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The Texas Supreme Criminal Court on Wednesday resentenced death row inmate Thomas Gallo to life in prison, ruling that he is too intellectually disabled to be executed.
A Harris County jury sentenced Gallo to death for the murder of his girlfriend’s 3-year-old daughter, who was found with a fractured skull and severely sexually assaulted after Gallo was babysitting Destiny Flores.
During Gallo’s 2004 trial, his defense lawyers tried to convince jurors that he was mentally disabled. In 2002, the U.S. Supreme Court ruled that the Eighth Amendment, which limits cruel and unusual punishment, could bar the death penalty for people with intellectual disabilities.
But decades later, in a rare collaboration between the defense and prosecutors, they submitted joint findings of fact and conclusions of law arguing that Gallo’s intellectual disability made him incapable of carrying out the death penalty.
Gallo’s attorney, Richard Ellis, told The Texas Tribune that the cooperation of the Harris County District Attorney’s Office was essential to Wednesday’s decision from the Texas Court of Criminal Appeals.
“They recognized that this was unjust,” Ellis said. “They were aware of the lengthy and voluminous material that was submitted to demonstrate Mr. Gallo’s intellectual disability.”
The joint filing also cites false testimony by Dr. George Denkowski, the psychologist who examined Gallo, as evidence that he should be removed from death row. The Texas Board of Examiners of Psychologists disciplined Denkowski and barred him from examining death row inmates in 2011 after his testing methods were criticized as unscientific.
In his evaluation, Denkowski concluded that Gallo’s IQ score should be higher than the test score, in part because Gallo is Hispanic. In his testimony, Denkowski argued that Gallo’s score should be higher because of his “socially and economically disadvantaged and anti-social life,” and therefore cannot be properly assessed on a mainstream IQ test. Ellis called Denkowski’s evaluation “completely racist and unacceptable.”
Denkowski has treated more than a dozen Texas death row inmates, including several who were executed, and Texas courts have tried to resolve cases involving Denkowski since the psychologist was disciplined in 2011, Ellis said.
In a 5-4 vote, the Court of Criminal Appeals narrowly approved Gallo’s first motion to be spared the death penalty due to his intellectual disability. The court rejected another motion that Denkowski’s false testimony violated Gallo’s due process rights.
Wednesday’s ruling marks the second time this year that the Court of Criminal Appeals has removed an inmate from the death penalty because of intellectual disability. In March, Randall Mays was resentenced to life in prison for killing two sheriff’s deputies in Henderson County.
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