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.

180-year sentence overturned over lack of mental health testimony

  Lawyer erred by not calling psychologist, appellate court holds   

A trial counsel’s failure to call a psychologist to testify at the sentencing hearing of a Missouri man with borderline intelligence constitutes reversible error, an appellate court has ruled.

The court upheld a trial court decision that the attorney's performance was deficient, and that the failure to present psychological evidence may have prejudiced the defendant.

A jury deliberated for just a little over an hour at the sentencing hearing of 24-year-old Skylor Radmer before recommending a prison sentence of 180 years. Earlier, the jury had convicted him of two counts of statutory sodomy for molesting his 5-year-old niece.

In upholding the lower-court ruling reversing the sentence, the Court of Appeals for the Western District of Missouri said that psychological testimony about Radmer's borderline intelligence might have resulted in a different outcome.

Radmer's attorney, Bert Godding, knew about Radmer's intellectual handicap because he had represented him in a prior case in which his comprehension of a police Miranda warning was at issue. In that case, he retained psychologist Bill Geis, who testified at an evidentiary hearing that Radmer was functioning at the borderline intellectual level, with an IQ score of 75.

At a hearing on the ineffective assistance claim, Dr. Geis testified that Radmer's low intelligence might have been relevant to explaining his sex offending as a product of poor judgment rather than pedophilia.

The trial attorney also testified at the hearing, admitting that he had no strategic reason for not calling a mental health expert to testify at the sentencing phase of the trial: "I don't believe that I necessarily had a reason not to or to do that," he testified. "I don't know why I didn't call someone like that."

The appellate court rejected the prosecution’s argument that the jury would have found Dr. Geis biased because he had worked for the public defender in the past. Geis is a research professor at the University of Missouri-Kansas City.

The defense lawyer's "failure to call Dr. Geis or a similar expert during the sentencing phase fell below an objective standard of reasonableness," the appellate court unanimously held.

Hat tip: Ken Pope

Parolees retain right to confidential therapy, court holds

"The SVP Act does not include its own special exception"

Ramiro Gonzales had no idea how far the news would travel, when he confided to his therapist that he had molested more children than those for which he had been convicted and served time in prison.

After all, confidentiality is the cornerstone of psychological treatment. Would you disclose information in therapy if you thought your darkest thoughts and most shameful misdeeds would be trumpeted to the world?

But in response to a subpoena, Mr. Gonzales's therapist handed over his entire treatment record to a prosecutor who was seeking to civilly detain him as a sexually violent predator (SVP), after a judge overruled a defense objection. The government's two psychologists then used the damaging admissions to bolster their trial testimony about future dangerousness, and a jury voted to civilly commit him.

Not so fast, an appellate court ruled last week. "The SVP Act does not include its own special exception" to established rules of patient-therapist confidentiality. Just like everyone else, a parolee is entitled to expect confidentiality in therapy, except as necessary to keep parole authorities informed about whether he is complying with any mandatory treatment requirements. Such information, the court added, must be as minimal as possible, and certainly does not include details of therapy or statements made in therapy.

Mr. Gonzales's admission was so highly prejudicial that the civil commitment must be overturned and he must get a new trial, the appellate court ordered, especially since the government's case overall was "not compelling." There was no evidence that he had molested any children since paroling from prison.

Mr. Gonzales, who is developmentally disabled due to spinal meningitis as a boy, was required to be in treatment as a condition of his parole. The state had already tried to civilly commit him upon his initial parole from prison, but a jury rejected that attempt. It was trying for the second time, after he violated parole by drinking alcohol and being around children, including his sister's children when they came over to visit his mother, where he lived.

The court clarified that people who have been civilly committed, as well as prison inmates, cannot expect the same level of privacy in therapy as parolees or probationers, because they have been found to be dangerous.

The ruling is good news for psychology ethics. Too many therapists seem to harbor the misimpression that a contract with a parole or probation agency trumps our professional ethics codes, giving them carte blanche to discuss their client's confidential business with authorities.

This ruling should serve as a vivid reminder: A subpoena is just a piece of paper filled out by an attorney. You aren't supposed to blindly obey it when it is improper. Indeed, you have an obligation to actively resist turning over confidential records of therapy. The therapist in this case should have voiced an objection, and brought her own attorney to court to fight the subpoena.

The case, People v. Ramiro Gonzales out of Santa Clara County, gives an excellent overview of both federal and California case law on confidentiality in forensic cases. It is online HERE.

Related blog posts:  

• Do sex offenders have right to confidential therapy? (Feb. 22, 2008)

• Confession to prison psychiatrist not confidential (Dec. 11, 2007)

• Treating therapist as police interrogator (Nov. 30, 2008)

• Abandon ethics, all ye who enter here: Special ethics exemption sought for SVP work (Oct. 6, 2010)

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)

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

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.

Oops! Another accidental deportation

Getting arrested, even on a minor charge, can be hazardous in unexpected ways. Especially if you are mentally impaired and have brown skin and/or a Latino surname.

Remember Pedro Guzman, the cognitively handicapped Los Angeles man who was arrested on a minor trespassing charge and accidentally deported to Mexico, where he disappeared for months?

Now, it's happened again.

This time, a North Carolina native who speaks not a word of Spanish ended up on a cross-national odyssey after ICE scooped him up from a local county jail and shipped him off to Mexico. Perhaps fortunately, what with the swine flu and all, Mexico quickly deported him to the Honduras, which deported him to Guatemala. In all, Mark Lyttle bounced among Latin American prisons and homeless shelters for four months before the U.S. Embassy in Guatemala finally confirmed his U.S. citizenship.

Lyttle is mentally retarded and mentally ill. Although his surname does not hint at a Mexican nationality, he has dark skin, thanks to the Puerto Rican ancestry of his birth father. ICE claims Lyttle falsely identified himself as a native of Mexico, a claim Lyttle adamantly denies.

And just as Lyttle was finally making his way home again, you'll never guess what happened: immigration officials at the Atlanta airport tried to deport him yet again!

The Raleigh News & Observer has the story HERE. My blog posts on the 2007 case of Pedro Guzman are HERE.

ABA calls for death penalty moratorium

The American Bar Association today released findings of a three-year study on state death penalty systems and called for a nationwide moratorium on executions. Currently, more than 3,000 people are awaiting the needle, the chair, or the gallows.

In its detailed analyses of death penalty systems in eight U.S. states, the report highlights "key problems" that make the current system unfair, including racial disparities (more than 4 out of 10 death row prisoners are black, according to the U.S. Bureau of Justice Statistics), inadequate defense services for indigent defendants, and irregular processes for clemency review. The report also documents serious problems with evidence collection, preservation, and analyses; state crime laboratories are systematically underfunded and look nothing like those on television's CSI.

Of relevance to forensic psychology, the ABA's investigatory committee found that many states do not ensure that lawyers who represent mentally ill and mentally retarded defendants understand the significance of their clients' mental disabilities. In addition, jury instructions do not always clearly distinguish between the use of insanity as a legal defense and the introduction of mental disability evidence to mitigate capital sentencing.

Prosecutors and death penalty supporters are calling the study biased, saying many of the attorneys on the state investigation teams are death penalty opponents.

The full report is available online through CNN.

Chart: Capital Punishment, 2005, Bureau of Justice Statistics, U.S. Department of Justice.

Happy ending for wrongfully deported Mexican-American man

Two months ago, I posted here about a cognitively handicapped Mexican-American man who was illegally deported to Mexico and disappeared.

Pedro Guzman, born in the United States, was mistakenly deported after being jailed in his native Los Angeles on a minor trespassing charge. A former Special Education student, the 29-year-old is described by family members as a slow learner with memory problems.

In the last three months, Guzman said he made repeated attempts to get home, but was turned away by U.S. border agents.

Meanwhile, as he walked the 100 miles from Tijuana to Mexicali, eating out of garbage cans and bathing in rivers, his family was desperately searching for him. The family's pleas for help from both the U.S. and Mexican governments fell on death ears.

Guzman was finally picked up when U.S. authorities at the Calexico border realized he had an outstanding arrest warrant. The warrant, ironically, was for missing probation hearings during the time that he was trying to get home.

Although the U.S. government had promised to immediately notify the family if Guzman was located, he was instead jailed for two days before the family was notified and he was released.

Guzman appeared traumatized and was nearly unrecognizable, family members said at a news conference.

The family's last contact with Mr. Guzman had been on May 11, when he called his sister-in-law from a borrowed cell phone to say he had been deported. The call cut off. Although family members rushed to Tijuana, they were unable to find him.

This is not the first time that a U.S. native has been illegally deported. A similar case 30 years ago also involved a Mexican-American who was mentally disturbed and unable to care for himself. Like Guzman, Daniel Cardona of Clovis (near Fresno) wandered the streets of Tijuana for nearly five months while his frantic family searched for him.

The latest on the Guzman case is at the ACLU of Southern California’s web site.

AP coverage is online through the San Francisco Chronicle.

The “Witness LA” blog has also been covering the story.

But for the most extensive coverage of all, see the excellent L.A. Weekly feature by Daniel Hernandez, “Lost in Tijuana."

Photo (Guzman and his brother) posted with the permission of the ACLU of Southern California.

Mentally retarded man disappears after accidental deportation

The 2005 remake of "Fun with Dick and Jane" has a scene in which Jim Carrey – reduced to the status of a day laborer outside a Home Depot - is mistaken for a Mexican and deported.

If the scene seems a bit implausible, it is not. Especially for someone with a Latino surname.

Last month, a developmentally delayed man who was born and raised in the United States was mistakenly deported to Mexico. Unlike Jim Carrey, Pedro Guzman did not have the cognitive or financial resources to sneak back across the border to his home. He disappeared, and his family has not been able to find him.

It all started when 29-year-old Guzman was arrested for misdemeanor trespassing at an airplane junkyard and was sentenced to serve 40 days in the Los Angeles County Jail.

During a pre-release interview, he said something that led a “custody assistant” to decide that he had “entered the United States illegally” and “had no legal right to be in the United States.” No one knows exactly what was asked of him or what he said. Like many individuals with developmental disabilities, Mr. Guzman covered for his intellectual handicaps by pretending to understand. Family members believe that he may have mentioned a family vacation to Mexico when he was 12 years old.

The jailer contacted ICE, Immigration & Customs Enforcement. Mr. Guzman then signed a form in Spanish agreeing to voluntary deportation. According to his family, he cannot read or write. Most especially – having attended only English-speaking schools in Los Angeles – he would not have been able to read a form written in Spanish.

On May 10, Mr. Guzman called his family from a borrowed cell phone to say that he had been deported to Tijuana. His sister could hear him asking someone, “Where am I?” Then the line went dead. That is the last that his family has heard from him, despite their taking time off work to scour Tijuana for him.

Guzman knew no one in Tijuana. He was deported without any money and without the cognitive skills to get himself back home, according to his family.

Guzman has a birth certificate proving his U.S. citizenship. There are no circumstances in which the U.S. government may legally deport a U.S. citizen.

The family's pleas for assistance from the U.S. and Mexican governments have fallen on deaf ears.

California weighs in on Atkins

States are using various approaches to comply with the U.S. Supreme Court's ban on executing mentally retarded offenders. (The 2002 case of Atkins v. Georgia held that such punishment was cruel and unusual, in violation of the Eighth Amendment.) Now, the California Supreme Court has weighed in, with an intriguing opinion in the case of Jorge Junior Vidal.

The Court unanimously held that a defendant may be spared the death penalty because he is mentally deficient in one area, even if his overall IQ score falls in the normal range. The decision overturned an appeals court finding that “full-scale IQ” was the best measure of intelligence.

Vidal was one of seven Tulare County men who faced the death penalty for the grizzly 2001 torture-killing of a 17-year-old youth. As a child, Vidal underwent intelligence testing due to his severe academic problems. Although his full-scale IQ on the widely used Wechsler test consistently fell above the typical cutoff score of 70 for mental retardation, this was due to a large split between his low verbal IQ score and his high performance IQ (which measures non-verbal skills such as ability to solve puzzles).

At issue in his case was how to determine whether he was mentally retarded for purposes of the death penalty. Under California’s Penal Code Section 1376, mental retardation is defined as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18.” In Atkins, the U.S. Supreme Court did not specify how “general intellectual functioning” was to be determined.

At the trial level, two psychologists testified that Vidal’s full-scale IQ score was misleading. They opined that Vidal’s verbal abilities were more important in this context, because they involve the ability to process information and to think logically. Individuals with low verbal IQs, they argued, have problems interpreting social cues and are more likely to go along with a group. The prosecution countered with a psychologist who testified that the most accurate measure of mental retardation was the full-scale IQ score.

The state Supreme Court ruled that a specific test score or legal rule cannot determine “general intellectual functioning.” Rather, the court must consider the defendant’s overall capacity based on the specific evidence in that case.

In a great discussion of the distinction between science and law, the Court chastised the appellate court for taking sides in a psychological debate: “An appellate court cannot convert a disputed factual assertion into a rule of law simply by labeling it a ‘legal standard.’ … [The question here is] whether, when both sides of a scientific dispute have been presented by expert testimony, an appellate court may declare the debate’s winner as a matter of law.”

The decision is likely to affect dozens of cases statewide by giving judges broader discretion to spare defendants from the death penalty based on low intellectual functioning.

The court's decision is available at: http://www.courtinfo.ca.gov/opinions/documents/S134901.PDF