Psychologist Who Cleared Death Row Inmates Is Reprimanded

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http://www.nytimes.com/2011/04/15/us/15ttpsychologist.html?_r=3 & partner=rss & emc=rss

The Texas Tribune

Psychologist Who Cleared Death Row

Inmates Is Reprimanded

Texas Department of Criminal Justice

The death row inmates evaluated by Dr.

Denkowski included, from left to right, ,

Matamoros, Coy Wesbrook and . Mr. was

executed.

By BRANDI GRISSOM

Published: April 14, 2011

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. 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 , 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 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.

s, Dr. Denkowski’s lawyer, said her client

vigorously denied that he violated any psychology board rules.

Part of the problem, Ms. s 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 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 , who was convicted in

the killing of a store clerk, Dr. Denkowski rejected other

I.Q. test scores that indicated Mr. was well below

average intelligence. He discounted behavioral evaluations

from Mr. ’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. ’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. 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.”

Expanded coverage of Texas is produced by The Texas Tribune,

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this article, go to texastribune.org.

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