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Experts’ personal conflict with death penalty has some raising questions of credibility

By Rob Peecher
Telegraph Staff Writer

Mental retardation is being used as a defense in capital crimes so frequently that it’s almost become a joke to prosecutors and victims’ advocates.

“There is a disease running rampant on death row in Georgia – it’s called mental retardation,” said Ocmulgee Circuit District Attorney Fred Bright, who is scheduled to testify in an appeals hearing this month for a condemned cop killer.

“It’s very contagious, and everybody’s catching it,” Bright said.

Dianne Clements, a victim’s advocate based in Texas, compares the spread of claims of mental retardation to the “so big” computer virus.

But Michael Welner, a forensic psychiatrist from New York, isn’t laughing. He says there’s a propensity among mental health experts to lie on the stand about a defendant’s mental abilities to help the defendant avoid execution.

‘Crisis of Credibility’

Welner has been called to testify by both prosecutors and defense lawyers in death penalty trials throughout the nation. He believes some in his field have exaggerated claims of mental retardation or mental illness because they have a personal conflict with the idea of capital punishment.

Welner calls it a “crisis of credibility” for his field.

“It is unique to capital litigation cases, the degree and frequency of out-and-out lying that takes place,” Welner said.

Some psychologists and psychiatrists who testify in capital offense trials are “true believer zealots who lay their professional ethics across the train tracks in order to have a judge or jury find against capital punishment,” Welner said.

Welner claims that attorneys have asked him to hedge on his evaluations – provide testimony he knows is not true – to convince judges or juries that a defendant is mentally retarded and should not be put to death. He disregards these requests, though, as “something you expect” from lawyers.

But Mike Mears, the director of the Georgia Indigent Defense Council’s multi-county public defender’s office, says he finds Welner’s statements “unbelievable and lacking any professional credibility.”

Mears, who since 1983 has represented more than 100 defendants accused of capital crimes, says Welner’s statements would be absurd to anyone other than “right-wing fanatics.”

“I have never ever seen a psychiatrist or psychologist willing to lie or frame testimony in any way to conform to personal beliefs,” Mears said. “I don’t know Dr. Welner, and certainly he’s entitled to his opinions, but I’ve seen nothing to support those types of assertions in 20 years.”

Mears says he has never asked anyone to misrepresent the truth while testifying. Any attorney who did “for a cause or for the sake of winning a case should be disbarred or prosecuted,” he said.

“The world doesn’t operate that way,” said Mears. “Some attorneys would do almost anything to save a client, but they wouldn’t risk their ability to practice law to save one client because then they wouldn’t be able to help anyone else.”

Welner, though, says the mental health associations to which many of the forensic psychologists and psychiatrists belong “sanction opposition to the death penalty” among their members.

“These organizations are energetically opposed to capital punishment, and that opposition is reflected in the honesty of testimony that goes into court,” Welner insists.

How it works

Mental-health issues come up either in the trial or appeals phase – or both. A defendant in a death penalty trial can be found guilty, not guilty or guilty with the presence of mental retardation.

Typically, court-appointed defense attorneys will meet with a judge and request money to hire private forensic psychologists or forensic psychiatrists to evaluate defendants. Prosecutors will normally go with a less-costly evaluation from mental-health experts at Central State Hospital who are already paid to evaluate people charged with crimes. The taxpayers of the county where the crime occurred pay the expense of hiring private experts at both trial and appellate levels.

Once an attorney has determined a client has a viable claim to mental retardation based on a social history review, Mears says, private mental health experts cost on average anywhere from $30,000 to $40,000 for one trial or hearing. That includes testing, evaluating and coming to court to testify.

At the trial level, if a jury finds a defendant guilty with the presence of mental retardation, that defendant cannot be sentenced to death or life in prison without the possibility of parole. The only remaining option is for the defendant to be sentenced to life with the possibility of parole.

Georgia was among the first states to enact legislation prohibiting the execution of mentally retarded persons. The law passed in 1988 gives a three-pronged definition for mental retardation: The defendant must have “significantly subaverage general intellectual functioning” that impairs his “adaptive behavior,” and this must have been obvious during the “developmental period.”

In general, an IQ score below 70 is an indication of subaverage intellectual functioning. But a person’s score on an IQ test can vary, and there is a standard deviation associated with the tests that can mean an actual IQ could be as many as five points more or less than the score reflects. A borderline IQ score, such as 69 or 73, is enough to almost guarantee that a jury in a death penalty trial will hear from a number of psychologists with differing opinions who are called by the prosecution and the defense.

A U.S. Supreme Court decision last year for the first time barred the death penalty for mentally retarded defendants nationwide. In states such as Texas, where there was no law concerning the subject, legislatures are struggling with how to write legislation defining mental retardation.

Clements of Justice for All, a Texas-based “criminal justice reform organization,” said mental retardation, particularly in her state, has become “the appeal du jour.” “I think it’s important to understand that neither the victim’s families, nor victims’ advocates nor anyone in the justice system or public would oppose banning the death penalty for people who are truly incapable of understanding their actions,” Clements said.

“I think it’s important to understand that neither the victim’s families, nor victims’ advocates nor anyone in the justice system or public would oppose banning the death penalty for people who are truly incapable of understanding their actions,” Clements said.

“Instead, what we see are individuals who have no claim to mental retardation who make that claim. People who have loved ones who are mentally retarded should be offended that these horrific murderers try to identify with a small group of people who, for the most part, would never harm anybody.”

Robert Wayne Holsey

Bright is expected to testify Sept. 15 in an appeal by Robert Wayne Holsey, the man Bright prosecuted for the 1995 killing of Baldwin County sheriff’s deputy Will Robinson.

Holsey’s “state habeas” appeal – the second phase of the three death penalty appeals – began in July. For three days, attorneys from the Georgia Resource Center presented a number of issues on appeal, essentially claiming Holsey had ineffective service of counsel and that he is mentally retarded.

Holsey was evaluated before his trial, but no evidence concerning mental retardation was put before the jury. Holsey’s lead attorney during the trial, Andy Prince, testified in the habeas hearing in July that he had been drunk during Holsey’s 1996 trial.

Also, two mental health experts, Jethro Toomer and Mark Cunningham, testified that Holsey is mentally retarded.

Under cross-examination, Cunningham testified he is paid $240 an hour to evaluate a defendant and that he is only called to testify by defense attorneys in capital cases.

Cunningham testified that Holsey is “mildly retarded.” He said Holsey scored 69, 70 and 72 on IQ tests. Holsey, he said, is incapable of making a meal or doing his laundry, and he has been known to put his shoes on the wrong feet.

Cunningham based his evaluation of Holsey on records provided by Holsey’s defense lawyers and a two-hour interview that did not include any testing.

Toomer, who did test Holsey, testified that Hosley is “most definitely” mentally retarded. He spent more than four hours with Holsey and completely dismissed an IQ test Holsey took in 1996 that resulted in a score of 79.

Toomer testified that he has been an expert witness in “hundreds” of cases and estimated that in 90 percent of those, he had worked for the defense. Toomer charges $175 an hour for work done outside of the courtroom and $200 an hour for within the courtroom.

Later this month, the state will put up its witnesses against Holsey, but Bright is already convinced that Holsey’s claim of mental retardation is not legitimate.

“I have spent months looking into Holsey’s entire life history, and in my opinion, he is no where near mentally retarded,” Bright said.

Tailoring testimony

Danny Craig, the district attorney in Augusta, sits on a capital litigation committee of the Georgia Prosecuting Attorneys Council. Craig has tried a number of death penalty cases, and he recalls “many times” that he thought psychiatrists or psychologists were being less than honest on the stand.

“Obviously, some of them are opponents of the death penalty and are willing to tailor their testimony to whatever they feel will meet the legal standards (of mental retardation), even if their testing conflicts with all of the other empirical data available to them,” Craig said.

Craig says the crime itself often allows prosecutors to prove a defendant has adaptive skills that preclude a finding of mental retardation.

“When you look at a defendant’s ability to plan and execute a crime, we’ve been able to argue to a jury that a person who functions on the level that he has manifested (in committing the crime) simply doesn’t qualify for a determination of mental retardation, no matter what his IQ might be,” Craig said.

David McDade, the district attorney in Douglas County, also serves on the capital litigation committee with Bright and Craig. He has tried more than 20 death penalty cases and says there are a number of mental health professionals who “make no bones about it that they’re opposed to the death penalty and … routinely come down on the side of mentally retarded.”

“I have no doubt in my mind that there are some mental health experts who attempt to skew their testimony in an attempt to prevent the death penalty,” he said.

Bright and others say there are a pool of psychologists and psychiatrists routinely called on by defense attorneys.

“If you build up a reputation for finding defendants not mentally retarded, how many times are you going to be requested by the defense to do mental evaluations?” Bright said.

Mears, though, remains adamant that there is no conspiracy among defense lawyers or mental health experts. He admits to being philosophically opposed to the death penalty, but he points out that it is his job to be opposed to the death penalty. He said the suspicion among prosecutors might lie in the fact that mental retardation is not easily observed.

“Part of my job is to teach attorneys how to try death penalty cases,” Mears said. “I tell them, ‘just because you think a person is not mentally retarded doesn’t mean they’re not.’ ”

Mears said he has had clients with IQs as low as 50 or 60 who will hold up a newspaper and pretend to be reading because they attempt to “mask that they don’t understand what’s going on around them.”

If they don’t, Mears said, “people will pick on you or take advantage of you, particularly in prison.”

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To contact Rob Peecher, call (706) 485-3987 or e-mail rpeecher@communicomm.com.

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