Parrish v KY (
2008,
2010) has just been posted to the
Court Decisions blog roll.
Also,
Kevin Foley has provided the following guest commentary re: the published decisions
Some Courts Need to Do a Better Job Explaining Their Decisions
Sometimes the decisions in Atkins cases don’t make sense, or the court simply fails to supply sufficient facts to allow the reader to draw the appropriate conclusions. An example of a deficient decision can be found in the matter of Melvin Lee Parrish. The Kentucky Supreme Court denied Parrish’s intellectual disability (mental retardation) claim, asserting that the evidence from his original trial, which was held prior to Atkins, showed that he was not mentally retarded. The court specifically noted that, “a psychologist at Kentucky Correctional Psychiatric Center (KCPC) [who examined and tested Parrish] . . . testified that Appellant’s IQ was 79 and that a previous IQ score of 68 from when Appellant was fifteen was the result of a lack of motivation.”[1] What is lacking in the court’s decision is any explanation of what facts allowed the expert to conclude that there was “a lack of motivation” on the part of Parrish. Ostensibly, the court used the so-called lack of motivation to create the inference that the score of 68 was invalid, and thus of little consequence.
To confuse the reader even more, in a later section of the decision, when discussing the “mitigation” evidence, the court stated that there was testimony from the “County Director of Special Education, who ‘testified at length’ about Appellant’s time at Oldham County High School, including his ‘IQ and reading test scores, as well as his performance in classes for the educationally mentally handicapped’”.[2] The designation “educationally mentally handicapped” likely means that the school system considered Parrish to be mildly mentally retarded.[3] Or, in other words, that the IQ test score of 68, obtained when Parrish was 15, was in fact a valid estimation of Parrish’s level of intellectual functioning at the time. Unfortunately, the court supplied so few facts, that the reader of the decision is left to guess what the facts might have been.
Consistent with the above, the court makes no mention of which tests were administered to Parrish. It is quite possible that the 79 IQ score was obtained on an obsolete or “old” version of the WAIS, and that, arguably, the obtained IQ score should have been adjusted for the Flynn Effect. And if one added to the analysis the standard error of measurement (SEM), one could argue that Parrish’s IQ was well within the range for a diagnosis of mental retardation. But, reading the decision, one can only guess what tests were given, and whether the issues of the Flynn Effect and the SEM were even raised in the case.
When a court publishes a decision like this, it creates serious negative impressions - one, perhaps the court was obfuscating the true facts; two, perhaps the court did not understand the nature of the issues and the underlying science; or three, the court does not like the holding of Atkins and is simply giving such cases a short shrift. Of course, the alternative interpretation may hold true as well – that the court may have given the case an honest look and it did what it thought was appropriate under the circumstances. But one thing is clear, this was a poorly written decision that left out important facts – as well as the court’s discussion of those facts - that the both the litigants and the public were entitled to know.
Parrish’s mental retardation claim still has some life left to it. A federal district habeas court recently denied the state’s motion to dismiss Parrish’s mental retardation claim on the basis that it was procedurally defaulted.[4]
1 Parrish v. Commonwealth, 272 S.W. 2d 161, 167, Case No. 2006-SC-000592-MR (Ky. 2008), Slip op. at pg. 5.
2 Id. at 10, slip op. at pg. 10.
3 The precise phrases and terms used throughout the country – especially many years ago – differed somewhat; however, the phrases “educationally mentally handicapped,” “educably mentally handicapped, and “educably mentally retarded” can be considered synonymous, and are thought to concern mildly mentally retarded students. For example, Professor Rogers Elliott used “educably mentally retarded” (EMR) and “educably mentally handicapped” (EMH) synonymously in his book which analyzed the landmark lawsuits, Larry P. v. Riles, 343 F. Supp. 1306 (N.D. Cal. 1972); 495 F. Supp. 926 (N.D. Cal. 1979) and PASE v. Hannon, 506 F. Supp. 831 (N.D. Ill. 1980). Rogers Elliott, Litigating Intelligence 1 (1987). See also, Pickens v. State, 126 P. 3d 612 (Okla. Crim. App. 2005) (Pickens, who was educationally mentally handicapped when in school, was deemed to meet the Oklahoma Atkins standard) and People v. McMullen, 410 N.E. 2d 1174 (Ill. App. 1980) (testimony given that students who were educationally mentally handicapped had IQs between 50 and 70-7, the range associated with mild mental retardation).
4 Memorandum Opinion and Order, Parrish v. Simpson, Case No. 3:09-CV-254-H (W.D. Ky., Feb. 26, 2010).
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Parish v KY
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