There is no medical science more squishy than psychiatry/psycho
logytherapy. This isn’t to say that psych impairment isn’t real, or that psychiatrists and psycho logiststherapists aren’t effective in treating it, whether by drugs or therapy, but that it sucks at drawing clear lines. Yet, judges have tried to create lines where none exist forever when it comes to who gets to live and die based upon what’s happening in people’s minds.
Texas was six days off from killing a guy, Jeff Wood, who never killed anyone. His conviction was based on the theory of prosecution of felony murder. It’s an old doctrine, even though most people know nothing about it. What was new was that Wood was the first person to be sentenced to death for it. His execution was stayed by the Texas Court of Criminal Appeals to consider whether the death jury was “improperly” influenced by psychiatrist James Grigson.
Nicknamed “Dr. Death” for his willingness to testify against capital murder defendants, Grigson was a witness in hundreds of death penalty cases. His pleasant manner, down-to-earth vocabulary and air of certainty helped persuade juries that the defendant — just about every defendant — would kill again if given the chance. That Grigson often had not met with the defendant did not deter him from forming an opinion about him and defending it to the hilt.
Grigson was a killer witness, and, even though he died at 72, Texas courts are still dealing with the fallout. What made him so effective, which is why prosecutors used him, is that he knew how to play a jury and there wasn’t a defendant against whom he testified who didn’t need killin’. Prosecutors would use his combination of skills to do everything possible to assure the defendant would be sentenced to death.
Judges would allow it because he met the qualifications to testify as an expert, even if they knew (somewhere in the dark recesses of their mind) that his testimony was a sham, that he always reached the same conclusion, that he didn’t need to actually speak to a person to conclude that he needed killing. Such a conclusion is medically worthless, but that didn’t stop judges from letting him do the dirty anyway.
At Sidebar, Adam Liptak runs through some of the Texas Court of Appeals’ unhealthy relationship with psychology, relating to the Supreme Court’s half-assed Atkins v. Virginia decision, where it held it unconstitutional to execute a defendant who was mentally retarded* without providing a definition or test. Instead, they left it to states to draw their own lines as to who was too intellectually impaired to execute.
Texas had taken a curious, if well-intended, turn in crafting its own test:
Texas took a creative approach, adopting what one judge there later called “the Lennie standard.” That sounds like a reference to an august precedent, but it is not. The Lennie in question is Lennie Small, the dim, hulking farmhand in John Steinbeck’s “Of Mice and Men.”
The Lennie in question is fictional.
That Liptak knows his fiction books, just in case any New York Times readers were unfamiliar with Steinbeck.
Judge Cochran, who later said she had reread “all of Steinbeck” in the 1960s while living above Cannery Row in Monterey, Calif., listed seven factors that could spare someone like Lennie, whose rash killing of a young woman was seemingly accidental.
The “Lennie” test had one virtue. People loved Lennie and felt for him. If a real life defendant was sufficiently “Lennie,” then he didn’t need killing. That’s where Dr. Death came in, as nobody was sufficiently Lennie-like when he was done with them.
But now Grigson is dead and Bobby Moore, who everyone agrees has an average IQ of 70, which used to be the line of mental retardation before it was banned from the lexicon, is awaiting his turn to be executed. The Supreme Court has taken on his case to determine whether the Lennie rule might not be as good a line as “Of Mice and Men” was a book.
This fall, in Moore v. Texas, No. 15-797, the United States Supreme Court will consider whether the Court of Criminal Appeals, Texas’ highest court for criminal matters, went astray last year in upholding the death sentence of Bobby J. Moore based in part on outdated medical criteria and in part on the Lennie standard.
Aside from Texas Attorney General Ken Paxton, there’s little support for using a seven-prong test divined from a fiction book as a clinical standard for execution. Even Steinbeck’s son says it’s [ableist slur], and that his father would be “deeply angry and ashamed” to see his work used this way. Not that Steinbeck would have gotten a vote.
While defending the Lennie test, Paxton would just as soon get shrinks out of the middle altogether.
He also urged the Supreme Court to let judges and juries, rather than medical professionals, decide who should be spared the death penalty.
After all, who knows who needs killin’ better than 12 death qualified jurors? The Supreme Court will face a difficult, probably insurmountable problem, if it does more than decide that Texas can’t put people to death because they don’t sufficiently align with a fictional book character. There is still the hole they left when they decided Atkins, and again when they decided Hall v. Florida, holding Florida’s test unconstitutionally restrictive without saying what would be constitutionally adequate.
The problem is that the Supreme Court has hitched its wagon to medical science, which was an easy out at the time, but a punt. Shrinks don’t have an actual solution to the question of who is too mentally retarded to be executed because they’re all squishy. It’s really not their fault, as their needs for diagnosis and treatment don’t require a line so bright, so simple, that even a judge can find it. Shrinks aren’t in the killing business, so don’t blame them for not agreeing where the life and death line should be.
Worse yet, all the prosecution needs is one really good, folksy, persuasive witness like Dr. Death, who can get jurors to fry their own children. Sure, Grigson is gone, but that leaves an opening for any psychologist who wants to make a fortune in expert witness fees.
And regardless of the test to be determined by the Supremes, as long as it’s squishy, it will only take one really killer expert witness willing to testify that the defendant needs killin’ to convince a jury to do its duty and impose a sentence of death.
*Poor Liptak, stuck with the words “mentally retarded” at a time when they are no longer acceptable for use, includes the explanatory note, “in the language of the day.” That was 2002.