Despite a U.S. Supreme Court ban, Texas has continued to send mentally retarded criminals to death row. WIll a Mexican immigrant's case correct this injustice?
When “Dr. Death” met Daniel Plata at the Harris County jail over the course of two days in March 2006, each of the roughly five-hour sessions was videotaped at defense attorney Kathryn Kase’s request. Like the video of his behavior in the Stop’n Go robbery, this footage would later play a crucial role in deciding whether Plata would be executed.
A large desk dominated the small, brightly lit room where the two met. On one side sat Denkowski, a slim, middle-aged, mustached man. On the other side of the desk, Plata, wearing his orange prison jumpsuit with “JAIL” stamped on the back, sat up straight in his plastic chair and paid close attention to Denkowski, who spoke slowly and maintained a patient, yet authoritative, demeanor. On a small table next to the psychologist sat several open binders and test booklets.
Denkowski, who does not speak Spanish, began by introducing himself and handing Plata his business card. But when he asked Plata to read the court order that had led to their meeting, things got off to a slow start. Plata stared at the page and asked for clarification, saying, “I don’t understand this word right here.” Denkowski explained: “‘Evaluate,’ that’s like, do testing. Like your attorney said. That’s another word for testing.”
Plata: “Do I have to read it all?”
Denkowski: “No. Just, do you … is it OK with you? Do you understand what it means?”
Plata: “Yeah, um.”
Denkowski: “What do you think it means? Tell me.”
Plata: “That you’re uh. Represent. That you’re uh, hire by the state. Something like that.”
Denkowski then ran through several rounds of memory questions designed to trip up people who are intentionally trying to do poorly. Plata scored well, convincing Denkowski that he was giving his best effort. And since Plata seemed to understand him well enough, Denkowski assumed it was fine to do the IQ tests in English. But when Plata misread the word “jar” as “job” on a reading test, Denkowski figured he’d just misspoken and noted his “Hispanic mispronunciation of ‘j.'” The extra point Plata received for this answer bumped up his score from a fifth-grade reading level to a seventh-grade level. It was the first indication that Denkowski was making assumptions during the testing that would inflate Plata’s scores.
As the evaluation continued, Denkowski began to reword questions from the tests as he read them to Plata—a no-no in administering these tests. One of the questions designed to measure comprehension is, “What are some reasons a defendant would choose to be tried by a jury of peers?” But Denkowski, apparently realizing that Plata had trouble with more complicated terms, didn’t use the word “defendant.” Instead, he asked, “Why is it important to be tried by a jury of your peers?” Plata replied: “Because the jury don’t know nothing about the law? I mean that’s exactly what it is, right?” Denkowski asked the question again, differently: “OK, what’s another reason a person should have a trial by jury?”
According to the manual for administering these tests, Denkowski’s rephrasing of the question was a violation of procedure. The irregularities didn’t end there. The video shows Denkowski assigning more points than he should have for some of Plata’s answers. During a vocabulary test, he asked what the word “winter” meant. Plata’s reply—”When it’s cold … when it snows … when we wear jackets”—should have been worth one point, according to the manual. A two-point answer would have been either “the cold season (of the year),” or “the season of the year between fall and spring.” Denkowski gave Plata two points anyway.
After straying from proper administration and scoring methods, Denkowski inflated Plata’s scores through ̶ 0;estimation.” Denkowski used his assumptions about Plata’s upbringing to re-score his responses on a test measuring basic skills like how to count money, groom oneself, or use a microwave. He later argued that Plata “was just never taught and required to do a lot of these things. So I don’t think that’s a genuine deficit.”
Denkowski has argued that the test manuals produce skewed results because they offer no guidance on how to take such psychological and cultural factors into consideration. So he made up his own method and defended it in a 2009 article for the American Journal of Forensic Psychology, a journal that is not peer-reviewed. He reasoned that criminal offenders from poor families would not have learned such skills as counting money. Instead, they often develop skills that are more appropriate for a criminal lifestyle. And since the IQ and skills tests were “not developed for criminal offenders,” Denkowski argued that they fail to truly measure how well defendants have adapted. That makes it appropriate, in his view, to adjust test scores using one’s “clinical judgment.”
Denkowski made liberal use of his “clinical judgment” when he reported Plata’s scores. Judges rely on both adaptive-behavior and IQ scores. They are looking to see if both scores are above the cutoff point of 70. Denkowski adjusted Plata’s adaptive-behavior score from 61 to 71. He increased Plata’s IQ score from 70 to 77. He discounted testimony from Daniel’s parents and teachers, relying instead on information the prosecution gave him, including a list of books and magazines found in his cell and testimony from prison guards who said they saw him reading. (The guards later admitted they never heard him read aloud and had just seen him flipping the pages.)
Denkowski’s conclusion: Plata was “not considered to be mentally retarded for Atkins purposes.”
When Kathryn Kase realized the prosecution was going to argue that her bumbling client could function like a normal adult—and could thus be executed—she knew she needed help. If she was going to win Daniel Plata’s Atkins claim, she had to find a psychologist who could prove that Dr. Denkowski’s methods amounted to junk science. So she contacted Jack Fletcher, a nationally known neuropsychologist who had served on the President’s Commission on Excellence in Special Education.
Fletcher watched the videotape of Plata’s testing and reviewed the test materials Denkowski had included with his opinion. His conclusion: Denkowski’s methods appeared to be “driven to yield scores outside the range of mental retardation.”
In December 2006, Plata’s hearing finally got under way before Texas District Court Judge Mark Kent Ellis in Houston. Both Denkowski and Llorente were quizzed about their opinions of Plata’s mental capabilities, and they critiqued each other’s methods. Ellis ended the hearing by saying that “both sides, all the lawyers involved, have worked extraordinarily hard in fully representing their clients in this regard and I appreciate it. … I wish it was always the case.”
More than half a year passed before Ellis issued his opinion. He ruled that Plata is “a person with mild retardation” and should be removed from Death Row. More significantly, given Denkowski’s status as the “go-to” psychologist for Texas prosecutors, Ellis issued a scathing critique of his methods.
All of Denkowski’s testimony, the judge wrote, “must be disregarded due to fatal errors.” Ellis agreed with Fletcher that “it is not generally accepted practice within the field of psychological assessment to obtain an IQ score, declare it invalid, and then estimate an IQ score with numbers,” as Denkowski had done.
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.