Two Prisoners Removed from Texas Death Row Due to Intellectual Disability
by David M. Reutter
The Texas Court of Criminal Appeals resentenced death row prisoner Tomas Raul Gallo, 49, to life imprisonment on April 5, 2024, approving an agreement by prosecutors that Gallo’s intellectual disability (ID) prohibits his execution. The agreement further acknowledges that Gallo’s death sentence violated his due process rights because it was based upon false testimony by Dr. George Denkowski.
Gallo was convicted in 2004 of murdering and sexually assaulting his girlfriend’s 3-year-old daughter. In addition to finding him guilty of capital murder, the jury answered special issues resulting in his sentence to death. Gallo’s appeal was denied. In 2017, he filed a habeas corpus petition in state court that argued he had ID and was therefore ineligible for execution, as the Supreme Court of the U.S. held in Atkins v. Virginia, 536 U.S. 304 (2002). In a rare instance of cooperation between prosecutors and the defense, the parties filed findings of fact and conclusions of law that agreed Gallo’s ID rendered his death sentence a violation of the Eighth Amendment. The joint finding was highly critical of the methods used by Denkowski.
Denkowski was sanctioned by the Texas State Board of Examiners of Psychologists (TSBEP) in 2011. That sanction followed a state court’s finding that Denkowski intentionally misapplied psychiatric testing methods. Eight other complaints were subsequently filed with TSBEP against Denkowski, who was then barred from accepting “any engagement to perform forensic psychological services in the evaluation of subjects for mental retardation or intellectual disability in criminal cases.”
Denkowski’s assessment of Gallo concluded that his IQ should be higher than the test scores he obtained; according to Denkowski, this reflected the way serious depression and moderate anxiety can depress an IQ score by up to eight points. As to Gallo’s adaptive functioning, Denkowski drafted his own assessment and speculated that if Gallo had the opportunity and were motivated, he possessed the underlying skills. He further testified to the jury that Gallo’s “low socioeconomic antisocial lifestyle,” selling drugs and mediating gang conflicts, prevented proper assessment by mainstream IQ tests. The problem was that Denkowski’s methods lacked any scientific evidence.
Gallo’s attorney, Richard Ellis, described Denkowski’s evaluation as “entirely racist and not acceptable.” Prosecutors and the Court of Criminal Appeals “recognized this was an injustice,” Ellis said, giving deference instead to “the long and overwhelming documentation that was provided to show Mr. Gallo’s intellectual disability.”
The Court resentenced Gallo to life with the possibility of parole— since his original sentencing predated the state’s 2005 adoption of life without parole. In their dissent, Judges Sharon Keller and Kevin Patrick Yeary chided the majority for too quickly accepting the word of doctors and psychiatrists that Gallo suffers ID; noting the “continually evolving standards” for making the diagnosis, they said the case should have returned to the trial court to make a legal determination of ID. See: Ex parte Gallo, [unpub.] (Tex. Crim. App. 2024).
Gallo was the second person that the Court removed from death row in as many weeks. On March 27, 2024, Randall Wayne Mays, 64, was resentenced to life imprisonment for killing two Henderson County Sheriff deputies, vacating his 2008 death sentence due to his intellectual disability—but not before Mays had twice been scheduled for execution, and the Court both times affirmed dismissal of his habeas corpus petitions. In granting his third petition, the Court again merely affirmed an agreement already reached between prosecutors and defense attorneys. Even that wasn’t enough for three judges on the Court, though; Michelle Slaughter joined Keller and Yeary in dissenting that Mays’ intellectual disability had not been weighed by a jury, which they viewed as the logical extension of state lawmakers’ decision to require jury verdicts in capital cases. See: Ex parte Mays, 686 S.W.3d 745 (Tex. Crim. App. 2024).
Additional source: Texas Tribune
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Related legal case
Ex parte Mays
| Year | 2024 |
|---|---|
| Cite | 686 S.W.3d 745 (Tex. Crim. App. 2024) |
| Level | State Supreme Court |