Editorial:
Lose Brain, Save Life
by Michael Welner, M.D.

07/23/2001


Commentator:
Michael Welner, M.D.
Chairman, The Forensic Panel, New York, NY



Attention Death Row: Button up your shirt to the top, get those coke bottle glasses on the internet, you know, the ones with the black frames, and get a dorky haircut from Officer Bob. Retardation is in. In the continuing battleground over the death penalty, the ability to appear retarded has emerged as the most powerful weapon in the new psychiatric mitigation arsenal. The impact threatens the credibility of American neuropsychology.

Several recent cases have highlighted the question of whether a mentally retarded person can be executed. John Paul Penry of Texas (now known as Johnny - the more juvenile appellation adopted for purposes of his makeover) reportedly has an IQ ranging from 51 to 63. Ernest McGarver, who killed his boss in North Carolina and whose case will be heard by the United States Supreme Court, recently dipped to 67 from an IQ ranging from 70 to 88 in earlier years. Seventy, by the way, is traditionally regarded as the IQ below which one can be possibly considered as retarded, depending on function.

What the United States Supreme Court and other courts, and even prosecution agencies, have not yet factored in is the pervasiveness of professional expert witness malingering that infests capital defendant examinations today. IQ is but one component of the assessment of retardation; but the number continues to eclipse awareness that other important criteria must also be factored into whether a person is genuinely retarded.

This becomes especially significant when one considers how easy it is to fake a bad performance on an IQ test. Can examiners pick up faking on an IQ test? Sure. But they have to want to know the truth of his idiocy or intelligence.

How else to explain the curious phenomenon of how Mr. McGarver has lost IQ points, which defies understanding of IQ? Such shaving to get under the retardation Mendoza Line to suit the adversarial system has as much credibility as the East German trainers who got jiggy with steroids to help their athletes win at the Olympics. Do the American people realize what a charade IQ testing in the capital-eligible has become?


Regrettably, defense cases often attract examiners who are such zealots to "save the life" of the accused murderer that they toss all professional ethics to the wind like the therapist who falls in love and elopes with his patient. In our experience working on cases for both defense and prosecution, we too often see tests conducted for the purpose of distorting the incapacity of the examinee as much as possible.

In one example, from a case recently referred to The Forensic Panel, a well-credentialed neuropsychologist, who has even written about testing the Spanish speaking, conducted tests on such a defendant even though those measures had not even been normed properly. One colleague familiar with his work asserts this examiner does not even speak Spanish fluently.

Perhaps the retarded shouldn't be executed. That question absolutely deserves the consideration it gets. However, honesty went out of the death penalty debate a long time ago. Let the Supreme Court beware that the science they pass judgment on is all too often of the order of the medical disqualification from service in Vietnam. How sad that the professional's role in the death penalty debate has so degenerated, and that scientific colleagues are often responsible. A claim of retardation, for them, is no eligible defense.

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