Friday, April 30, 2010

A deadly Catch 22? It is possible to execute a person with ID/MR in the United States--Time for SCOTUS to revisit Atkins?

As a non-lawyer and a professional who deals primarily with science, logic, and fact, I am at a lost for words re: the decision, two days ago (Webster v US, 2010), that a person with clear evidence of MR/ID (as admitted by one of the ruling judges), must be executed because of some kind of legal mumbo jumbo.....under federal habeas corpus (HC) statutes dealing with successive HC claims based on new and material evidence, one must prove innocence to be spared from the execution...even if there is clear an convincing new evidence that the person is ID/MR.  Come again?  Say what?  A deadly Catch-22?

I urge interested readers to read the concurring opinion of Judge Wiener (starting on page 6) who states (emphasis added by ICDP blogmaster):
I write separately to emphasize the absurdity of its Kafkaesque result: Because Webster seeks to demonstrate only that he is constitutionally ineligible for the death penalty — and not that he is factually innocent of the crime — we must sanction his execution.

If the evidence that Webster attempts to introduce here were ever presented to a judge or jury for consideration on the merits, it is virtually guaranteed that he would be found to be mentally retarded.

I continue to harbor a deep and unsettling conviction that, albeit under Congress’s instruction which ties our judicial hands so illogically, we today have no choice but to condone just such an unconstitutional punishment.


Should this be the case that requires SCOTUS to revisit the can-of-worms left in the wake pf SCOTUS's lack of specificity in Atkins?  Should this case not be appealed to SCOTUS?

Thursday, April 29, 2010

Law Review Article: Gershowitz (2010) on eliminating state counties' role in death penalty

Gershowitz, A. M. (2010). Statewide Capital Punishment: The Case for Eliminating Counties' Role in the DeathPenalty. Vanderbilt Law Review, 63(2), 307+.

In almost every state that authorizes capital punishment, local county prosecutors are responsible for handling capital trials and for deciding when to seek the death penalty. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often. By contrast, smaller counties with limited budgets frequently lack the funds and institutional knowledge to seek the death penalty in even the most truly heinous cases. The result is geographic arbitrariness within a state. The difference between life and death may depend on the side of the county line where the offense was committed. Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are relitigated for years at enormous expense.

Because county control of death penalty cases has proven to be a failure, this Article offers a roadmap for eliminating counties’ involvement in the death penalty system. All aspects of capital cases—charging, trial, appeal, and everything in between—can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases. This Article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.

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Wednesday, April 28, 2010

Court Decisions: Weston v Arkansas (2006)

Thanks to Kevin Foley (again) for sending me an Atkins decision from Arkansas that was missing from the ICDP Court Decisions blog roll.  This now makes n=99 different cases that are listed.

The decision is Weston v Arkansas (2006).  The published document is sparse with regard to the ID/MR information, so it is very difficult to ascertain the specific arguments and issues involved in this Atkins case.   The decision indicates that two different mental health experts had tested the defendant and reported IQ scores in the 50's, but the issue of malingering was present, so the case was sent to jury.

Of interest is the Arkansas statute related to Atkins, which is a bit different from most other states.  As extracted from the ruling: Ark. Code Ann. § 5-4-618 (Repl. 1997), which states that “there is a rebuttable presumption of mental retardation when a defendant has an intelligence quotient of sixty-five (65) or below,” and, that “no defendant with mental retardation at the time of committing capital murder shall be sentenced to death.” Ark. Code Ann. § 5-4-618(a)(2)"  It is my understanding of the statute that if a person has intellectual functioning measured at 65 or below, that the death penalty cannot apply---and it is the burden of the state to prove otherwise.  For individuals above the score of 65 (65-70/75 range), the burden of proof of ID/MR then shifts to the defendant.

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Saturday, April 24, 2010

Court Decisions: Ochoa (2010), McDade (2010) and Robinson (2010)

I'm working on cleaning up the backlog of Atkins decisions that have occurred recently.  In this post three more are added to the Court Decisions blogroll.  I've only skimmed these three briefly and only make brief comments (I can no longer keep up with reading and analyzing decisions----I'm more in an "FYI archive posting mode" for rulings at this time).  Thanks again to Kevin Foley for monitoring the pulse of decisions and sending copies my way.

Ochoa v Workman (OK, 2010) - Appears to be a week Atkins claim with Ochoa's own expert said not ID/MR.  Ochoa tried to argue even though maybe not ID/MR now he was at time of the murder, and that should be the point of inquiry. The court did not buy this argument saying that it is present level of functioning, not the past. This cases raises the interesting issue/problem of variability across states on the "time of MR/ID".  Many states specify the person must be ID/MR now and before the end of the developmental period (before age 18).  Other states add the additional criteria that the person must have been ID at the time of the crime.  And at least one state (Arkansas I believe) specifies only ID at time of the crime.  The Atkins can of worms just keeps growing.

McDade v US (Al, 2010).  This is a federal criminal case involving sex crimes and is an example of  the proposition that Atkins might being extended beyond death penalty cases.  McDade is ID/MR. Under federal criminal law, if convicted, the sentencing judge must consider the sentence which is recommended under the "sentencing guidelines" (which uses various factors to come up with a range of what is thought to be  an appropriate sentence), and the judge is supposed to articulate supporting facts if he/she wants to sentence above or below the recommended range. Here ID/MR was used as a justification to depart downward from the guidelines. However, it wasn't much of a departure - guidelines recommended 292-360 mos in federal prison; judge sentenced McDade to 240 mos - 20 years. Reading the case one gets the feeling that McDade was a follower and this may be illustrative of the concept of gullibility.

Robinson v Schriro (Az, 2010).  Not an Atkins case per se. Of interest was the appeals court's conclusion that Robinson was denied effective assistance of counsel. Robinson's attorney presented no witnesses at sentencing and appeared to only attack the state's effort to show aggravating factors. Court based its decision, in large part, on the failure to present evidence of Robinson's low IQ, which was reported as being a FSIQ of 81.  The state post-conviction judge (who heard the ineffective assistance claim in state court) was unimpressed with the IQ score, and relied instead on the so-called "street smarts" of Robinson.

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Law Review Articles: Hashimoto (2010)--Class matters (SES and criminal justice)

Law Review Article on role of SES and the criminal justice system by Erica Hashimoto (click here to access and download)  Article has been added to ICDP LRA blogroll.

Poor people constitute one of the most overrepresented categories of people in the criminal justice system. Why is that so? Unfortunately, we simply do not know, in large part because we have virtually no information that could provide an answer. As a result of that informational vacuum, policymakers either have ignored issues related to socioeconomic class, instead focusing on issues like drug addiction and mental illness as to which there are more data, or have developed fragmented policy that touches on socioeconomic class issues only tangentially. The bottom line is that without better data on the profile of poor defendants, coherent policy to address socioeconomic class issues simply will not be enacted. Because we lack data on socioeconomic class, we also cannot ascertain whether the system enforces criminal laws equally or whether it targets poor people. The inability to prove (or disprove) class discrimination prevents policymakers from enacting any solutions and leads to mistrust in the system.

This Article highlights the potential beneficial uses of general data on criminal defendants, and data on socioeconomic class of criminal defendants in particular. It goes on to document the data we currently have on socioeconomic class of criminal defendants, and the shortcomings both in our analysis of that data and in our data collection. Finally, the Article provides a roadmap for how states and the federal government should collect and analyze data on the socioeconomic class of criminal defendants.

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Court Decisions: Pierce v Thaler (TX, 2010)

The Anthony Pierce v Thaler (TX, 2010) case has been decided.  The 2009 decision granted Pierce the right to argue his Atkins case, and directed further briefing by the parties. I am told that the new 2010 decision is the final word on the case from the Appeals Court, absent the court granting a rehearing in front of the entire array of judges.

Of interest, was the unsuccessful argument that new evidence had surfaced that had discredited the states experts testimony and techniques  (in a prior Atkins--see prior "voodoo psychometrics" post re: Plata decision).  The court felt that the facts of Plata and Pierce were distinguishable.

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Research briefs 4-24-10: WISC-IV & TBI and WAIS-IV factor study research studies

Allen, D. N., Thaler, N. S., Donohue, B., & Mayfield, J. (2010). WISC-IV Profiles in Children With Traumatic Brain Injury: Similarities to and Differences From the WISC-III. Psychological Assessment, 22(1), 57-64.

The Wechsler Intelligence Scale for Children—Fourth Edition (WISC–IV; D. Wechsler, 2003a) is often utilized to assess children with traumatic brain injury (TBI), although little information is available regarding its psychometric properties in these children. The current study examined WISC–IV performance in a sample of 61 children with TBI. As compared to the standardization sample, results indicated that the TBI group exhibited relative deficits on all subtest and index scores, with the greatest deficits on the Processing Speed Index (PSI) and Coding subtest scores. However, the Perceptual Reasoning Index score was not uniquely sensitive to brain injury, and the Cognitive Processing Index score was less sensitive to TBI than the PSI score. Also, the PSI did not uniquely predict learning and memory abilities, as had been reported in previous studies of the Wechsler Intelligence Scale for Children—Third Edition (WISC–III; D. Wechsler, 1991). The present findings indicate substantive differences between the WISC–III and WISC–IV profiles of children with TBI.

Benson, N., Hulac, D. M., & Kranzler, J. H. (2010). Independent Examination of the Wechsler Adult Intelligence
Scale-Fourth Edition (WAIS-IV): What Does the WAIS-IV Measure? Psychological Assessment, 22(1),

Published empirical evidence for the Wechsler Adult Intelligence Scale—Fourth Edition (WAIS–IV) does not address some essential questions pertaining to the applied practice of intellectual assessment. In this study, the structure and cross-age invariance of the latest WAIS–IV revision were examined to (a) elucidate the nature of the constructs measured and (b) determine whether the same constructs are measured across ages. Results suggest that a Cattell–Horn–Carroll (CHC)–inspired structure provides a better description of test performance than the published scoring structure does. Broad CHC abilities measured by the WAIS–IV include crystallized ability (Gc), fluid reasoning (Gf), visual processing (Gv), short-term memory (Gsm), and processing speed (Gs), although some of these abilities are measured more comprehensively than are others. Additionally, the WAIS–IV provides a measure of quantitative reasoning (QR). Results also suggest a lack of cross-age invariance resulting from age-related differences in factor loadings. Formulas for calculating CHC indexes and suggestions for interpretation are provided.

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iPost: Ohio to announce executions via Twitter?

FYI. Strikes me as a bit creepy. See SLP link below

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Friday, April 23, 2010

More on MR/ID and malingering: Salekin et al. (2010)

Follow-up post to malingering MR/ID research study post earlier today.  In a previously noted Salekin, Olley & Hedge (2010) article, the authors made the following major points re: MR/ID malingering research.
Karen L. , Olley, J. Gregory and Hedge, Krystal A.(2010. Offenders With Intellectual Disability: Characteristics, Prevalence, and Issues in Forensic Assessment.  Journal of Mental Health Research in Intellectual Disabilities, 3(2), 97 — 116

    Abstracted quotes from Salekin et al. (2010).
      Emphasis added by ICDP blogmaster.

    • Before the ruling in Atkins v. Virginia (2002), there was a virtual absence of discussion of the possibility of feigned ID in forensic evaluations.
    • In recent years, the question of whether the condition of ID can be feigned has been argued in the literature (Baroff, 2003; Ellis, 2003; Mossman, 2003; Stevens & Price, 2006), with empirical data demonstrating the limited utility of effort tests and other measures of cognitive malingering (for reviews see Dean, Victor, Boone, & Arnold, 2008; Graue et al., 2007; Salekin & Doane, 2009). Only one empirical study has been conducted on the ability to feign deficits in adaptive behavior (Doane & Salekin, 2009).
    • One of the arguments against successful feigning of the disorder is that the diagnosis requires the presence of deficits in ID and adaptive behavior that were evident before the age of 18 years. It would follow then that a person who asserts a claim of ID in a criminal proceeding would have documentation of impaired cognitive and adaptive functioning before the age of 18 years (e.g., special education records; disability documents; prior psychological evaluations) and/or would be able to provide collateral sources to support this assertion. In short, those who challenge the idea that ID can be feigned in the criminal justice system base their belief on the notion that people do not feign this disorder during a time in which there is no incentive to do so.
    • Research on the use of existing measures of malingering has produced disappointing results and overall has demonstrated that existing measures and methods, when used according to the current standards of practice, often misclassify people with bona fide ID as malingerers. The reader is directed to an article by Graue et al. (2007) in which the findings of prior research are detailed and the results are presented regarding malingering on tests of intelligence, malingered mental illness, and neurocognitive measures.
    • In short, Graue and colleagues documented the questionable validity of existing measures of malingering when used with an ID population.
    • Although additional research is needed regarding the ability to malinger ID successfully, the malingering of ID, no matter how poorly done, will be attempted in some criminal cases. The authors further believe that individuals who would attempt to feign ID are limited to those who have true scores that fall between one and two standard deviations below the mean on either or both prongs of the ID diagnostic criteria. Offenders who fall in the average range of cognitive ability and/or adaptive behavior would not have demonstrated the requisite level of deficits in adaptive behavior in the community to meet the criteria for the diagnosis (this would be true even if they successfully reduced their score on an IQ test). Nevertheless, in light of the possibility that a person can successfully feign the disorder, it has become important to find ways to evaluate this response style while maintaining a very low rate of false positives.
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    New MR/ID malingering research study: Existing measures not that good for MR/ID

    Shandera, A. L., Berry, D. T. R., Clark, J. A., Schipper, L. J., Graue, L. O., & Harp, J. P. (2010). Detection of Malingered Mental Retardation. Psychological Assessment, 22(1), 50-56. (click here to view)

     Emphasis in abstract and conclusion added by IDCP blogmaster


    In a cross-validation of results from L. O. Graue et al. (2007), standard psychological assessment instruments, as well as tests of neurocognitive and psychiatric feigning, were administered under standard instructions to 24 participants diagnosed with mild mental retardation (MR) and 10 demographically matched community volunteers (CVH). A 2nd group of 25 community volunteers was instructed to malinger MR (CVM) during testing. CVM participants obtained Wechsler Adult Intelligence Scale (3rd ed.; D. Wechsler, 1997) Full Scale Intelligence Quotient scores that were significantly lower than the demographically similar CVH group but comparable to the MR group, suggesting that CVM subjects feigned cognitive impairment. On the basis of standard cutting scores from test manuals or published articles, of the 11 feigning measures administered, only the Test of Memory Malingering (TOMM; T. N. Tombaugh, 1996) retention trial had a specificity rate >.90 in the MR group. However, the 2nd learning trial of the TOMM, as well as a short form of the Digit Memory Test (T. J. Guilmette, K. J. Hart, A. J. Guiliano, & B. E. Leininger, 1994), approached this level of specificity, with both at .88. These results raise concerns about the specificity rates at recommended cutting scores of commonly used feigning tests in defendants with MR.
    Overall, although there were some helpful findings in the present study, broadly speaking, neurocognitive feigning measures derived primarily on the basis of traumatic brain injury samples do not seem to work well in patients with MR. Given the fairly consistent reports to this effect in the published literature, it may well be that a new approach is needed to develop feigning detection instruments that are both sensitive and specific for the evaluation of possible malingered MR. Research assessing a broad array of possible approaches to this issue is clearly needed by the forensic clinical community.
    Prior ICDP malingering-related posts, inclusive of the current, can be found by clicking here

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    Thursday, April 22, 2010

    iPost: Research links SES level to prefrontal cortex brain development

    Story at link below
    NeuropathLrng: How poverty can affect children's developing brains:
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    Wednesday, April 21, 2010

    Beyond the CHC theory of intelligence: Hypothesized research and theory-based model for IQ test interpretation

    For those interested in some research-based hypothesized thinking regarding new models of intelligence, and a new proposed framework for interpreting intelligence test performance (currently based on WJ III), check out "Beyond CHC theory and the WJ III:  The grand unveiling" at ICDP's sister blog---IQs Corner.

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    IQ Test DNA Fingerprints: Comparison of WJ III/BAT III to WJ-R/BAT-R

    Here is another of IQ's Corner "IQ Test CHC DNA Fingerprint" test comparison series.  This particular CHC fingerprint figure compares the CHC composition of the respective full scale total composite IQ scores from the WJ III/BAT III and the the earlier version of these batteries....the WJ-R/BAT-R.

    Background information regarding the development, use and interpretation of this IQ global IQ score feature can be found at a prior post and in the IQ Test CHC DNA Fingerprint section on the blog side bar.

    I now present a comparison of the R/III versions of the WJ/BAT batteries as I have seen psych reports where a subject had previously been administered the WJ-R and was later tested with the revised WJ III (in the case of Spanish-speaking individuals, I've seen the BAT-R and the BAT-III---click here for more background information on the Spanish version of the WJ III...the BAT III).  

    In the case of the WJ-R/BAT-R, the full scale IQ composite is called the Broad Cognitive Ability (BCA) cluster.  The name was changed in the WJ III/BAT III to General Intellectual Ability (GIA) cluster.  The name change was not cosmetic.  The use of the term "general intellectual ability" in the newest WJ III/BAT III reflects the fact that this global IQ composite score is designed to be the best statistical estimate of the theoretical construct of general intelligence (g) via the use of differential test weights.

    Using principal components analysis, a g-factor was extracted from the seven WJ III/BAT III Standard Cognitive battery tests (at each age level), g-factor weights calculated (by age---they shift slightly as a function of age), and the g-weights used to differentially weight the contribution of the seven tests to the composite GIA-Standard cluster score.  The same process was completed for the 14 test GIA-Extended cluster score.  This procedure is explained in detail in the WJ III/BAT III technical manuals/reports and is also briefly summarized in a free on-line Assessment Service Bulletin technical abstract.

    In the case of the WJ-R/BAT-R, the respective 7-test BCA-Standard and 14-test BCA-Extended cluster scores are based on the simple arithmetic average of each set of scores, thus resulting in an equally weighted global IQ score.

    Thus, differences between the global WJ-R/BAT-R and WJ III/BAT III IQ scores may occur as a function of the respective scores reflecting differential contributions of the broad Gf-Gc abilities as per the CHC theoretical model that underlies the batteries.

    Below is the IQ Test CHC DNA Fingerprint comparison of the two respective editions of the WJ-R/BAT-R and WJ III/BAT III.  The weights presented for the WJ III/BAT III are the median (average) weights across all age groups.  The previously referenced ASB (see above) includes a table of the specific weights by age.

    [double click on figure to enlarge]

    Although the CHC composition of the respective global IQ scores did not change dramatically, there are enough differences by CHC ability to suggest that slightly different global IQ scores may be produced for the same individual depending on whether they took the WJ-R/BAT-R or the WJ III/BAT III (assuming proper administration, scoring, etc.).  Consistent with psychometric intelligence theory (aka., CHC theory), the WJ III/BAT III global IQ scores (GIA-Stnd; GIA-Ext) are more heavily weighted as per a subjects performance on the more g-loaded measures of Gf (fluid intelligence/reasoning), Gc (crystallized intelligence or comprehension-knowledge), and Glr (long-term storage and retrieval).  In contrast, abilities that are less cognitively demanding and more related to perceptual (Gv, Ga), speed (Gs), and short-term memory (Gsm) functioning contribute slightly less to an individuals WJ III/BAT III global IQ GIA score than was the case with the WJ-R/BAT-R.

    If significant differences are found when comparing scores from the respective R/III editions of the WJ for an individual, examiners should review the Gf-Gc CHC test/cluster profiles to determine if some (or all) of the score differences might be related to the shift from an equally weighted global IQ score (WJ-R/BAT-R) to a differentially-weighted (WJ III/BAT III) global IQ score.  In theory, an individual could obtain very similar test-level scores on each battery, but because "all scores are not created equal" (in the estimation of general intelligence or g) in the case of the WJ III, a shift in the global GIA IQ scores may occur.

    Other IQ Test CHC DNA Fingerprint comparisons can be found by clicking here.  More will be coming in the future.

    [Conflict of interest note:  I am a co-author of the WJ III/BAT III]

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    Monday, April 19, 2010

    AAIDD June conference sessions relevant to ID/MR Dx and Atkins death penalty cases

    A number of AAIDD conferences sessions/workshops related to ID/MR Dx and Atkins MR/ID Death Penalty cases.

    Death Penalty Session - Wednesday June 9

    Atkins v. Virginia : Challenges and Pitfalls in Diagnosing ID in a Forensic Context

    Moderator:      Marc J. Tassé, The Ohio State University Nisonger Center

    A Quantitative and Qualitative Analysis of Post-Atkins Decisions by Juries and Judges
    John H. Blume, Cornell Law School

    Assessing Intellectual Functioning
    Kevin S. McGrew, Institute for Applied Psychometrics

    Assessing Adaptive Behavior in a Forensic Context
    James R, Patton, University of Texas at Austin

    Assessment of Malingering
    Denis William Keyes, College Of Charleston

    Retrospective Diagnosis
    Sal Blandino, Licensed Psychologist

    Closing Commentary
    Stephen Greenspan, University of Colorado at Denve

    Workshops--Friday June 11

    Workshop #1:

    Evaluations and Expert Testimony in Criminal Cases
    James Ellis, UNM School of Law, University of NM
    Disability professionals are increasingly called upon to provide evaluations and expert testimony in criminal cases, particularly in Atkins cases where the defendant's intellectual disability is at issue. Participating in these life-and-death proceedings can be a daunting prospect. This workshop will include explanation of the criminal law issues involved, diagnostic and classification issues under the new AAIDD (11th edition) manual, and practical suggestions from disability professionals who have participated in these cases.

    Workshop #2

    Understanding and Using the 11th Edition of Intellectual Disability: Definition, Classification, and Systems of Supports
    Bob Schalock, PhD, Ruth Luckasson, JD, Wil Buntinx, PhD, Pat Craig, PhD, Alya Reeve, MD, Karrie Shogren, PhD, Marc Tasse, PhD, Jim Thompson, PhD
    11th Edition Implementation Committee members will present and discuss in detail key issues in the field related to diagnosis, classification, and supports planning. As a basis for maximum interaction and problem solving, workshop participants will be required to bring or purchase a copy of the 11th edition of the Manual. The workshop format will involve presentations, interactions, and opportunities to problem solve.

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    Atkins MR/ID Death Penalty listserv update 4-19-10

    FYI update. The public Atkins MR/ID death penalty listserv now his 40 members. Welcome.  Also, thanks to those who have spread the word in and who have started to participate in some of the initial discussions.

    Hopefully this is just the beginning of an effective tool for the exchange of scientifically accepted and professionally recognized information related to Atkins MR/ID cases.

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    ICDP status update 4-19-10: Thank you and welcome new visitors

    Below are the hit counter stats for the ICDP blog.  The numbers are encouraging. It is nice to see the number of new visitors. Thanks to all who have spread the word and continue support the blogmaster's efforts via private e-mails, sharing of articles and court decisions, etc.
    Site: "Intellectual Competence & Death Penalty"
    Last week:
    Hits:         907
    Hosts:        416
    Visitors:     486
    Sessions:     550
    New Visitors: 340

    Saturday, April 17, 2010

    iPost: ID decisions and elections of judges

    Interesting (troubling?) story of a judges decision in an Atkins case
    being used as negative campaign information in an election of judges.

    A good example why judges should be appointed and no elected -- my
    opinion as the blogmaster. Story at link below.

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    iPost: SCOTUS "Sounds of silence"

    Story at BLT blog link below

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    iPost: Does who you kill impact probability of death penalty?

    Link at DPIC URL below

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    iPost: Neuroscience and law: The "continuum" problem

    Interesting food for thought at the NEUROETHICS AND LAW blog link below

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    Friday, April 16, 2010

    iPost: Fall 2009 death row report

    Report at link below

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    Tuesday, April 13, 2010

    Guest commentary on the Retrospective Assessment of MR: Effectively Addressing Atkins Questions: Dr. Timothy Derning

    Blogmaster introduction and comments:  Below is a guest blog post by Dr. Timothy Derning in response to the recent court ruling regarding Johnston v Fl (click here for prior post that includes links to all prior posts and documents).  This is a longer than usual blog post, but I believe it is worth the space.  Also, I would LOVE to see other professionals (who practice in the area of Atkins cases) offer similar post-hoc analysis of Atkins court decisions.  They can be very educational and instructive.  Such commentaries can serve a valuable function of encouraging discussion, the exchange of ideas, and professional debate.  That being said, if folks would like to engage in further dialogue regarding Dr. Derning's post, I  suggest joining (in not already a member) the public Atkins MR/ID Death Penalty discussion listserv and exchange thoughts, etc. in that medium.  Info regarding the listserv and a sign-up box are near the top of the blogroll on the right-hand side of this blog.  Thanks Dr. Derning for the post.


    A brief review of the state of Florida decision regarding David Eugene Johnston dated April 5, 2010. Mr. Johnston is on Florida's death row. The issue before the court was whether Mr. Johnston has mental retardation. The court's decision was that Mr. Johnston does not have mental retardation. The defense presented four experts. The State presented two experts.

    Mr. Johnston is 61 years old in 2010. He has been given a number and variety of intelligence (IQ) tests throughout his life, beginning in 1967, at age 7, when he was given the Stanford Binet, form LM, and received a 57 IQ. He was administered the WISC twice, once in 1972, FSIQ = 65 (at age 12); and two years later in 1974, FSIQ = 80 (age 14). It's important to note that the examiner in 1967 made a comment in the report that the IQ score of 57 most likely represented a depressed estimate of intellectual functioning due to an unhealthy home environment, moderate to severe perceptual problems and/or brain damage, and severe emotional disturbance.  This examiner stated Johnston’s intellectual ability and potential was "possibly within the lower dull normal range, normal level." Likewise, the 1972 examiner acknowledged that the WISC FSIQ of 65 was in the retarded range, but stated the results were suspect due to possible emotional problems.  The 1972 examiner estimated that Johnston’s ability "would be more in keeping with the slow learner or low average range rather than the mentally retarded." In 1974 the evaluator who administered a WISC and reported a FSIQ of 80, commented that young Mr. Johnston (then age 14) was cooperative and engaged. These comments played a significant role in this court's opinion.

    Before proceeding its is worthwhile to pause and recall that the definition of mental retardation (aka intellectual disability) has three parts or prongs: subaverage intellectual functioning (a valid IQ score of approximately 70 + 5 points; 1 SEM); demonstrated deficits in daily adaptive living ability, and onset that begins during development (before age 18). Neither etiology, nor genetics, nor congenital deficits are mentioned or considered in the definition.

    In 1988 (when Mr. Johnston was 28 years old) he was tested again with the adult Wechsler. On the WAIS-R there was a large split between Johnston’s Verbal IQ of 75 and Performance IQ of 101. Such a wide difference is statistically rare and unexpected, so much so that the full-scale IQ is regarded as uninterpretable (meaningless). Nonetheless, one of the state's experts in 2009/10 calculated a full-scale IQ 83 for WAIS-R.  Mr. Johnston was next given (at age 40) a newer Wechsler (WAIS-III) in 2000. His WAIS-III FSIQ score was 76. Another WAIS-III was administered in 2005, when Johnston was 45 years old.  On this WAIS-III his FSIQ score was 82 (or 84 - both scores are reported in this opinion). Finally, in July 2009 Mr. Johnston was administered the latest edition of the adult Wechsler IQ test (WAIS-IV, 2009), on which he received a FSIQ score of 61. In short, the pattern of Mr. Johnston's IQ scores is highly variable, ranging from a low of 57 to a high of 84 and then back down to 61. The differences among the IQ scores presented a thorny problem: which scores to accept, which to reject? How to rest comfortably with an opinion about Johnston’s level of general intellectual ability?

    The defense experts presented a variety of arguments supporting the opinion that Mr. Johnston is a person with mental retardation; most centered on the IQ scores. One theme among these arguments was the interfering effects of the "Flynn Effect," a statistical phenomenon that IQ scores artificially increase over time in tests that have not been renormed for a number of years.  The defense experts believed that the Flynn Effect could account for the variable IQ scores. The other theme argued for the influence of "practice effects," which refers to the fact that the more an individual takes the same test, the more familiar they become with that test, and the more likely IQ scores will increase artificially due to practice (familiarity). While these reasons were offered, the court’s opinion does not report the experts’ explanations as to how or why these factors should influence an MR/ID Dx (or not) in Mr. Johnston's case---only that it is known that the Flynn Effect and practice effects can be variables that must be considered when evaluating a history of IQ scores. Hopefully, a more complete and relevant explanation was offered during testimony.

    Much of the argument from the experts (on both sides) centered on the Wechsler IQ test itself, its validity, its psychometrics, and a comparison of scores between the WAIS-III in WAIS-IV. The defense experts argued that the WAIS-IV (2009) is a superior test to the others, uses a four-factor model to derive IQ scores, and is a superior measure of intelligence compared to the WAIS-III and it’s two-factor model of interpretation. The defense experts argued that the WAIS-IV, and consequently the 61 IQ obtained from Mr. Johnston in 2009, represented the "gold standard" of intelligence testing, and provides the best indicator of his true intellectual functioning, thus meeting the legal and clinical standard for mental retardation (actually only the first prong of the definition).

    With respect to the variability in IQ scores over Mr. Johnston's lifetime, the defense experts argued that such variability is to be "expected" as there is much variability among very low IQ scores.  The defense experts then discounted (or gave little weight to) the higher 1974 and 1988 IQ scores "because those tested not reflect the most current testing data." One defense expert said he could not find the actual 1974 report, did not know where it was administered, or who administered the test, and therefore didn't trust the validity of the IQ scores.

    The defense expert who administered the WAIS-IV in 2009 also administered the TOMM test as a check against malingering in order to demonstrate the validity of the WAIS-IV FSIQ. Adaptive ability was addressed by several defense experts.  One expert interviewed the mother and brother of the defendant, another administered the Adaptive Behavior Assessment System, Second Edition (ABAS-II) and reported that the defendant scored very low, 4 or less, in all 10 scales of the ABAS-II.

    On the other hand the state's experts testified that they assessed Mr. Johnston in 2005 (they did not examine him in 2009, but reviewed the reports of the defense experts). One state expert administered the WAIS-III in 2005 (FSIQ = 82 or 84) and both experts concluded that Mr. Johnston was not a person with mental retardation. Both experts gave greater weight to the 1974 WISC IQ FSIQ score of 80, as they noted the examiner's positive remarks describing the defendant as alert, cooperative, friendly, verbally expressive, and exhibiting self-confidence during the testing.

    The defense experts had a more awkward argument to maintain, having to weigh Mr. Johnston’s lower IQ scores more heavily, while giving less weight to higher IQ scores for various reasons. They also had to walk the gauntlet that the WAIS-III, an established and comprehensive measure of intelligence, was not a "piece of junk," while trying to give greater weight and emphasis to the 61 IQ from the WAIS-IV. In spite of various defense experts’ arguments, one of the most important and influential pieces of information came from a state's expert who testified that the correlation between the WAIS-III and the WAIS-IV is .94 "or almost perfect, which signified that the WAIS-III was measuring the same constructs as the WAIS-IV and there was a great deal of overlap between the two instruments, making them almost "identical."" One defense expert who argued for the superiority of the WAIS-IV over the WAIS-III was unable to cite the correlation between the two tests as provided in the WAIS-IV test manual, saying that the correlation was probably "mid-.8", which is about .10 lower in magnitude than is actually the case. Knowing the precise correlation (.94) allowed the state’s expert to testify convincingly that the technical concerns raised by the defense about the "two factor model" versus the "four factor model" were relatively insignificant.

    The state’s experts also made a salient point that the TOMM test, administered to establish the validity of the WAIS-IV IQ test performance, was given at a much different time, and the court noted,"... the TOMM was not administered properly in that administering the TOMM and the WAIS-IV some two or three months apart, (so that) the ability to make an extrapolation from one test to the other was lost." True enough.

    Also of significance, when addressing the drop in IQ from 2005 (FSIQ 82 to 84) to 2009 (FSIQ 61), the state’s experts examined individual responses to IQ test questions and found unexpected inconsistencies, such as when the defendant answered 4+5 =9 in 2005, but when asked to solve a similar problem in 2009 said, “I can’t add.” Also, Johnston could identify Martin Luther King, Jr. in 2005 but never heard of him in 2009.

    While the defense experts attempted to assess adaptive ability, no defense expert interviewed anyone at the prison. The court took note of omission and expressed concern that the defense, "... did not interview any personnel at the Department Of Corrections who would have been familiar with Defendant on a day-to-day basis to further assess this issue." The court found the absence of current first-hand information was a significant weakness in the assessment data in spite of claims that adaptive test data (from the ABAS) indicated adaptive deficits. In addition, the court found the information from the defendant's mother and brother provided, "... far too little information and were too distant in time to have any probative value."

    Overall, it would seem that this Atkins opinion regarding the presence of mental retardation turned on several factors in the decision. It was important to the court that IQ scores from the WAIS-III and the WAIS-IV are "virtually identical" [blogmaster coment--click here for CHC analysis of each instruments FS IQ composition] so that all technical arguments about the superiority of one score over another, and arguments advancing the psychometric superiority of the WAIS-IV, became irrelevant. This opinion noted that the “Flynn effect” arguments were made by defense experts, but the court document unfortunately provides no additional information about how the significance of the Flynn effect or practice effects were relevant to Mr. Johnston’s mental retardation claim.

    This case is instructive on a number of points. For example, it can be problematic for a contemporary evaluator when childhood IQ scores are accompanied by comments from the earlier evaluator that dismiss a low IQ as not being "representative" of the true functioning of the youngster. It's often the case that less skilled examiners don't trust their own test data and tend to superimpose their own "clinical impressions" that a youngster is not mentally retarded for one reason or another. Usually bias, lack of training or experience, misinformation, or not having the benefit of 40+ years of additional research, play a large part in this clinical interpretation of IQ scores. However, comments about a youngster coming from a dysfunctional home, an unhealthy home environment, and/or having emotional problems, must be considered and given appropriate weight in the retrospective evaluation process. Additionally, when previous evaluators note that a youngster was fully cooperative and engaged during testing, that, too, must be weighed accordingly, especially when there is a noticeable increase in the IQ score. This last point was clear in this case.

    In Mr. Johnston’s history of IQ scores the 1967 Stanford Binet IQ of 57 can be seen as an "outlier"-- an extremely low IQ score that is inconsistent with all other reported IQ scores. Nor is there data to support significant adaptive deficits throughout Mr. Johnston's life (i.e., very low functioning consistent with someone having an IQ 57, a very low score). Therefore, subsequent evaluators should consider the 1967 examiner’s comment that the 57 IQ score most likely represented a depressed estimate of intellectual ability as (likely) an accurate caveat. Likewise, the 1972 examiner's similar observation that emotional problems depressed the IQ score must be considered accordingly in the retrospective analysis of IQ scores. The judge in Mr. Johnston’s case found the state’s experts’ reasoning compelling. (Importantly, this judge also found the state’s experts’ explanations more detailed and credible with respect to secondary factors that could depress IQ scores in the past and in the present day, namely, anxiety about his impending execution.) The defense experts failed to overcome the “common sense” questions of the low IQ scores from Mr. Johnston’s childhood: an emotionally distraught youngster living in an unhealthy family environment is not be expected to perform at optimal levels when solving intelligence problems.

    Evaluating the adaptive abilities of a defendant who has been living on death row for a number of years presents significant challenges to a contemporary evaluator, not the least of which is collecting valid and reliable information from collateral sources who know how the individual functions. As noted in this opinion, family members may be too unfamiliar and removed from current functioning to provide useful information. Additionally, they may be biased in favor of the defendant. Likewise prison personnel may not be able to provide the kind of information needed in such a limited and structured environment; they, too, may present a different bias toward normalcy. Additionally, prison personnel may not be made available to the evaluator. The court’s opinion in Mr. Johnston's case suggests, however, that it is important to make an honest effort to collect information from contemporary collateral sources, weighing and evaluating the validity of the information after it is collected, or at least after an honest attempt is made.

    From a distance (and without benefit of copies of the oral testimonies) it would appear that the defense experts became “blinded” by the bright lights of the IQ test arguments. There is considerable intelligence testing research and expertise to draw upon from the extant literature. Another potential “blinding” of the defense experts is the fact that when one can establish the validity of a higher IQ score, well above the IQ range established for subaverage intellectual functioning (IQ approximately 70), the IQ score alone may have sufficient power to “conclusively refute the mental retardation diagnosis both legally and clinically” as conceded by defense experts. For this reason, a valid higher IQ score can be a “deal breaker” for the first prong of the MR definition, and thus the whole MR claim. Further assessment is not required. It is for this reason, however, that IQ scores are sometimes given more weight and emphasis than they deserve in Atkins arguments. Not infrequently, as in Mr. Johnston’s case, it is not easy to examine a retrospective history of IQ test scores and definitively establish or refute mental retardation, especially in a retrospective evaluation that spans decades, using various tests, and has been conducted by multiple examiners. In such cases retrospective evaluators may need to look elsewhere for data or information to form an opinion, namely, adaptive functioning, the “middle child” of the MR criteria.

    The Johnston opinion is a good illustration of the difficulty of evaluating the subaverage intellectual functioning prong of the MR definition in the presence of multiple inconsistent IQ scores. These are typical cases that show up at the doorsteps of psychological experts. Atkins defendants with consistent IQ score histories in the 60’s or 80’s are easier to assess one way or the other. However, someone with Mr. Johnston’s IQ history confounds efforts to reach a firm conclusion regarding subaverage intellectual functioning. Technical expertise regarding psychometric issues may or may not help to untie the knot. In Mr. Johnston’s case most of the tests used were from Wechsler batteries (WISC, WAIS-R, -III, -IV), which is somewhat unusual; often a variety of brief, nonverbal only, group administered, or discontinued IQ tests are present in the defendants records. In this case it would seem the (over-) focus on the Wechsler IQ score validity took precedence among the defense experts’ opinions. Yet, when all is said and done, adaptive functioning (the second prong of the MR definition) may provide the clarity and more accurate insight necessary to evaluate a defendant’s overall functioning with respect to a finding of mental retardation.

    This case also highlights the difficulties often encountered by the retrospective Atkins evaluator in both IQ and adaptive deficit domains. Perhaps Mr. Johnston’s argument for a finding of mental retardation would have been more compelling if the presence of adaptive deficits had been more thoroughly documented and presented (assuming the truth of such deficits exists). As this Atkins opinion demonstrates, arguments supporting a finding of mental retardation must balance expertise and technical knowledge about intelligence testing against practical and common sense ‘everyday’ considerations. Common sense sometimes leads and sometimes misleads, but it is always a useful foundation and context for an expert’s curiosity, evaluation focus, and final opinions. It certainly was the thread that ran through this carefully reasoned opinion.

    As a result of their significant intellectual deficits, people with mental retardation have difficult lives of a particular kind. The difficulties they may experience “getting by” and “fitting in” can make them more vulnerable to criminal influences. This was the concern originally expressed by the U.S. Supreme Court in the Atkins 2002 decision when it ruled against the execution of individuals with mental retardation. The defense experts in this case had an uphill climb. They chose a thorny path. Nonetheless, the larger lesson from this case is not about psychometric technicalities, but about presenting the (in)adequacy of Mr. Johnston’s life, such as it is, or is not. That information was available to both sides. Sometimes the IQ measurement question cannot be answered to the desired level of certainty. The state’s experts in this case were direct and parsimonious. They did not lose sight of the practical issues of the case and the judge was persuaded.

    In the end it is always the impaired life and deficient (dependent and limited) daily functioning that is the hallmark of mental retardation. The burden of proof for mental retardation was on Mr. Johnston; the default position was the absence of mental retardation. When the IQ score waters are muddied, as in this Atkins claim, experts must broaden their focus to include other data that may allow one to better see the forest, not just the trees. The state’s experts provided a relatively direct and persuasive context for their opinions. In this case the defense’s psychometric arguments did not carry the day and other data and explanations were not compelling. As noted, Mr. Johnston’s mental retardation claim was not an easy one to establish, and in the end the judge was not persuaded.

    [Thank you to Drs. Kevin McGrew and Greg Olley for the generosity of their time making comments and editing suggestions]
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