That's the title of an editorial from the Sunday Houston Chronicle on the cases forensic psychologist George Denkowski worked on for Harris County. It's subtitled, "Death row inmates, qualified for execution by discredited psychologist, deserve review."
In 2002, the U.S. Supreme Court came to the just decision that prisoners who are mentally incompetent cannot be executed for their crimes. But Texas prosecutors found an ally in Fort Worth psychologist Dr. George Denkowski, who could generally be trusted to find defendants mentally qualified to be executed.
In the past several years, he evaluated 27 Harris County inmates, the majority of whom he found death-penalty eligible. Of those, 13 are still on death row, one is in the county jail pending a punishment-phase retrial, and one has been executed.
His methodology has raised numerous complaints both locally and nationally: He used a system of scoring that critics claimed artificially inflated IQ and adaptive behavior scores so as to qualify defendants for the death penalty. He said, in a 2008 article, that traditional tests ignored social and cultural factors, so that a lack of basic skills could come from an impoverished environment rather than diminished mental capacity. (The 2010 manual of the American Association on Intellectual and Developmental Disabilities strongly urged caution in using Denkowski's methodology until it could be "firmly supported by empirical evidence.")
Finally, last month, the state Board of Examiners of Psychologists reprimanded Denkowski, fined him $5,500, banned him from performing such evaluations in the future, and dismissed all the complaints against him.
Among the many complaints, reported the Texas Tribune, was one in 2007, when a state district judge threw out Denkowski's evaluation of death row inmate Daniel Plata, saying that it "must be disregarded due to fatal errors in … administration and scoring." In 2006, Denkowski rejected several test scores on another death row inmate, Steven Butler, that indicated he was well below average intelligence, and discounted examples of his limited intellect from family and friends.
But even more dismaying than Denkowski's testing methods is that the state board settlement stipulates that the agreement cannot be used in death penalty appeals.
So while Denkowski has been discredited and barred from testifying in such cases ever again, the men he has succeeded in keeping on death row — many of whose appeals have been on hold - could be procedurally barred from pursuing appeals unless legislative action is taken.
Several attorneys say that, even so, they will attempt reviews of those cases. That's exactly what should happen, says Democratic state Sen. Rodney Ellis, who serves on the Criminal Justice Committee and chairs the Innocence Project board.
And:
It is almost a decade since the U.S. Supreme Court barred execution of the mentally impaired, yet that could be what we are facing in Texas unless our legislators and our courts take action to enable review of these cases.
We strongly urge them to do so.
This morning's Chronicle has fresh reporting on the topic by Mike Tolson, "Retardation issue set for 2nd round in courts."
Some called him Dr. Death, a latter-day incarnation of a psychologist who a generation earlier earned the title by repeatedly testifying for the state in death penalty cases.
Whether Fort Worth psychologist George Denkowski deserved the dubious honorific can be debated, as his work was not always friendly to the prosecutors who hired him. But no one doubts that he had an impact. When the state's capital punishment machinery was thrown into disarray by a U.S. Supreme Court decision banning execution of the mentally retarded, Denkowski was willing to help restore order. By the time he was done — albeit discredited, scorned by peers in his field and reprimanded by a state licensing board — more than a dozen men were kept on or sent to death row and his bank account was significantly fatter, $300,000 to the good for his work in Harris County alone.
Now courts are being asked to sift once again through claims of retardation, as attorneys for the condemned whom Denkowski evaluated for the state insist they should get a second chance because of his invalid approach to intelligence testing.
"These cases need to be reviewed," said Kathryn Kase, a senior attorney with the Texas Defender Service who has been tracking Denkowski's work for years. "This is akin to the DNA coming back negative and seeing that the (Houston Police Department) crime lab was doing a shoddy job. Now that we found out about the problem, we should do something about it."
Whether anything would turn out different the second time around is questionable. Appeals courts are obliged by law to give deference to the original finding, which puts defendants behind the 8-ball to begin with. And the inmates at the center of the dispute live in a legal twilight zone of borderline retardation. Their degree of impairment is an inherently squishy matter. Who meets the criteria and who doesn't varies from test to test and expert to expert, with even credible experts disagreeing and judges or jurors left to sort through complicated testimony.
Still, the lawyers who handle death row appeals want another shot, even if it's a long shot.
"Neither the state nor the trial judges appreciated how off Dr. Denkowski's testimony was," said Patrick McCann, who represents Calvin Hunter. Denkowski revised Hunter's tests upward, in part because Hunter was in handcuffs and could not answer questions quickly enough.
And:
Veteran defense lawyer Stanley Schneider is still stung by the rebuffed appeal of his client, John Matamoros, who murdered Edward George Goebel during a 1990 burglary of his home. He called Matamoros an ideal candidate for Atkins relief - evidence painted him as a dysfunctional, intellectually challenged man who failed academically from his earliest days, was endlessly teased for being "dumb" by classmates as a youth, never made it to high school, showed such poor personal hygiene that for many years he required help bathing and cleaning up after going to the bathroom, and came from a family with many mentally challenged members.
Easily manipulated by others and seeking approval through criminal acts like stealing cars, Matamoros got into trouble with the law as a teenager and never stopped. He was diagnosed as mildly mentally retarded at 14 by a psychologist hired by juvenile authorities.
Enter Denkowski, who said the old 1977 retardation finding was invalid because the testing did not include a battery of tests of "adaptive behavior" that are now standard protocol. He said bilingualism in the home could have improperly suppressed intelligence scores, despite ample evidence that English was spoken mostly at home and exclusively in school. And he said other doctors did not properly adjust their findings to "give credit for anti-social behaviors which he executed successfully" - a reference to his ability to steal cars and drive them home.
Denkowski testified that the IQ tests that showed Matamoros' academic skills stalled at a second-grade level were simply too low to be believed.
"Because of Denkowski, Matamoros may die," Schneider said. "Three psychologists looked at him post-Atkins and said he was mentally retarded. A doctor who tested him when he was 14 said he was mentally retarded. On the other side is Denkowski.“
Prosecutors turned to Denkowski and other experts not only to criticize those tests but to use a defendant's performance of so-called adaptive behaviors - how a person functions and comes across in many aspects of daily life - to push him across the nebulous threshold of mild retardation into the realm of slow but normal. Sometimes, of course, that's a distinction without practical difference. As Benjet and countless experts in the field of intellectual impairment point out, there is nothing obvious that distinguishes those labeled mildly retarded from those of similar intellect who are not.
"Is there a real difference between someone with an IQ of 67 and one who is at 71? No," said Bryce Benjet. a former appellate specialist who was involved extensively in Atkins litigation before turning to civil practice. "This issue stresses the criminal justice system in a way that other issues don't. In no other instance is there a legal standard that is a medical diagnosis."
Earlier coverage of the Denkowski sanction begins at the link. 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 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.
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