Academic journal article American University Law Review

"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

Academic journal article American University Law Review

"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

Article excerpt


In recent years, the United States has finally recognized that an appalling number of wrongful convictions-most pointedly, in death penalty cases-have been the result of "scientific fraud."1 According to Professor Paul Giannelli, "forged fingerprints, faked autopsies, fals[ified] laboratory reports, and perjured testimony, including the falsification of credentials, have all been documented" in criminal trials.2 Such scientific fraud may result in the conviction and death sentence of an innocent person, or, at the least, may cover up such a mistake.3 Until recently, however, none of the ample literature on this forensic fraud has focused on fraudulent testimony in death penalty cases involving the IQ scores of defendants with intellectual disabilities.4 This gap in the scholarship has now changed.

In his recent masterful article, Professor Robert Sanger5 revealed that, since the Supreme Court's decision in Atkins v. Virginia,6 some prosecution experts have endorsed the use of what have been characterized as "ethnic adjustments" in death penalty cases- artificially adding points to the IQ scores of minority death penalty defendants-so as to make such defendants, who would otherwise have been protected by Atkins and, later, by Hall v. Florida,7 eligible for the death penalty.8 Sanger accurately concluded that "ethnic adjustments" are not appropriate, clinically or logically, when calculating a defendant's IQ score for Atkins purposes."9 Further, he relied on epigenetics10 to demonstrate that environmental factors- such as childhood abuse, poverty, stress, and trauma-can result in lower IQ scores, and that "ethnic adjustments" make it more likely that such individuals-authentically "intellectually disabled"-will be sentenced and put to death.11

I agree with Professor Sanger, but I wish to shift the focus to the role of prosecutors who perpetuate the meretricious use of "ethnic adjustments" by endorsing and sanctioning the use of this "corrupt science."12 In recent work, I analyzed prosecutorial misconduct in death penalty cases where defendants had psychosocial ("mental health") disabilities, and I concluded that "prosecutors . . . violate the law and the codes of ethics with impunity, and are often rewarded for it."13 This Article shifts focus to the "ethnic adjustments" cases that Professor Sanger addressed, and I conclude that legal and moral corruption similarly permeates the behavior of some prosecutors in these cases.14

Part I reviews the disturbing frequency of prosecutorial misconduct in death penalty cases, specifically focusing on those involving defendants with mental disabilities. To do this, it looks 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 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.15 The subsequent part analyzes cases involving defendants with intellectual disabilities 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. Here, it considers three collateral questions that must be answered in the context of prosecutorial misconduct: (1) to what extent is it typical for prosecutors to reject the validity of expert testimony as to intellectual disability in se, as the district attorney (DA) did in State v. McCollum;16 (2) to what extent have prosecutors familiarized themselves with the standard manual on interpreting IQ scores that specifically rejects the use of ethnic adjustments in individual cases;17 and (3) have prosecutors been put on adequate notice that testimony is, simply, fraudulent, given the reality that professionals have uniformly rejected such adjustments?18

Part II focuses on the cases that Sanger discusses in his article-as well as other similar cases-and considers whether there is any meaningful distinction between what was done by the state in the cases on which Sanger focuses,19 and what was done in the cases involving fingerprints, autopsies, and laboratory reports, discussed some years ago by Professor Giannelli. …

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