by Matt Clarke

A Texas psychologist who used questionable methods to examine over a dozen Texas death row prisoners prior to their trials, and found them intellectually competent to face the death penalty, has been fined for using non-standard testing techniques and will no longer perform death penalty evaluations.

Dr. George C. Denkowski was a darling of Houston-area prosecutors. They knew he would deem a defendant suitable for the death penalty even when other psychologists balked. Ultimately, defense attorneys and Denkowski’s fellow colleagues proved to be his undoing after they filed complaints against him with the Texas State Board of Examiners of Psychologists (TSBEP).

The U.S. Supreme Court held in 2002 that executing mentally handicapped prisoners was unconstitutional, but did not provide guidelines for determining who was mentally handicapped. See: Atkins v. Virginia, 536 U.S. 304 (2002) [PLN, Sept. 2002, p.24]. To be deemed mentally handicapped in Texas, a defendant must demonstrate below-average intellectual function, a lack of adaptive behavior skills and a persistence of those problems since childhood.

To determine a person’s adaptive behavior and life skills, family members are given a standard test that asks questions about the subject. Typical questions might include whether the subject can pay rent, fill out job applications, read menus or understand rules of sports or games. Dr. Denkowski insisted that families “tend to underestimate a defendant’s actual functioning markedly,” so he administered the test to the defendant instead.

Denkowski authored a 2008 paper in the American Journal of Forensic Psychology in which he criticized mainstream tests for not compensating for cultural and social factors.
He insisted that people from impoverished backgrounds might never have had the opportunity to learn a life skill because it was lacking in their environment. Thus, according to him, a lack of life skills among the poor does not indicate a lack of intellectual ability. He also inflated defendants’ IQ scores based on his own subjective observations.

Dr. Denkowski’s colleagues rejected his methodology as having no basis in science. In fact, the 2010 manual of the American Association on Intellectual and Developmental Disabilities strongly cautions against using Denkowski’s methods “until firmly supported by empirical evidence.”

“What Dr. Denkowski has been doing is a pretty radical departure,” stated Dr. Marc J. Tasse, an expert in develop-mental disabilities and the director of the Nisonger Center at Ohio State University. “There is absolutely no scientific basis to his procedure.”
Dr. Jack Fletcher, a neuropsychologist who served on the President’s Commission on Excellence in Special Education, went even further after reviewing video footage of Denkowski evaluating a death row prisoner, saying Denkowski’s testing methods seemed “driven to yield scores outside the range of mental retardation.”

Denkowski’s approach was, however, lucrative. Prosecutors paid him $180 per hour for evaluating defendants facing the death penalty, and $250 an hour for courtroom testimony. Between 2003 and 2009 he received over $303,000 from Harris County, Texas prosecutors.

TSBEP settled the disciplinary case against Dr. Denkowski on April 15, 2011 by dismissing the complaints after he paid a $5,500 fine and agreed to never again conduct an intellectual competency evaluation in a criminal case.

“It really suggests that he screwed up,” remarked attorney Richard Burr, who represents Texas death row prisoner Steven Butler and said he intends to use the TSBEP settlement in Denkowski’s case despite a clause stating the decision cannot be cited in capital punishment appeals. Burr plans to use the settlement to argue that Butler should be reevaluated.

State Senator Rodney Ellis, chairman of the Texas Innocence Project, believes that every death penalty case which included an evaluation by Dr. Denkowski should be subjected to court review.

“We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men, especially on the word of someone who is no longer permitted to make these kinds of determinations,” Ellis said.

At least two prisoners evaluated by Denkowski were later executed. One of those prisoners, Michael Richard, was sentenced to death for the rape and murder of a 53-year-old woman. Dr. Denkowski initially agreed that Richard was mentally handicapped; however, he changed his opinion after prosecutors gave him a list of books found in Richard’s cell that included dictionaries. Denkowski then increased Richard’s score to find he was not mentally handicapped. When a defense expert questioned Richard it was learned that he used the large books to sit on, as there was no chair in his cell. Richard was executed in September 2007.

On December 14, 2011, the Texas Court of Criminal Appeals remanded two death penalty cases for reexamination of the defendants’ competency under the Atkins standard. Dr. Denkowski had provided evaluations in both cases, one involving Steven Butler, and the Court of Criminal Appeals specifically cited Denkowski’s settlement agreement with the TSBEP in returning the cases to the trial courts for reevaluation of their “initial findings, conclusions, and recommendation.” See: Ex Parte Matamoros, 2011 WL 6241295 (Tex.Crim.App. 2011) and Ex Parte Butler, 2011 WL 6288411 (Tex.Crim.App. 2011).

“Exonerations, I think, have caused the court to become concerned about the integrity of forensic evidence,” said Kathryn M. Kase, executive director of the Texas Defender Services. “That’s really, really important here, where the decision about whether someone has [mental] retardation is a matter of life and death.”

Sources: Texas Tribune, Texas Observer, New York Times

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