A federal appeals court in Ohio overturned the death sentence against an African-American defendant whose defense attorney presented clinical psychologist testimony that a quarter of urban black men were sociopaths who should be locked up or thrown away.
In a unanimous August 22, 2022 decision, a three-judge panel of the United States Court of Appeals for the Sixth Circuit found that the “racialized testimony” offered by a defense expert during the trial of Malik Allah-U-Akbar (pictured) ‘offends the Constitution on its face’ and that Akbar’s defense attorney was ineffective in presenting him to the jury. The court, which referred to Akbar by his former name, Odraye Jones, ordered that Akbar be given a new sentencing trial. (Akbar legally changed his name while his federal habeas corpus proceedings were pending.)
Akbar was convicted and sentenced to death for the November 1997 murder of an Ashtabula policeman who attempted to execute an arrest warrant. He was represented by a public defender, David Doughten, whom Akbar tried unsuccessfully to replace just before the start of the trial with another lawyer retained by his family. Doughten hired clinical psychologist Dr. James Eisenberg as the defense’s mental health expert, who, while the trial was already underway, submitted an expert report to the defense in which he diagnosed a mental health disorder. the antisocial personality in Akbar.
Doughten nonetheless introduced Eisenberg as an expert witness when Akbar’s trial moved to the penalty phase. Eisenberg then offered the jury what the court described as a “racialized” description of ADP, erroneously stating that while the disorder affected “one to three percent of the general population,” it was present in “15 to 25%, maybe even 30%”. of “urban African-American men.”
“[T]The best treatment for antisocials, if the violations are serious, is to throw them out, lock them up,” Eisenberg said. He then credited the high incarceration rates of black males with reducing the number of homicides, saying it would “prevent these individuals from engaging in this behavior. So part of that is the incarceration itself that prevents homicide.
The appeals court overturned Akbar’s death sentence, citing the 2017 U.S. Supreme Court ruling in Buck vs Davis, which overturned the death sentence of Texas death row inmate Duane Buck after his own attorney presented mental health testimony that Buck was more likely to pose future danger because he was black. Writing for the unanimous panel, Judge Richard Allen Griffin said: “Just as the expert in male“Eisenberg’s view coincided precisely with a particularly noxious strain of racial prejudice”—that of black men as “violence-prone”—that offends the Constitution on its face and cannot be considered strategic.”
Eisenberg reached his diagnosis of antisocial personality disorder – commonly referred to as “sociopathy— based primarily on his review of the criminal and criminal records of Akbar and Akbar’s mother. He told the jury that “being antisocial means you are violating the rights of others; that you take advantage of others; you steal from others. That you have no empathy for what it means to cause harm[.]”
The defense attorney then repeated Eisenberg’s testimony during his closing argument before the jury. “I think it’s a quarter of urban men, I don’t know the stats, make it up, urban [B]lack of American youth, proposes [APD]. Is it surprising? A number of people in prison with this. Is it surprising? And dr. [Ei]Senberg said it was truly incurable. This is not a situation you can deal with. It’s something we can’t say, give it a treat. It is incurable; you must put it out of society until it has run its course.
In malewrote Chief Justice John Roberts, “When a jury hears expert evidence which expressly makes the race of a defendant directly relevant to the question of life or death, the impact of that evidence does not cannot be measured simply by how much airtime it received at trial or how many pages it takes up in the record.Some toxins can be deadly in small doses.
Assessing the harm done to Akbar, Judge Griffin wrote, “because as part of the sentencing process, the jury passed judgment on whether this racist evidence himself
was a mitigating factor, there is a reasonable likelihood that Jones would have received a lesser sentence had Dr. Eisenberg’s testimony not been tendered.
On September 1, 2022, the Ohio Attorney General’s Office filed a motion seeking reconsideration of the panel’s decision by the full court of appeals.
Bernie Pazanowski, Expert’s racist remarks lead to new sentence for black death row inmateBloomberg Law, August 23, 2022; Nicole Duncan-Smith, ‘Throw them away’: Federal court overturns Ohio man’s death sentence, ruling prosecutors’ expert witness swayed jury with racist remarks about black men with his ‘Condition’Atlanta Black Star, August 25, 2022.
Read August 22, 2022 decision of the United States Court of Appeals for the Sixth Circuit in Jones vs. Bradshaw.