Two major competency cases in court

Self-representation and execution at issue

• Should a higher level of competency be required for being one's own lawyer than for standing trial with a real lawyer?

• How competent must someone be in order for the state to kill him?

Those two issues were in court yesterday in separate but somewhat related cases, one before the U.S. Supreme Court and the other in a widely awaited Texas appellate court ruling.

Competency to represent oneself

Although it was eclipsed by the OJ trial happening at the same time in Los Angeles, some readers may recall the farcical spectacle of Colin Ferguson's trial. Ferguson was the delusional man who opened fire on the Long Island Railroad, killing six people and wounding 19 more. After firing his prominent attorneys, he represented himself and presented a bizarre, delusionally based defense. He was found guilty, naturally, and received six consecutive life terms.

The Ferguson spectacle was enabled by the high court's 1993 opinion in Godinez v. Moran. Tom Moran was a severely depressed, suicidal defendant who waived the right to an attorney in a double murder case, pled guilty without presenting any evidence, and was promptly sentenced to die. The Supreme Court held that the same low standard of competency exists for all criminal proceedings.

Proponents of allowing mentally ill defendants to represent themselves despite questionable understanding and judgment cite the Sixth Amendment's right to self-representation. Legal scholar Michael Perlin, who just published an excellent book on competency, calls this argument a "pretextual" rationalization.

The competing positions were at the forefront of oral arguments before the U.S. Supreme Court yesterday in the case of Indiana v. Edwards. The case involves Ahmad Edwards, a schizophrenic man whom a trial judge ruled was competent to stand trial for a robbery-shooting but incompetent to represent himself.

The state of Indiana argued before the high court yesterday that allowing states to set their own, higher standards for self-representation ensures both fairness for accused individuals and the dignity of the courts.

Edwards' attorney countered that "the expressed premise of the Sixth Amendment and of our adversarial system generally is that the defense belongs to the accused and not to the state."

The high court justices were divided along predictable lines. Justice Stephen Breyer and Anthony Kennedy seemed concerned about people ending up in prison because they were too disturbed to represent their best interests at trial. But Justice Antonin Scalia said that's just too bad for them – if a defendant makes a poor choice, it is "his own fault."

A ruling is expected within the next few months.

Competency to be executed

The legal standard is much lower for competency to be executed. If you've got a basic understanding that you committed a crime and the state is going to kill you for it, you're good to go (to the Pearly Gates, that is).

That's the "Ford standard" set in the 1986 case of Ford vs. Wainwright, in which the Supreme Court ruled that executing a person who is severely mentally ill constitutes cruel and unusual punishment.

Last year, the highly polarized Supreme Court declined to clarify the somewhat vague Ford standard, issuing a 5-4 opinion on narrow procedural grounds in the closely watched Panetti v. Quarterman case (see my previous blog posts here and here; the opinion is here).

Yesterday, a Texas court responded by affirming convicted killer Scott Panetti's competence to die. Indeed, said the U.S. District Court for the Western District of Texas, "if any mentally ill person is competent to be executed for his crimes, this record establishes it is Scott Panetti."

Panetti, who killed his estranged wife's parents, was found competent to stand trial after two jury trials on that issue. Unlike Ahmad Ewards, he was allowed to represent himself at his 1995 murder trial despite being floridly psychotic and delusional - and he's been regretting it ever since. During his trial, he rambled insanely and tried to subpoena Jesus Christ, John F. Kennedy, and other dead people.

"The record of Panetti's competency hearings and trial is not pretty," the appellate court conceded. "For better or worse, however, the issues of Panetti's competence to stand trial and his insanity defense have been tried, appealed, reviewed in state and federal habeas proceedings, and conclusively put to rest. Panetti is not permitted to relitigate these arguments in his proceedings under Ford."

The court’s 62-page opinion is interesting reading. It reviews the facts of the case, the exhaustive history of appeals, and the expert witness testimony of numerous well-regarded forensic experts called by both sides. The case even involved expert testimony by a forensic psychiatrist and neurologist, Dr. Priscilla Ray, on the science behind competency opinions, that is, "the extent to which psychiatric science can assist the Court in assessing competence to be executed, particularly with regard to the concept of rational understanding."

In discussing Panetti's "rational understanding" of his situation, the court also contemplated evidence suggesting that Panetti was exaggerating his schizophrenic disorder to avoid the needle. Yesterday's opinion cited the results of widely used tests of malingering, including the Structured Inventory of Reported Symptoms (SIRS) and Green's Word Memory Test (WMT).

At the end of the day, after reviewing all of the evidence, the Court held:

"Panetti is seriously mentally ill…. While the extent to which Panetti has been manipulating or exaggerating his symptoms is unclear, it is not seriously disputable that Panetti suffers from paranoid delusions of some type… However, it is equally apparent … that [his] delusions do not prevent him from having both a factual and rational understanding that he committed [the] murders, was tried and convicted, and is sentenced to die for them…. Panetti was mentally ill when he committed his crime and continues to be mentally ill today. However, he has both a factual and rational understanding of his crime, his impending death, and the causal retributive connection between the two."

The ruling can be found HERE. National Public Radio has coverage and commentary here. A 28-minute video, "Executing the Insane: The Case of Scott Panetti," is available here. An essay by Yale scholar Steven Erickson entitled "Minding Moral Responsibility," which discusses the Panetti case, is available here. The Indianapolis Star has more coverage of Indiana v. Edwards.

Hat tip: Steven Erickson

Too ill to die?

Scott Panetti thinks Texas wants to kill him because it is in cahoots with the devil. The devil, he theorizes, wants to stop him from preaching the gospel to his fellow prisoners.

Panetti has a severe mental disorder. He had been hospitalized more than a dozen times before he killed his estranged wife’s parents back in 1992.

No one doubts that he is crazy (although the prosecution claims he is exaggerating). At his trial, he fired his attorney and represented himself. He flipped a coin to decide on whether to keep a potential juror on his panel. Wearing a purple cowboy suit and mimicking a John Wayne character called the Ringo Kid, he blamed the shootings on another personality named “Sarge.” As evidence, he tried to subpoena Jesus Christ, the Pope, and John F. Kennedy.

Now, the U.S. Supreme Court is set to decide whether he is too ill to execute.

In the 1986 case of Ford vs. Wainwright, the Supreme Court held that executing a person who is severely mentally ill constitutes cruel and unusual punishment, banned by the Eighth Amendment. The legal standard, known as the “Ford standard,” is whether a person is so insane that he cannot understand the link between his crime and the punishment.

But the Ford case did not give a precise definition of what constitutes competence for execution. Is a mere factual understanding enough? Or should the prisoner have a “rational” understanding of why he is going to be executed? That is the issue in Panetti's case.

The state argues that it is sufficient for Panetti to realize that he committed the murders and that he is being put to death. It is irrelevant that he thinks he is being executed for preaching the Bible.

Panetti's lawyers counter that a Constitutional execution requires more than this simple knowledge. The defendant should appreciate that the execution is society’s retribution for his crime. Panetti, living in a delusional world, cannot make that connection.

The American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness agree with Panetti's counsel. They have filed a joint petition arguing that people such as Panetti should not be executed because they “cannot rationally understand the reasons for their execution."

The highly polarized Supreme Court may sidestep this complex question on procedural grounds by asserting that Panetti’s appeals were exhausted. A decision is expected by July.

Supreme Court Blocks Execution of Psychotic Man

In a widely awaited ruling, the U.S. Supreme Court ruled 5-4 today that Texas cannot execute schizophrenic killer Scott Panetti.

The highly polarized court sidestepped the controversial issue of the Constitutionality of executing the mentally ill. Rather, the decision barred Panetti's execution because he was not allowed to submit evidence of his psychiatric disorder at the state court level.

Panetti, who killed his estranged wife’s parents, was found competent to stand trial after two jury trials on that issue. He represented himself at his 1995 murder trial. He was floridly psychotic and delusional, rambling insanely and attempting to subpoena Jesus Christ, John F. Kennedy, and other dead people.

In the 1986 case of Ford vs. Wainwright, the Supreme Court held that executing a person who is severely mentally ill constitutes cruel and unusual punishment, banned by the Eighth Amendment. However, the "Ford standard" is vague as to the required severity of the mental condition, and people on all sides of the issue had been hoping for clarification from the high court.

The Court's opinion and a dissenting opinion are available online.

More background on the Ford standard and on Panetti's case is available on my blog entry of April 20, “Too Sick to Die?”

A 28-minute video, "Executing the Insane: The Case of Scott Panetti," is available at: http://blip.tv/file/282532.

Mentally ill behind bars – a national crisis

Michael Moore’s new film Sicko documents the crisis for Americans who need medical care. But for those whose illnesses are mental, the situation is even more dire. With almost no treatment resources left in the community, if you are mentally ill and poor you are likely to end up one of the 7 million Americans – or 1 in 32 adults – behind bars. Indeed, the behemoth L.A. County Jail now houses the largest psychiatric population in the country (and perhaps in the world?).

A Washington Post opinion piece calls for immediate action to address this "national emergency." The editorial, "The Wrong Place to Treat Mental Illness," is by Marcia Kraft Goin, a past president of the American Psychiatric Association:

Last month the Supreme Court rightly blocked the execution of Scott Panetti, a Texas man who was convicted of a double murder and who suffers from delusional schizophrenia. The case drew public attention to the intersection between mental illnesses and executions.

There is a pervasive attitude in this country that such people are getting what they deserve: After all, like Panetti, they are in jail for something.

But did you know that the Los Angeles County Jail houses the largest psychiatric population in the country? That's not justice. That's emblematic of a national emergency.

Before the 1960s, people with mental illnesses were generally cared for in institutional settings, mostly state-run psychiatric facilities. Many advocates correctly saw this as "warehousing" people who could be cared for in less restrictive settings. Federal legislation and the courts powered a move toward deinstitutionalization, calling on states and counties to provide resources for social services, vocational rehabilitation and treatment services. The introduction of effective antipsychotic medications also drove the trend toward deinstitutionalization.

In the decades since, community-based services have helped many people. But the situation today constitutes a national failure.

What's gone wrong?

Most important, the necessary community resources didn't materialize in anywhere near the level that was needed. Also, antipsychotic medications, while powerful treatments, don't work in isolation. Patients need a relationship with a psychiatrist, clinic or other stabilizing force to ensure adherence to drug regimens and achieve the best possible recovery.

Deinstitutionalization has succeeded in decreasing the overall number of hospital beds, but an unforeseen consequence has been the proportional increase in the number of people with mental illnesses housed in the criminal justice system. Worse, once imprisoned, people with mental illness are shown to have much longer incarcerations than other inmates, primarily because a prison environment and lack of treatment aggravate the very illness that has led to their objectionable or antisocial behavior.

While no one would argue that Scott Panetti belongs on the streets, his case compels us to consider the justice system's role: Is it to mete out punishment that seeks retribution, or are there cases where real justice means effective treatment that seeks rehabilitation?

Consider again Los Angeles County: In 2002 there were 38,600 psychiatric evaluations at the inmate reception center of the Twin Towers jail. Of these, 23,190 people (60 percent) were found to be in need of mental health treatment. A reasonable person could not fail to see the correlation between decreased funding for mental health resources, the closure of hospital beds, homelessness and the criminalization of mental illnesses. Untreated and lacking access to long-term care, people with mental illnesses often end up with symptoms and behaviors that result in jail time.

Cuts in state Medicaid budgets promise to exacerbate these problems. Not only is this shift in funding a blight on our society, it also costs money -- a lot of money. Corrections officials, mental health workers, medication, amortization of buildings and time spent by police in court all cost more than treating patients appropriately in their community. This doesn't make financial sense, much less humanitarian sense.

When considering the direction of public policies that affect those with mental illnesses, politicians and other officials must be guided by the latest research.

Government-funded studies have shown in recent years that jail-diversion programs, which help people get the treatment they need, result in positive outcomes for individuals, communities and the criminal justice system. While jail diversion does generally result in lower criminal-justice costs and greater treatment costs, studies are underway to analyze the differential.

The question the court answered in the Panetti case was about one's fitness to be executed, but in many more cases, the question is about the appropriateness of incarceration at all.

Posted with written permission of the author, Marcia Kraft Goin.

Insanity: Murder, Madness, and the Law

From the internationally known forensic psychologist/attorney who co-authored the excellent case-study book "Minds on Trial" comes a scintillating new case-study book, described by one reviewer as "a mesmerizing compilation of the most notorious cases in which mental illness has been claimed to trump personal responsibility."

Here's the front flap of Charles Patrick Ewing's Insanity: Murder, Madness, and the Law:

The insanity defense is one of the oldest fixtures of the Anglo-American legal tradition. Though it is available to people charged with virtually any crime, and is often employed without controversy, homicide defendants who raise the insanity defense are often viewed by the public and even the legal system as trying to get away with murder. Often it seems that the legal result of an insanity defense is unpredictable, and is determined not by the defendant’s mental state, but by their lawyer’s and psychologist’s influence.

From the thousands of murder cases in which defendants have claimed insanity, Dr. Ewing has chosen ten of the most influential and widely varied. Some were successful in their insanity plea, while others were rejected. Some of the defendants remain household names years after the fact, like Jack Ruby, while others were never nationally publicized. Regardless of the circumstances, each case considered here was extremely controversial, hotly contested, and relied heavily on lengthy testimony by expert psychologists and psychiatrists. Several of them played a major role in shaping the criminal justice system as we know it today.

In this book, Ewing skillfully conveys the psychological and legal drama of each case, while providing important and fresh professional insights. For the legal or psychological professional, as well as the interested reader, Insanity will take you into the minds of some of the most incomprehensible murderers of our age.

The cases:

• Jacob Rubenstein (aka Jack Ruby) of JFK fame
• David “Son of Sam”Berkowitz
• Andrea Yates, the Texas mom who drowned her five kids in the bathtub
• Scott Panetti, the Texan whose competency-to-be-executed case I've blogged about (here and here)
• John Wayne Gacy, serial killer of 30 or more boys and young men
• Andrew Goldstein, who shoved a stranger in front of a New York City subway
• Robert Torsney, a New York City police officer who shot and killed an unarmed teenager
• Eric Michael Clark, a teenager who shot and killed a police officer during a traffic stop
• Arthur Shawcross, who raped and strangled at least 11 women in upstate New York
• Eric Smith, a 13-year-old who fatally beat a 4-year-old boy

In the mood for a little light bedtime reading?

Hot off the press: Mental health and criminal justice

The new issue of Criminal Justice, the American Bar Association magazine (Vol. 22 No. 3), features a roundup of cutting-edge topics at the intersection of psychology-law. The articles are written by notables in their fields and, best of all, they are available online and for free:

Mental Health and Criminal Justice: An Overview

By Andrew E. Taslitz

The Supreme Court's Recent Criminal Mental Health Cases Rulings of Questionable Competence

By Christopher Slobogin

For decades the subject of mental illness and criminal law languished in the legal "backwaters" at the U.S. Supreme Court. That changed in 2003 when the Court accepted the case of Sell v. United States (a defendant's right to refuse medication), followed quickly by two more seminal decisions in Clark v. Arizona (2006) (the scope of psychiatric defenses) and Panetti v. Quarterman (2007) (the definition of competency to be executed). But has this sudden interest in mental illness issues resulted in good law? The author argues to the contrary and details where and how the Court has erred.

Prosecutor as "Nurse Ratched"?: Misusing Criminal Justice as Alternative Medicine

By Gerald E. Nora

Traditionally, prosecutors approach claims of mental impairment by criminal defendants with skepticism, contesting competency defenses and sentencing mitigation. More recently, though, they find themselves as "diversionary gatekeepers" - seeking alternatives to trials and prison for those who more aptly belong in the medical arena. The author, a Cook County ( Illinois) state's attorney, finds neither role satisfactory and argues for reforms that will limit a prosecutor's responsibility for addressing a defendant's mental health needs through the justice system.

The Promise of Mental Health Courts: Brooklyn Criminal Justice System Experiments with Treatment as an Alternative to Prison

By Matthew J. D'Emic

Judge D'Emic tracks the establishment of one of the country's first courts to use diversionary treatment in dealing with mentally ill criminal defendants. He maps the defendant's journey from intake through assessment and treatment to "graduation" from the program.

Executing the Mentally Ill: When Is Someone Sane Enough to Die?

By Michael Mello

An opponent of the death penalty, Prof. Mello presents this personal account of advocating for mentally ill death row inmates. While detailing his clients' descent into madness and the tortured disconnect between the fantasy world of the insane and a justice system bent on accountability, the author looks at the impact of three high-profile cases.

Mental Health Status and Vulnerability to Police Interrogation Tactics

By William C. Follette, Deborah Davis, and Richard A. Leo

The authors offers a psychological explanation of how police interrogation methods affect the "average" person's ability to understand and exert his or her Miranda rights and what makes the mentally ill so much more susceptible to police coercion and likely to falsely confess.

Mentally ill: No constitutional right to self representation

A few months ago, I blogged about an important case out of Indiana, pertaining to whether the mentally ill have a right to represent themselves in court. As many of you may recall, this Constitutional right led to the farcical and ironic spectacle of a railroad killer railroading himself straight to prison.

That was Colin Ferguson (satirized by Saturday Night Live here). We have witnessed similar spectacles in other cases of floridly psychotic people acting as their own attorneys. Another example that I blogged about several times was Scott Panetti, who rambled insanely at his 1995 murder trial and tried to subpoena Jesus Christ, John F. Kennedy, and other dead people.

It's an easy conviction for the prosecution, of course. But it is hardly fair. And certainly not dignified.

In today's 7-2 ruling in the case of Indiana v. Edwards, the U.S. Supreme Court held that the mentally ill do not have the same constitutional rights as everyone else. Even though someone may be competent to stand trial with the help of a lawyer, a judge may force the defendant to accept an attorney if the trial might otherwise be a farce.

"The Constitution permits states to insist upon representation by counsel for those competent enough to stand trial ... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves," Justice Stephen Breyer wrote for the majority.

Proponents of allowing mentally ill defendants to represent themselves despite questionable understanding and judgment cite the Sixth Amendment's right to self-representation. Legal scholar Michael Perlin calls this argument a "pretextual" rationalization for injustice.

Today's decision involved Ahmad Edwards, a delusional schizophrenic man whom a trial judge ruled was competent to stand trial for a robbery-shooting but incompetent to represent himself. Edwards had an attorney but was convicted anyway, prompting his appeal. This ruling will likely reinstate his conviction.

The imposition of a higher standard for self representation than for other facets of competency to stand trial seems at odds with the high court’s earlier holding in Godinez v. Moran. Clarence Thomas, the author of that 1993 opinion, dissented in Thursday's ruling, as did fellow conservative jurist Antonin Scalia.

"In my view, the Constitution does not permit a state to substitute its own perception of fairness for the defendant's right to make his own case before the jury," Scalia said.

The full opinion in Indiana v. Edwards (07-208) is available here. USA Today has more here. My previous blog post on the case is here. Photo credit: afsilva, "The Railroad Ahead" (Creative Commons license).

Tipping points: Of life, death and psychological data

Forensic psychologists and the machinery of execution

Andre Thomas, Texas

When Andre Thomas killed his wife and children, he was careful to use three different knives so that "the blood from each body would not cross-contaminate, thereby ensuring that the demons inside each of them would die," as Marc Bookman explained it in an eloquent Mother Jones report. Then, he cut out their hearts and went to the police station to confess. While awaiting trial, he cut out one of his eyes. Later, he cut out the other, eating it in order to keep the government from using it to spy on his mind.

In response to changing social mores and international condemnation (only a handful of countries remains in the business of killing their wayward citizens), the U.S. Supreme Court in 2002 exempted the mentally retarded from execution, following up three years later by exempting juveniles. With this narrowing of the contours of capital punishment, the question of how mentally impaired one must be to avoid execution is increasingly in the forefront. That makes severe mental illness "the next frontier" of capital jurisprudence, in the words of psychology-law scholar Bruce Winick.

How insane?

Executing the floridly insane constitutes cruel and unusual punishment, barred under the Eighth Amendment of the U.S. Constitution. However, the "Ford standard" for competency to be executed is very low; a condemned person need merely understand the link between his crime and his punishment. In Thomas's case, the government insists that he is not insane enough to be spared, despite chronic auditory hallucinations, delusions, and treatment for paranoid schizophrenia. 

Making this case especially ironic is that Thomas has become a poster child for the need for new laws allowing preemptive detention of people whose mental illness makes them dangerous. "At least twice in the three weeks before the crime, Thomas had sought mental health treatment," reports the Texas Tribune in a series on mental health and the criminal justice system. "On two occasions, staff members at the medical facilities were so worried that his psychosis made him a threat to himself or others that they sought emergency detention warrants for him. Despite talk of suicide and bizarre biblical delusions, he was not detained for treatment."

John Errol Ferguson, Florida

With the U.S. Supreme Court declining to draw a bright line, the question of exactly how rational a condemned prisoner's understanding must be in order for an execution to proceed has become central to legal appeals by psychotic prisoners like Thomas. Another current example is the case of John Errol Ferguson, a mass killer in Florida whose October execution was stayed due to concerns about his mental state. Ferguson's long history of paranoid schizophrenia is undisputed; the question is whether his grandiose and religious delusions interfere with his understanding that the state is going to kill him for his crimes, and that when he dies he will be, well, dead.

Ferguson's lawyers have argued that the killer lacks rational understanding, because he believes he is "the Prince of God" and will be returned to Earth post-execution to save the world from a communist plot. The state of Florida counters that all that is required to be competent for execution is that a prisoner have an "awareness" that he is set to be executed for crimes he committed. To resolve the dispute, Florida's governor appointed a panel of experts to collectively evaluate Ferguson; a lower court also heard extensive testimony from prison personnel and other mental health experts, including malingering expert Richard Rogers, who administered a large battery of malingering tests and opined that Ferguson was not faking mental illness. Ultimately, the circuit court found little to distinguish Ferguson's belief system from typical religious ideation:

"There is no evidence in the record that Ferguson’s belief as to his role in the world and what may happen to him in the afterlife is so significantly different from beliefs other Christians may hold so as to consider it a sign of insanity."

How intellectually impaired?

Meanwhile, with the categorical exemption of prisoners with mental retardation from the death row rosters, courts around the nation are seeing pitched battles over intelligence scores that can make the difference between life and death. On each side of the IQ Wars in so-called Atkins hearings (named for the 2002 U.S. Supreme Court decision barring execution of the developmentally disabled) are neuropsychologists whose testimony delves into the technicalities of margins of error, practice effects, and the now-familiar Flynn Effect. This latter phenomenon of IQ inflation, in which scores on any given IQ test rise by about three points per decade, creates a situation in which a person on the cusp of mental retardation might score over 70 -- making him eligible for execution -- on an older IQ test but not on a newer one.

Ronell Wilson, New York

Take the case of Ronell Wilson in New York, who murdered two undercover police officers. His nine-day Atkins hearing earlier this winter featured seven experts dissecting nine IQ scores obtained over a 13-year period. In its 55-page opinion, the U.S. District Court spent many pages explaining why a 95 percent confidence interval (a range of two Standard Errors of Measure on either side of a score, something commonly reported in clinical practice) was inappropriate in Atkins claims, because it could place people into the range of mental retardation even if they score well above 70 on IQ tests. The court instead opted for a 66 percent confidence level. Either way, it was all much ado about nothing: "Even after taking into account the possibility of measurement error, the Flynn Effect, and (to a limited extent) the practice effect," Wilson's IQ scores ranging from 70 to 84 were "simply too high to qualify him under the definition of significantly subaverage intellectual functioning."

As Peter Aldhous reports in the New Scientist, the outcomes of these IQ battles vary widely by jurisdiction (and quality of lawyering, I would imagine). Overall, 38 percent of Atkins claims are successful, according to a study at Cornell Law School, but the success rate is 81 percent in North Carolina compared with only 12 percent in Alabama. A convicted killer named Earl Davis with IQ scores of 75, 76, 65 and 70 was spared execution on the basis of the Flynn effect. But that same effect was not persuasive in the case of Kevin Green of Virginia, whose mean IQ score was actually three points lower than Davis's (71, 55, 74 and 74); Green was executed in 2008.

Texas, meanwhile, which has carried out more than one-third of all executions in the United States since capital punishment was reinstated, has come up with its own unique standard of mental retardation, based on the character Lennie from John Steinbeck's Of Mice and Men. Wrote the Texas Court of Criminal Appeals in a 2004 explication of the level of mental retardation necessary to avoid the death penalty: 

"Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt. But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"

A technical spectacle

Whereas in the real world intelligence and insanity are continuous variables, the law chooses to treat them as dichotomous. Psychologists assist in promoting this legal fiction, helping to sort the condemned into discreet categories of sane or insane, mentally retarded or able-minded. Although the tests we used are supposedly objective, data in this highly polarized area can be skewed to favor one outcome or the other. Neuropsychology experts hired by the defense may focus on the Flynn Effect and argue for large confidence bands around IQ scores. Meanwhile, at least one "go-to" psychologist for prosecutors in Texas took a decidedly different approach, systematically skewing data so that more marginally functioning men were made eligible for execution.

Denkowski's Atkins cases, Texas Observer

George Denkowski developed his own method of evaluating Atkins claims, based on his idea that individuals on Death Row may do poorly on traditional tests because of cultural and social factors rather than lack of intellectual ability. So he discounted evidence that defendants, for example, could not count money or take care of their basic hygiene, reasoning that maybe they just were not taught those skills. With an inmate named Daniel Plata, for example, Denkowski bumped up his IQ score from 70 to 77 and his score on a test of adaptive functioning from 61 to 71. He even  published an article in the American Journal of Forensic Psychology in 2008 in which he explained this system of clinical overrides. Complaints by fellow psychologists that his technique had no scientific basis eventually led the Texas State Board of Examiners of Psychologists to issue a reprimand and to bar him from conducting future intellectual disability evaluations in criminal cases. He admitted no legal wrongdoing but agreed to a $5,500 fine -- a pretty lightweight penalty considering that two of the 29 condemned men he evaluated were executed.

Unethical as his method was, it did give attention to the issues of race and class, which may hide in plain sight when appeals revolve around the technical interpretations of psychological test data. It is Constitutionally impermissible for race to be considered in capital cases. But it stretches credulity to believe race played no role, for example, in the case of eye-plucking Andre Thomas: Thomas is African American, his late wife was white, all of the jurors were white, and four jurors had acknowledged opposition to interracial marriages. In the very last sentence of his closing argument for the death penalty, reported Bookman in the Mother Jones piece, the prosecutor asked jurors whether they would be willing to risk Thomas "asking your daughter out, or your granddaughter out?" This in the town of Sherman, which burned its entire Black district to the ground in 1930 during a race riot triggered by -- what else -- rumors that a Black man had raped a white woman.

Trauma as common denominator

Setting aside the technical criteria for insanity and mental retardation, if one could boil capital cases down to one common denominator, it would be trauma. In my experiences working in the capital trenches, I have found that most Death Row denizens survived horrific childhoods dominated by physical, sexual and emotional torture and neglect, combined with multi-generational patterns of mental illness and violence, all overlaid with hard-core substance abuse.

As forensic psychiatrist Pablo Stuart described this phenomenon in an interview with reporter Scott Johnson at Oakland Effect, a journalism project focusing on violence in Oakland, California, “the fact that there is such consistency on these cases is significant. Some of these people, they just never had a chance.”

* * * * *

Related resources:

The Mother Jones report on Andre Thomas is HERE; the audio podcast, read by M*A*S*H star Mike Farrell, can be downloaded or listened to HERE. My 2009 posts on the Andre Thomas case are HERE and HERE.
 
My prior posts on the Ford standard of competency and the U.S. Supreme Court's decision in the case of Leon Panetti (with links to court rulings and lots of related resources) are HERE, HERE and HERE. The U.S. Supreme Court's 2007 opinion in Panetti v. Quarterman is HERE. A 28-minute educational video, "Executing the Insane: The Case of Scott Panetti," is available HERE.

My 2010 post on the Denkowski case is HERE.

Psychologist Kevin McGrew's master archive on the Flynn Effect is HERE.

Related books include Michael Perlin's Mental Disability and the Death Penalty: The Shame of the States (the first chapter of which can be previewed HERE) and Daniel Murrie and David DeMatteo's Forensic Mental Health Assessments in Death Penalty Cases.