Court Unanimously Overturns a Man’s Death Sentence Over ‘Racialized’ Evidence

By Michael Apfel, Citalli Florez, Angelina Sang

CLEVELAND, OH – An Ohio federal appeals court last week overturned the death sentence of an African American man whose trial lawyer relied on expert testimony from a clinical psychologist—who misinformed and improperly influenced the jury that “one quarter of urban Black men (are) sociopaths who should be locked up or thrown away.”

A judge panel from the U.S. Court of Appeals for the Sixth Circuit reversed the death sentence of Malik Allah-U-Akbar “because of ineffective assistance of counsel at the penalty phase.”

The court granted Akbar a new sentencing trial, referring to him by his prior name, Odraye Jones. (Akbar had his name legally changed while his federal habeas corpus proceedings were pending.)

Akbar had been convicted and sentenced to death for the November 1997 murder of an Ashtabula police officer attempting to serve an arrest warrant.

The court appointed David Dougthen as Akbar’s legal counsel, whom Akbar unsuccessfully tried to replace with a personally retained lawyer prior to sentencing after Dougthen hired and relied on the testimony of clinical psychologist Dr. James Eisenberg as the defense mental health expert, who submitted an expert report during the trial diagnosing Akbar with Antisocial Personality Disorder.

Eisenberg reached his diagnosis of Akbar primarily by assessing Akbar and his mother’s criminal records, and only 14 hours studying Akbar himself. In explaining this diagnosis he reached, Eisenburg told the jury “to be antisocial means that you violate the rights of others; that you take advantage of others; you steal from others. That you don’t have a sense of empathy for what it means to cause harm[.]”

As Akbar’s trial underwent the penalty phase, Eisenberg provided scientifically inaccurate testimony to the court stating that, while the disorder afflicted “one to three percent of the general population,” it was present in “15 to 25 percent, maybe even 30 percent” of “urban African American males.”

Eisenberg claimed, “[T]he best treatment for the antisocial, if the violations are severe, is to throw them away, lock them up.” He went on to wrongfully attribute incarceration rates of Black men with reducing the number of homicides, arguing it “would eliminate those individuals from engaging in this conduct. So part of it is incarceration itself that precludes homicide.”

The defense continued to use Eisenberg’s racialized testimony in their closing statements.

“I think it’s a quarter of the urban males…urban [B]lack American youth, come up with [APD]. Is that surprising? A number of people in prison with this. Is that surprising? And Dr. [Ei]senberg said it’s really untreatable. This isn’t a situation you can treat. This is something that we can’t say give him some treatment. It’s untreatable; you have to put him out of society until it runs its course,” said the defense.

The appeals court in Akbar’s case cited the U.S. Supreme Court’s 2017 decision in Buck v. Davis in its overturning of Akbar’s death sentence. The opinion of the Court reversed the death sentence of a Texas prisoner after his lawyer relied on a mental health testimony which argued that the defendant presented future danger because he was Black.

Judge Allen Griffin, writing on behalf of the judge panel hearing Akbar’s case, said, “Much like in the expert in Buck, Eisenberg’s opinion coincided precisely with a particularly noxious strain of racial prejudice — that of Black men as ‘violence prone’ — which offends the Constitution on its face and cannot be considered strategic.”

“When a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much airtime it received at trial or how many pages it occupies in the record,” wrote Chief Justice John G. Roberts Jr. in Buck. “Some toxins can be deadly in small doses.”

Chief Justice Roberts, writing for the majority in Buck’s 6-to-2 decision, claimed the psychologist’s report “said, in effect, that the color of Buck’s skin made him more deserving of execution.”

Judge Griffin appeared to believe similar racialized rhetoric was applied by Akbar’s defense.

“Because, as part of the sentencing process, the jury passed judgment on whether this racist evidence itself was a mitigating factor,” wrote Judge Griffin, “there is a reasonable probability that Jones would have received a lesser sentence if Dr. Eisenberg’s testimony was not introduced.”

The Ohio Attorney General’s office filed a petition for reconsideration of the panel’s decision by the appeals court Sept 1.

About The Author

Michael Apfel is a second year at USC majoring in Legal Studies and minoring in Sports Media Industries. He plans on law school after his undergraduate studies looking to work in social justice.

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