Personal Injury Law

Third-party Observers During Neuropsychological Testing

By Bruce Stern

On prior blog postings, I have discussed the issue of third-party observers during neuropsychological testing.  As you are aware from reading my prior posts, most neuropsychologists object to any third-party observations.  The question then becomes whether this is because third-party observations will truly invalidate the testing data or whether defense forensic neuropsychologists don't want to be cross-examined about the administration of their testing.
 
On this issue, I recently read an interesting article which represents the perfect example of why neuropsychological examinations should be videotaped. 
 
The case involves the criminal prosecution of Daniel Plata who sustained brain damage as a result of birth trauma.  In March 1995, Daniel Plata and his accomplices were involved in an armed robbery and Daniel was charged with the murder of the store clerk.  Daniel Plata's murder was captured on videotape and played before the jury.  A guilty verdict was a foregone conclusion.  Daniel Plata was convicted and sentenced to execution by lethal injection.  Following the United States Supreme Court's decision in Atkins v. Virginia (2002), a decision handed down six years after Daniel Plata was put on death row, the United States Supreme Court ruled that 'executions of mentally retarded criminals are cruel and unusual.' 
 
Plata's attorney then moved to set aside the death penalty asserting that Plata fit the criteria established by the Atkins court.  His attorney hired Antonin Llorente, a neuropsychologist who had designed intelligence tests and was a noted Spanish speaker, which is important because it would allow him to test Mr. Plata in Spanish.  After five hours of testing, Dr. Llorente determined that Plata's IQ score was 65, a score that would put him in a mentally retarded category.
 
Texas prosecutors then hired Dr. George Denkowski who had been the chief psychologist at the Fort Worth State School, a 35-bed facility for people with all ranges of mental retardation.  Dr. Denkowski had testified in 29 prior death penalty cases, two-thirds of such appeals in Texas.  In the 29 cases, he had found defendants retarded only eight times.  According to the newspaper report, Dr. Denkowski 'had garnered and almost doctored death status among defense attorneys.  Between 2003 and 2009, Harris County Texas paid him approximately $300,000.
 
Dr. Denkowski, who did not speak Spanish, interviewed the defendant and then administered IQ tests in English.  A detailed description of the testing procedure can be found in the attached newspaper article from the Texas Observer.
 
Fortunately for defendant Plata, the evaluation was video recorded.  Defendant's counsel retained Dr. Jack Fletcher, a nationally renowned neuropsychologist who had served on the President's Commission on Excellence in Special Education.  Dr. Fletcher viewed the videotape and concluded that Dr. Denkowski's methods appeared to be 'driven to the old scores outside the range of mental retardation.'
 
After a hearing before the trial court, the Judge ruled that defendant Plata was 'a person with mild retardation who should be removed from death row.'  More significantly for our purposes, the trial court denounced Dr. Denkowski's methodology writing that Dr. Denkowski's testimony, 'must be disregarded due to fatal errors.'  He found 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.'
 
On January 18, 2008, the Texas Court of Criminal Appeals agreed and commuted defendant's death sentence to life imprisonment.  He is presently being housed in a unit with other mentally retarded prisoners.
 
What is clear is that had this neuropsychological evaluation not been videotaped, Mr. Plata in all likelihood would have been executed.

Full post as published by Traumatic Brain Injury Law Blog on January 20, 2010 (boomark / email).