, maybe some cultures just don't teach kids how to read a menu or what a thermometer is used for, he reasoned.

In a 2006 evaluation of Steven Butler, who was convicted in the killing of a store clerk, Dr. Denkowski rejected other I.Q. test scores that indicated Mr. Butler was well below average intelligence. He discounted behavioral evaluations from Mr. Butler's family and friends, who said the young man could not understand the rules of basketball, had to have others read menus for him and had failed basic classes.

In perhaps the strangest twist in this agreement, both sides said that this public slap-down cannot be used in death penalty appeals. Why the hell not? (Fortunately, defense lawyers plan to challenge this.)

The Investigative Fund carries, "Death Row Psychologist Reprimanded."  It's posted by Jed Bickman.

Texas psychologist George Denkowski will never again evaluate inmates' IQ to determine if they are mentally disabled — and thus unable to face the death penalty — or not. The Texas State Board of Examiners of Psychologists has issued him a reprimand. He will also pay a fine of $5,500. All of which is good news for the fourteen inmates on Death Row who Denkowski, using highly criticized and faulty methods, determined were not mentally handicapped. It comes too late for the two inmates who have already been executed after Denkowski found them mentally capable. 

Last January, in a Texas Observer cover story, Investigative Fund reporter Reneé Feltz exposed the questionable methods and junk science used by psychologist George Denkowski in an article about the Texas death penalty case of Mexican immigrant Daniel Plata. In the 2002 Atkins v. Virginia ruling, the Supreme Court stated that "executions of mentally retarded criminals are cruel and unusual." Defense lawyers called Denkowski "Dr. Death" for his finding twenty-one of the twenty-nine inmates he has worked with to be mentally capable — and thus eligible for the death penalty. Feltz showed that he routinely inflated the inmates’ IQ scores through faulty methods.

And:

Defense attorney Robert Morrow told Feltz, "Denkowski pretty much thought that if you had engaged in criminal behavior you were not retarded." Morrow represented Alfred DeWayne Brown, who remains on Death Row, but whose case may receive more scrutiny in light of last week's settlement.

On April 13, Denkowski reached a settlement with the Texas State Board of Examiners of Psychologists, which issued a formal reprimand against him and dismissed, with prejudice, the complaints against him. Under the terms of the settlement, Denkowski has agreed to never again conduct intellectual disability evaluations in criminal cases. 

Defense attorneys for the fourteen inmates currently on Death Row believe that last week's settlement will provide new hope for their clients, who they argue are mentally handicapped, to escape execution.

The decision is a small victory in the larger fight to bring justice to the death penalty system. State Senator Rodey Ellis of Houston, chairman of the Innocence Project, said that the courts should review every case involving Denkowski. "We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men," he said.

Earlier coverage of the Denkowski sanction begins at the link.  Feltz' earlier reporting is noted at the link.

Related posts are in the mental retardation category index.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Additional Reporting of the Denkowski Sanction

Mike Tolson writes, "Psychologist agrees not to testify again," for the Houston Chronicle.  It appeared in the Saturday edition.

A controversial Texas psychologist whose criminal justice work had made him a modern-day version of the notorious "Dr. Death" — who testified for the state in hundreds of capital punishment trials a generation ago — has reached a settlement with a state licensing board in which he agrees to conduct no more evaluations of intellectually challenged defendants in criminal proceedings.

While admitting no wrongdoing, psychologist George Denkowski agreed to stop evaluating criminal defendants for possible mental retardation after the Texas State Board of Examiners of Psychologists determined that his techniques lacked scientific credibility. The board had become concerned that Denkowski's methods were being used to make life-and-death decisions but had not been validated.

The board also issued a formal reprimand and a fine of $5,500 in exchange for dropping complaints against Denkowski. The settlement came after increasing opposition to Denkowski's opinions, which had been used to keep 16 Harris County killers on Texas' death row after the Fort Worth psychologist concluded that they were intellectually capable enough to be subject to execution. Two of those inmates were executed.

But the tide turned against him as lawyers for inmates marshaled the collective opinion of clinical psychology. In in 2008, a state judge in Harris County tossed out a Denkowski evaluation in a capital case because the judge said it lacked evidence of accepted methodology. The defendant's sentence was commuted to life. Two years later, the American Association on Intellectual and Developmental Disabilities cautioned against using Denkowski's methods until they had been scientifically proved.

And:

Denkowski's testimony was reminiscent of that of forensic psychiatrist James Grigson, another prosecutor favorite in the 1980s.

Grigson was nicknamed "Dr. Death" because he repeatedly testified in competency hearings for the state and frequently opined in capital trials that defendants represented a future danger (a requirement of the Texas capital murder statute at the time), even in cases where he conducted no evaluation of or had any contact with the defendant.

He once testified that defendant Kelsey Patterson, an oft-delusional schizophrenic, was sane when he inexplicably killed two people in Palestine in 1992, even though in previous non-lethal assaults by Patterson, Grigson had consistently found that Patterson, because of schizophrenia, was not sane when he attacked people.

In time, Grigson also ran afoul of professional organizations and became largely discredited. Though he thumbed his nose at the professional disapproval, claiming it was politically motivated, his testimony became a double-edged sword too dangerous for prosecutors to use. Grigson died in 2004.

The expanded AP report is, "Texas psychologist banned from death row cases," by Jim Vertuno.  It's via the Houston Chronicle, and is also available from Google News and the Republic.

"Once again, another junk science scandal has rocked Texas' death row," said Kathryn Kase of the Texas Defender Service, who represents former death row inmate Daniel Plata.

Denkowski testified in 2005 that Plata did not have mental retardation despite several tests that showed his IQ was under 70. Plata's death sentence was reduced to life in prison on appeal in 2008 because of his intellectual capabilities. He now lives with other disabled inmates.

Denkowski's attorney, Jennifer Andrews, did not immediately respond to message left at her office seeking comment.

Not all of Denkowski's testimony favored prosecutors. Denkowski testified for the prosecution in two cases where he found the inmates did have mental retardation.

In the case of James Clark, who was executed in 2007, a court overruled Denkowski's finding. And in the case of Michael Richard, who also was executed in 2007, Denkowski testified first that Richard wasn't mentally retarded but then changed his mind and said he was.

Denkowski was a defense witness for Elkie Lee Taylor and Michael Hall, who were both executed in 2008. Denkowski determined they were mentally retarded, but his findings were overruled by the courts.

Texas state Sen. Rodney Ellis, D-Houston, a member of the Criminal Justice Committee and chairman of the Innocence Project board, said the courts should review all cases with Denkowski's testimony.

"We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men," Ellis said.

Earlier coverage of the Denkowski sanction begins at the link.

Texas Defender Service on the Denkowski Sanction

Texas Defender Service has issed a news release, "Forensic Psychologist Banned from Making Mental Retardation Evaluations in TX Death Penalty Cases."

George C. Denkowski, a psychologist who used his own criteria to find many men eligible for the death penalty, was banned today from practicing forensic psychology in Texas.  Denkowski's methodology, which often used unaccepted diagnostic techniques of inflating IQ and adaptive behavior scores for reasons of lifestyle and culture during the evaluations of death row prisoners, had come under scrutiny by his peers. The Texas State Board of Examiners of Psychologists began investigating Denkowski's methods after a complaint was filed by at least one of his colleagues alleging he misused psychological testing and inflated IQ scores.

Denkowski served as an expert witness for the prosecution in at least 25 capital and noncapital cases in Texas and around the country, and he provided testimony (especially in Harris County) of at least fourteen inmates currently on death row, including two who have exhausted all appeals, and four other inmates who have already been executed.  In some cases, Denkowski served as a witness for the defense.

"Once again another junk science scandal has rocked Texas' death row," said Kathryn Kase, an attorney with Texas Defender Service who represents Daniel Plata. "The courts must review the cases of these men who were evaluated using highly questionable methods before any executions take place. Otherwise, we will not only be violating the Constitution, but our most basic moral standards."

In 2005, Denkowski found that Kase's client Plata did not have mental retardation, despite three IQ tests showing an IQ below 70. Denkowski added points to Plata's adaptive behavior test results because Plata was from an "impoverished background." The state courts disagreed with Denkowski's opinion and sharply rebuked him for his improper methods.

In 2002, in Atkins v. Virginia, the U.S. Supreme Court banned the death penalty for people with mental retardation.  Expert forensic psychologists are used to determine if a defendant has mental retardation and if he is eligible for the death penalty.  Many of the men whose scores Denkowski raised were African American, Hispanic, or non-English speaking.      

Denkowski's methodology had come under scrutiny by his peers before. His diagnostic techniques were cited in the 2010 edition of the American Association on Intellectual and Developmental Disabilities' manual, which "strongly caution[s] against practices such as those recommended by Denkowski."

In addition to Plata, other cases where Denkowski's determinations of mental retardation were central include:

*      John Matamoros -- Matamoros was diagnosed at 14 with mental retardation, but was denied relief under Atkins based on Denkowski's personal scoring system, which included increasing Matamoros' self-care rating on the basis that he filed his fingernails by biting them.  He has an appeal pending before the Fifth Circuit challenging Denkowski's diagnostic techniques.

*      Virgilio Maldonado - Denkowski made more than 60 upwards adjustments on Maldonado's adaptive behavior scores and a Spanish-language interpreter suggested answers to him during the tests.  These actions should have invalidated the test scores, but state and federal courts have upheld Maldonado's death sentence. 

*      Steven Butler - IQ tests conducted in 2003 by a defense expert and in 2006 by Denkowski show that Butler had mental retardation, but Denkowski rejected the full-scale IQ score on the test he administered and inflated Butler's score by selecting the score Butler received on only three of the test's eleven subtests, despite not being able to point to any scientific basis for such an interpretation. He also inflated Butler's adaptive scores on the basis of "non-intellectual factors," such as claiming that Butler's limited academic achievement was the result of lifestyle choices not inadequate learning ability.  Butler has an Atkins appeal on hold in federal court pending final resolution of the complaint against Denkowski.

*      Calvin Hunter - School records and previous IQ testing showed that Hunter had mental retardation.  Denkowski did not administer an IQ test, but testified that Hunter did not have mental retardation.  Hunter has an appeal pending to remand his case to a trial court based in part on Denkowski's flawed evaluation.

*      Michael Richard - Denkowski initially found that Richard - who required help of his sisters to dress himself until age 14 and cut his meat with a spoon because he could not use a knife - had mental retardation, but reversed himself after the District Attorney's Office intervened. Denkowski calculated Richard's adaptive behavior score by relying on normative scales for men twenty years younger than Richard and by making assertions based on objects found in Richard's cell. Richard was executed in 2007 following a controversial decision to close the courthouse doors to his appeal. 

Several Atkins appeals in Texas have been on hold pending the outcome of Denkowski's hearing.  However, without legislative action, many of these individuals could be procedurally barred from pursuing appeals based on Denkowski's junk science. 

"We must make sure that every case where Mr. Denkowski served as an expert is reviewed by the courts. We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men, especially on the word of someone who is no longer permitted to make these kinds of determinations," said Texas State Senator Rodney Ellis.

Earlier coverage of the Denkowski sanction begins with the preceding post.  Related posts are in the mental retardation category index.

The agreed settlement in Texas Board of Examiners of Psychologists v. Denkowski is available in Adobe .pdf format.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Additional Coverage of Denkowski Sanction

Molly McDonough posts, "Psychologist’s Reprimand Gives Hope to Counsel for Death Row Inmates," at ABA Journal.

In a closely watched case, lawyers for death row inmates who were cleared for trial by a Texas psychologist reprimanded for his methods are hopeful their clients will avoid lethal injection.

The Texas State Board of Examiners of Psychologists has reprimanded Dr. George Denkowski, whose intellectual competency testing methods have been criticized as unscientific, the New York Times reports.

Denkowski, who examined 14 inmates who are now on Texas’ Death Row and two others who were subsequently executed, agreed on Thursday never to perform his intellectual disability evaluations again. He also agreed to pay a $5,500 fine in exchange for the board dismissing complaints about him.

Denkowski, who believed traditional tests didn't compensate for social and cultural factors, has been criticized by other psychologists for using methods that they say artificially inflated intelligence scores to make defendants eligible for the death penalty.

One death row inmate's sentence has already been commuted to life, after a state judge questioned Denkowski's methods in 2007. In another case, a federal appeals court has stayed an execution, pending the outcome of complaints against Denkowski.

State Senator Rodney Ellis, who chairs the state's Innocence Project board and is a member of the Criminal Justice Committee, tells the Times that every case involving Denkowski should be reviewed.

Earlier coverage of Denkowski's sanction begins with the preceding post. 

The agreed settlement in Texas Board of Examiners of Psychologists v. Denkowski is available in Adobe .pdf format.

Sham MR Evaluations

Though the U.S. Supreme Court declared the execution of offenders with mental retardation unconstitutional in 2002, Texas has persisted in bending the rules.  This year marks the fifth legislative session in which Texas lawmakers have failed to pass legislation to establish procedures to memorialize Atkins v. Virginia.

Brandi Grissom writes, "Psychologist Who Cleared Death Row Inmates Is Reprimanded, for today's New York Times and the Texas Tribune.  It's another must-read from journalist Grissom:

A psychologist who examined 14 inmates who are now on Texas’ Death Row — and two others who were subsequently executed — and found them intellectually competent enough to face the death penalty, agreed on Thursday never to perform such evaluations again. Lawyers for the 14 inmates hope the agreement will help their clients, who they argue are mentally handicapped, to escape lethal injection.

As part of a settlement, the Texas State Board of Examiners of Psychologists issued a reprimand against Dr. George Denkowski, whose testing methods have been sharply criticized by other psychologists and defense lawyers as unscientific. Dr. Denkowski agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him.

Texas defense lawyers and forensic psychologists across the nation have watched the case closely. Although Dr. Denkowski admitted no wrongdoing and defends his practice, those critical of his methods said the settlement could give those inmates still on death row an important appellate opportunity.

“It really suggests that he screwed up,” said Dick Burr, a lawyer who represents Steven Butler, a death row inmate, and who filed one of the complaints against Dr. Denkowski.

The United States Supreme Court ruled in 2002 that states cannot execute mentally handicapped people. But the court did not provide guidelines for determining whether a person is mentally handicapped, leaving it up to the states to create criteria. Texas courts have generally adopted a three-part definition that requires the convicted inmate to have below-average intellectual function, to lack adaptive behavior skills and to have had these problems since a young age.

Dr. Denkowski was an expert witness whom prosecutors — particularly in Harris County — relied upon to determine whether a murder defendant would be eligible for execution. In 2009, other psychologists and defense lawyers complained to the board of psychologist examiners that Dr. Denkowski used unscientific methods that artificially inflated intelligence scores to make defendants eligible for the death penalty.

Dr. Denkowski published a 2008 article in the American Journal of Forensic Psychology describing his technique for scoring defendants. He said traditional tests did not compensate for social and cultural factors. For example, he wrote, those who come from impoverished backgrounds may not have learned basic skills like using a thermometer or maintaining hygiene simply because those skills were not valued in their community. But that does not necessarily indicate a lack of intellectual function, he said.

Dr. Denkowski also explained why he deviated from the standard use of a test that evaluates adaptive behavior or life skills. The test is typically administered to family members and friends who know the person to ask about how the person functions — whether he is able to pay rent, fill out job applications, read menus, etc.

Dr. Denkowski administered that test to the inmate instead. People close to the individual, he wrote, “tend to understate a defendant’s actual functioning markedly” because they do not want him to face execution.

Other psychologists have rejected Dr. Denkowski’s methods, arguing that they have no scientific basis. The American Association on Intellectual and Developmental Disabilities in its 2010 manual for classifying intellectual disability strongly cautioned against using Dr. Denkowski’s methods “until firmly supported by empirical evidence.”

“What Denkowski has been doing is a pretty radical departure,” said Marc J. Tassé, director of the Ohio State University Nisonger Center and an expert in developmental disabilities. “There’s absolutely no scientific basis to his procedure.”

There is no evidence, Dr. Tassé said, that a person from a poor family is less likely to learn basic life skills. He said he knew of no other forensic psychologist who uses similar methods.

And:

State Senator Rodney Ellis, Democrat of Houston, chairman of the Innocence Project board and a member of the Criminal Justice Committee, said every case involving Dr. Denkowski should be reviewed by the courts.

“We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men,” Mr. Ellis said, “especially on the word of someone who is no longer permitted to make these kinds of determinations.”

The agreed settlement in Texas Board of Examiners of Psychologists v. Denkowski is available in Adobe .pdf format.

The Texas Tribune partners with the New York Times to provide enhanced local news coverage of Texas.

Earlier coverage of Denkowski's practices in Texas is at the link.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Brain Scans

Today seems to be scholarship day, so the next three posts will be devoted to new works by scholars.

First, at Scientific American today, "How "Inadmissible" Brain Scans Can Still Influence the Courts."  It's by Michael S. Gazzaniga.

The world of law as practiced in the real world is far removed from that usually discussed by law professors and philosophers or shown on television and in movies. In idealized or fictional cases the law always operates formally and may seem to pursue some abstract quest for justice. In the everyday practice of law, however, things work differently—it is all about cobbling together the most compelling and convincing story possible either for or against a defendant. Attorneys will shoehorn into their arguments any information they can find that might further their ends. The legal system therefore efficiently uses every scrap of relevant data that might pertain to a case—including findings such as brain scans that might not normally be formally admissible during trials.

The reality is that few criminal cases—only about 3 percent of federal ones and a bit more than 4 percent at the state level—ever go to trial. Normally, after someone is charged with a crime, the prosecution and the defense attorneys engage in confidential plea bargaining away from the courtroom. The plea negotiations are usually conducted informally (although in intense cases, such as those that might involve the death penalty, they can take on the appearance of a condensed sentencing hearing).

During these plea bargaining discussions, the defense presents any available information that might reduce the severity of the charges or the potential penalty against the defendant. To save a client from the death penalty, for instance, the defense might bring up brain-imaging data that suggests the defendant has a certain neurological or psychiatric condition that should reduce his or her culpability. The defense might suggest that the brain scans would at least cast doubt on the prosecution's ability to get a jury to return a sentence of death.

Of course, the prosecutor is free to reject this information and "let the jury decide." But in practice, if this informally presented neurological data seems persuasive, the prosecution may often agree to reduce the charges or to press for a lesser sentence—say, life imprisonment rather than death.

Why would prosecutors agree to such a change when brain scans are currently so rarely admissible as evidence in formal trials? They may not want to take a chance on what a judge will allow or what juries will believe. The more important reason, however, may be that negotiating an outcome without a trial usually makes both sides happy. Prosecutors might make a public show of disapproving of plea bargain deals but the fact is that trials are expensive; avoiding unnecessary ones conserves resources for the overburdened justice system.

The High Cost of a Tennessee Capital Case

The Sunday Knoxville News Sentinel carries a lengthy article, "Probe, prosecution of Christian-Newsom slayings had hefty price tag."  It's reported by Jamie Satterfield.

One of Knoxville's most horrific crimes is likely to go down in the record books as one of the state's most expensive prosecution efforts.

It is difficult to pin a price tag on the investigation of the January 2007 torture-slayings of Channon Christian, 21, and Christopher Newsom, 23, and resulting prosecutions. Some figures - jury expenses, expert witnesses, defense bills, for example - are readily available, and they tally more than $1.1 million so far. Others, including the man-hours expended by teams of local, state and federal agents, are impossible to quantify but are sure to exceed the costs ever incurred in any other single investigation.

And:

KPD employed its Special Operations Squad, and the Knoxville branch of the Marshals Service assigned its entire fugitive squad to take down accused ringleader Lemaricus Davidson, who was hiding in a vacant house in Mechanicsville, and his convicted helper, Eric Boyd.

Eventually, the manhunt for the couple's killers led to Lebanon, Ky., where law enforcers from the Kentucky State Police, local police there and the Kentucky branch of the Marshals Service joined in. KPD, KCSO and the ATF sent agents there. Then-Sheriff Tim Hutchison employed his agency's helicopters in the Kentucky hunt for suspects Letalvis Cobbins, George Thomas and Vanessa Coleman.

All of that cost money - lots of it.

But no one can say just how much.

"Nobody quantifies (the law enforcement side of a case)," noted Susan Shipley, a Knoxville attorney who is a veteran of capital murder defense work.

Law enforcers in this case say it is simply impossible to try.

"There's no way," said Martha Dooley, KCSO spokeswoman for Sheriff Jimmy "J.J." Jones, when presented with the News Sentinel's request for information on the office's work in the case.

KPD spokesman Darrell DeBusk had a similar reaction.

"Nearly every unit of the department was utilized at some point in the investigation," DeBusk said.

And:

The feds likewise can't quantify how much manpower was devoted to the first phase of what would be a three-year prosecution effort that's still not over.

But if trial testimony is any indication, there easily could have been more than 100 law enforcers in two states involved in the initial effort to round up suspects and start building a case. And with annual salaries for those lawmen and women ranging from roughly $37,831 for a crime scene technician to $52,352 for a patrol sergeant, the cost of the law enforcement arm alone easily could be in the hundreds of thousands.

And that was just the beginning.

Follow the link to read this journalistic must-read.  Related posts are in the cost index.

CCA to Review Future Dangerousness Testimony

"Killer of 3 at South Texas home gets court review," is the Houston Chronicle headline of the AP post.

The Texas Court of Criminal Appeals has agreed to look at the case of a South Texas man condemned for a triple killing and consider whether a psychiatrist's testimony may have been improper when he told jurors the convict would be a future danger. Three of the court's nine judges dissented Wednesday in the ruling involving convicted murderer Ker'Sean Ramey.

And:

Attorneys for Ramey argue testimony from forensic psychiatrist Richard Coons was unconstitutional. The court last year ruled in another capital case that Coons' opinion was scientifically unreliable. Jurors must decide on future danger when considering

The Court's order is in Adobe .pdf format.

Texas is unique among the states with capital punishment upon its reliance of predictions of future dangerousness; predictions that a number of studies have shown to be inaccurate.  In 2004, Texas Defender Service published Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness.  It's a must-read on the topic.

Related posts are in the future dangerousness and Texas Court of Criminal Appeals indexes.

A Parliament of Experts

That's the title of Jordan Smith's latest must-read in the current Austin Chronicle; on the stands, today.  It's subtitled, "Did 'expert testimony' convict an innocent woman of murder?"  Here's an excerpt:

In fact, nearly every witness who testified against Jimenez at her trial testified, in varying degrees, as an "expert" – not only did the doctors have an opinion for the jury about key elements of the case, but so did police and even the 911 dispatcher who took the initial call for help.

But who, exactly, is in the best position to say what happened to Bryan Gutierrez that day – beyond a reasonable doubt? The only adult present in the apartment, Jimenez, insists that Bryan's choking was an accident. Although Jimenez did not testify at trial, the video of her interview with police was played for the jurors, who could follow along with a printed transcript. In the end, it seems the jurors believed the experts; after a six-day trial the jury found Jimenez guilty, sentencing her to 99 years in prison.

Did the experts in this case – the doctors who forcefully asserted that this had been no accident – help put a cold-blooded child-killer behind bars? Or did the state's use of expert witnesses to explain the fatal injury convince a jury to convict an innocent person? More broadly, in such an expert-dependent case as this – one that demands professional certainty on difficult questions – what is the effect of expert witnesses? Who is the best expert? Who decides? What if they're wrong? And what impact does the use of expert witnesses have on our criminal justice system?

Five years after her trial, after hearings over several days in December 2010, then-Travis County District Judge Charlie Baird concluded that Jimenez is entitled to a new trial. Her new defense attorneys proffered additional expert testimony to counter the expert evidence offered by the state at trial, testimony that Baird found credible. Had Jimenez's jury heard any alternate theory of the crime, it is unlikely that the verdict would have been the same, Baird opined, concluding that Jimenez had been denied due process and that her attorney, veteran defender Leonard Martinez, had rendered ineffective assistance to his client. If the Court of Criminal Appeals agrees, Jimenez's case may be coming back for a retrial.

Should that happen, the case will put the use of experts under a criminal justice spotlight.
Experts Assembled

To attorney Bryce Benjet, who along with Susan Henricks is now representing Jimenez, the case against his client is all about medical expertise – and its limits. He firmly believes in his client's innocence and that the experts who opined that the paper towel choking could not be an accident are the only reason Jimenez is behind bars. "This was not a witnessed event; no one saw Bryan Gutierrez choke," he said in a recent interview. The case was "almost entirely about the opinions of doctors who treated Bryan ... after the obstruction was removed. Without their testimony, there would be no evidence to show any guilt at all," he said. "That is why the reliability of the experts at trial was crucial."

Each of the state's medical witnesses came to court with the expected credentials, and each agreed that they'd never before seen a case like Bryan's. That, in part, seemed to convince them that his choking could not be an accident. The doctors agreed that children, including those Bryan's age, put all kinds of things in their mouths – buttons and marbles and coins and rocks, for example – and will, at times, choke on those items, particularly smooth things, like hot dogs, which are among the biggest offenders in child choking cases. But none believed that a child would put paper towels, and certainly not that many, in his mouth: "children don't suck on paper towels," Dr. Patricia Aldridge (then Patricia Oehring) declared during her testimony. Furthermore, even if a child were to put something in his mouth like a "woody"-tasting paper towel, Aldridge reiterated during her most recent testimony in December – and something as large as five wadded paper towels – the child wouldn't then try to swallow it.

Jordan was honored by the Texas Civil Rights Project last year for her criminal justice reporting.

Future Dangerousness - UPDATED

"Longtime expert witness unreliable, court says," is the report in today's Austin American-Statesman.  It's written by Steven Kreytak.

In his decades working as a forensic psychiatrist, Dr. Richard Coons of Austin has testified at dozens of death penalty trials across Texas in which he opined about how defendants would behave in the future.

In Travis County, prosecutors called him in the past year to testify during the sentencing trials of killers Milton Gobert and Paul Devoe. Coons pronounced that, in his expert opinion, both men would be a future danger. They both received the death penalty.

Coons' paid testimony at those trials and others could get new scrutiny after the Court of Criminal Appeals ruled last week — in a Waco death penalty case — that Coons' methodology for predicting future dangerousness is not reliable.

The court upheld Billy Wayne Coble's death sentence in the killings of his wife's mother, father and brother, ruling that other evidence presented at sentencing supported the McLennan County jury's findings.

The ruling, however, was a significant victory for capital defense lawyers statewide who for years have fought to persuade courts to prohibit the testimony of Coons and other forensic psychiatrists. The lawyers say such testimony offers nothing more than opinions.

"If you are going to be an expert, you should have some scientific basis of what you are testifying about," said Russ Hunt Jr., a Georgetown lawyer who represented Coble at trial. Coons "basically just says, 'Trust me. I'm a doctor. I know it when I see it,' " Hunt said.

And:

For someone to be sentenced to death in Texas, juries must find that there is a probability they pose a continuing threat to society by committing continuous acts of violence and that there are no mitigating factors to warrant a sentence of life in prison.

The U.S. Supreme Court ruled in 1983 in Barefoot v. Estelle that psychiatrists are competent to give opinions on the first question — the so-called future dangerousness of the defendant.

The testimony often comes after a psychiatrist interviews the defendant and evaluates pertinent documentation from the case, including their medical and criminal history. But even when the defendant is not interviewed, psychiatrists are sometimes allowed to give an opinion on a hypothetical scenario, usually one that matches the facts of the case at issue.

At Coble's trial, Coons testified that he has developed his own methodology to come to a conclusion on future dangerousness, one in which he considers factors such as the person's conscience, criminal history and attitudes toward violence.

"These factors sound like common sense ones that the jury would consider on its own," Judge Cathy Cochran wrote in the opinion for the court. Cochran noted that Coons could not show how his past predictions have fared or whether the factors he has considered are validated by any research.

In a dissenting opinion, Judge Sharon Keller said expert witnesses with some specialized knowledge should be allowed to testify about it to aid the jury in reaching a conclusion. Coons' experience and educational background "place him in a better position than the average juror."

The CCA ruling in Coble is available in Adobe .pdf format, as is the concurring opinion written by Judge Keller.

Texas is unique among the states with capital punishment upon its reliance of predictions of future dangerousness.  Earlier coverage of this critical issue begins with this post.

UPDATE with new document link -- In 2004, Texas Defender Service published Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness.  It's a must-read.

A Bloody Injustice

That's the title of Dave Mann's latest article on faulty forensics in the Texas Observer.  It's subtitled, "Warren Horinek was a vicious drunk with a history of threatening his wife. But his conviction for murdering her was based on junk science--like thousands of others."  Two brief excerpts from this must-read:

From the start, Warren Horinek has claimed his wife shot herself. As the police investigation unfolded, the people normally responsible for sending a murderer to prison—the crime scene investigator, the police sergeant who oversaw the homicide investigation, the medical examiner who performed the autopsy, even the assistant district attorney initially assigned to prosecute the case—all came to believe that Horinek was telling the truth.

When Horinek was tried for murder, they testified in his defense. Their testimony and expertise wouldn’t matter. Horinek’s fate would hinge on a few specks of blood found at the scene. A few specks of blood, that is, along with the testimony of a single forensic expert who may have misread the evidence. As a result, an innocent man may spend decades in prison. He won’t be alone.

And:

For most of his trial, Horinek’s attorney seemed prescient. The jury appeared to be convinced of his innocence. Later, when this anything-but-textbook trial was over, the foreman would say that the jurors were going to acquit Horinek. That was before the prosecution’s final witness took the  stand. This case, like hundreds of others, was decided by the testimony of a single forensic expert.

His name is Tom Bevel. He’s a private, Oklahoma-based expert in bloodstain patterns. The study of blood spatter has been around since the 1890s. But unlike other forensic evidence—DNA or fingerprinting, for example—blood spatter evidence rarely provides the sole basis for prosecution. Blood patterns—like those found on Warren Horinek’s Hard Rock Cafe T-shirt that night in 1995—can be used to augment evidence in a criminal case, but they’re rarely the only evidence. The reason is simple: Bloodstains can tell you only so much about who committed a crime, or how. Some experts, Bevel included, have tried to use blood-spatter forensics to reconstruct where blood came from and by what method. If that sounds fantastical, it sometimes is.

In recent years, flawed blood-spatter evidence has led to at least three wrongful convictions across the country, from North Carolina to Indiana. In 2009, the National Academy of Sciences released findings from the most extensive study ever conducted of forensic evidence in American courtrooms. The authors didn’t think much of blood-spatter analysis, writing that the “uncertainties associated with bloodstain pattern analysis are enormous,” and concluding that the opinions of blood-spatter experts like Bevel are “more subjective than scientific.”

In that respect, bloodstain analysis is similar to other kinds of forensic science. With the exception of DNA testing, much of the forensic evidence used in U.S. courts—including fingerprint matches, ballistics, and arson evidence—is based on junk science. CSI it ain’t. Contrary to what’s portrayed on television, bullets are regularly matched to the wrong gun, fingerprints are misidentified, crime labs botch their analysis, and accidental fires are misread as arson.

Most criminal-justice experts believe that flawed forensic evidence—and overreaching expert witnesses—have sent thousands of Americans to prison for crimes they didn’t commit. The solution is to ensure that forensic testimony is based on sound science.

Mann's earlier investigative journalism is noted here.

The Criminal Brain

That's the title of a three-part series broadcast on NPR Morning Edition, this week.  The series concluded today.  Each was written by Barbara Bradley Hagerty.  You can listen to the full reports at the links, or read the transcripts.  There are photos and other items at the links, as well.

Part 1, A Neuroscientist Uncovers A Dark Secret

The criminal brain has always held a fascination for James Fallon. For nearly 20 years, the neuroscientist at the University of California-Irvine has studied the brains of psychopaths. He studies the biological basis for behavior, and one of his specialties is to try to figure out how a killer's brain differs from yours and mine.

About four years ago, Fallon made a startling discovery. It happened during a conversation with his then 88-year-old mother, Jenny, at a family barbecue.

"I said, 'Jim, why don't you find out about your father's relatives?' " Jenny Fallon recalls. "I think there were some cuckoos back there."

Part 2, Inside A Psychopath's Brain: The Sentencing Debate

Kent Kiehl has studied hundreds of psychopaths. Kiehl is one of the world's leading investigators of psychopathy and a professor at the University of New Mexico. He says he can often see it in their eyes: There's an intensity in their stare, as if they're trying to pick up signals on how to respond. But the eyes are not an element of psychopathy, just a clue.

Officially, Kiehl scores their pathology on the Hare Psychopathy Checklist, which measures traits such as the inability to feel empathy or remorse, pathological lying, or impulsivity.

"The scores range from zero to 40," Kiehl explains in his sunny office overlooking a golf course. "The average person in the community, a male, will score about 4 or 5. Your average inmate will score about 22. An individual with psychopathy is typically described as 30 or above. Brian scored 38.5 basically. He was in the 99th percentile."

"Brian" is Brian Dugan, a man who is serving two life sentences for rape and murder in Chicago. Last July, Dugan pleaded guilty to raping and murdering 10-year-old Jeanine Nicarico in 1983, and he was put on trial to determine whether he should be executed. Kiehl was hired by the defense to do a psychiatric evaluation.

Part 3, Can Your Genes Make You Murder?

When the police arrived at Bradley Waldroup's trailer home in the mountains of Tennessee, they found a war zone. There was blood on the walls, blood on the carpet, blood on the truck outside, even blood on the Bible that Waldroup had been reading before all hell broke loose.

And:

It was a pretty straightforward case. Even Waldroup said so during his trial last year. He said on the murderous night, he just "snapped," and he admitted that he killed Leslie Bradshaw and attacked his wife. "I'm not proud of none of it," Waldroup said.

"It wasn't a who done it?" says defense attorney Wylie Richardson. "It was a why done it?"

Richardson says he realized that the testimony at trial would be "very graphic." The defense team, he says, did not try to dismantle the graphic evidence but rather sought to "give a broader and fuller picture of what that was."

Related posts are in the neuroscience index.

Innocence Network Files Amicus in Ohio Case of Kevin Keith

"Innocence groups back condemned Ohio killer of 3," is the title of an AP report by Andrew Welsh-Huggins, via Google News.

Innocence groups from around the country on Monday asked the U.S. Supreme Court to hear the case of an Ohio man sentenced to die in September for fatally shooting three people.

The national Innocence Network and a group of eyewitness testimony experts filed papers Monday asking the court to review the evidence against death row inmate Kevin Keith. The network, which has filed only four similar requests in the past two years, says it considers the evidence in Keith's case compelling.

Keith's lawyers say courts have never heard the full amount of evidence they say could exonerate him.

That includes an alternate suspect who boasted he was going to carry out the killings, an enlarged photo of Keith used during a picture lineup and witnesses who say Keith was elsewhere.

"Without the intervention of this court, a man whom the state has deprived of a fair trial will be put to death by that same state," Innocence Network lawyers said in their filing.

Keith, 46, was sentenced to die for killing three people, including a 7-year-old girl, in a 1994 shooting in northern Ohio that also wounded three others.

Police and prosecutors allege Keith opened fire on the group in retaliation for a drug arrest that he blamed on a snitch related to the victims.

Keith has exhausted his regular state and federal appeals.

The friend of the court brief filed by the Innocence Network is here; the brief filed by memory experts, here.  Both files are in Adobe .pdf format.  You can also view the the Petition for Writ of Certiorari seeking Supreme Court review of the case.  It was filed last month.

The Ohio Public Defender has more on the Kevin Keith case at this link. 

A press release announcing the filings also had additional information:

Monday, the National Innocence Network, an affiliation of over 50 innocence projects and legal organizations around the country, and a group of leading eyewitness and memory experts filed amicus briefs at the U.S. Supreme Court in support of Kevin Keith, an Ohio death row inmate facing execution on September 15, 2010, despite compelling new evidence of his actual innocence.

The briefs were filed in support of a petition of certiorari pending before the Court, Kevin Keith v. State of Ohio, which raises issues about new exculpatory evidence that was withheld from counsel and undermines the evidence used to convict Mr. Keith (the amicus briefs are attached). The prominent legal and eyewitness experts are urging the Court to intervene because the faulty evidence in the case – including erroneous eyewitness identification – unfairly prejudiced the outcome of Mr. Keith's murder trial.

No court has ever had the entirety of new evidence before it, yet alarmingly, Ohio courts have refused to grant Mr. Keith a new trial to present this evidence of innocence.

As the amicus briefs note, in 2007, thirteen years after he was convicted, Mr. Keith discovered that one of the State’s supposed witnesses – who was critical to corroborating the legitimacy of the eyewitness identification – does not actually exist. Furthermore, this primary witness who identified Mr. Keith did so out of a highly suggestive, photo line-up where Mr. Keith’s face was projected larger than the others, and the officer overseeing the identification knew that Mr. Keith was the suspect, sharply increasing the risk of bias -- precisely the type of faulty evidence that today's reform package seeks to address.

New evidence also identifies an alternative suspect who made a before-the-fact admission that he planned to commit the 1994 shootings in Bucyrus, Ohio that killed three people and wounded another three – the crime for which Mr. Keith now stands to be executed.

Mr. Keith has an alibi for the time of the crime supported by four witnesses. No forensic evidence conclusively links him to the crime.

And:

Also Monday, Governor Ted Strickland signed a comprehensive reform bill into law aimed at combating wrongful convictions in the state, including measures to address the high risk of error in eyewitness identifications. Indeed, eyewitness error is the single leading cause of wrongful convictions, playing a role in 75 percent of DNA exonerations nationwide. But tragically, there is a real risk that not all mistakes are caught in time.

Earlier coverage of the case begins with this post.

News Coverage of DSM-V

The American Psychiatric Association has released a beta version of its Diagnostic and Statistical Manual of Mental Disorders. The DSM-V website is live as of today.  The APA will be accepting comments to the proposed revision before it is published.

Today's New York Times carries the report, "Revising Book on Disorders of the Mind," by Benedict Carey.

Far fewer children would get a diagnosis of bipolar disorder. “Binge eating disorder” and “hypersexuality” might become part of the everyday language. And the way many mental disorders are diagnosed and treated would be sharply revised.

These are a few of the changes proposed on Tuesday by doctors charged with revising psychiatry’s encyclopedia of mental disorders, the guidebook that largely determines where society draws the line between normal and not normal, between eccentricity and illness, between self-indulgence and self-destruction — and, by extension, when and how patients should be treated.

The eagerly awaited revisions — to be published, if adopted, in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders, due in 2013 — would be the first in a decade.

"Revision to the bible of psychiatry, DSM, could introduce new mental disorders," is the title of Rob Stein's Washington Post article.

The product of more than a decade of work by hundreds of experts, the proposed revisions are designed to bring the best scientific evidence to bear on psychiatric diagnoses and could have far-reaching implications, including determining who gets diagnosed as mentally ill, who should get powerful psychotropic drugs, and whether and how much insurance companies will pay for care.

"It not only determines how mental disorders are diagnosed, it can impact how people see themselves and how we see each other," said Alan Schatzberg, the association's president. "It influences how research is conducted as well as what is researched. . . . It affects legal matters, industry and government programs."

The proposals will be debated in an intense process over the next two years, with potentially billions of dollars at stake for pharmaceutical companies, insurance companies, government health plans, doctors, researchers and patient advocacy groups.

But perhaps more important, the outcome will help shape which emotions, behaviors, thoughts and personality traits society considers part of the natural spectrum of the human persona and which are considered pathological, requiring treatment and possibly even criminal punishment.

Lauran Neergaard writes the AP report, "Changes proposed in how psychiatrists diagnose," available via Google News.

Don't say "mental retardation" — the new term is "intellectual disability." No more diagnoses of Asperger's syndrome — call it a mild version of autism instead. And while "behavioral addictions" will be new to doctors' dictionaries, "Internet addiction" didn't make the cut.

The American Psychiatric Association is proposing major changes Wednesday to its diagnostic bible, the manual that doctors, insurers and scientists use in deciding what's officially a mental disorder and what symptoms to treat. In a new twist, it is seeking feedback via the Internet from both psychiatrists and the general public about whether the changes will be helpful before finalizing them.

The manual suggests some new diagnoses. Gambling so far is the lone identified behavioral addiction, but in the new category of learning disabilities are problems with both reading and math. Also new is binge eating, distinct from bulimia because the binge eaters don't purge.

Sure to generate debate, the draft also proposes diagnosing people as being at high risk of developing some serious mental disorders — such as dementia or schizophrenia — based on early symptoms, even though there's no way to know who will worsen into full-blown illness. It's a category the psychiatrist group's own leaders say must be used with caution, as scientists don't yet have treatments to lower that risk but also don't want to miss people on the cusp of needing care.

Another change: The draft sets scales to estimate both adults and teens most at risk of suicide, stressing that suicide occurs with numerous mental illnesses, not just depression.

But overall the manual's biggest changes eliminate diagnoses that it contends are essentially subtypes of broader illnesses — and urge doctors to concentrate more on the severity of their patients' symptoms.

The Wall Street Journal has, "Shifts Ahead for Mental Diagnoses," by Shirley S. Wang.

The Los Angeles Times, "Revising the book on mental illness," by Shari Roan, along with the sidebar, "The DSM story."

Specialized blogs have more technical coverage.   AAAS Science Insider posts, "New Criteria for Psychiatric Diagnoses Proposed," by Greg Miller and Constance Holden.

Today the American Psychiatric Association (APA) releases proposed revisions to the most influential book in psychiatry: the Diagnostic and Statistical Manual of Mental Disorders (DSM). These draft criteria for diagnosing mental disorders are the result of a decade of labor by scores of researchers and clinicians. After gathering comments on the draft criteria and conducting field trials to test them, APA plans to publish a new, fifth edition of the DSM in 2013.

By classifying mental disorders and giving them names, DSM not only influences how doctors diagnose and treat their patients. It also sways how insurance companies decide which conditions to cover, how pharmaceutical companies design clinical trials, and how funding agencies decide what research to fund. Making changes to such a widely used document was bound to be controversial, and it has been. "It's sort of like repairing an airplane while it's still flying," says psychiatrist Steven Hyman, provost of Harvard University and a member of the committee leading DSM-V revisions.

The researchers and clinicians working on DSM-V had several ambitious goals, including using new findings from neuroscience and genetics to shape diagnoses, minimizing vast diagnostic dead zones of abnormal behavior that fall in the cracks of current criteria, and introducing the idea of "dimensions" to reflect varying degrees of symptom severity and the overlap among disorders.

Some critics, including the two psychiatrists who led the previous two major revisions to DSM, have argued that such an ambitious overhaul should not have been attempted until more is known about the biological underpinnings of mental illness.

"Psychiatry's draft new 'bible' goes online," by Peter Aldhouse is at New Scientist.

After more than two years of deliberation, the suggestions from 13 expert groups that have been working on the next edition of the Diagnostic and Statistical Manual of Mental Disorders are now available online. Interested parties have until 20 April to comment. The APA will then revise its proposals and launch a series of field trials to test the new diagnoses.

"DSM-V offers new criteria for personality disorders," by Jared DeFife, Ph.D., at Psychology Today.

Forensic Psychologist posts, "DSM-V: Get ready, get set . . . here it comes!"

Related posts are in the mental illness index.

IQ at Issue in Long-Delayed Florida Trial

"IQ tests key in Palm Beach County trial that is longest delayed death penalty case in state," is the title of a report by Susan Spencer-Wendel in the Palm Beach Post.

His is one of the longest-running death penalty cases in Florida, experts recall.

D'Andre Bannister has sat in jail more than seven years awaiting trial, after being charged with first-degree murder in the death of his stepson, 4-year-old Tarquez Woodson, whom police say Bannister beat to death in August 2002.

Today, the attorneys and judge gathered again, this time to determine if Bannister is mentally retarded and thus ineligible to face the ultimate penalty. One factor under Florida law is having a general IQ score 70 or below.

Despite Bannister scoring an IQ of 72 some years ago, a newly available intelligence test given to him in 2008 gave his defense attorneys the magic IQ score of 69.

"It may have been a blessing in disguise this long passage of time," said defense attorney Ronald Chapman outside court, adding that the new intelligence test — the WAIS-IV — was not available previously.

Testimony of three doctors who evaluated Bannister did not conclude today. Circuit Judge John Hoy could not immediately identify a time he had available to continue testimony at a later date. Hoy has said he well set the case for trial this summer.

Under testing by a defense doctor, psychologist Harry Krop, Bannister scored a general IQ of 69 in 2008.

But under the same testing by a doctor tapped by prosecutors, Bannister scored an IQ of 78 in 2009, according to testimony .

And the protracted delay may have played a part in that as well, Krop testified.

For Bannister, being in a highly structured environment like the jail has likely increased his overall abilities, Krop said.

"To his credit, he has done a lot of things to try to improve himself during the eight years he has been incarcerated," Krop said.

The South Florida Sun-Sentinel carries a different version of Spencer-Wendel's report as, "IQ tests key in Florida's longest-delayed death case."

The case against Bannister languished because of procedural delays, distractions, changes in judges and personal events in the attorneys' lives.

And his defense attorneys, Chapman and Evelyn Ziegler, have been in no hurry to take his case to trial.

Testimony of three doctors who evaluated Bannister did not conclude Monday either, and Hoy could not immediately identify a time he had available to continue that testimony at a later date.

Hoy has said he will set the case for trial this summer.

Related posts are in the mental retardation index.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez. 

As I've pointed out before, mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Capital Costs an Issue in Panhandle

"Death penalty pursuit: cost vs. certainty," is the title of David Pittman's report in today's Amarillo Globe-News.

More prosecutors are deciding not to seek the death penalty in cases where it's an option, two local district attorneys said after two cases in which pursuing the ultimate punishment was an option.

"That's been the trend for probably the last decade and probably will continue to be a trend," Randall County Criminal District Attorney James Farren said.

Many prosecutors weigh the lack of certainty in securing a conviction against the high cost of litigation as reasons for not seeking the death penalty when available.

"The facts of the case are a tremendous factor in the decision on whether to pursue a death penalty or not," said Randall Sims, 47th district attorney. "You need to have a dead-bang cinch guilt-innocence case and one that you'll prove very easily the person on trial is the person who did it."

Sims decided not to seek the death penalty in the trial of Matthew Ray Watson that finished last week. Watson, 29, was on trial for causing the death of his 8-week-old daughter.

The Potter County jury found Watson guilty of reckless injury to a child but not capital murder, which prosecutors sought to try him for before jurors were asked to consider lesser charges. Watson received a 20-year sentence for the conviction.

Sims said he felt the decision to not seek the death penalty was proper since the Potter County jury elected for a lesser charge.

Prosecutors in Texas can seek the death penalty in a murder case if the victim is a peace officer or a child younger than 6 years old, or if the homicide involves multiple victims or occurred in the commission of another crime.

Farren called the capital murder trial of Levi King the "quintessential example" of why many district attorneys don't seek the death penalty.

Lynn Switzer, 31st district attorney, elected to pursue capital murder charges against King, who was accused of killing three members of a Pampa family Sept. 30, 2005.

King, who already was serving a life sentence in Missouri for murders there, was eligible for the death penalty in Texas. King pleaded guilty, but only 11 of the 12 jurors voted for the death penalty. He was sentenced to life in prison.

Switzer spent more than $750,000 - that was about 10 percent of Gray County's annual budget - to bring King to trial. The cost of the trial was one reason county commissioners were forced to raise taxes and withhold employee raises last year.

And:

In the re-sentencing trial of convicted killer Brent Ray Brewer last year, Farren said he devoted one-third of his staff to nothing but that case for six months.

"The rest of my staff had to pull all of the weight that we would have for half a year," Farren said.

Brewer was sentenced to death for a second time in August. A Randall County jury convicted Brewer in 1991 of capital murder and sentenced him to death. The U.S. Supreme Court overturned Brewer's sentence in April 2007, finding that the lower court didn't instruct the jury to consider his mental history.

Farren said many rural counties might bankrupt themselves if they try capital cases.

Said Sims: "How many experts are going to be involved, that, for the most part, is going to determine the cost of the trial."

David M. Green, 69th district attorney, has had three capital murder cases from Moore County in his 10 years in office. Green didn't seek the death penalty in the two cases he tried.

Earlier coverage of the King case is here; more on cost in Texas, here.  Related posts are in the cost index.

Shaken Baby Syndrome on Trial

"Shaken baby syndrome itself is put on trial in Fairfax court," is the title of Tom Jackman's report in today's Washington Post.

As a criminal trial in Fairfax County tries to determine who, or what, caused 4-month-old Noah Whitmer's brain hemorrhage, the debate over whether "shaken baby syndrome" exists has erupted into a national battle of the experts.

Most criminal trials focus on what the defendant did and didn't do. But in this case, the complicated matter of what's humanly possible is at center stage.

Already on the jury's plate:

Craig Futterman, a Fairfax pediatrician and president of the national Shaken Baby Alliance, testified that 50 Gs of force -- 50 times the force of gravity -- are required to shake an infant's brain and cause serious damage. Kirk L. Thibault, a biomechanical engineer from Philadelphia, responded for the defense that tests conducted with adult humans found that a very strong man could generate 20 Gs of force by shaking a crash-test dummy the size of a 6-month-old child.

Fairfax pediatrician William E. Hauda II said that Noah's bleeding brain was caused by rapid acceleration and deceleration and that there has "got to be rotation there to cause these injuries." But Georgetown University neurosurgeon Ronald H. Uscinski said brain scans showed that the infant's bleeding continued long after he had been hospitalized, when no trauma was occurring, and "this condition was not caused by shaking."

The trial of licensed day-care provider Trudy E. Muñoz Rueda, 45, recessed Thursday after four days of testimony. She is charged with felony child abuse and child endangerment and has already spent seven months in jail. The trial will resume Wednesday, and Muñoz Rueda is expected to testify that she never harmed Noah, as she told police on the day he collapsed in her arms.

But the next day, April 21, Muñoz allegedly told a Spanish-speaking social worker that "I imagine I shook him about three times, but I'm not sure." The defense claims the social worker misinterpreted the Spanish verb "sacudir," and that Munoz made the comment as she demonstrated holding Noah with one hand on his bottom and one hand on his back. That presumably would not generate enough force to inflict both a subdural hematoma on the brain and retinal hemorrhages in the eye, typically seen as indicators of shaken baby syndrome, the defense says.

Fairfax prosecutors anticipated the defense attack on the concept of shaken baby syndrome -- "There is no science," Uscinski testified -- and called its own phalanx of physicians.

Shaken Baby Syndrome is also an issue the controversial Texas case of Cathy Lynn Henderson, noted here.

Renee Feltz on Huffington Post

The former news director of Houston's KFPA, now based in New York, has just posted, "Texas Keeps Retarded Men on Death Row," at Huffington Post. It's an extended excerpt from her Texas Observer article, noted in the preceding post.

An excerpt from the Huffington Post:

The next psychologist to evaluate Plata was Texas prosecutors' favorite tester, George Denkowski of Fort Worth. Denkowski's career stretched back 30 years to when he directed a 15-bed group home for mildly retarded adolescent offenders in Houston, teaching them adaptive skills that would improve their behavior. He'd also been the chief psychologist at the Fort Worth State School, a 365-bed facility for people with all ranges of mental retardation. Since 1989 he'd been in private practice conducting psychological evaluations. Denkowski had also directed a national study of mentally retarded people in state prisons.

After the Atkins decision in 2002, Denkowski became the first choice for Texas prosecutors. He would ultimately testify in 29 cases--nearly two-thirds of such appeals in Texas to date. In one of the first cases he worked on, Denkowski found James Clark, a man accused of raping and killing two teenagers in Denton, mentally retarded. The state dismissed him after that finding and hired another expert who disagreed. Denkowski's opinion was presented by the defense to no avail, and Clark was executed.

In 29 cases, Denkowski has found defendants retarded only eight times. By 2006, when he tested Plata, Denkowski had garnered an "almost Dr. Death status" among defense lawyers, according to attorney Robert Morrow. Morrow represented Alfred DeWayne Brown during his 2004 trial for killing a clerk and a security guard at a Houston check-cashing store. Morrow said "Denkowski pretty much thought that if you had engaged in criminal behavior you were not retarded," Morrow says. Brown remains on Death Row.

The work was lucrative. Denkowski charged prosecutors hourly rates of $180 for evaluations, and $250 for court testimony. Most of the cases he worked on were in Harris County, which until 2009 pursued more death-penalty sentences than any other county in Texas. Between 2003 and 2009, Harris County paid him $303,084 for his services, according to the Harris County Auditor.

Cracked

That's the title of Renee Feltz must-read report in the newly redesigned Texas Observer.  It's subtitled, "Despite a U.S. Supreme Court ban, Texas has continued to send mentally retarded criminals to death row. Will a Mexican immigrant's case correct this injustice?"  Here's a brief excerpt from this in-depth report.

In 2002, six years after Daniel Plata landed on Death Row, the U.S. Supreme Court ruled in a case called Atkins v. Virginia that “executions of mentally retarded criminals are cruel and unusual.” Even though mentally disabled people can understand the difference between right and wrong, the court reasoned that they are less able to control impulsive behavior or learn from mistakes. The court supported its decision by pointing to bans on executing the mentally retarded in 17 states and in federal cases as “evolving standards of decency.”

Like most of the states that had already passed bans, the justices used a clinical definition to establish the level of mental retardation that would exempt Daryl Atkins, the Virginia defendant, from death: below-average intellectual abilities defined by an IQ score of 70 or below and “deficits in adaptive behavior” such as practical and social skills. Both of these limitations, the court ruled, had to be present before the age of 18.

But the court left it up to the states to choose their own definitions of mental retardation. Since 2002, eight more states have passed laws that use the clinical definition cited in Atkins. Texas is not one of them. With bipartisan support, the Texas Legislature passed a law in 2001 mandating a life sentence for mentally retarded people convicted of capital crimes. But Gov. Rick Perry vetoed the measure, agreeing with critics that it was a “backdoor attempt to ban the death penalty.” Bans on executing the mentally retarded have been floated in every legislative session since but have never again come up for a vote.

In 2004, a Texas death row inmate named Jose Briseño contended that he was mentally retarded and shouldn’t be executed for murdering a Dimmit County sheriff. In the absence of legislative guidelines, the Texas Court of Criminal Appeals wrote “temporary judicial guidelines” that have guided Texas courts ever since. In its Briseño decision, the court called clinical definitions of mental retardation, like those used by the U.S. Supreme Court, “exceedingly subjective.” Texas added its own set of additional criteria in the form of seven questions, including: “Did the commission of that offense require forethought, planning and complex execution of purpose?” If a defendant didn’t address these questions to the court’s satisfaction, he could be eligible for execution even if his test scores showed he was mentally disabled.

Most of Texas’ questions emphasize the events of a crime in deciding whether a defendant meets a legal definition of mental retardation. “I think much of that emphasis is inappropriate because it embodies the stereotype of mentally retarded people as unable to do anything,” says Sheri Lynn Johnson, a professor at Cornell Law School and co-director of its Death Penalty Project. In Texas, under the Briseño standard, if you’re capable of committing a murder, it’s difficult to establish that you’re also mentally retarded. 

In other states, evidence of mental retardation is heard in pretrial hearings that decide whether a person is even eligible for a death sentence. In Texas, prosecutors have fought successfully to hold off evidence of mental retardation to the penalty phase of a trial, meaning that jurors consider it only after they have convicted a defendant of murder. Keith Hampton, legislative director of the Texas Criminal Defense Lawyers Association, says “the gamesmanship is this: I can make you hate this guy so much that you won’t care if he’s mentally retarded.”

Earlier reporting by Feltz on this topic is noted in this post.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

Mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, we continue to use the older term.

In Kansas

It's hard to believe that this could happen less than five years ago -- an attorney in a death penalty case who hired no experts.  The Supreme Court's 2003 ruling in Wiggins v. Smith was limited to social history and mitigation, but should have been a clear signal to the trial judge that the case was headed for trouble ahead.

Steve Fry reports, "No experts sought in death case," for the Topeka Capital-Journal of Kansas.

The attorney representing death penalty defendant Phillip D. Cheatham had never handled a death penalty case before Cheatham and didn't get funds to obtain expert services in the Cheatham case, according to testimony Monday.

The testimony surfaced during a hearing to determine whether defense attorney Dennis Hawver gave ineffective assistance of counsel to Cheatham, 36, who was sentenced to death in 2005 for the Dec. 13, 2003, slaying of Annette Roberson, and 50 years in the slaying of Gloria Jones. A third woman, Annetta Thomas, survived and testified against Cheatham at trial.

If Shawnee County District Court Judge Mark Braun rules Hawver gave ineffective assisance of counsel to Cheatham, the judge then must decide whether Cheatham will get another trial.

Cheatham was eligible to receive funding from the Board of Indigent Defense Services to pay for an investigator and a mitigation specialist, and to administer a psychological evaluation and an IQ test, said, Patricia Scalia, executive director of BIDS. Scalia called Hawver, who told her he wasn't appointed to represent Cheatham and wasn't hired by Cheatham. BIDS would have paid Hawver for Cheatham's defense.

After Scalia's call to Hawver, he never called back Scalia.

Hawver didn't contact BIDS in the first place, which was "very unusual," Scalia said. Hawver wasn't trained or qualified to represent Cheatham in a death penalty case, Scalia said.

And:

Charles Rogers, a death penalty defense expert, said Hawver erred when he painted his client as a "murdering drug dealer," which isn't a reasonable defense. Hawver told prospective jurors his client sold cocaine for a living and had killed another drug dealer Sept. 7, 1994, in Wyandotte County and pleaded guilty to voluntary manslaughter.

Rogers, who has defended clients in about 50 murder cases, including 10 capital cases, said an investigator should have tracked down the brother of Cheatham who could provide an alibi on the defendant's whereabouts at the time of the killings; traced cell phone records to pin down whether Cheatham was en route to Chicago when the women were killed; and obtained statements from defense witnesses.

Lab Analyst Decision Complicates Prosecutions

That's the title of a report in today's Washington Post on the aftermath of the Supreme Court's ruling in  Melendez-Diaz v. Massachusetts, last month.  Subitled, "High Court Requires Scientists to Testify," it's written by Tom Jackman.

The predictions are dire. In New York, murderers could walk free. In Fairfax County, drunken driving cases could be dismissed. And nationwide, thousands of drug cases might have to be thrown out of court annually.

Legal experts and prosecutors are concerned about the results of last month's U.S. Supreme Court ruling that requires lab analysts to be in court to testify about their tests. Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect's blood-alcohol level are no longer sufficient evidence, the court ruled. A person must be in court to talk about the test results.

The opinion, written by Justice Antonin Scalia, has prosecutors and judges shaking their heads in disgust and defense lawyers nodding with satisfaction at the notion that the Constitution's Sixth Amendment guarantee that defendants "shall enjoy the right . . . to be confronted with the witnesses against him" is not satisfied by a sheet of paper.

"This is the biggest case for the defense since Miranda," said Fairfax defense lawyer Paul L. McGlone, referring to the Supreme Court ruling that required police to inform defendants of their Fifth Amendment right against self-incrimination. He said judges "are no longer going to assume certain facts are true without requiring the prosecution to actually put on their evidence."

Four drunken driving cases in Fairfax and at least one in Prince William County have been thrown out by judges after defense attorneys used the new ruling to challenge the prosecution's evidence.

States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.

And:

The court might be looking to blunt the impact. It has agreed to hear an Alexandria case that could provide prosecutors with an escape hatch from the requirement of bringing lab analysts to court. The court will rule on whether Virginia's law requiring the defense to provide advance notice when it wants the lab analyst to testify is constitutional. But a ruling on that case probably will not come until next year, and many lawyers believe Virginia's law is deficient.

Last month's Supreme Court ruling emerged from a case in which Luis E. Melendez-Diaz allegedly stashed cocaine in a Boston police car while he was under arrest. The certificate of analysis, determining that the white powder found in the car was cocaine, was entered without a technician's testimony and with only minor objection.

Scalia wrote that Melendez-Diaz "was entitled to 'be confronted with' the [lab] analysts at trial."

The ruling was 5 to 4, and the dissent written by Justice Anthony M. Kennedy predicted a real-world disaster. "The Court threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal . . . when a particular laboratory technician . . . simply does not or cannot appear," Kennedy wrote.

Kennedy added, "Guilty defendants will go free, on the most technical grounds, as a direct result of today's decision, adding nothing to the truth-finding process."

In Manhattan, a unique situation in the medical examiner's office could result in disaster for homicide cases, Chief Assistant District Attorney Mark Dwyer said. The personnel turnover in the medical examiner's office is so great that the pathologist who performs an autopsy on a victim often is not still employed there 18 months later, when the case goes to trial. So the accepted practice in courts has been to admit the autopsy report without any testimony by the person who determined the cause of death, Dwyer said.

In addition, New York's DNA lab uses an assembly line approach in which as many as 12 people have roles in breaking down and analyzing a piece of evidence for traces of DNA, Dwyer said. "We would be extremely concerned if the [Melendez] issue extended into DNA analysis and autopsy reports," he said. "That would have a major and negative impact on the ability to process serious cases."

Earlier coverage of Melendez-Diaz begins here.  Briscoe, et al., v. Virginia will be argued in the Supreme Court's 2009-2010 term which begins in October.