U.S. high court restricts federal death penalty appeals

In a 5-4 decision, the U.S. Supreme Court ruled this week that federal habeas appeals cannot consider new evidence, but must limit themselves to information already presented at the state court level. The majority opinion, written by Judge Clarence Thomas, will severely restrict federal petitions in capital cases.

The case involved Scott Pinholster of California, convicted and sentenced to death in 1984 for the robbery-murder of a local drug dealer. The only witness to testify for the defense during the penalty deliberations was Pinholster's mother, who testified that he was "a perfect gentleman at home."

Pinholster pursued his federal habeas claim after losing two appeals to the California Supreme Court, in which he argued that his court-appointed lawyer (later disbarred) had failed to present mitigating evidence during the penalty phase of his trial. Pinholster suffered severe abuse and at least two head injuries as a child; he was institutionalized for much of his adult life and there were some indications of a psychiatric disorder.

The crux of Justice Thomas's message is, "Who cares?" If errors are made during a death penalty trial, they are harmless. That is, they don't change the bottom line. Jurors would have voted for death even if they heard additional mitigating evidence, given the weight of the aggravating evidence against these bad hombres.

That's a fiction, of course. A skillful trial attorney who presents a compelling narrative of a defendant's life can often win a life-without-parole verdict (or negotiate a plea deal), even when faced with an egregious crime. Judy Clarke, Jared Loughner's attorney, is one such lawyer. Contrast her with some of the deadbeat lawyers who dine at the public trough, billing the government to represent capital clients while doing virtually no investigation and presenting little in the way of mitigating evidence at the penalty phase of the trial.

In a lengthy dissent, Justice Sonia Sotomayor (joined in part by Justices Elena Kagan and Ruth Bader Ginsburg) lamented that federal judges must now "turn a blind eye" to such miscarriages of justice, even when they result in "harsh" outcomes. "Some habeas petitioners are unable to develop the factual basis of their claims in state court through no fault of their own," she noted.

Commenting at the Law and Biosciences Digest blog, Stanford Law School visiting professor Nita Farahany portrays the case as a virtual death knell for federal claims of ineffective assistance in capital cases:

After [this] major decision … all bets are off on the likely success of claims for ineffective assistance of counsel for failure to introduce mitigating brain evidence at trial. The case may have such broad implications that the double-edged rhetoric about brain damage evidence in the majority opinion is of minor interest by comparison…. A popular claim for ineffective assistance of counsel is failure to introduce particular mitigating evidence at trial. If [federal review] is limited to the record before the state court, then the days of new evidentiary hearings on federal habeas review for ineffective assistance of counsel cases is numbered or over.

The case is the latest stemming from the Antiterrorism and Effective Death Penalty Act of 1996, §2254, which restricts the power of federal courts to grant habeas relief to state prisoners.

• The Los Angeles Times has more coverage of the case, Cullen v. Pinholster.
• SCOTUS Blog has in-depth analysis of the case (HERE). 
• Fair and Unbalanced (a California capital case litigator) has a brief critical reaction (HERE).

Death row logjam in California

L.A. Times: Critical shortage of appellate lawyers

With 700 prisoners, California's Death Row is the largest in the United States. But almost half of the condemned will not be executed any time soon; they are still waiting for attorneys to handle their appeals.

Despite a glut of attorneys in the state, few are willing or qualified to tackle post-conviction appeals. Each condemned prisoner gets an automatic appeal to the state supreme court, after which they can file a habeas corpus petition challenging their conviction. The wait for habeas counsel averages 10 to 12 years, a bottleneck that the state's high court calls "critical."

The work is draining both emotionally and financially, say the few attorneys who do habeas work.

"It's a big toll on people to have clients on death row," attorney Lynne Coffin told Los Angeles Times reporter Maura Dolan. "Even if they are nowhere near execution, they are very needy. Most have no family connections anymore, no money, no friends, so the lawyer becomes the source of everything."

Coffin, who at 61 years old handles capital cases almost exclusively, said witnessing the executions of two clients was disturbing. "And I am not going to any more."

The full story, in today's L.A. Times, is HERE.

High cost a factor in public support for death penalty alternatives

Meanwhile, a national poll of 1,500 registered voters shows growing support for alternatives to the death penalty. A majority of voters (61 percent) would choose a punishment other than the death penalty for murder, including life with no possibility of parole and with restitution to the victim’s family (39 percent), life with no possibility of parole (13 percent), or life with the possibility of parole (9 percent), said the center, which opposes capital punishment.

Sixty-eight percent of those surveyed said cost was a very or somewhat convincing argument against the death penalty. Voters ranked emergency services, creating jobs, police and crime prevention, schools and libraries, public health care services, and roads and transportation as more important budget priorities than the death penalty. Two-thirds of those surveyed would favor replacing the death penalty with life with no possibility of parole if the money saved were used to fund crime prevention programs.

The survey was conducted by the Death Penalty Information Center, which opposes capital punishment. It can be found HERE.

Judge denies defense expert in capital case

Death penalty cases are expensive.

I spoke with a condemned man on San Quentin Prison's death row who had done the math: The money spent on his trial and appeals could have paid for a year of public education for all of the children in his home town.

The high cost is causing many prosecutors around the United States to think twice before seeking the ultimate penalty. In the Midwestern state of Indiana, for example, capital prosecutions are down in the wake of a state study showing the cost is 10 times more than if the government seeks a sentence of life without parole.

But one crusading prosecutor in Indiana has a more novel solution: Prevent the accused from mounting a defense.

"I feel very strongly about defense death penalty costs," said prosecutor Stan Levco of Vanderburgh County in objecting to a defense request to hire a psychologist.

Astoundingly, the trial judge agreed, and declined the defense request for a psychologist to assist in the defense of Jeffrey Weisheit. The defendant faces trial for murder and arson in the death of his girlfriend's two young daughters. Judge Daniel Moore approved the limited use of a psychologist, just through November, in order to help decide whether Weisheit should plead insane, according to the Evansville (Indiana) Courier and Press.

This puts the defense attorneys in a bind. The standard of practice in capital cases is to hire a team of experts to explore the defendant's life for evidence of mitigating circumstances that can then be presented to the jury. In fact, not to do so may violate a defendant's Constitutional right to effective representation, according to the 2003 case of Wiggins v. Smith.

Expert assistance is even more critical in cases like this one, in which the defendant's mental state may be at issue.

But the financial burden of the trial has been on the public's mind in these cash-strapped times. When a defendant is indigent, as most are, the state public defender pays half of the trial costs, and the other half comes directly from county coffers. According to the state analysis, the average death case in Indiana costs about $450,000; defense attorneys in this case estimate costs may run almost twice that average.

In June, the local paper even ran an opinion poll:

As a taxpayer, are you OK with seeking the death penalty for Jeffrey Weisheit if the estimated cost of approximately $800,000 is used in his defense?

Of the 461 people who voted, 78 percent said "YES." Two-thirds of these thought "there should be a cap on what public defenders can spend on defense.”

Public opinion is hard to ignore.

The prosecutor, meanwhile, says he is so concerned about defense expenses in death penalty cases that he has formed a special prosecutorial committee to study the issue. With such deep concern, it is interesting that he decided to seek the death penalty in the first place. After all, most such efforts are a waste of money. They add years to the process and do not ultimately result in an execution. Between 1990 and 2000, according to the Indiana study, only about one out of six capital prosecutions resulted in a death sentence, and only four of those has led to an actual execution. Indiana currently has 15 prisoners on death row, and six other capital cases pending.

Levco may care about the cost, but I'll bet he cares even more about winning. And he has found an innovative way to improve his odds.

It will be like shooting ducks in a barrel.

Arson probe: "Revenge of the scientists"

Perhaps the single most compelling exemplar of problems with the U.S. death penalty is the case of Cameron Willingham of Texas. Willingham, whom I have blogged about before, was executed in 2004 for a house fire in which his three daughters perished. But, as it turned out, the fire may not have been arson after all.

An ongoing probe is fostering rebellion by scientists against pseudoscientific evidence in arson cases. Some are even calling for a re-examination of all arson convictions in Texas from the past 20 years, according to a report by Dave Mann of the Texas Observer, who has covered the case extensively.

PBS Frontline's has a new documentary on the case, "Death by Fire," which I recommend you keep an eye out for. (It's also available on DVD.) The PBS website has great background, online videos, and interactive links. PBS' Hari Sreenivasan has additional commentary and case-related links at his news blog.

Related blog posts:

• Will Texas arson case change death penalty debate? (Sept. 2, 2009)
• Arson: New frontier for exonerations? (July 2, 2008)
  

Update: High court won't block Lewis execution

The U.S. Supreme Court has just refused to block the execution of Teresa Lewis, whom I blogged about Sept. 8, setting the stage for Virginia's first execution of a woman in nearly a century. Lewis is scheduled to die by injection Thursday for hiring two men to kill her husband and stepson for a quarter-million dollar insurance payout.

Two of the three women on the high court, Justices Ruth Bader Ginsburg and Sonia Sotomayor, voted to stop the execution. The court did not otherwise comment on its order Tuesday.

Lewis's supporters have argued that she does not deserve to die because she is borderline mentally retarded and was manipulated by a smarter conspirator. It is unfair, they say, that she was sentenced to death while the two triggermen received life sentences, writes Washington Post crime scene blogger Maria Blod.

A CBS video interview with Lewis is HERE. Reaction from Iran is HERE.

Mentally challenged Virginia woman facing death

While all eyes are on Iran's (just suspended) threat to stone a woman to death, a mentally challenged woman in the U.S. state of Virginia faces a more obscure death this month at the hands of her government.

The case of Teresa Lewis is one of dozens of skirmishes in U.S. death penalty states spawned by the Supreme Court's 2002 decision outlawing capital punishment for the mentally retarded. In the years since the Atkins ruling, an estimated 7 percent of condemned prisoners have filed claims on the basis of mental retardation, with about 40 percent succeeding in getting their death sentences overturned.

Central to these battles are opposing experts in forensic psychology. Their role illustrates the fundamental problem with science in court. The law asks a simple, black-and-white question: Is this person's IQ above or below the magic threshold for mental retardation (typically, an IQ score of 70)? Lewis scored 73 and 70 on IQ tests administered since her trial. Such minimal score differences are within the range of random fluctuations and are practically meaningless in a clinical context. But in the legal context, they can be the difference between life and death.

Psychology, in contrast to the law, sees nuances and shades of gray. An IQ score is only one data point, and must be combined with other relevant information to give a meaningful picture of a person's functional capacities. Here, a central issue is Lewis's personality style.

Lewis was sentenced to die under the theory that she masterminded the killing of her husband and stepson for a $350,000 life insurance policy. Although both triggermen received life sentences, Judge Charles Strauss gave Lewis the death penalty, reasoning that she was "clearly the head of this serpent," according to an account in yesterday's Huffington Post.

But new evidence suggests Lewis may have been manipulated into the crime. In a letter written before he killed himself in prison, gunman Matthew Shallenberger said the crime was entirely his idea, and he deliberately manipulated Lewis because he needed money and she "was an easy target."

Three forensic psychology experts have diagnosed Lewis with a dependent personality disorder. She is reportedly so dependent on others that she cannot make even simple decisions such as what to buy at the grocery store. Lewis's chaplain at Fluvanna Correctional Center for Women similarly described Lewis in a Newsweek essay appealing for clemency as "slow and overly eager to please -- an easy mark, in other words, for a con."

The state Supreme Court, a U.S. District Court, and, most recently, a U.S. Court of Appeals, have all upheld the death sentence. The execution, which will be Virginia's first killing of a woman in almost a century, is set for Sept. 23. She gets to choose between the electric chair or lethal injection.

Perhaps she should choose the latter; Kentucky, Oklahoma, and some other states may have to delay executions due to a shortage of one of the drugs in their lethal cocktails.

Related blog post (with additional links to resources):

• Atkins claims: Did Texas psychologist skew data for death? (Jan. 10, 2010)

Victim race still central to death penalty

The more things (appear to) change, the more they stay the same

The odds of getting a death sentence for killing a white person is about three times higher than for killing an African American with the race of the defendant virtually irrelevant, according to a new study out of North Carolina that echoes earlier findings on capital punishment.

Researchers Michael Radelet of the University of Colorado and Glenn Pierce of Northeastern University in Boston combed through three decades of death sentences for the study, to be published next year in the North Carolina Law Review.

The study will be used in capital appeals, according to an article in the Daily Camera of Boulder, Colorado. The U.S. Supreme Court ruled in 1987 that statistical evidence of racial bias could not be considered in individual cases, but states could pass their own legislation to do so. North Carolina has 159 people now awaiting execution. As Brittany Anas reports:

Leading up to the study, legislators in North Carolina had raised concern about the racial disparities of those on death row -- but there was no hard evidence…. The state became the second in the nation, following Kentucky, to allow murder suspects and those already on death row to present statistical evidence of racial bias. The law is intended to make sure that the race of the defendant or victim doesn't play a key role in sentencing. The study by Radelet and Pierce is the first to be released since North Carolina passed the Racial Justice Act.

Of related interest:

Race and the death penalty, Death Penalty Information Center data clearinghouse

Death penalty news in California:

• New poll shows Californians support death penalty (San Diego Union Tribune, July 21, 2010)
• California death penalty: A hollow promise? (San Diego Union Tribune, April 25, 2010

New York Times covers psychopathy debacle

I had no idea when I broke the news of this censorship controversy that it would generate so much mainstream attention. First Science ran with it, and today it's made the New York Times; I am told other major U.S. and international news outlets have made inquiries. I hope this affair will serve as a dramatic lesson to others who might think about making legal threats when someone criticizes their work. The move certainly backfired against psychopathy guru Robert Hare.

Certain theories have weightier real-world implications than others. When a capital case defendant is labeled a "psychopath" in court, it can literally mean the difference between life and death. Similarly, the pejorative label has serious consequences for someone facing lifelong civil detention as a sexual predator. Thus, critical analysis of the reliability and validity of the underlying theory is essential. Researchers whose work lends itself to partisan forensic application should expect scrutiny.

Here's what Benedict Carey, health beat reporter at the New York Times, had to say:

Academic disputes usually flare out in the safety of obscure journals, raising no more than a few tempers, if not voices. But a paper published this week by the American Psychological Association has managed to raise questions of censorship, academic fraud, fair play and criminal sentencing -- and all them well before the report ever became public.

The paper is a critique of a rating scale that is widely used in criminal courts to determine whether a person is a psychopath and likely to commit acts of violence. It was accepted for publication in a psychological journal in 2007, but the inventor of the rating scale saw a draft and threatened a lawsuit if it was published, setting in motion a stultifying series of reviews, revisions and legal correspondence.

"This has been a really, really troubling process from the beginning," said Scott O. Lilienfeld, a psychologist at Emory University and a collaborator with one of the paper's authors. "It has people wondering, 'Do I have to worry every time I publish a paper that criticizes someone that I’ll get slapped with a lawsuit?' " The delay in publication, he said, "sets a very dangerous precedent" and censors scientific discourse….

Dr. Hare's clinical scale, called the Psychopathy Checklist, Revised, is one of the few, if not the only, psychological measures in forensic science with any scientific backing…. Dr. Skeem and Dr. Cooke warned in their paper that the checklist was increasingly being mistaken for a complete definition of psychopathy -- a broader personality construct that includes deceitfulness, impulsivity and recklessness, though not always aggression or illegal acts. The authors contended that Dr. Hare's checklist warps that concept by making criminal behavior a more central component than it really is…. {NOTE: The New York Times later issued a correction of the above portion that is in red; clearly, it's wrong to call the PCL "one of the few, if not the only," forensic psychology measures with any scientific backing!}

"When we first wrote the paper," [Jennifer Skeem] said, "we saw it simply as a call to the field to recognize we were going down a path where we were equating an abstract concept with a checklist, and it was preventing us from looking at the concept more closely."

Carey's full article is HERE. I will be sure to keep readers posted on any further developments.

POSTSCRIPT

This evening, readers alerted me that Robert Hare has posted a lengthy response giving his side of the controversy. His essay, "On Fairness in Academic Debate: A Commentary on Poythress and Petrila (2010) and Related Matters," claims that Poythress and Petrila's critical opinion piece in the International Journal of Forensic Mental Health (see my May 30 blog post) was biased and one-sided. He presents a timeline of the events surrounding the lengthy delay in publishing the underlying psychopathy article by Skeem and Cooke in Psychological Assessment, and gives specific examples of their allegedly egregious misrepresentations of his work. He comments:

… Poythress and Petrila and Hart failed to give an impartial and complete account of the situation. Their actions resulted in publication and circulation of a seriously biased account of events, and a commentary in the June 11 issue of Science, which noted that there are several sides to every issue…. I have no arguments with their thoughtful and commendable views about the nature of scientific debate and peer review, and about the potential fallout from threats of litigation…. I would welcome a formal investigation of the entire matter by an appropriately impartial body. I also would be willing to engage in open debate with the parties involved…. Contrary to the characterizations of others, I made extensive efforts to use the academic system in this case, but [the Skeem and Cooke] article went beyond the boundary of fair academic debate and criticism. The nature of the issue and the authors' refusal to correct their egregious statements gave me no reasonable alternative….

Would I do it again, given similar circumstances? Perhaps not, for like a whistle-blower the focus soon turns to the person who made the complaint and not on the issues and events that led to the complaint. Further, many in the scientific community believe that there are no grounds for litigation concerning academic works, no matter what the circumstances. I’ve learned from this experience that not all academics and scientists play by the accepted rules of science, and that legal redress for those claiming injustice is frowned upon by many as rocking the academic/scientific boat, however leaky it may be; a professional Catch-22 that serves to deny academics the legal rights enjoyed by the rest of the population.

His full statement is HERE. Again, I encourage readers interested in this subject to read Skeem and Cooke's Psychological Assessment article, rebuttal, and surrebuttal and form your own opinions.

Oldest condemned man dies at 94

Elderly outlaw's competency remained at issue

Like so many Depression-era outlaws, the infamous Clyde Barrow and Bonnie Parker met early deaths, gunned down in a police ambush at the ages of 26 and 23. Among the few from that era to beat the hangman's noose was Viva Leroy Nash, the oldest death row prisoner in the United States, who died last week of natural causes.

Imprisoned for most of his adult life, Nash lived long enough to become both psychotic and demented, according to his lawyers; he was also deaf and almost blind. At the time of his death, his competency to participate in post-conviction habeas proceedings was on appeal to the U.S. Supreme Court.

Forensic psychiatrist Barry Morenz of the University of Arizona had evaluated Nash and opined that the old outlaw suffered from a delusional disorder. His symptoms included paranoid and grandiose delusions as well as auditory hallucinations. Dr. Morenz also noted worsening cognitive problems and memory impairment.

In the landmark case of Oscar Gates (formally known as the Rohan case), the 9th U.S. Circuit Court of Appeals ruled in 2003 that a death row prisoner has a right to be competent during post-conviction appeals, so that he may advise and consult with attorneys regarding issues that might arise. The standard is somewhere between the higher level of competency required to stand trial and the very low, so-called "Ford" competency standard required for execution.

In 2007, the appellate court applied this holding to Nash's case, granting a death penalty stay until Nash's ability to communicate rationally with his counsel could be evaluated and litigated. The government was appealing that ruling when Nash died.

A lengthy account in Phoenix' New Times last year was skeptical of Nash's incompetence claim. It described the self-educated convict as "intelligent and well read" and "a consummate jailhouse lawyer" who in the 1960s won "certain procedural safeguards for inmates" in a ruling that almost made it to the U.S. Supreme Court.

But then again, maybe advancing age and years of supermax confinement finally did him in. After all, more than one out of three people in their 90s has a dementia. And long confinement in solitary housing eventually drives even the strongest mind "stir crazy."

Life at Nash's final residence, the austere supermax Arizona State Prison Complex-Eyman, is an invisible form of torture. With Arizona "at the vanguard of the country's correctional zeitgeist in stripping away inmate privilege," according to a critical report in The Tucson Weekly, long-term lockdown in the unit is the state's "version of a straitjacket." Devoid of human connection, prisoners in such environments not uncommonly take to self-stimulating behaviors that is rare in other contexts -- sculpting figurines out of feces, masturbating in public view, or gouging their flesh and playing with it.

Craig Haney, an expert on the psychological effects of long-term solitary confinement, called the Arizona supermax one of the most severe. "Solitary confinement has been around for a long time," Haney told the Weekly. "What's different about these supermax units is that the technology of the modern correctional institution allows for a separation, almost a technological separation, of inmates from the social world around them in ways that really weren't possible in the past."

Under these conditions, if a condemned prisoner's appeals drag on long enough, it is almost inevitable that his mind will deteriorate to the point that he needs a forensic evaluation of his competency to rationally communicate with his attorney. So, if other Depression-era outlaws had survived long enough, we forensic practitioners may have gotten a chance to glimpse back into a bygone era through their eyes as well.

A wild and colorful life

It surely would have been interesting to interview this old man who talked like he had just stepped out of an Old West movie. Born in Salt Lake City's rural south side in 1915, during Prohibition, the "wild child" dropped out of school in the seventh grade and embarked on a life of crime.

During the Roaring Twenties he and a gang of other boys burglarized warehouses. In his mid-teens, armed with a gun, he caught an outbound boxcar and, like millions of other dispossessed young men during the Great Depression, set off "to seek his fortune," according to a laudatory 2005 account in the New Criminologist that referred to him as "a living legend." The account was based in part on more than 200 pages of handwritten memoirs.

By age 17, he was serving time at an industrial school for juveniles in Ohio for car theft. He escaped, did an armed robbery, and was sentenced to 30 months at Kansas' notorious Leavenworth Penitentiary, where he has said that a Mafia don tutored him in jewelry store heists.

Paroled in 1934, he fathered his only child (who died 21 years ago) and resumed his life of crime, with robbery sprees in Utah, Georgia, Alabama, and who knows where else. He was imprisoned in 1936 after a bungled robbery with his younger brother. Next arrested in 1946 in Alabama for check-kiting, he escaped from jail and reportedly fled to Mexico with a large sum of stolen money.

But his outlaw ways were catching up to him, and he spent most of his ensuing years in prison. He did a 25-year stretch for the 1947 shooting of a Connecticut police officer (who lived). In 1977, he was sentenced to two life terms for a robbery-murder. Somehow, he was placed on a prison work crew from which he escaped in 1982. Just three weeks later, he did the crime for which he was sentenced to die in 1983 -- a robbery-murder at a Phoenix coin shop.

Although his appeals have focused on his poor legal representation at his 1983 trial, given his litany of crime and the callous way that he executed his final victim it is doubtful than any jury would have voted to spare his life. Yet he managed to outlive men who were sent to death row long after he arrived, and ultimately he managed to die of natural causes.

Some have intimated that the state itself was dragging its heels, to avoid the spectacle of killing a dottering old man. With California and Alabama getting flak for recent executions of a 76-year-old and 74-year-old, respectively, just think of the clamor over the killing of a blind, deaf, crippled, demented and mentally ill 94-year-old.

So ends another chapter in America's love-hate relationship with capital punishment.

Hat tip: Kathleen

Photos: Bonnie Parker, circa 1932, credit Wikipedia Commons; Nash about 20 years ago, credit Arizona Department of Corrections; Arizona State Prison at Eyman, courtesy Department of Corrections

New resource: Master archive on "Flynn Effect"

The so-called "Flynn Effect" is a big deal these days in capital litigation circles. Named after the New Zealander who first noticed it, the effect refers to the gradual rise of the population's IQ scores over time. Raw IQ scores are going up about 9 points per generation, making test developers scramble to renorm their tests to keep the average IQ constant at 100.

As I posted about the other day, under the U.S. Supreme Court's Atkins ruling banning capital punishment for mentally retarded people, an IQ score can literally mean the difference between life and death. So debate over this Flynn Effect has been a big part of Atkins claims, with prosecutors and defense attorneys arguing over whether IQ scores should be "adjusted" up or down based on the year an IQ test was published, and courts ruling that this is indeed an important consideration.


In response, Kevin McGrew over at the Intellectual Competence and Death Penalty blog has just put together a master archive of the burgeoning Flynn Effect research literature. As McGrew explains it, the goal is to amass all of the relevant research "in one location for use by researchers, expert witnesses in such proceedings, psychologists who engage in intelligence testing, and lawyers and officers of the court." The project is supposed to be value-neutral, and McGrew promises to update the archives as new material becomes available.

It's quite a visually impressive undertaking, and well worth checking out (HERE are the instructions, and HERE is the cool visual display depicted above) if you're involved in this area of practice.

Atkins claims: Did Texas psychologist skew data for death?

Denkowski faces loss of license for role in capital appeals

The U.S. Supreme Court's Atkins decision triggered a wave of ferocious legal battles in the 35 death penalty states. Since 2002, an estimated 7 percent of condemned prisoners have filed Atkins claims on the basis of mental retardation, with about 40 percent succeeding. As of mid-2008, by one tally, at least 82 death sentences had been overturned on Atkins grounds.

At the center of these ongoing skirmishes are forensic psychologists, whose expert opinions about a condemned prisoner's IQ and real-world functioning can literally make the difference between life and death.

With so much at stake, the pull toward partisanship is especially strong. In Texas, one psychologist who has testified in a whopping 29 cases -- nearly two-thirds of all Atkins appeals in that state -- now faces the loss of his license for alleged errors that systematically favored prosecutors.

George Denkowski skewed the administration and interpretation of test data to rule out mental retardation, according to an expose by investigative reporter Renée Feltz in the current issue of the Texas Observer. The state Board of Examiners of Psychologists has upheld a complaint against him, finding that he made "administration, scoring and mathematical errors" in three death penalty evaluations. The State Office of Administrative Hearings will hear his case Feb. 16.

The complaint was initiated by Jerome Brown, a forensic psychologist who had worked on opposite sides from Denkowski in five capital cases and was appalled by his technique of inflating obtained IQ and adaptive functioning scores through "estimation."

As Denkowski explained his method in the American Journal of Forensic Psychology, he uses a "composite methodology" to inflate the scores of "persons from the criminal socioculture," on the grounds that formal testing assesses "mainstream skills" that criminal offenders never learn.

In the case of Daniel Plata, a Mexican immigrant featured in the Observer expose, Denkowski used this clinical judgment technique to raise Plata's adaptive-behavior score from 61 to 71, and his IQ score from 70 to 77. (Antonin Llorente, a neuropsychologist who evaluated Plata in his native Spanish, reported Plata's IQ score as 65.)

Click on above image to see excerpt of
Denkowski's videotaped evaluation of Daniel Plata.

This subtly racist argument of cultural deficit seems to be becoming increasingly popular as a way to explain away the deficits of low-functioning Mexican immigrants in particular. I have encountered it in recent cases I have been involved in. Kevin McGrew, director of the Institute for Applied Psychometrics, offers a psychometric critique over at his Intellectual Competence and the Death Penalty blog, focusing on another Texas death case involving a Mexican immigrant.

After hearing all of the evidence in the Plata case, Federal District Court Judge Brock Kent Ellis issued a scathing critique of Denkowski's method, writing that all of his testimony "must be disregarded due to fatal errors." Plata’s sentence was commuted to life in prison.

Plata's lawyer, Kathryn Kase, told the Observer that all 17 appeals in which Denkowski opined against mental retardation should be re-heard:

"When you have junk science in a case, it’s like pouring poison into a punch bowl. You aren’t going to get the poison out. So you have to pour out the punch, clean the bowl, and start all over again."

In the case of one convict, Michael Richard, that suggestion comes too late. Richard has already been executed.

According to the Observer article, Denkowski originally opined that Richard was mentally retarded, with an IQ of 64 and an adaptive-behavior score of 57, well below the 70 cutoff. But he adjusted his scores after prosecutors showed him a list of books found in Richard's cell, concluding that Richard’s reading level suggested he was not retarded.

The defense psychologist, Jerome Brown, said when he asked Richard about these books -- one of which was written in German -- the prisoner said he used the books to sit on, since his death row cell lacked a chair.

Denkowski's unorthodox method has sparked outrage in the psychological community, including two rebuttals in the American Journal of Forensic Psychology (see resources below) and a pointed caution in the 2010 edition of the American Association on Intellectual and Developmental Disabilities’ diagnostic manual against use of his method.

Further resources:

Denkowski, George C. & Denkowski, Kathryn M. (2008). Adaptive behavior assessment of criminal defendants with a mental retardation claim, American Journal of Forensic Psychology, Volume 26, Issue 3, pp. 43-61.

Widaman, Keith F. & Siperstein, Gary N. (2009). Assessing adaptive behavior of criminal defendants in capital cases: A reconsideration, American Journal of Forensic Psychology, Volume 27, Issue 2, pp. 5-32 (response to Denkowski and Denkowski 2008)

Denkowski, George C. & Denkowski, Kathryn M. (2009). Adaptive behavior misconceptions about criminal defendants with a mental retardation claim: A response to Widaman and Siperstein, American Journal of Forensic Psychology, Volume 27, Issue 2, pp. 33-61

Olley, J. Gregory (2009) Challenges in implementing the Atkins decision, American Journal of Forensic Psychology, Volume 27, Issue 2, pp. 63-73 (response to Denkowski and Denkowski 2009)

Blume, John H., Johnson, Sheri Lynn, and Seeds, Christopher (2009), An Empirical Look at Atkins v. Virginia and Its Application in Capital Cases, Tennessee Law Review, Volume 76, p. 625

2009: Bad year for death penalty

The writing is on the wall: Death sentences are at an all-time low, more states are abolishing capital punishment altogether, and -- in what is being called a "tectonic shift" -- the American Law Institute announced it will wash its hands of the enterprise.

Adam Liptak, the New York Times' astute legal analyst, says that of all of last year's developments, the American Law Institute action is the most critical. The influential institute, comprised of 4,000 judges, lawyers and law professors, created the modern framework for the death penalty in its 1962 Model Penal Code. Its vote to abandon its capital punishment structure followed a study finding that the system was plagued with systemic problems, including racial disparities, risks of executing innocent people, and exorbitant costs.

A campaign to have the institute take a formal stance against the death penalty failed, Liptak said in yesterday's column. Instead, the institute voted to disavow the structure it had created "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."

Meanwhile, New Mexico last year joined 14 other states that have abolished the death penalty in favor of the option of life without the possibility of parole. And although the number of executions was up nationwide from the previous year (from 37 to 52), fewer new death sentences were imposed than in any year since the United States reinstated capital punishment in 1976.

That may reflect not only dwindling popular support for capital punishment, but also the high costs during these tough economic times. The ever-rational state of California, which bucked the national trend despite an especially acute economic crisis, is spending an estimated $137 million per year on the death enterprise not including an estimated $400 million for a new facility to house its 690 death row prisoners, Time magazine reported.

Summing up the current pendulum shift, Time noted: "Urgently important to fewer and fewer people, yet less and less compelling to the country at large, the death penalty keeps sputtering along, dwindling as the years go by."

Graphics credit: Finishing-school (Creative Commons license)
Double hat tips: Tim D. and Gretchen W.

The high court and "selective empathy"

In a previous blog post, I briefly referenced the U.S. Supreme Court's recent opinion in Porter v. McCullum. The high court unanimously reversed a death verdict because the defense attorney failed to present mitigating evidence at the penalty phase of the trial.

George Porter Jr. was convicted of shooting his former girlfriend and her new lover to death. The potentially mitigating evidence that the jury didn't get to hear included military heroism during the Korean War, post-war adjustment problems, childhood victimization, a brain abnormality, inadequate schooling, and limited literacy.

The decision was widely hailed by death penalty opponents and veterans' groups. But Linda Greenhouse, the Pulitzer Prize-winning journalist who covered the Supreme Court for the New York Times for 30 years and now teaches at Yale Law School, says the decision raises an important question about equity:

Is selective empathy better than no empathy at all?

Greenhouse was struck by "the sympathy that all nine justices displayed for a man who, in the fullness of his adulthood and after promising a friend that she would soon be reading about him in the newspaper, stole another friend’s gun and shot two people to death in cold blood."

She contrasted this with the court's unanimous opinion just last month in another case alleging inadequate representation and failure to adequately pursue mitigation themes in a death case. That case involved Robert Van Hook, also a military veteran, who robbed and murdered a man he picked up in a gay bar. In a decision that "sent chills down the spine of death-penalty opponents," the high court overturned an appellate reprieve, paving the way for Van Hook's execution.

Comments Greenhouse:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men's childhoods were -- indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don't make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won't be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

The full essay, well worth your perusal, is online HERE.

Texas death case illustrates Atkins quagmire

The U.S. Supreme Court's 2002 decision in Atkins v. Virginia to outlaw the death penalty for mentally retarded defendants has opened up a "welter of uncertainty" in courts around the nation. So-called "Atkins inquiries" into whether a defendant is mentally retarded rely heavily on mental health experts, who may disagree on everything from the definition and identification of mental retardation to whether the specific defendant meets the threshold criteria.

This familiar spectacle of dueling experts takes a particularly ominous turn when experts misstate the science in these high-stakes (literally, life or death) cases. Fact-finders are often ill-equipped to disentangle the highly complex technical and scientific issues pertaining to whether or not a defendant meets the magic cutoff that will spare his life.

Over at his new blog, Intellectual competence and the death penalty, Kevin McGrew critically analyzes the latest case exemplifying these legal pitfalls, especially in the increasingly common situation in which the defendant is from another culture or speaks a language other than English. The case is that of Virgilio Maldonado, out of the U.S. District Court for the Southern District of Texas.

McGrew believes this case represents "a miscarriage of justice" that typifies the problems inherent in Atkins inquiries:

"The courts appear ill-equipped to handle the complex psychological measurement issues presented, issues that are, at times, confounded by the inclusion of data from dubious procedures, interpretations of test scores that are not grounded in any solid empirical research, and the deference to a single intelligence battery (the WAIS series) as the 'gold standard' when a more appropriate instrument (or combination of WAIS-III/IV and other measures) might have been administered, but the results of the more appropriate measure are summarily dismissed based on personal opinion (and not sound theory or empirical research)."

Those of you who practice in this area will be interested in McGrew's in-depth dissection of the IQ testing problems when defendants are not proficient in English language. Often, tests are wrongly selected, misadministered and misinterpreted under these circumstances.

In the Maldonado case, the prosecution's psychological expert decided to upwardly adjust the defendant's IQ score to a specific number based on his "clinical judgment" as to cultural and educational factors.

"It’s around the 80s, I guess, if you had to pin me down. Around the 80s; somewhere in there," the psychologist testified.

As McGrew points out:

"Adjusting obtained IQ scores, either up or down, … in the absence of any scientifically established procedure … is troubling and is not consistent with accepted psychological assessment practices or standards."

McGrew also critiques courts' frequent practice of putting the WAIS tests on a pedestal as the "gold standard," to the point of dismissing Spanish-language tests that are normed on relevant Spanish-speaking populations.

McGrew's in-depth analysis is HERE. The 144-page Maldonado decision is online HERE.

Intellectual competence and the death penalty

That's the title of a new blog some of you will be interested in. Produced by Kevin McGrew, director of the Institute for Applied Psychometrics, its focus is "psychometric measurement issues and research related to intelligence testing that may have bearing on capital punishment cases for individuals with an intellectual disability."

The blog is just a few months old, but it's already loaded with resources pertinent to capital litigation, including recent court cases as well as professional journals, associations, blogs, and experts. It's even got a poll you can take, indicating what topics you would like Dr. McGrew to tackle next. The professor clearly enjoys blogging, as he's already running at least two other IQ-related forums.

Clicking on the image at left will take you directly to the site, which today just happens to feature my blog.

Will Texas arson case change death penalty debate?

Pundits are predicting that an in-depth New Yorker expose on the Cameron Todd Willingham case may change the face of the death penalty debate.

David Grann's article, "Trial by Fire: Did Texas execute an innocent man?" is set for publication Sept. 7. Already, it is generating comment, such as this excellent op-ed in the New York Times by columnist Bob Herbert:

It was inevitable that some case in which a clearly innocent person had been put to death would come to light. It was far from inevitable that this case would be the one. "I was extremely skeptical in the beginning," said the New Yorker reporter, David Grann, who began investigating the case last December.

As I blogged about last year, Cameron Todd Willingham was executed in 2004 when Texas' governor ignored a report calling into question the scientific evidence underlying his conviction.

"There's nothing to suggest to any reasonable arson investigator that this was an arson fire," wrote renowned arson expert Gerald Hurst in that report. "It was just a fire."

Now, a report commissioned by Texas to investigate mishandling of forensic evidence is "devastating” to the prosecution's theory, writes Herbert. According to scientist Craig Beyler, the determination of arson had absolutely no scientific basis. In his scathing report, Beyler equated the fire marshall's approach to that of "mystics or psychics."

Unfortunately, it's all a bit too late for Willingham. After hearing from a jailhouse snitch and others, a jury deliberated only an hour before convicting him. As Herbert wrote, Willingham "insisted until his last painful breath that he was innocent," refusing a plea bargain that would have spared his life.

Click on the image below to see a 4-minute video narrated by Grann, featuring footage shot by fire investigators and discussing flaws in the original investigation.

Click on this image to see video footage of the arson investigation

Further resources:

Scott Henson over at Grits for Breakfast has extensive coverage of the case.

Mental illness: The death penalty frontier

With juveniles and the mentally retarded off the list of those eligible to be executed, severe mental illness looms as the "next frontier" of death penalty jurisprudence, asserts Bruce J. Winick, therapeutic jurisprudence scholar and a law professor at the University of Miami School of Law:

The Supreme Court's 2002 decision in Atkins v. Virginia and 2005 decision in Roper v. Simmons marked a significant new direction in Eighth Amendment jurisprudence. This Article explores the Court's emerging conception of proportionality under the Eighth Amendment, which also is reflected in its 2008 decision in Kennedy v. Louisiana. The Article analyzes the application of this emerging approach in the context of severe mental illness. It argues that the Court can extend Atkins and Roper to severe mental illness even in the absence of a legislative trend away from using the death penalty in this context. The strong parallels between severe mental illness at the time of the offense and mental retardation and juvenile status make such an extension of the Eighth Amendment appropriate.

Severe mental illness would not justify a categorical exemption from the death penalty; rather, a determination would need to be made on a case-by-case basis. The major mental disorders, like schizophrenia, major depression, and bipolar disorder, could qualify in appropriate cases, but not antisocial personality disorder, pedophilia, and voluntary intoxication. The Article discusses the functional standard that should be used in this context, and proposes that the determination be made by the trial judge on a pretrial motion rather than by the capital jury at the penalty phase. Future implications of the Court's emerging approach also are examined.

A pdf of the full paper is available for online download here.

Hat tip: Kirk Witherspoon

Eye-plucking prisoner competent and sane

Andre Thomas plucked out his right eye in 2004. Now, he has plucked out his left.

The Texas death row inmate with a history of mental problems killed his wife and their two children and ripped out their hearts. He then walked into a police station and confessed.

None of that sounds all that sane. Indeed, Thomas has been diagnosed with schizophrenia and suffers from psychotic delusions and a preoccupation with death, religion, and suicide, sources say.

Nonetheless, he was found competent to stand trial, convicted, and sentenced to die for the death of his 13-month-old daughter.

The self-mutilation is unlikely to have any effect on his appeals, but at least they got him transferred to a psychiatric hospital for treatment.

The story is here.

Breakdown in Lone Star death machine?

Drop in Texas executions has folks wondering

Texas is the death penalty capital of the United States, and perhaps the world. So a decline in both executions and new death sentences there has some wondering whether this is the beginning of the end for capital punishment in our prison nation.

"I think we are seeing the leading edge of that national transformation,” said Rob Owen, co-director of the Capital Punishment Clinic at the University of Texas at Austin.

Whoa, Cowboy, says Michael Casillas, chief prosecutor of the appellate division of the Dallas County district attorney's office. Not so fast: "Things are, even in the criminal justice system, kind of cyclical."

Most startling of last year's statistics were those coming out of Harris County (Houston), the epicenter of the death penalty capital. The year before last, that one COUNTY alone had surpassed the annual execution rate for the next-highest STATE (Virginia). But last year, that usually prolific killer did not sentence a single person to die. Not even an illegal immigrant who went to trial for killing a police officer!

As the Dallas Morning News reports, a number of factors may be contributing to the decline. These include:

• A big drop in the murder rate
• Better quality legal representation
• A wave of exonerations
• The high costs of capital case prosecution
  
• The availability of life without parole as an option

Or perhaps Harris County is just looking over toward neighboring Dallas County, usually number two in executions, where maverick prosecutor Craig Watkins (whom I featured on this blog last September) has called a halt to all executions pending a thorough review.

In a sign of the times in which Barack Obama could be elected as President, Watkins' crusade has earned him the honorary title of "Texan of the Year" from the Dallas Morning News:

He is actively pursuing a range of reforms that would protect the wrongly accused and appropriately punish the guilty. Not only does he want to clear the innocent, but he also hopes to extend the statute of limitations in DNA cases to ensure that the right person does the time.

He has reinvented his office by creating a conviction integrity unit, an operation that has freed prisoners who were wrongly locked up for murder, robbery and rape. Not content to just notch wins in the courtroom, Mr. Watkins deserves credit for vigilantly pursuing justice – a distinction with an important difference.

Dallas County leads the country in DNA exonerations (19 and counting), and Mr. Watkins has seized upon the attendant acclaim, taking his fight for social justice to statewide and national stages. In his sudden fame, he sees an opportunity to change the way district attorneys do business.

Further resources:

Texas Department of Criminal Justice schedule of executions

Execution statistics

Craig Watkins: Texan of the Year

Is the death penalty a dying breed? (Dallas Morning News)

Hang 'em high county to reverse course (blog post, September 2008)

New journal issue loaded with hot topics

The current (December) issue of the Journal of the American Academy of Psychiatry and the Law has a slew of interesting articles on sex offender civil commitment, forensic brain imaging, religion and the death penalty, forensic assessment of problematic Internet use, psychotherapy with prisoners, competency case law, school shooter motivations, and other timely topics. Highlights include:

Use of DSM Paraphilia Diagnoses in Sexually Violent Predator Commitment Cases
This is the long-awaited article by DSM-III editors Michael B. First and Robert L. Halon, addressing diagnostic controversies in SVP civil commitment cases.

It is accompanied by two commentaries:

• In Muddy Diagnostic Waters in the SVP Courtroom, forensic psychologist Robert Prentky and colleagues essentially agree with First and Halon’s critique. They state that misuse of the DSM in SVP cases is a serious form of "pretextuality."

• In Inventing Diagnosis for Civil Commitment of Rapists, forensic psychologist and attorney Thomas K. Zander traces the history and ethics implications of using DSM diagnoses that lack reliability or validity in order to civilly confine rapists.

Next comes a similar point-counterpoint series of three articles on functional brain imaging in court:

• Functional MRI Lie Detection: Too Good to be True? by Joseph R. Simpson

• Commentary: Functional MRI Lie Detection by James R. Merikangas

• Commentary: The Future of Forensic Functional Brain Imaging by Daniel D. Langleben and Frank M. Dattilio

The full Table of Contents, with links to full-text pdf files, is here.