Texas Keeps Retarded Men on Death Row
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
Floresbinda Plata hadn't seen a doctor during her entire pregnancy in the
desolate village of Angoa in Michoacan, Mexico. But after four hours of
painful labor, she sought help at the nearest clinic, an hour away by dirt
road. After Plata arrived, Dr. Luis Zapien recalls, "We pulled [the baby]
out and he was born completely flaccid and purple."
Floresbinda heard the doctor say that her son was dead before he untwined
the umbilical cord that was wrapped twice around the baby's neck and began
mouth-to-mouth resuscitation. After several minutes, though, her son began
breathing. But the lack of oxygen had already damaged his brain. A nurse
checked off a simple behavioral checklist–did he cry, did he respond
appropriately?–and gave him two points out of 10, a score for a newborn
with profound cognitive defects. Just an hour into his life, and 20 years
before he would be sentenced to die in Texas, Daniel Plata was already
being tested for mental retardation.
By the time he was 3, Daniel could say "Mama" and "Papa," but not much
else. His grandmother grew frustrated when, as he got a little older, he
couldn't seem to run simple errands. "If I sent him for lard he would lose
the money," says Cynthia Hernandez. "If I sent him for peppers he would
bring back tomatoes." In school, Daniel stood out as a slow learner. His
1st-grade teacher, Eleazar Herrera Solis, "tried to get him to be the same
as the rest," but "the child could barely read." His violent father
complicated matters. Several times a week he would come home drunk and
attack Floresbinda. As the oldest child, Daniel would try to protect his
mother and 2 brothers from Isidro's fists, belt and occasionally his
machete. In the process he became the target of his father's rage.
Photograph of Daniel Plata on a bookshelf in Plata's living room.In 1986,
Floresbinda fled with her sons to the United States, hoping for safety and
a better life. She found work as a janitor in Houston. When the boys
registered for school, Daniel–then 10–was put in 1st grade. His friend
Nasario Vasquez remembers him as "the kid who got picked last" for
basketball. "For Daniel the games had no rules," Vasquez says. "He would
just run down the court and throw up a crazy shot with no coordination."
When Daniel was 15, he was socially promoted to the ninth grade. He acted
up in class and was sent to an alternative learning center. He was flagged
as "extremely low" performing by his teacher, Terry Rizzo, in a note to
the school counselor. At first Rizzo assumed Daniel was having trouble
understanding English, but after studying his behavior, she thought he
might be learning disabled. She urged the school to test Daniel to see if
he should be placed in special classes. But he was never tested and before
his 9th-grade year was halfway over, he dropped out.
Daniel started working as a busboy at Luby's to help support the family.
He took to carrying his mother's gun around as a way to look tough. Then
one night in March 1995, Daniel brought the gun along when he and some
friends went to rob a nearby Stop'n Go.
He had drunk about 20 beers and smoked PCP-laced marijuana, he later
testified, so his memory of the night is hazy. But the store's security
camera shows Daniel pointing his gun at the clerk, Murlidhar Mahbubani,
and yelling, "Give me the money!" His 2 friends jumped over the counter
and emptied the cash register of about $50. Then Daniel bent over the
counter and shot Mahbubani several times in the back.
The store's surveillance system clearly videotaped his face. It also
showed him, on the way out, using his shirt to wipe his fingerprints off
Within 30 hours, police had Daniel in custody. He confessed to Mahbubani's
murder soon afterward.
During his trial in 1996, prosecutors repeatedly played the videotape
showing Daniel ruthlessly killing Mahbubani. The guilty verdict was a
foregone conclusion. During the penalty phase of the trial, Daniel's
mother and stepfather testified that he was a good son, and his attorney
argued that he was "passive, docile. For one minute and a half, he just
lost it." In the prosecutor's closing statement, he urged a death
sentence: "This was a shocking crime, and it deserves a shocking
punishment." The jury agreed. Daniel Plata was sentenced to die by lethal
Within four years, Plata's appeal had wound its way through the courts and
ended in failure. His mother sought help from several lawyers in Mexico;
her inability to speak English made it hard for her to find legal
assistance in the United States. "I would sleep and wake up with the same
thought about each day passing … that he was one day closer to death,"
2 more years passed before officials from the Mexican Consulate in Houston
called her and said a lawyer wanted to ask about Daniel's history of being
slow. The lawyer thought it might save his life.
In 2002, 6 years after Daniel Plata landed on death row, the U.S. Supreme
Court ruled in a case called Atkins v. Virginia that "executions of
mentally retarded criminals are cruel and unusual." Even though mentally
disabled people can understand the difference between right and wrong, the
court reasoned that they are less able to control impulsive behavior or
learn from mistakes. The court supported its decision by pointing to bans
on executing the mentally retarded in 17 states and in federal cases as
"evolving standards of decency."
Like most of the states that had already passed bans, the justices used a
clinical definition to establish the level of mental retardation that
would exempt Daryl Atkins, the Virginia defendant, from death:
below-average intellectual abilities defined by an IQ score of 70 or below
and "deficits in adaptive behavior" such as practical and social skills.
Both of these limitations, the court ruled, had to be present before the
age of 18.
But the court left it up to the states to choose their own definitions of
mental retardation. Since 2002, eight more states have passed laws that
use the clinical definition cited in Atkins. Texas is not one of them.
With bipartisan support, the Texas Legislature passed a law in 2001
mandating a life sentence for mentally retarded people convicted of
capital crimes. But Gov. Rick Perry vetoed the measure, agreeing with
critics that it was a "backdoor attempt to ban the death penalty." Bans on
executing the mentally retarded have been floated in every legislative
session since but have never again come up for a vote.
In 2004, a Texas death row inmate named Jose Briseo contended that he was
mentally retarded and shouldn't be executed for murdering a Dimmit County
sheriff. In the absence of legislative guidelines, the Texas Court of
Criminal Appeals wrote "temporary judicial guidelines" that have guided
Texas courts ever since. In its Briseo decision, the court called clinical
definitions of mental retardation, like those used by the U.S. Supreme
Court, "exceedingly subjective." Texas added its own set of additional
criteria in the form of seven questions, including: "Did the commission of
that offense require forethought, planning and complex execution of
purpose?" If a defendant didn't address these questions to the court's
satisfaction, he could be eligible for execution even if his test scores
showed he was mentally disabled.
Most of Texas' questions emphasize the events of a crime in deciding
whether a defendant meets a legal definition of mental retardation. "I
think much of that emphasis is inappropriate because it embodies the
stereotype of mentally retarded people as unable to do anything," says
Sheri Lynn Johnson, a professor at Cornell Law School and co-director of
its Death Penalty Project. In Texas, under the Briseo standard, if you're
capable of committing a murder, it's difficult to establish that you're
also mentally retarded.
In other states, evidence of mental retardation is heard in pretrial
hearings that decide whether a person is even eligible for a death
sentence. In Texas, prosecutors have fought successfully to hold off
evidence of mental retardation to the penalty phase of a trial, meaning
that jurors consider it only after they have convicted a defendant of
murder. Keith Hampton, legislative director of the Texas Criminal Defense
Lawyers Association, says "the gamesmanship is this: I can make you hate
this guy so much that you won't care if he's mentally retarded."
Since 2002, Texas has removed just 13 men from death row after they were
found to have the mental and emotional development of 12-year-olds. In
contrast to a 40 % success rate for Atkins appeals nationally, just 28
percent have been successful in Texas. "I suppose you could imagine that
Texas Death Row inmates are smarter than everyone else," says Johnson,
"but I'd be surprised."
During Daniel Plata's original trial, prosecutors had portrayed him as a
sophisticated criminal who'd tried to hide his identity and erase his
fingerprints after murdering Murlidhar Mahbubani. But attorney Kathryn
Kase figured that Plata's accomplices, who made no such attempts, had
realized the store's security camera had captured their faces and didn't
bother. If anything, she thought the crime showed how Plata was prone to
act impulsively, as mentally retarded people are known to do. And when she
interviewed Floresbinda Plata, she learned that there was a family history
of retardation: Daniel's younger brother, Jesus, and his Aunt Celianel had
both been diagnosed as mentally retarded. His cousin, Rosalba, had Down
To prove that Daniel Plata should be exempt from the death penalty, Kase
had to start by showing that he had an IQ of 70 or below. She hired
Antonin Llorente, a neuropsychologist who had designed intelligence tests
and was a native Spanish speaker–important because it would allow him to
test Plata in the language he understood best.
In May 2003, Llorente spent about 5 hours with Plata in a small visiting
room at the Polunsky Unit in Livingston, where men on death row are
housed. He began by asking Plata if he felt he was mentally retarded.
Plata vehemently denied it. When Llorente asked him to draw his family,
the 28-year-old man "drew stick figures," which Llorente noted in his
report were "appropriate for children, not mature adults." Then he
measured Plata's intellectual ability through puzzles and math questions
that are part of a test called the Wechsler Adult Intelligence Scale.
Llorente reported that Plata's IQ score was 65. Even in Texas courts, it's
generally accepted that IQ scores include a "standard error of
measurement" of five points up or down. This means a person's IQ score
falls within a range; a person who tests at 75 could still be considered
retarded. Plata's 65 was a strong indication that his intellectual
abilities were below average and met the U.S. Supreme Court's standard for
The next psychologist to evaluate Plata was Texas prosecutors' favorite
tester, George Denkowski of Fort Worth. Denkowski's career stretched back
30 years to when he directed a 15-bed group home for mildly retarded
adolescent offenders in Houston, teaching them adaptive skills that would
improve their behavior. He'd also been the chief psychologist at the Fort
Worth State School, a 365-bed facility for people with all ranges of
mental retardation. Since 1989 he'd been in private practice conducting
psychological evaluations. Denkowski had also directed a national study of
mentally retarded people in state prisons.
After the Atkins decision in 2002, Denkowski became the first choice for
Texas prosecutors. He would ultimately testify in 29 cases–nearly 2/3 of
such appeals in Texas to date. In one of the 1st cases he worked on,
Denkowski found James Clark, a man accused of raping and killing 2
teenagers in Denton, mentally retarded. The state dismissed him after that
finding and hired another expert who disagreed. Denkowski's opinion was
presented by the defense to no avail, and Clark was executed.
In 29 cases, Denkowski has found defendants retarded only 8 times. By
2006, when he tested Plata, Denkowski had garnered an "almost Dr. Death
status" among defense lawyers, according to attorney Robert Morrow. Morrow
represented Alfred DeWayne Brown during his 2004 trial for killing a clerk
and a security guard at a Houston check-cashing store. Morrow said
"Denkowski pretty much thought that if you had engaged in criminal
behavior you were not retarded," Morrow says. Brown remains on death row.
The work was lucrative. Denkowski charged prosecutors hourly rates of $180
for evaluations, and $250 for court testimony. Most of the cases he worked
on were in Harris County, which until 2009 pursued more death-penalty
sentences than any other county in Texas. Between 2003 and 2009, Harris
County paid him $303,084 for his services, according to the Harris County
Denkowski did not respond to repeated interview requests for this story.
Read the rest of this report – and see a video and interactive graphic
about the 29 cases Denkowski worked on – at www.TexasObserver.org.
Research support for this article was provided by the The Nation
Institute's Investigative Fund.
(source: Huffington Post)