Kevin Foley guest comments:
Although one can understand why a school system or prison would want to use group administered or short form tests in an effort to save money, judges determining Atkins claims cannot justify short cuts and attempts to save time by performing a lazy and incomplete analyses. An example of lazy judging can be found in the matter of Marvin Lee Wilson, who was found to be not mentally retarded. Even though Wilson had been tested over the years on several different instruments, the state trial court order provided no discussion of the nature or names of the tests that were given to Wilson over the course of his lifetime. In fact, the court only mentioned one test by name, a test referred to only as the “Weschler Test.”[1] Instead of addressing each of the tests that had been given, the court simply pointed out that all of the test scores were over 70, except for the Weschler, which the court seemed to discount because the test was administered by an intern under the supervision of the psychologist, which the quoted expert pointed out was something that was “done fairly regularly.” [2] Moreover, the trial court neglected to mention that the intern had administered between 30 and 40 Weschler IQ tests. [3]
If one looked at Wilson’s federal habeas corpus petition she would learn the specific tests that been given to Wilson over the years. At age 13, Wilson obtained a 73 on the Lorge Thorndike, group administered test; in 1987 he obtained a score of 75 on an un-named test, thought to be the Beta-II; [4] and in conjunction with his Atkins claim, he obtained a 79 on the non-verbal measure the TONI-II and a 61 on the WAIS-III. [5] Unfortunately, this lazy judging was approved by the federal district court – which also neglected to even mention any tests by name, with the exception of the WAIS-III. Thus, the inappropriate lumping together of screening measures and allowing them to be used as the measure of Wilson’s level of general intellectual functioning was given the imprimatur of the federal court. According to the U.S. District Court opinion,
“Considering the narrow range of Wilson’s scores on the other four tests (73, 75, 75 and 79), that the average of those tests was above 75, that these scores were consistent over a span of more than 30 years, and that they were obtained on four different types of IQ tests, the Court finds that Wilson’s evidence does not clearly and convincingly rebut the state court’s implicit findings that Wilson's IQ was above ‘about 70 or below,’ and that his general intellectual functioning was not significantly below average.”[6]
One absurd result of the courts’ holdings in Wilson is that the results on the best measure of general intellectual functioning – the WAIS-III – were rejected because the measure was administered by a licensed professional counselor intern; yet the barebones score of 75 contained on a summary sheet in the department of corrections records on an unknown measure given by an unknown individual of uncertain qualifications was given full weight.
The problematic outcome in Wilson is further illustrated by the fact that, on appeal from the federal district court’s opinion, the Fifth Circuit Court of Appeals granted a joint motion of the parties so that the district court could rehear the matter, due to the district court’s opinion having been issued without the district court having the complete state court record on the Atkins claim before it. Nine months after the federal district court denied Wilson’s petition for a writ of habeas corpus relief, the Fifth Circuit Court of Appeals remanded the case back to the district court and ordered that, “The district court shall consider Petitioner's motion and the full state Atkins record under the current law.”7 As of the time this book went to press, Wilson’s case was pending in both the district and appeals court, although the latter court had stayed further proceedings until the matter was redetermined by the district court.
1 Findings of Fact and Conclusions of Law, Ex parte Wilson, Case No. 62490-B, Jefferson County (TX) District Ct. (Aug. 31, 2004).
2 Id.
3 Testimon
y of August Wehner, given in the Jefferson County (Texas) District Court on May 18, 2008, State v. Wilson, Case No. 63490B, filed in Wilson v. Quarterman, Case No. 6:06cv140, U.S. Dist. Ct., E.D. Tex., PACER document 56-7, filed Mar. 30, 2010.
4 The only evidence surrounding this score of 75 was the barebones entry of “75” on summary page contained in Wilson’s prison records. There is no indication of what measure was used; who administered it; or what qualifications this person possessed. See Texas Department of Corrections Social and Criminal History for Marvin Lee Wilson, filed in Wilson v. Quarterman, Case No. 6:06cv140, U.S. Dist. Ct., E.D. Tex., PACER Doc. No. __, filed Mar. __, 2006.
5 Petition for Writ of Habeas Corpus, Wilson v. Quarterman, Case No. 6:06cv140, U.S. Dist. Ct., E.D. Tex., filed Jul. 30, 2006, pgs 20-22.
6 Memorandum Opinion, Wilson v. Quarterman, Case No. 6:06-cv-140, U.S. Dist. Ct. (E.D. Tex., Mar. 31, 2009).
7 Docket Entry of Dec. 15, 2009, Wilson v. Thaler, Fifth Circuit Court of Appeals Case No. 09-70022, https://ecf.ca5.uscourts.gov/cmecf/servlet/TransportRoom?servlet=CaseSummary.jsp?caseNum=09-70022&dktType=dktPublic&incOrigDkt=Y&incDktEntries=Y (accessed July 25, 2010).
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