Texas: Psychologist Who Cleared Death Row Inmates Is Reprimanded

A psychologist who examined 14 inmates who are now on Texas’ death row — and 2 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.

Jennifer Andrews, Dr. Denkowski’s lawyer, said her client vigorously denied that he violated any psychology board rules. Part of the problem, Ms. Andrews said, is that the board has not promulgated specific rules for conducting forensic evaluations for cases involving mentally handicapped individuals.

“Psychologists are left to use their best clinical judgment, which Dr. Denkowski used,” she said.

In 2007, Mark Ellis, a state district judge, concluded in the case of the death row inmate Daniel Plata that Dr. Denkowski’s methods did not align with accepted psychological practices and ethical guidelines. Judge Ellis threw out the 2005 evaluation by Dr. Denkowski, saying it“must be disregarded due to fatal errors in ... administration and scoring."

Mr. Plata’s sentence was commuted to life in 2008, and he is now at the Hodge Unit with other similarly disabled prisoners.

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.

The United States Court of Appeals for the Fifth Circuit has stayed Mr. Butler’s execution pending the outcome of the complaint against Dr. Denkowski.

A clause in the settlement asserts that the agreement cannot be cited in capital punishment appeals, but Mr. Burr said he plans to use it — and Dr. Denkowski’s agreement not to conduct forensic evaluations again — to argue that Mr. Butler should be re-evaluated to ensure that Texas does not execute a mentally handicapped man.

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."

Source: The New York Times, April 14, 2011

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