Retardation issue set for 2nd round in courts

By MIKE TOLSON
HOUSTON CHRONICLE

May 8, 2011

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.

Denkowski did not respond to calls seeking comment. His attorney has repeatedly stated that he did nothing improper and that the conflict with the board and other psychologists arose because of the lack of standard protocols for forensic evaluations of mentally handicapped people.

A small fine

Denkowski's settlement with the state licensing board included a small fine and the agreement to stop evaluating capital murder defendants. Though he did not admit to wrongdoing, the agreement still thrilled defense lawyers who had complained long and loudly that he was a peddler of junk science used by prosecutors to circumvent the 2002 decision in Atkins vs. Virginia, in which a court majority decided that executing the retarded violated the Eighth Amendment prohibition of cruel and unusual punishment.

The Harris County District Attorney's office said that "in anticipation of potential writ filings" it already is revisiting its eight cases in which Denkowski concluded that the defendant was not mentally retarded. Four others were reversed recently for other reasons.

"We remain committed to both the pursuit of justice and the safety of our citizens," said John Barnhill, head of the DA's general counsel office.

Specifically, the office's appellate lawyers will be looking to see what evidence there is besides Denkowski's opinions, which typically adjusted intelligence testing scores higher because of what he claimed was their failure to account for cultural factors and extreme poverty. Roe Wilson, who is in charge of appellate division, expressed confidence that the death sentences will withstand scrutiny even if Denkowski's opinions are tossed out.

"Each of these cases has to be looked at individually," Wilson said. "In just about all of them, we have a lot of other evidence that they are not mentally retarded."

Defense lawyers are skeptical that the office will back down on any of its death sentences. They also fear that neither the reprimand nor the denunciation of Denkowski's methods by the psychological testing establishment will be enough to persuade appeals courts to step in.

An ideal candidate

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."

Post-Atkins rush

The Supreme Court did not define retardation, nor did it dictate to the states the procedure they should use for determining it. The Texas Legislature mostly ducked the question, leaving it to the Court of Criminal Appeals to lay down the rules, which it quickly did in a test case as the post-Atkins rush got under way. Its decision followed the high court's embrace of a three-pronged approach - intelligence tests, at least two "deficits" in adaptive behavior and proof of a retardation diagnosis before the age of 18 - but also allowed for many other non-scientific factors to be considered.

Although mental retardation is a medical diagnosis, the Atkins decision and the Texas application of it invited courts to give plenty of weight to testimony by non-medical witnesses about how a defendant acted and appeared in daily life. Even the crime itself was fair game to use as evidence that the defendant had to be smarter than he claimed, a common refrain among prosecutors.

"The playbook hasn't changed," Kase said. "Atkins came down in 2002. Basically the DA keeps saying this crime is too sophisticated for a (retarded person) to do it."

Judge agreed with appeal

In the end, it may be that only one death row occupant, Daniel Plata, was able to defeat Denkowski on an Atkins appeal. Condemned for the 1995 murder of a convenience store clerk, Plata reaped the benefit of a judge who not only seriously considered the challenge his lawyers made to Denkowski's habit of tweaking test score results, but agreed with it.

"It is not generally accepted practice within the field of psychological assessment to obtain an IQ score, declare it invalid and then estimate an IQ score with numbers," said the findings of fact signed by State District Court Judge Mark Kent Ellis in 2008. "The procedures utilized by Dr. Denkowski have not been subjected to peer review and no publications support this practice."

At the time, Ellis' ruling did not impress Wilson of the DA's office. She stood by her man, calling Denkowski "a credible, good expert." Though subsequent events challenged her assertion, Wilson may yet prove to have the last word. She insisted that the finding was but one "isolated case in one particular trial court."

For the record, Wilson is still not swayed by the state board's censure of Denkowski or the defense bar's reaction to it.

"I think they want to blow it up into something bigger than it is," she said.