Court Overturns Ohio Death Sentence After Defense Expert Testifies that One Quarter of Urban Black Men Should be Locked Up or Thrown Away

A federal appeals court in Ohio has overturned the death sentence imposed on an African American defendant whose defense lawyer presented testimony from a clinical psychologist that one quarter of urban Black men were sociopaths who should be locked up or thrown away.

In a unanimous ruling on August 22, 2022, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit held that the “racialized testimony” offered by a defense expert at the trial of Malik Allah-U-Akbar (pictured) “offends the Constitution on its face” and that Akbar’s defense counsel was ineffective in presenting it to the jury. The court, which referred to Akbar by his prior name, Odraye Jones, ordered that Akbar be granted 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 police officer who was attempting to serve an arrest warrant. He was represented by a court-appointed lawyer, David Doughten, whom Akbar unsuccessfully tried to replace just before the start of trial with another lawyer retained by his family. Doughten hired clinical psychologist Dr. James Eisenberg as a defense mental health expert, who, while the trial was already underway, submitted an expert report to the defense in which he diagnosed Akbar with Antisocial Personality Disorder.

Doughten nevertheless presented Eisenberg as an expert witness when Akbar’s trial advanced to the penalty phase. Eisenberg then offered the jury what the court described as a “racialized” description of ADP, falsely 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.”

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

The appeals court reversed Akbar’s death sentence, citing the U.S. Supreme Court’s 2017 decision in Buck v. Davis, which vacated Texas death-row prisoner Duane Buck’s death sentence after his own lawyer presented mental health testimony that Buck would be more likely to present a future danger because he was Black. Writing for the unanimous panel, Judge Richard Allen Griffin said, “Much like 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.”

Eisenberg reached his diagnosis of Antisocial Personality Disorder — commonly referred to as “sociopathy” — based primarily on his review of Akbar’s and Akbar’s mother’s court and criminal records. He told the jury that “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[.]”

Defense counsel then repeated Eisenberg’s testimony during his closing argument to the jury. “I think it’s a quarter of the urban males, I don’t know the statistics, come up with, 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.”

In Buck, Chief Justice John Roberts wrote, “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 air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.”

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

On September 1, 2022, the Ohio Attorney General’s office filed a petition seeking reconsideration of the panel’s decision by the entire appeals court.