'Your Corrupt Ways Had Finally Made You Blind': Prosecutorial Misconduct and the Use of 'Ethnic Adjustments' in Death Penalty Cases of Defendants with Intellectual Disabilities
23 Pages Posted: 23 May 2016 Last revised: 13 Sep 2016
Date Written: May 20, 2016
Abstract
In a recent masterful article, Professor Robert Sanger revealed that, since the Supreme Court’s decision in Atkins v. Virginia, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making such defendants – who would otherwise have been protected by Atkins and, later, by Hall v. Florida – eligible for the death penalty (IQ, Intelligence Tests, “Ethnic Adjustments” and Atkins, 65 AM. U. L. REV. 87 (2015)). Sanger, accurately, concluded that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes, and relied further on epigenetics to demonstrate that environmental factors – such as childhood abuse, poverty, stress, and trauma – can cause decreases in actual IQ scores, and that “ethnic adjustments” make it more likely that such individuals – authentically “intellectually disabled” – will be sentenced and put to death.
I agree with Professor Sanger, but wish to shift the focus here to the role of prosecutors in perpetuating this state of affairs by endorsing and sanctioning the use of “corrupt science” in the cases in question. Here, I conclude that legal and moral corruption similarly permeates what some of these prosecutors do in these cases.
The article proceeds in this manner. First, I review the sad and shabby story of prosecutorial misconduct in death penalty cases in general, with specific focus on this misconduct in cases involving defendants with mental disabilities. Here, I will look carefully at the scandalous story of Dr. James Grigson – known morbidly as “Dr. Death” – who regularly testified fraudulently on behalf of the state at the penalty phase of multiple death penalty cases, even after he lost his license to practice psychiatry, using, in virtually every case, “junk science” as the basis of his opinions. Next, I look at some of the specific issues that are raised in cases involving defendants with intellectual disabilities in cases in which state experts testify in support of “ethnic adjustments” to IQ scores, issues that go beyond the scope of the Atkins and Hall decisions. After this, I consider whether there is any meaningful distinction between what was done by the state in the cases discussed by Sanger, and what was done in the cases involving fingerprints, autopsies and laboratory reports, discussed some years ago by Professor Giannelli, and whether the use of such testimony is yet another example of the sort of “corrupt science.”
I next consider all of this through the filter of therapeutic jurisprudence. Here, I argue that the introduction of “ethnic adjustment” testimony is as corrupt as putting on witness stand a fact witness that the DA knows is lying, and that a DA who, in fact, does introduce such testimony should be, at the least, sanctioned by the relevant bar associations, and perhaps, be prosecuted criminally. Finally I will offer some modest conclusions, focusing on the need for defense counsel to familiarize themselves with these issues so that they can vigorously challenge the credentials of these experts on voir dire.
Keywords: death penalty, prosecutorial misconduct, mental disability, counsel, sanism, therapeutic jurisprudence, intellectual disabilities, ethnic adjustments, Atkins v. Virginia, Hall v. Florida, expert witnesses, forensic psychologists
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