GEORGE DENKOWSKI; (6) GENEVIEVE HEARON'S POWERFUL COMMENTARY; DEATH BY LETHAL INJECTION BECAUSE OF FLAWED "EVALUATION" WOULD MOCK "JUSTICE FOR ALL";

"Texas is now in grave danger of inadvertently executing men with mental retardation. Although Denkowski was recently no longer permitted to testify as to Atkins evaluations, he provided testimony in at least 14 cases of men currently on Texas death row, including two who are in line to receive execution dates.

Texas is now in grave danger of inadvertently executing individuals with intellectual disabilities.

There are a few areas in life and law where mistakes cannot be tolerated. One of those areas is the death penalty.

Since there are now questions as to whether some men have mental retardation, my view is that the courts need to hear their claims anew. At least provide for a demonstration of their records, IQ scores and the testimony of a disinterested expert who addresses the Atkins positions. Death by lethal injection because of flawed evaluation would be a mockery of "justice for all". If the Legislature needs to pass legislation to clear the way for these men's claims, it has an urgent moral duty to act."

GENEVIEVE HEARON: THE STATESMAN; (Genevieve Hearon was a trustee of the Austin/Travis County Integral Care, formerly Mental Health and Mental Retardation Community Center, for 15 years and was board chair in 2009-10. She was the founder of Capacity for Justice, an organization that works to address court evaluation requirements in judicial determinations for defendants with intellectual disabilities, mental illnesses and co-occurring issues in the criminal justice system.)

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"As the mother of four beautiful children, one of whom had "mental retardation" (the current preferred term is "intellectual disabilities") and another who was diagnosed with schizophrenia at the age of 15, I know how difficult it can be for some people with intellectual disabilities to take care of themselves and navigate the challenges of daily life. The criminal law treats people with "mental retardation" differently, and it should," the commentary by Genevieve Hearon published earlier today in the Statesman under the heading, "Hearon: Texas must not execute the mentally retarded," begins.

"Although Atkins is settled in law, Texas allowed a testifying expert, George Denkowski, to supplant Atkins' methodology with his own added requirement of upping IQ scores based on the defendant's ethnic environment. In my view, this addition invited inaccuracies, errors in subjectivity, discrimination and denied equal treatment under the law," the commentary continues.

"Texas is now in grave danger of inadvertently executing men with mental retardation. Although Denkowski was recently no longer permitted to testify as to Atkins evaluations, he provided testimony in at least 14 cases of men currently on Texas death row, including two who are in line to receive execution dates.

Texas is now in grave danger of inadvertently executing individuals with intellectual disabilities.

There are a few areas in life and law where mistakes cannot be tolerated. One of those areas is the death penalty.

Since there are now questions as to whether some men have mental retardation, my view is that the courts need to hear their claims anew. At least provide for a demonstration of their records, IQ scores and the testimony of a disinterested expert who addresses the Atkins positions. Death by lethal injection because of flawed evaluation would be a mockery of "justice for all". If the Legislature needs to pass legislation to clear the way for these men's claims, it has an urgent moral duty to act.

Denkowski's methodology has been under scrutiny before. The 2010 edition of the American Association on Intellectual and Developmental Disabilities' manual "strongly caution(s) against practices such as those recommended by Denkowski." A colleague complained that Denkowski adjusted IQ and other test scores upward, making men with mental retardation eligible for the death penalty when legally they were not. His method supplanted Atkins' position.

Sometimes courts caught these errors, and sometimes they did not. In 2005, Denkowski found that a defendant named Daniel Plata did not have mental retardation, despite three IQ tests showing that he did. The trial court disagreed with Denkowski's opinion and sharply rebuked him for his improper methods. In 2007, the Texas Court of Criminal Appeals agreed with the trial court and removed Plata from death row. Several cases have been on hold in Texas pending the outcome of Denkowski's hearing.

No one argues that these men should not be accountable for their crimes. But they should not be executed, because their "mental retardation" makes them less culpable under the law. If there are any doubts about whether these men are eligible for the death penalty, those doubts must be resolved before a single execution takes place.

Based on my personal experience and decades of service and policy participation in the behavioral health care field advocating on behalf of people with intellectual disabilities and mental health issues, I am hard-pressed to imagine a more disturbing and regressive action than executing a person who is mentally retarded under Atkins. In the eyes of the law, to do so would be unconstitutional. In our hearts, it would be inhumane and immoral.

The courts must take a second look at the cases where Denkowski conducted the evaluations for mental retardation. This is the only way to avoid unconscionable, irreversible mistakes."

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The commentary can be found at:

http://www.statesman.com/opinion/hearon-texas-must-not-execute-the-mentally-retarded-1426875.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;