Testimony Before Texas State House of Representatives
Committee on Criminal Jurisprudence
Re: HB 614

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But "Adaptive function" specifically refers to a clearly delineated domains. Specifically, self-care, communication, home living, making use of resources, work, social skills, academic achievement, attending to health and safety, self-direction, and leisure.

The Keel Bill merely notes "significant deficits in adaptive behavior," present from developmental stages. And I have significant concerns about this Keel wording, which I will note below.

But the Ellis Bill does not even require the presence of adaptive deficits - just an IQ below 70. The Ellis bill has no resemblance to any scientific understandings of specific definitions of retardation. As such, it defines something, but that has nothing to do with retardation, and I cannot see how it even resolves the mandate of the US Supreme Court for states to define retardation.

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What happens if you have an overinclusive definition for "adaptive problems" in retardation? Can you rely upon IQ and intelligence tests to sort it out? No.

The WAIS has a margin of error of as much as five points. Therefore, in overrelying on the WAIS, you can expect that defendants with IQs above 70, perhaps 70-80, will draw arguments that they are retarded because the WAIS has a margin or error.

Petty? Not so. Consider that 2.3 percent of the US population has an IQ below 70. But 5.5 percent of the US population has an IQ below 75. So if we don't even consider the percentages of the population of those who break the law - as opposed to the general population -- we are already left with over twice as many people on the cusp of 70 as there are entirely below it. In corrections, I can promise you that the percentage in the 70s is definitely higher than 5.5 percent. That's an impressive loophole, especially when you consider that the very concept of retardation was never developed for the lower 5.5 percent, but the lowest 2 percent.

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There are tests available to establish that a person is definitely faking illness; but there are those who are faking that do not reveal themselves on such testing.
We had a mobster in New York, Vincent "The Chin" Gigante, head of the notorious Genovese crime family. For years, Mr. Gigante avoided prosecution on murder and racketeering charges by strolling about Greenwich Village, mumbling to himself, wearing a bathrobe. In the interim, he was fathering and raising two families simultaneously, and conducting Genovese family business in limos at two in the morning.

Then, Mr. Gigante, claiming dementia while presenting eminently qualified testimony that used everything from psychological testing and radiological scans, fooled six of my eminent colleagues that he had hired who vouched for his incompetence. These were not just trained professionals but people who run organizations that represent the interests of psychiatry, and include a fabulously credentialed neuropsychologist who found him to be performing poorly on neuropsychological testing. So devoted were these witnesses to Mr. Gigante's cause, that they even appeared on a 60 Minutes segment to attack the "injustice" of punishing old Vincent Gigante.

Their testimony had an impact on the sentencing of a man implicated in the murder of many. In fact. Mr. Gigante's release date is only a few years away. Oh, guess what? Last year, Mr. Gigante, with supposed advanced degenerative dementia, was indicted - for continuing to run waterfront crime in NYC from his cell in a federal prison in Texas, with prosecutors having gathered videotaped and audiotaped evidence. Which is a gentle way of saying that people are still getting killed through an organization currently directed by Gigante.

Oops!

One reason for the Gigante debacle, by the way, is that whatever the credentials of the people involved, they simply did not, or chose not, to do all of the background work that is a must. And Gigante is only one of numerous cases where softer requirements for expert testimony facilitated conclusions about someone's cognitive potential that are contrary to scientific evidence. So this multiple murderer got off light for what experts told a court about his brain. Lightly enough to still run a homicidal empire and take his visits from prison.

Furthermore, and most certainly pertinent here, is that Gigante's case uncovered evidence that expert witnesses may have been coaching the mobster about how to maintain the appearance of his infirmity. So scandalous was the potential for this revelation that the very skilled and highly compensated Gigante defense team - five years after vociferously arguing that he could do nothing but mumble - agreed not to contest his competency to stand trial, after the court held that prosecutors could then subpoena evidence related to expert witness corruption.

Corruption among expert witnesses is an unspoken reality. In our circles, people who say nonsense, make up science, skew results or generally do dishonest things are quietly referred to as "hired guns," or "whores." Hired guns do not walk around with signs on their chest saying, "I am a dishonest slime."

They are not readily recognizable by judges or attorneys because they know the science better than anyone in the court. They are not people who radiate malevolence and greed. Sure, sometimes they lie for the money, but sometimes they lie to get exposure in a high profile case; or, to advance a general cause they believe in.

The legacy of the hired gun has drawn greatest exposure in child custody cases. In these matters, courts have so customarily empowered psychiatrists and psychologists to lead them by the nose to tell the court where the child should be placed, that participants bow to the influence of the appointed doctors. Most experts are well-meaning and embrace the challenge of resolving dilemmas of such long range significance. Others, however, foster good relationships with the judges, but contaminate their testimony with conclusions they know are biased, unfounded, and unfair, often because of aforementioned corrupt considerations.

Stature has noting to do with it. Forensic examiners with credentials as good as mine or better simply are better equipped to mercurially manipulate a system in which they are left with the power to decide for the court, when they make the rules for arriving at a decision.

Only skilled cross examination exposes the hired gun. And only the adversarial system allows for juries to weigh the evidence presented by both sides and decide who is doing the ethical work, and who is playing cute.

The power of unfettered, unguided, unstandard expert witness evaluations and testimony is not merely an issue pertaining to psychiatry. Corning, for example, bankrupted over bogus product liability testimony relating to silicon breast implants. False testimony about DNA matches and other forensic evidence has helped to wrongfully convict folks of crimes as serious as murder.

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How does this relate to the death penalty? The passions of those who are endeavoring to abolish capital punishment are vocal, and guided by end justifies the means approach. The arguments of compassion against capital punishment have resonated within our professional community, which discourages any effort that even indirectly results in a capital sentence or capital punishment.

As a result, I have witnessed colleagues, so personally moved by this issue, who testify on behalf of capital defendants with history the experts make up themselves, quotes that they tell family members to say! This is, basically, perjury and fraud, respectively. And it is not at all above such individuals to represent psychological test results to the court that are spurious or are purposely altered so as to maximize the perception that the defendant is incapacitated.

I worked on one case for the defense in which The Forensic Panel, in exhaustive interviews, found no sign of a history of sexual abuse. However, when the defendant realized that it was advantageous to "remember" such a history, a fresh interviewer was then secured, on taxpayer monies, to begin the entire interview process again, so as to not have to account for the huge inconsistencies in his earlier statements to us examiners, which the new examiner was never told about - and she never asked to know. Such is the sleight of hand of how expert witnesses are manipulated and manipulate themselves, in cases that abandon ethics because of the cause.

There is, in fact, a whole burgeoning subdiscipline of "mitigation specialists." People who are typically social workers or other corrections background who are hired to present, to the jury, all the "truth" they think the jury will be sensitive to hearing. It is commonly not the whole truth. It is sometimes simply fabricated, and not even any of the truth.

I am working on a case right now, for the defense, in which a number of my background questions that I raised to the attorney are not being explored by investigators, purposely because the answers to such questions may reflect poorly on the triple-murder defendant. You ask why I am helping this attorney? I am assisting him to understand where his case has scientific merit, but you can understand why I will not be asked to testify.

And I get hired by people who will never ask me to testify if they don't think I can testify in agreement with their position, but they hire me to tell them where their cases are strongest. And then they take that, get a hired gun or a zealot, and they're off and running.

Within the vast area of forensic behavioral sciences, from criminal competency and responsibility, to employment accommodation of ADA, harassment and discrimination, workers comp, disability, fitness for duty, risk of dangerousness, and psychiatric torts, to custody and parental rights, to sex offender assessment, death penalty cases attract the most raw sewage in the form of expert reports and testimony - by far. I'm ashamed of it, and that's why I developed a system for oversight in forensic examination.

Part of the reason for such brazen corruption is that there are no standardized requirements for experts to do exhaustive investigations into the sensitive matters we are charged with, such as the assessment of retardation. Therefore, witnesses can give impressionistic and unfounded conclusions based on their "expertise," and courts accept these universally as sincere.

Were standard protocols for assessing psychiatric legal questions to mandated by legislatures such as this, experts could no longer bamboozle the court by selectively ignoring details that don't suit their agenda. Then, lying under oath is better exposed as perjury.

Forget the defendant faking for the moment; nobody can fool a court more effectively than a trained professional who knows more than the court, and has a personal agenda.

By the way, our professional associations will not do anything about corruption. There is an understandable reluctance to throw stones by the leaders of our organizations, who themselves too often live in glass houses. Legislatures such as this need to save expert witnesses from themselves through enacting laws that build in checks and balances.

That noted, my testimony is not intended as a wholesale dismissal of the criminal defense bar, or psychiatry or the behavioral sciences. Prosecutors have been responsible for scandals of fraudulent testimony on crime scene evidence and uncertified labs themselves. The US Supreme Court case of Estelle v. Smith centered on the same impressionistic, inexact testimony of "future dangerousness" that doomed a number of Texas capital eligible defendants to death row.

I have no ax to grind with defendants; they are in a tough spot, and if they were desperate and selfish enough to kill in the first place, what's the big deal to lie to me, a forensic psychiatrist, in an examination?

Furthermore, I respect the system. That's why I'm here. I respect my colleagues. I love my field. And that is exactly why I convey a sense of outrage. Psychiatry is a sophisticated, well developed and often exact science.

But the embarrassing reality of fabricated defense mental health testimony in death penalty cases, and laws that make it easy for attorneys to make a "game" as Justice Scalia put it in his dissent in Atkins, is the dirty secret of attorneys and others who participate in these cases.

The Ellis Bill proposes an assessment to be done by experts, not by juries. Think the corruption of custody cases, with the enhanced pressures of the unspoken agendas of the people-examiners who labor under their own emotional feelings about the issue, as well as those of their parent organizations. This idea will never work in the real world.

The Keel Bill does not have such a version that co-opts the role of the jury to decide, impartially, and therefore is insulated, within a just system of checks and balances, against the corruption that infests the assessment of retardation in America today.

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Ultimately, the WAIS and other intelligence tests flag people who may be retarded, and require scrutiny to determine if this is the case. So how can the intellectually disabled be distinguished?

Even for professionals, it is essentially impossible to distinguish the retarded from the unintelligent, the ill from the bad, the sincere from the faking, without complete access to the history of a person's life.

And what is that? Review of the investigative reports of the crime, witness statements, crime scene reports, corrections records, psychiatric treatment records, medical records, medication history, birth records, pediatrician records, school records, juvenile court records, arrest records, employment records, marital records, social service records, input from acquaintances, teachers, family, the defendant, his friends, his doctors, his neighbors, his bosses, his spouses about his interpersonal relatedness, his self-care, his utilization of resources, his communication, his work, his sensibilities, the sophistication of his thinking, the complexity of his function, the development of his intellect, the forces that typically guide the decision making of each defendant. Then, one can offer an opinion on retardation's impact on individual culpability.

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