Saturday, January 23, 2010

Green v Johnson (VA, 2006 ,2007,2008): Judge Punts on Difficult Issues Involving the Intellectual Functioning Prong--Kevin Folley guest post

Kevin Foley, a regular guest blogger here at ICDP, sent me copies of Green v Johnson (VA, 2006, 2007, 2008) court decisions.  He also shared his analysis of the decisions in the following guest post.

Judge Punts on Difficult Issues Involving the Intellectual Functioning Prong:  Guest post by Kevin Foley

Kevin Green’s mental retardation claim (or Atkins claim) has gone from the Virginia courts to the federal courts all the way to the U.S. Supreme Court.[1]  After the Virginia Supreme Court held that Green’s mental retardation claim was frivolous, Green filed for habeas corpus relief in the federal district court for the Eastern District of Virginia.  The matter was referred to a magistrate judge who ruled that the Virginia Supreme Court’s resolution of the issue was unreasonable. Thus, Green was granted an evidentiary hearing in the federal district court.

Despite a significant effort by the magistrate judge to resolve the mental retardation (ID) claim, the judge took the easy way out when determining the first prong of mental retardation– Green’s current level of intellectual functioning. The magistrate judge “punted” on three important issues – one, determining if Green was malingering, and if so, what effect such behavior had on any IQ test scores; two, resolving issues involving scoring errors; and three, in the end,  failing to determine Green’s current level of intellectual functioning.

Whether talking about physical tests or mental tests, the results from testing are only useful if the person gives a full effort.  Anything short of a complete effort will  provide an incomplete picture. Kevin Green had been assessed a number of times over the years.[2]  Prior to Atkins he was assessed in conjunction with an incarceration, and the state psychologist felt he was malingering.  At his murder trial in 2000, a defense psychologist administered a short form IQ test, on which Green obtained an IQ score of 55, and the psychologist opined that Green was mentally retarded. “He further testified Green’s performance on a test specifically designed to test for malingering, showed that he was not malingering.” [3]  A prosecution expert at the 2000 trial tested Green using the WAIS-III and obtained a full scale IQ score of 74. The prosecution expert “testified that Green was malingering on the tests, and that while it is possible to fake a lower IQ score, there is no way to fake a higher score.”   Green had a second trial after his conviction was reversed on appeal, which was conducted in late 2001. For the second trial, the defense expert administered the WAIS-R to Green and obtained a full scale IQ score of 74.
“Two clinical psychologists testified for the Commonwealth in rebuttal to [the defense expert’s] testimony. Dr. Lynda J. Hyatt reported that Green had an I.Q. score of 84 on the ‘Ammons & Ammons quick test,’ which placed Green in the category of ‘low average’ mental functioning. Dr. Thomas A. Pasquale evaluated Green’s personality as well as his intellectual functioning. Dr. Pasquale diagnosed depression, alcohol dependency, drug abuse, anti-social personality disorder, and malingering. According to Dr. Pasquale, Green had a full-scale I.Q. score of 74 on the Weschler Adult Intelligence Scale, placing him in the ‘borderline range’ of intellectual functioning.”[4]

 Dr. Hyatt, who testified at the second trial concerning her assessment conducted in 1999, also “testified that testing revealed Green was malingering.”[5]

After Atkins was decided, Green presented the testimony of two psychologists who were experts in mental retardation assessment in his federal habeas hearing.[6]  As concerns the alleged malingering on Green’s part, one of Green’s experts “testified that after reviewing the evidence in the record, it was his opinion that Green was not malingering on his tests.” The state called one of its original experts from the two murder trials. This expert testified that Green was a pathological liar. “He found Green to be consistently malingering on multiple tests.”

In sum, the magistrate judge had before him evidence that Green had “passed” three “malingering” tests; the testimony of two psychologists who testified that he was not malingering; and the testimony of two state psychologists who testified that he was malingering. A tough maze of evidence to wade through, but, after all, that is what judges are supposed to do. Well, judge, was Greene malingering on all of those IQ tests he had taken since 1999 as the state contended?  Unfortunately, the judge punted on this issue.  This is how the magistrate judge attempted to resolve the malingering issue:
“The experts testifying during the evidentiary hearing disagree on whether Green was malingering when he took his IQ tests, and disagreed on how to determine when a person is malingering.  However, there is no indication Green would have been malingering at the age of thirteen when he was administered the WISC-R, and received a score of 71. . . The Court finds that Green had no incentive to malinger on the WISC-R, and his score on that test is the best indication of his intellectual functioning as demonstrated on a measure of intellectual functioning prior to the age of eighteen years.”[7]
The magistrate judge went on to add,
“Based on all of the evidence presented, this Court finds that Green has met his burden of proving by a preponderance of the evidence ‘significantly subaverage intellectual functioning [which originated before the age of 18 years] as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice’”.[8]
The magistrate judge dropped the ball. First, he should have decided the malingering issue. Second, he was wrong when he ruled that the IQ test score from age 13 sufficed to prove “‘significantly subaverage intellectual functioning [which originated before the age of 18 years] as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice’”. The court was quoting from the applicable statute, Virginia Code § 19.2-264.3:1.1,  which defines mental retardation as, “a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice . . . and (ii) significant limitations in adaptive behavior”.  The statute goes on to state that, “ Assessment of intellectual functioning shall include administration of at least one standardized measure generally accepted by the field of psychological testing and appropriate for administration to the particular defendant being assessed  . . .  Testing of intellectual functioning shall be carried out in conformity with accepted professional practice” (emphasis added).  As with the major definitions of mental retardation, the Virginia statute makes it clear that the assessment of mental retardation requires results from current IQ testing, along with a current assessment of adaptive behavior, coupled with evidence showing onset before age 18. The magistrate judge’s quote left out the highlighted words from the statute, and made it appear that the statute only requires an IQ score from before age 18.  This is an example of creative judging, but not good judging.

Third, the magistrate judge ignored the fact that IQ scores from age 13 are not considered to be stable and life-long. No self-respecting psychologist would say that a person’s IQ score at age 13 represents that person’s current intellectual functioning at age 40. According to the National Research Committee that examined mental retardation assessment, “Among children and adolescents between the ages of 6 and 16 years, total test scores should be considered valid for as long as three years.”[9]  Thus, all the magistrate really did insofar as intellectual functioning was concerned, was to determine what Green’s level of intellectual functioning was at age 13.

Four, the magistrate judge failed to determine the issue of whether there were scoring errors which may have impacted Green’s IQ score of 74. According to the magistrate’s recommended order,
“Additional errors were suggested by Green’s counsel, during cross-examination, based on how [the prosecution expert] scored specific questions on the test. Further, [one of the Green’s experts] testified that based on the raw data from Green’s WAIS-III test, [the defense expert] would have assigned a score of 72. This Court does not condone re-scoring of IQ tests or adjustment of scores based on an interpretation of the raw data after the fact. [The prosecution expert], as well as other psychologists, are trained in the administration and scoring of IQ tests. It is not for the Court to go behind those scores, and question the psychologists’ conclusions. The statute requires that IQ tests be administered and scored ‘in accordance with accepted professional practice’ . . . Green has not alleged that [the prosecution expert’s] administration of the WAIS-III failed this requirement. Therefore, the score will be accepted as assigned by [the prosecution expert].”[10]

Obviously, there is a correct way to score questions on an IQ test, even though scoring errors are relatively common. If an error was made in scoring, then the court should have corrected it. This was an issue at the hearing and testimony was taken about the issue. The court should have determined the issue, not ducked it by saying Green did not use the magic words “was not administered and scored in accordance with accepted professional practice.” Interestingly, one federal appeals court reversed a case where the district court refused to consider an affidavit from an expert which appeared to show that a prosecution expert improperly administered and scored an IQ test.[11]  The court did so, not to allow the district court to duck the issue, but to have the court to address the issue and correct any errors.

1 Green’s Virginia Supreme Court decision on his state habeas claim is styled, Green v. Warden of Sussex I State Prison, No. 040932 (Va., Feb. 9, 2005).  Green later filed a motion for a rehearing in the Virginia Supreme Court, adding that the court should consider and apply the Flynn Effect and the standard error of measurement. His motion was denied. Green v. Johnson,  2006 U.S. Dist. LEXIS 90644 (E.D. Va.) at pg. 34, adopted by, 2007 U.S. Dist. LEXIS 21711 (E.D. Va.), aff’d., 515 F. 3d. 290 (4th Cir.), cert. denied, 128 S. Ct. 2527 (2008).

2 Id.

3   Green (Magistrate), id. at LEXIS pg. 32.   The magistrate judge’s recommended decision later states that Green’s trial expert actually administered three tests to screen for malingering. Id. at 52.

Green v. Johnson,  515 F. 3d. 290 (4th Cir.), cert. denied, 128 S. Ct. 2527 (2008), Slip op. at 6, quoting from, Green v. Commonwealth, 580 S.E.2d 834(2003), cert. denied, 540 U.S. 1194 (2004).  When Green filed for habeas relief in the Virginia Supreme Court,  he attached an expert’s affidavit to his petition which stated that the Ammons & Ammons Quick Test, “is not a reliable test, as it was last normed prior to 1962.” Green  (Magistrate), LEXIS pg. 35.

5   Green (magistrate),  supra  at LEXIS pg. 35.

Green called “Matthew H. Scullin, Ph.D., an expert in the field of psychology and evaluating the reliability of IQ test scores and Daniel J. Reschly, Ph.D., Chair of the top-ranked Vanderbilt University Department of Special Education and an expert in the diagnosis of mental retardation and in the field of psychology. Id. at LEXIS pg. 35 (record citation omitted).  The state called Dr. Pasquale again and “Roger B. Moore, Jr., Ph.D., an expert in the methodology and diagnosing of mental retardation”. Id.

7  Green (Magistrate), supra  LEXIS pg. 52.

The magistrate judge went on to conclude that Green failed to satisfy the adaptive behavior prong of the mental retardation diagnosis. The district judge adopted the magistrate’s findings.  The Fourth Circuit Court of  Appeals held that the magistrate judge and district judge erred when they did not accord the Virginia Supreme Court’s  decision the proper amount of deference, but it further held that the magistrate’s decision on the adaptive behavior element was correct, so Green lost on these two alternative grounds

9  Mental Retardation: Determining Eligibility for Social Security Benefits 126 (2002), available for reading online at www.

10  Green v. Johnson,  2006 U.S. Dist. LEXIS 90644 (E.D. Va.), adopted by, 2007 U.S. Dist. LEXIS 21711 (E.D. Va.), aff’d., 2008 U.S. App. LEXIS 2967 (4th Cir.), cert. denied, 128 S. Ct. 2527 (2008).

11  See Lewis v. Quarterman,  __ F. 3d ___ (5th Cir., Case No. 07-70024, Sept. 10, 2008).

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