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Recent Settlement May Give Texas Death Row Inmates an Opportunity for Appeal

After state officials reprimanded a criminal psychologist who often testified for the prosecution regarding fitness for execution of defendants, criminal defense attorneys across the state may have a second chance opportunity for their death row clients.

In 2002, the United States Supreme Court held that states could not execute mentally-handicapped people, but the opinion did not provide a test to determine who is considered mentally handicapped. Left to create their own definition, Texas courts have adopted three criteria to determine intellectual disability that are best evaluated by psychological testing.

Dr. George Denkowski was often called upon to perform the mental competency screening of defendants in death penalty cases and was frequently called as an expert witness by the Harris County prosecution. Using test methods not “firmly supported by empirical evidence,” according to the American Association on Intellectual and Developmental Disabilities, he found 16 individuals mentally competent to stand trial for capital murder charges. Two inmates have already been executed and 14 others remain on death row.

His testing methods have been questioned numerous times by other psychologists and defense attorneys. As part of the settlement agreement, Dr. Denkowski was reprimanded by the Texas State Board of Examiners of Psychologists. He also agreed to stop conducting mental competency evaluations of criminal defendants in the future.

While all complaints against Dr. Denkowski were dismissed and no specific investigation has been launched, several defense attorneys believe that the settlement suggests the psychologist was mistaken in determining the intellectual competency of the 14 remaining inmates on death row whom he previously evaluated. This may present an opportunity to appeal the death sentences of those individuals.

Although the settlement stipulates that the agreement cannot be specifically pointed to in death row appeals, Texas State Senator Rodney Ellis, D-Houston, believes that the courts should review every death row case in which Denkowski was involved. Senator Ellis said, “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.”

Source: The Texas Tribune, “Texas Psychologist Punished in Death Penalty Cases.”