Texas criminal appeals court removes Tomas Gallo from death row because of his intellectual disability

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Texas’ highest criminal court re-sentenced death row inmate Tomas Gallo to life in prison Wednesday, ruling that he is too intellectually disabled to be executed.

A Harris County jury sentenced Gallo to death for murdering his girlfriend’s 3-year-old daughter. After Gallo babysat Destiny Flores, the young girl was found with a skull fracture and had been severely sexually assaulted.

During his 2004 trial, Gallo’s defense tried to convince jurors that he was intellectually disabled. The U.S. Supreme Court in 2002 banned the use of the death penalty on people with intellectual disabilities based on the Eighth Amendment’s restriction of cruel and unusual punishments.

But decades later, in a rare instance of cooperation between the defense and prosecutors, both parties filed a findings of fact and conclusion of law together claiming Gallo’s intellectual disability precludes him from the death chamber.

Richard Ellis, Gallo’s lawyer, told The Texas Tribune that the cooperation of the Harris County District Attorney’s office was crucial to Wednesday’s decision from the Texas Court of Criminal Appeals.

“They recognized this was an injustice,” Ellis said. “They recognized the long and overwhelming documentation that was provided to show Mr. Gallo’s intellectual disability.”

The joint filing also cited false testimony by Dr. George Denkowski, a psychologist who examined the defendant, as evidence that Gallo should be removed from death row. The Texas State Board of Examiners of Psychologists sanctioned Denkowski and barred him from evaluating people on death row in 2011 after his testing methods were criticized as unscientific.

Denkowski’s assessment of Gallo concluded that the defendant's IQ score should be higher than the test scores he obtained, in part, because Gallo is Hispanic, according to court filings. In his testimony, Denkowski argued Gallo’s score should be inflated due to his “low socioeconomic antisocial lifestyle,” and thus he could not be properly assessed by mainstream IQ tests. Ellis described Denkowski's evaluation as “entirely racist and not acceptable.”

Denkowski evaluated over a dozen men on Texas’ death row, several of whom were executed. Since the psychologist was reprimanded in 2011, Texas courts have sought to resolve the cases Denkowski was involved in, Ellis said.

In a 5-4 vote, the criminal appeals court narrowly approved the first claim in the filing, that Gallo’s intellectual disability exempted him from execution. The court dismissed another claim, that Denkowski's false testimony violated Gallo’s due process rights.

Wednesday’s decision was the second time this year that the criminal appeals court removed a man from death row based on intellectual disability claims. In March, Randall Mays was re-sentenced to life in prison for the murder of two sheriff's deputies in Henderson County.

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