Death? Life without parole? How about a promise to never do it again and a fine. From the Texas Tribune :
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 attorneys as unscientific. Denkowksi 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.
Denkowski was the prosecution version of Dr. Death, testifying against 14 defendants who faced execution, two of whom have since been put to death, by concluding that they were intellectually competent to be killed. What made Denkowski such a favored witness?
“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.”
In other words, he just made up his own rules for determining that a defendant was intellectually suited for death, since the Supreme Court’s Atkins v. Virginia decision held that executing the mentally retarded violated the 8th Amendment’s prohibition of cruel and unusual punishment.
It’s bad enough that convictions have been, are still being and are likely to continue to be obtained based on widely accepted, and completely unproven, pseudo-science. But that prosecutors and judges allowed a psychologist to testify such that mentally retarded defendants could be sentenced to death is unfathomable. Fortunately, not every judge before whom Denkowski appeared was brain dead.
In 2007, state District Judge Mark Ellis concluded in the case of death row inmate Daniel Plata that Denkowski’s methods did not align with accepted psychological practices and ethical guidelines. Ellis threw out the 2005 evaluation Denkowksi conducted, writing that it “must be disregarded due to fatal errors in … administration and scoring.” Plata’s sentence was commuted to life in 2008, and he is now at the Hodge Unit with other developmentally disabled prisoners.
Granted, it may be a stretch to call Denkowski a murderer, despite the fact that his contribution was critical in the deaths of two intellectually incompetent human beings. After all, Denkowski just did as the prosecution asked of him, another laboring oar on the government’s boat of death. Why single him out?
The problem raised by Denkowski’s testimony is that it demonstrated a monumental gap in not one, but three, levels of scrutiny. As a psychologist, his groundless testimony should have caused his own professional policing agency, the Texas State Board of Examiners of Psychologists, to pull his license. As a witness, the prosecuting attorneys who proffered this charlatan for the purpose of circumventing the Atkins prohibition should have been disbarred. And as an expert witness, the judges who accepted his qualifications to opine on behalf of the prosecution should have been thrown off the bench.
One might suspect, these being capital cases, that the intense scrutiny to assure that defendants were not wrongfully sentenced to death would prevent this from happening. Instead, Denkowski testified as a license psychologist on behalf of the prosecution as an expert witness, and two human beings are dead as a result.
If you think Denkowski got away with it too easy, consider what happened to the prosecutors and judges who were similarly complicit in the death sentences of 14, and executions of 2, relying on the testimony of George Denkowski. And they are still fighting to keep defendants against whom Denkowski testified on death row.
State Sen. Rodney Ellis, D-Houston, chairman of the Innocence Project board and a member of the Criminal Justice Committee, said every case involving 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,” he said, “especially on the word of someone who is no longer permitted to make these kinds of determinations.”
Is it possible that life is so cheap that review of defendants sentenced to death on the word of this charlatan’s can even be in question? If only they had the opportunity to pay a $5500 fine, like Dr. Denkowski.
H/T Pogo Was Right
Well, this is Texas you’re talking about. In Texas, defense counsel sleeping off a liquid lunch does not constitute ineffective assistance. [Burdine v. Johnson, 231 F.3d 950]
I’m glad you blogged about this matter, Scott. As a non-lawyer but licensed psychologist, I am all-too-frequently appalled at what gets done, or not done, in the name of my profession.
What I don’t understand, in terms of the gaps you mention, is how this stuff got accepted by courts. Did the CDA’s not challenge the methodology under the Daubert standard (if I’m referring to the right standard), or was it challenged and the challenge failed?
And no, I’m not putting sole responsibility or blame on CDA’s or PD’s. Nor will I put it all on prosecutors, although they clearly have their share of blame to shoulder. I want state psych. boards to open more investigations sua sponte and to remember that they are there to protect the public – not licensed professionals.
There’s fault enough for everyone here. Everyone.
Referring to Denkowski as a “murderer” is reckless, pure and simple. You would never dream of labeling anyone with that moniker but for enjoying the cozy confines within your office. In all fairness and accuracy, you should withdraw the label. Secondly, as to the correspondent “andrews,” your comment that a lawyer “sleeping off a liquid lunch” does not equate to ineffective assistance of counsel is dead wrong. And, you have the incorrect cite to the Fifth Circuit. Try reading Burdine v. Johnson, 262 F.3d 336. Your collective ignorance of Texas law is embarassing, really.
What part of that refers tp Denkowski as a murder? But I guess that by Denkowski’s methods, you wouldn’t be considered intellectually challenged.
If you’re gonna throw stones, Warren, don’t be a moron in the process.
You referred to Denkowski as a murderer in the title to your blog entry. That’s the “part” that refers to Denkowski as a murderer. I shouldn’t need to point this out to you. Denkowski’s opinions were just that – opinions and the juries were free to accept or reject them. In my trial experience, juries normally reach the right result, regardless of questionable opinion testimony. Again, as someone who represents himself as an experienced trial advocate, you should know that. Tell me, is name-calling your idea of responding to those who may not agree with your opinions and thoughts? This is hardly a winning technique. So, if you agree, as it appears, that calling the man a “murderer” is a stretch, why not do the right thing and amend the title of your entry? That’s not asking much in the name of journalistic integrity – or is it?
And Denkowski’s name appears where in the title? I get a lot of comments here, many are stupid. My job isn’t to coddle morons with either can’t think or can’t read. And no, we don’t change things for everyone who drops by one day and thinks I ought to change what I’ve written because the world revolves around their odd sensibility. I get a lot of that too.
Oops, almost forgot (since it was major point of the post anyway) that Denkowski was admitted as an expert to proffer an opinion, which would have to pass either Daubert or Frye, but he had no scientific basis for his opinion and, therefore, should never have been used, called, accepted or allowed to testify to his fabricated expert opinion. So no, his “opinions” were not just that. They were allowed as expert opinions, and he was no expert.
Funny how you care so much about Denkowski rather than the people who were put to death on his phony expert opinion. And you want to talk about integrity?