Monday, February 28, 2011

Does the WJ III battery measure the same abilities in US and Canada? New report

The following report has just been posted at WMF Press. Click here to access the WMF page with a link to a copy of the report, which is under the WMF Press Bulletin section. Double click on images to enlarge.










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Law Review Article: No More Tinkering with the Death Penalty (Steiker & Steiker, 2010)




To be added to the Law Review Article blogroll.

Steiker, C. S., & Steiker, J. M. (2010). No More Tinkering: The American Law Institute and the Death Penalty Provisions of the Model Penal Code. Texas Law Review, 89(2), 353-365


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Brain damage mitigation death penalty cases@The Daily Digest, 2/28/11

The week starts off with two failed brain damage/mitigation/capital cases. The first case is failure of mitigation at the trial level, and the second is a reversal of a successful PCRA claim. Neurological evidence is now introduced as mitigating evidence in many capital cases. The general claim goes something like: Don't blame me, blame my [...]





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Sunday, February 27, 2011

FYiPOST: Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply. Rank Downloads Paper Title 1 358 Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force Robert Chesney, University of...





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Saturday, February 26, 2011

Wednesday, February 23, 2011

Mississippi Justice Takes Cheap Shot at the Flynn Effect (and Flynn Himself)-Guest blog post

This is a guest blog post by Kevin Foley, a regular contributor at the ICDP blog.




The Mississippi Supreme Court recently held that Frederick Bell is entitled to an evidenciary hearing on his claim that he is intellectually disabled. One unhappy justice dissented to this part of the majority opinion, and in doing so, took an inappropriate cheap shot at the Flynn Effect and Dr. Flynn himself.

As for Dr. Flynn, the dissent stated that, “The 'Flynn Effect' is a theory advanced by a political scientist who, under the Mississippi Rules of Evidence, could not be qualified as an expert on mental retardation by 'knowledge, skill, experience, training, or education . . . .' Miss. R. Evid. 702.” Bell v. State, No. 2010-DR-01907-SCT (Miss., Feb 3, 2011) (J. Randolph, concurring and dissenting, at note 20). The justice implied that Dr. Flynn would not even be permitted to take the stand to testify about the Flynn Effect, since he is not “an expert on mental retardation.” But the validity of the Flynn Effect, as a scientific concept, does not rest on any expertise Dr. Flynn might have as a mental retardation expert. As Dr. Kevin McGrew's Flynn Effect bibliography (available on this blog) shows, Dr. Flynn's research which concluded with what is now known as the Flynn Effect has reached a very high level of respectability in the intelligence testing field. The dispute is not with the Flynn Effect itself; the dispute concerns the cause of the effect; whether is should be used to adjust scores in high stakes litigation; whether it will continue apace; and whether it should be assumed to apply to later versions of extant test batteries. No one has convincingly argued that Dr. Flynn was not competent to conduct the research that led to the Flynn Effect.

As for the concept itself, the Mississippi justice argued, “Furthermore, the scientific validity of the “Flynn Effect,” utilized by Dr. Zimmerman, repeatedly has been rejected by the Fifth Circuit Court of Appeals. See id. [referring to the Chase case] (citing In re Salazar, 443 F.3d 430, 433 n.1 (5th Cir. 2006)).” This statement is not accurate. The Fifth Circuit Court of Appeals has not rejected the Flynn Effect, it has simply not addressed the issue head-on. In the Fifth Circuit case cited by the dissenting Mississippi justice, the federal appeals court specifically stated, “Even assuming that the Flynn Effect is a valid scientific theory and is applicable to Salazar's individual I.Q. score and we express no opinion as to whether this is actually the case . . .” In re Salazar, 443 F. 3d 430 (5th Cir. 2006). More recently, in Maldonado v. Thaler, 625 F. 3d 229, 238 (5th Cir. 2010) the court stated only that it had not recognized the Flynn Effect to be a valid scientific concept. And in Wiley v. Epps, 625 F. 3d 199, 214 (5th Cir. 2010) the court did not “reject” the validity of the Flynn Effect, and it would have been hard pressed to do so, in light of the fact that, “All three experts who testified at the evidentiary hearing stated that the Flynn effect is generally accepted in the scientific community”. Not addressing an issue is a lot different than holding that an issue (or concept) is invalid from a scientific standpoint.

Moreover, on page 30 of Bell, this justice claimed that the Flynn Effect is “a suspect theory” and that the defense expert's opinion using the Flynn Effect was a “fallacious, inadmissible opinion” under Mississippi Rule of Evidence 702, the state's counterpart to the U.S. Supreme Court's Daubert standard. The justice's conclusions in this regard were a stretch indeed. Experts both prosecution and defense - are testifying about the Flynn Effect all over the country, in both federal and state courts. Whether the courts have decided to apply the Flynn Effect to adjust IQ scores is one thing; refusing to admit testimony about the Flynn Effect because it is an untested pseudoscientific theory is another matter completely.


The most the Fifth Circuit stated with regard to the Flynn Effect and its validity was, “We need not resolve the weight, if any, to be given to the Flynn effect, however, because the district court also found that even without it the evidence supported a finding that Wiley had significant subaverage intellectual functioning.” Id. at 214.


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Atkins ID/MR Court Decision: Bell v MIssissippi (2011)




Another new Atkins ruling. Bell v Mississippi (2011). It is being added to the Court Decisions blogroll. Stay tuned as Kevin Foley has provided me a guest blog comment regarding one aspect (Flynn effect) of this decision. His post will be up possibly shortly...hopefully no more than two days from now. Blogging form a hotel lobby at a conference.


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Tuesday, February 22, 2011

FYiPOST: MENTAL ILLNESS: Death Sentences Vacated for Two with Severe Mental Illness

One death row inmate from Oregon and another from North Carolina recently had their death sentences removed because of concerns about their mental competency. In Oregon, Robert James Acremant's sentence was reduced to life without the possibility of parole. Since 2003, prison psychiatrists have diagnosed him as mentally ill, and Acremant said he hears voices and has a transmitter in his head that allows others to control him.  He still has a death sentence from a case in California.  Isaac Stroud in North Carolina was removed from death row after a judge ruled his mental condition kept him from assisting with his own defense. With consent from the victim's family, District Attorney Tracey Cline agreed to a life sentence for a 1995 murder conviction and an additional 30-year sentence for kidnapping. Cline said, "It was apparent that he did suffer from a mental health condition. The [victim's] family, after so much time, basically just wanted to be sure that Mr. Stroud was not released from prison during his lifetime." Stroud's attorney, Marilyn Ozer, said, "Everyone looks at the system differently than they did 20 years ago, so it makes sense to go back and look at these cases."  Stroud was not eligible for a sentence of life without parole at the time of his conviction.

In 1986, the U.S. Supreme Court held in Ford v. Wainwright that it would be unconstitutional to execute a mentally incompetent inmate.

(J. Deconto, "Durham man will not be executed," News and Observer, February 19, 2011; Associated Press, "Oregon death sentence reduced, man 'delusional'," reprinted in Mercury News, February 18, 2011).  See Mental Illness and Victims.






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Sunday, February 20, 2011

FYiPOST: Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply. Rank Downloads Paper Title 1 340 Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force Robert Chesney, University of...





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Research brief: WAIS-IV US-Canadian factor and score comparability

The transportability of the meaning of an intelligence test batteries composite scores across countries/cultures is important when a test is originally developed and normed in one country and is then adapted and used in a second country.

Bowden et al (2010) recently investigated the factorial invariance of the WAIS-IV across US and Canadian samples. The results are summarized in the abstract below (click to enlarge). The WAIS-IV was found to measure the same theoretical constructs across the two countries. However, the reported difference in latent mean factor intercepts indicated that the WAIS-IV provides higher scores with Canadian subjects. The need for Canadian norms are suggested.






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Friday, February 18, 2011

FYiPOST: Neuroscience Trial Transcripts

From LAW AND BIOSCIENCES blog

A special bonus today, in addition to The Daily Digest. This is a great collection of trial transcripts from experts testifying about cognitive neuroscience. It gives a good overview of the nature of cognitive neuroscience testimony in criminal cases:

Gur Testimony
Gur Testimony 2
Gur Testimony 3 (Pennsylvania)
Gur Testimony 4 (Lousiana)
Mayberg – Gov't Expert (California)
Mayberg Transcript 2
Mayberg Transcript 3






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Wednesday, February 16, 2011

FYiPOST: Full Eleventh Circuit examining Georgia's procedure for capital defendants under Atkins

From SENTENCING LAW AND POLICY RSS feed.

As detailed in this Atlanta Journal-Constitution article, which is headlined "Court considers death-penalty standard for mental retardation claims," all the judges of the Eleventh Circuit heard argument today on an interesting and important issue of constitutional capital procedure.  Here are the details:

Warren Hill sits on Georgia's death row, even though a state court judge has found him mentally retarded, which the nation's highest court says bars him from execution.

Hill's problem is that he was found to be mentally retarded under the lowest legal threshold but not the toughest -- beyond a reasonable doubt.  Even though Georgia became the first state in the country over 20 years ago to ban executions of mentally retarded people, it is now the only state that sets the highest barrier for defendants raising such claims to escape execution.

On Tuesday, Hill's lawyer told the federal appeals court in Atlanta that instead of protecting the mentally retarded from execution, Georgia has done just the opposite.  By erecting such a stringent burden of proof, inmates who are erroneously found not to be mentally retarded are going to be put to death, Mark Olive said.

The U.S. Supreme Court did not give states "carte blanche authority" to impose barriers that are impossible to clear, he said.  During lively arguments in a packed courtroom, a number of judges seemed to agree.

Among states with the death penalty, 22 require defendants raising mental retardation claims to prove it by the lowest threshold, a preponderance of the evidence.  Four states have adopted a tougher test, the clear and convincing evidence standard.  Three states have not set a burden of proof.

The 11th U.S. Circuit Court of Appeals did not issue an immediate ruling.  About 10 Georgia death-row inmates who failed to prove mental retardation beyond a reasonable doubt could receive new hearings if the court finds Georgia's standard unconstitutional....

State attorney Beth Burton refused to concede the possibility that mentally retarded inmates will be executed in Georgia.  She told the court that when the U.S. Supreme Court banned the execution of the mentally retarded, it left it up to the states to decide how to evaluate retardation claims.

This prompted questions from judges who wondered whether it would be acceptable if Georgia made it all but impossible for a defendant to prevail in a mental retardation claim.  What about a law that says only defendants with IQs below 30 can be found to be mentally retarded, asked Judge Stanley Marcus.  An IQ of about 70 is generally considered to be the upper limit for a diagnosis of mental retardation. "I think they could do that," Burton responded.

What if the state required defendants to prove retardation beyond a shadow of a doubt, Judge Charles Wilson asked. Would that make a difference?  "I can't say that it would, as crazy as that sounds," Burton replied, noting the U.S. Supreme Court could ultimately overturn such a law.  So as long as there is no Supreme Court decision that forbids a certain way of evaluating the claims, Georgia could set the burden so high no one could ever prove they were mentally retarded, Wilson said.

This prompted Judge J.L. Edmondson to wonder what the state planned to do with Hill, noting he had been found to be mentally retarded.  "If you get the chance, is Georgia going to execute this man?" he asked. "Yes," Burton replied.

Hill sits on death row for bludgeoning a fellow inmate to death with a nail-studded board in 1990. At the time, he was serving a life sentence for killing his girlfriend.

On appeal, Hill's lawyers claimed he was mentally retarded, but Superior Court Judge John Allen of Columbus found Hill could not prove it beyond a reasonable doubt.  After the U.S. Supreme Court banned the execution of the mentally retarded in 2002, Allen reconsidered his initial decision. Allen subsequently found Hill had proven by a preponderance of the evidence -- more likely than not -- that he was mildly mentally retarded. The judge also found the "beyond a reasonable doubt" standard unconstitutional.

The Georgia Supreme Court subsequently overturned Allen in a ruling that was under close scrutiny during Tuesday's arguments.






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FYiPOST: Freedman on Habeas Corpus as a Common Law Writ

Eric M. Freedman (Hofstra University - School of Law) has posted Dimension I: Habeas Corpus as a Common Law Writ (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 46, No. 2, Summer 2011) on SSRN. Here is the abstract: This...





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Saturday, February 12, 2011

Possible Atkins MR/ID claim preemptive strike by Indiana Supreme Court?




Thanks to Kevin Foley for sending the interesting Baer (2011) v Indiana decision.

This is an interesting example of what appears to be a preemptive strike by a state supreme court against the possibility of a future Atkins MR/ID claim. When one reads the decision there is much discussion of mental illness, toxic family/parenting, drug abuse....but nothing about possible MR/ID. The Indiana Supreme Court stated in this case, "The record contains very occasional mention of mental retardation. We thus pause to consider whether there might be any claim under Atkins v. Virginia, 536 U.S. 304 (2002), though none of his lawyers nor any of the multitude of medical experts have made this an issue." (pg 35) The court then discussed the evidence bearing on an, ID claim and concluded...nope....not possibly MR/ID.

If is my understanding that typically, if no party raises an issue, then the court will not either. It is possible that given the numerous Atkins claims throughout the country, this court wanted to shoot down any thought that some lawyer might have in the future to raise an MR/ID claim on Baer's behalf.

Interesting.


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Friday, February 11, 2011

FYiPost: "Technologies on the Stand: Legal and Ethical Questions in Neuroscience and Robotics"

I'm told that registration has begun for the conference below. If you have further questions, see the contact information at the bottom of the blog post: TILTing Perspectives 2011 TECHNOLOGIES ON THE STAND: LEGAL AND ETHICAL QUESTIONS IN NEUROSCIENCE AND...





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Thursday, February 10, 2011

FYiPost: Special Issue of Studies in Ethics, Law and Technology

Here's the link to the content described below: Berkeley Electronic Press is pleased to announce the following special issue of Studies in Ethics, Law, and Technology. The Convergence of the Physical, Mental and Virtual This special issue of SELT is...





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FYiPost: Great New Blog---Law and Biosciences

Neurolaw expert and law professor Nita Farahany has a great new blog covering recent case developments in neurolaw and biosciences.  Law and Biosciences Daily Digest is sure to be regular reading among those who follow this intriguing field. 





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Tuesday, February 8, 2011

FYiPost: Misunderstandings by Jurors Undermines Constitutionality of Death Penalty

FYI from DPIC BLOG


A new study by William Bowers and others published in the Criminal Law Bulletin revealed that most jurors in death penalty cases lack sufficient understanding of their duties, rendering the process unconstitutional by Supreme Court standards. The study showed that capital jurors often mistakenly believe that a death sentence is required by law, and fail to take primary responsibility for the defendant's punishment. The study suggested that jurors tend to believe death should be the punishment for heinous crimes and that death is needed as a deterrent and required by law. When the U.S. Supreme Court reinstated the death penalty in Gregg v. Geogia, it stated that improved jury instructions and court procedures would reduce the arbitrariness in capital sentencing. The report's findings suggest that after many years of experimentation these remedies have failed: "It appears that jurors cannot be successfully directed in making such an ominous decision by guidelines and procedures devised to insure a reasoned moral judgment free of arbitrariness. Being outraged by heinous killings and ambivalent about ordering someone killed, are 'normal' human reactions."

(W. Bowers, W. Foglia, S. Dietzel and C. Kelly, "Jurors' Failure to Understand or Comport with Constitutional Standards in Capital Sentencing: Strength of the Evidence," 46 Criminal Law Bulletin ___(2010)).  See Sentencing and Studies.






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Carroll-like exploratory factor analysis of the WISC-IV Integrated: CHC interpretation

An excellent Jack Carroll-like exploratory factor analysis of the WISC-IV Integrated at Joel Schneider's blog.


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Monday, February 7, 2011

Thanks. ICDP weekly traffic stats

image.jpeg

Thanks to all the new visitors and readers this past week.


Subject: GoStats: weekly stats

Site: "Intellectual Competence & Death Penalty" [ http://www.atkinsmrdeathpenalty.com ]

Last week:

   Hits:         556
   Hosts:        246
   Visitors:     354
   Sessions:     390
   New Visitors: 276



Sunday, February 6, 2011

FYiPost: Levenson on Redrafting the ABA Standards of Conflicts in Criminal Cases

Laurie L. Levenson (Loyola Law School Los Angeles) has posted Conflicts Over Conflicts: Challenges in Redrafting the ABA Standards for Criminal Justice on Conflicts of Interest on SSRN. Here is the abstract: Currently, an ABA Task Force faces the considerable...





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FYiPost: Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply. Rank Downloads Paper Title 1 259 Plan Now or Pay Later: The Role of Compliance in Criminal Cases Charlotte Simon, Ryan D. McConnell, Jay Martin, University of Houston...





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Friday, February 4, 2011

fyiPost: Current Directions in Psychological Science - Special issue on Psych and Law




Current Directions in Psychological Science Online Table of Contents Alert

A new issue of Current Directions in Psychological Science is available online:
1 February 2011; Vol. 20, No. 1

The below Table of Contents is available online at: http://cdp.sagepub.com/content/vol20/issue1/?etoc


Special Issue on Psychology and Law
Comment From the Editor
Randall W. Engle
Curr Dir Psychol Sci 2011;20 3
http://cdp.sagepub.com/cgi/content/full/20/1/3

Editor's Introduction: Special Issue on Psychology and Law
Ronald P. Fisher
Curr Dir Psychol Sci 2011;20 4
http://cdp.sagepub.com/cgi/content/full/20/1/4

Resolving the Offender "Profiling Equations" and the Emergence of an Investigative Psychology
David V. Canter
Curr Dir Psychol Sci 2011;20 5-10
http://cdp.sagepub.com/cgi/content/abstract/20/1/5

Forensic Interviewing Aids: Do Props Help Children Answer Questions About Touching?
Debra Ann Poole, Maggie Bruck, and Margaret-Ellen Pipe
Curr Dir Psychol Sci 2011;20 11-15
http://cdp.sagepub.com/cgi/content/abstract/20/1/11

Interviewing Cooperative Witnesses
Ronald P. Fisher, Rebecca Milne, and Ray Bull
Curr Dir Psychol Sci 2011;20 16-19
http://cdp.sagepub.com/cgi/content/abstract/20/1/16

Current Issues and Advances in Misinformation Research
Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus
Curr Dir Psychol Sci 2011;20 20-23
http://cdp.sagepub.com/cgi/content/abstract/20/1/20

Eyewitness Identification
Neil Brewer and Gary L. Wells
Curr Dir Psychol Sci 2011;20 24-27
http://cdp.sagepub.com/cgi/content/abstract/20/1/24

Outsmarting the Liars: Toward a Cognitive Lie Detection Approach
Aldert Vrij, Pär Anders Granhag, Samantha Mann, and Sharon Leal
Curr Dir Psychol Sci 2011;20 28-32
http://cdp.sagepub.com/cgi/content/abstract/20/1/28

Suspect Interviews and False Confessions
Gisli H. Gudjonsson and John Pearse
Curr Dir Psychol Sci 2011;20 33-37
http://cdp.sagepub.com/cgi/content/abstract/20/1/33

Current Directions in Violence Risk Assessment
Jennifer L. Skeem and John Monahan
Curr Dir Psychol Sci 2011;20 38-42
http://cdp.sagepub.com/cgi/content/abstract/20/1/38

Future Directions in the Restoration of Competency to Stand Trial
Patricia A. Zapf and Ronald Roesch
Curr Dir Psychol Sci 2011;20 43-47
http://cdp.sagepub.com/cgi/content/abstract/20/1/43

The Utility of Scientific Jury Selection: Still Murky After 30 Years
Joel D. Lieberman
Curr Dir Psychol Sci 2011;20 48-52
http://cdp.sagepub.com/cgi/content/abstract/20/1/48

Expert Psychological Testimony
Brian L. Cutler and Margaret Bull Kovera
Curr Dir Psychol Sci 2011;20 53-57
http://cdp.sagepub.com/cgi/content/abstract/20/1/53

The Psychology of Trial Judging
Neil Vidmar
Curr Dir Psychol Sci 2011;20 58-62
http://cdp.sagepub.com/cgi/content/abstract/20/1/58

Jury Decision Making: Implications For and From Psychology
Brian H. Bornstein and Edie Greene
Curr Dir Psychol Sci 2011;20 63-67
http://cdp.sagepub.com/cgi/content/abstract/20/1/63



Law Review Article: War and Peace in Capital Jury Rooms by Scott Sundby




The following is being added to the Law Review Article blogroll.

ARTICLE: War and Peace in the Jury Room: How Capital Juries Reach Unanimity

NAME: Scott E. Sundby

Abstract

Using data from the Capital Jury Project, this Article takes a close look inside the jury room at the process by which capital juries reach a unanimous verdict at the penalty phase. The Article first examines the relationship between first ballot voting patterns and the ultimate sentence, then explores the dynamics of group interaction in achieving unanimity. In particular, by using the jurors' own narratives, the piece delves into the psychological process and arguments through which the majority jurors persuade the holdouts to change their votes. This process is especially intriguing because individual juries do not, of course, have any training in how to deliberate and reach unanimity, and yet they are strikingly similar from case to case in how they convert holdouts to the majority position (with striking differences between the dynamics of juries that reach a verdict of death and those that return a sentence of life without parole). Using the closing argument in the death penalty case of Susan Smith (a mother who did the unthinkable, killing her two children by driving them into a lake and then trying to cast blame on a mysterious black man), the Article concludes by examining how a closing argument might address many of the pressures that affect holdouts.


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AAIDD MR/ID classification manual: PPT overview




Will poking around the web I stumbled across a PDF copy of a set of PPT slides that summarize the main features of the AAIDD 2010 ID assessment and classification manual. It can be accessed by clicking here.


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Thursday, February 3, 2011

Atkins MR/ID death penalty decision: Dufour v Florida (2011)




Just learned today that the Florida Supreme Court decided against Dufour, a case that has been commented on a number of times here at the ICDP blog. The ghost of the Cherry Court is unfortunately alive and well. The only encouraging aspect of the case was a dissent by one justice, who seemed to "get it" regarding the nature of adaptive behavior limitations in the context of strengths.

Oh Florida......


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Wednesday, February 2, 2011

iPost: NEW RESOURCES: DPIC Introduces App for iPhone and iPad

The Death Penalty Information Center is proud to present a new mobile application for the iPhone, iPad, and iPod Touch. This FREE application provides access to the most frequently used resources on DPIC's main website, including our Fact Sheet on the Death Penalty, our Execution Database, and the most recent death penalty news from around the country. Click here to download the mobile application through iTunes. Users may also download the mobile application directly from the App Store on their mobile device by searching for "DPIC" or "Death Penalty Information Center."  You may also visit our Multimedia page for other resources, including our general Web app for mobile devices and our audio podcast series, DPIC on the Issues.

(DPIC, posted Feb. 2, 2011).

 

 

 

 







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Tuesday, February 1, 2011

Special journal issue on Forensic Research in Offenders with Intellectual & Developmental Disabilities

Thanks to Karen Salekin for alerting me to a two-part special issue of Psychology, Crime and Law: Forensic Research in Offenders with Intellectual & Developmental Disabilities. I've provided picture images of the table of contents below. The actual TOC and articles for the two issues can be accessed here and here.

Double click on images to enlarge







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