Forensic psychologist inflated IQ scores to secure death penalty

According to an excellent investigative article in the Texas Observer by reporter Renee Feltz ("Cracked," Jan. 8), seventeen men currently on Texas' death row were evaluated by a forensic psychologist using "junk science" who improperly inflated IQ scores to make them eligible for the death penalty despite Supreme Court caselaw banning execution of the mentally retarded.

Among the cases Dr. George Denkowski apparently tainted was that of Michael Richard, who was executed for capital murder in September 2007. This case was heretofore better known because Judge Sharon Keller at the Texas Court of Criminal Appeals denied receipt of Richard's final habeas claim with her infamous "We close at 5" comment. That led to the Commission on Judicial Conduct to initiate fact-finding proceedings that may yet lead to her removal.

Feltz reports that:

After the Atkins decision in 2002, Denkowski became the first choice for Texas prosecutors. He would ultimately testify in 29 cases—nearly two-thirds of such appeals in Texas to date. ...

In 29 cases, Denkowski has found defendants retarded only eight times. By 2006, when he tested Plata, Denkowski had garnered an “almost Dr. Death status” among defense lawyers, according to attorney Robert Morrow. Morrow represented Alfred DeWayne Brown during his 2004 trial for killing a clerk and a security guard at a Houston check-cashing store. Morrow said “Denkowski pretty much thought that if you had engaged in criminal behavior you were not retarded,” Morrow says. Brown remains on Death Row.

The work was lucrative. Denkowski charged prosecutors hourly rates of $180 for evaluations, and $250 for court testimony. Most of the cases he worked on were in Harris County, which until 2009 pursued more death-penalty sentences than any other county in Texas. Between 2003 and 2009, Harris County paid him $303,084 for his services, according to the Harris County Auditor.

The case of Daniel Plata brought the issue of Denkowski's credibility to a head when a federal judge found that Denkowski had improperly inflated IQ scores and all of his testimony “must be disregarded due to fatal errors.” Then, "On Jan. 18, 2008, the Texas Court of Criminal Appeals agreed and commuted Plata’s death sentence to life in prison. He was transferred to the Hodge Unit in Rusk, where he is now housed with other mentally retarded prisoners." At that point, writes Feltz:

The decision ended Daniel Plata’s 12-year stay on Texas’ Death Row. It might also lead to the end of George Denkowski’s career as a licensed psychologist. Judge Ellis’ decision emboldened one of Denkowski’s colleagues, Jerome Brown of Bellaire, to file a complaint with the Texas State Board of Examiners of Psychologists. If Denkowski loses his license, the cases of 17 other Texas men on Death Row—men he determined were not mentally retarded—could be re-examined. And Texas’ status as a national outlier in cases involving mental retardation could be changed for good.

Brown worked as an expert for the defense on five capital cases in which Denkowski worked for the prosecution. He says Denkowski used the same estimation techniques and showed the same deference to prosecutors’ evidence in those cases as he did in Plata’s, and that it was “essentially junk science. It is science that appears to be scientific, but it doesn’t have any background of validation to it.”

The professional psychiatric community apparently agrees:

After the judge rejected Denkowski’s findings in the Plata case, Brown enlisted Jack Fletcher and a Florida-based psychologist named Tom Oakland to jointly file a complaint against Denkowski. Oakland co-authored the adaptive-behavior test. Their complaint cited the Richard case, as well as those of Plata and DeWayne Brown.

Last February, the state Board of Examiners of Psychologists upheld the complaint, finding that Denkowski had made “administration, scoring and mathematical errors” in all three cases. The board sent the complaint to the State Office of Administrative Hearings. Denkowski will have a chance to defend himself in a hearing scheduled for Feb. 16 in Austin. He could lose his license.

The broader psychological community has also rejected Denkowski’s methods. He is mentioned by name in the 2010 edition of the American Association on Intellectual and Developmental Disabilities’ diagnostic manual. In a section about how cultural or economic factors should impact scores on adaptive behavior tests, the authors “strongly caution against practices such as those recommended by Denkowski.”

Given all that, it's hard to disagree with

Daniel Plata’s lawyer, Kathryn Kase, [who] argues that all of the appeals on which Denkowski worked should be re-heard. “When you have junk science in a case, it’s like pouring poison into a punch bowl,” she says. “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.”

Congrats to Feltz and the Observer for excellent reporting on a story that really needed to be told.