Tuesday, September 25, 2012

Guest post: The 10th Circuit COA Creates More Holes in the Atkins Safety Net: Nancy Haydt, J. D. on Hooks v Workman

This is a Guest Post by Nancy Haydt, J. D. re: Hooks v. Workman  Nancy Haydt is an attorney practicing in California and Colorado. Her research includes a nation-wide database of Atkins cases.  As per the typical policy of the ICDP blog, I post guest posts "as is" without comment.  The only additional information I am providing are links to all court related decisions (I could locate) for this case (2005, 2010, 2012a, 2012b)  

The 10th Circuit COA creates More Holes in the Atkins Safety Net
by Nancy Haydt, J.D.[i]

Hooks v. Workman, --- F.3d ----, 2012 WL 3140916 (C.A.10 (Okla.), 8/3/2012.

In August, the Tenth Circuit Court of Appeals (COA) granted a habeas corpus petition’s claim of ineffective assistance of counsel, and, at the same time, created bad law for current and future 10th Circuit defendants and petitioners claiming mental retardation per Atkins v. Virginia, 536 U.S. 304 (2002). In one fell swoop, the 10th Cir. COA barred IQ score adjustment for the Flynn Effect, discredited any meaningful application of the Standard Error of Measurement, accepted the KBIT as a valid measurement of intelligence for Atkins purposes, and adopted the principle that adaptive functioning is defined by weighing adaptive weaknesses against adaptive strengths.

In Hooks, the Court of Appeals took the position that the AAIDD’s definition of mental retardation is appropriate for clinical application, but the AAIDD’s recommended diagnostic procedures are not binding in legal proceedings. Hooks greatly undermines the scientific and clinical basis of the diagnosis of mental retardation. Hooks widens the ever-expanding gap between science and the science-like proceedings created by the judiciary which will determine the fate of many Atkins clients.

Legal Proceedings

In 1989, Victor Wayne Hooks was tried and convicted by a jury of the capital murder of his pregnant wife and their unborn child. He was sentenced to death. In 2004, an Atkins hearing was tried before a jury. Evidence was presented of IQ test scores ranging from 53 to 80.

Experts for the prosecution and defense agreed that some test scores were probably unreliable. These so-called “experts” also agreed that Hooks’s most reliable scores were the K-BIT and the 1994 WAIS-R. There was testimony that the scores from many tests could be adjusted downward for norm-obsolescence, but neither defense expert was willing to endorse adjustment for the Flynn Effect. Defense experts testified that Mr. Hooks’s IQ “was in the gray area” of subaverage intelligence, but was “most likely mentally retarded.” In light of such underwhelming defense testimony, it was not surprising that the jury found that Hooks did not prove that he had sub-average intellectual functioning.

Defense evidence showed Mr. Hooks’s adaptive limitations from early childhood to his present functioning in custody. Through their experts, they painted the picture of a child who was developmentally delayed, placed in special education classes and diagnosed as mentally retarded while still in grade school. Mr. Hooks’s limitations in communication, social skills, work, self-direction and academics were documented and extensive. The prosecution presented evidence of criminal behavior as evidence of adaptive functioning. That evidence, along with Hooks’s ability to drive, his ability to have children, his daily reading of the bible, and his letters to his daughters was the prosecution’s case against adaptive limitations. The trial court refused to instruct the jury that intellectual disability is defined by a person’s limitations, and not by his strengths. With no expert evidence lending understanding to the concept of adaptive behavior, the jury found that Hooks did not prove that he had limitations in adaptive functioning. The jury found that Mr. Hooks did not have mental retardation.

On appeal Hooks’s conviction and death sentence were affirmed. The jury finding that Hooks did not have mental retardation was affirmed.

On Habeas Corpus: Failure to Establish Scientific Structure for a Clinical Determination of MR

The habeas corpus petition in Hooks contained few references to current scientific source material. They contain no references to the AAIDD User’s Guide or standards of practice. There was no evidence in the habeas record, either by testimony or affidavit, from scholars in the field of intellectual disability. The scientific basis of MR assessment, including psychometric issues and standards of practice, was never entered into evidence by expert testimony or affidavit. The COA was presented no clinical structure for making a reasonable determination of mental retardation. This vacancy of structure gave the COA carte blanche to create their own definition of mental retardation and their own standard for diagnosis.

Binding precedent for the 10th Circuit

Among the damaging holdings are:

 “[T]he Flynn Effect, whatever its validity, is not a relevant consideration in the mental retardation determination for capital defendants." Also, “Atkins does not mandate an adjustment for the Flynn Effect. Moreover, there is no scientific consensus on its validity.”

The K-BIT is a valid measure of intelligence for Atkins purposes.

For legal purposes, Atkins does not require that determination of mental retardation be “based solely on deficiencies to the exclusion of strengths”. The AAIDD definition is a clinical standard, not a legal standard. “[W]hether the legal standard is satisfied depends upon the facts: What is a given defendant able and unable to do? Both strengths and deficiencies enter into this equation because they make up the universe of facts tending to establish that a defendant either has ‘significant limitations’ or does not.”

The SEM supports the concept that “a rational trier of fact could conclude from this evidence that Mr. Hooks indeed functions at a sub-average intellectual level, but it could also rationally draw the conclusion that he does not.”

Hooks sets a bad precedent for 10th circuit defendants and petitioners who assert protection from the death penalty under Atkins. With Hooks in the 10th Circuit, and In re Briseno, 135 S.W.3d 1 (Tex.Crim.App.2004),  in Texas, we are seeing an ever widening gap between legal and clinical standards for the determination of mental retardation.

Good News for Mr. Hooks; Bad News for 10th Cir. Atkins Defendants

The COA granted Mr. Hooks’s claim of ineffective assistance of trial counsel in the sentencing phase of his case. The COA determined that Mr. Hooks’s counsel did not prepare or present material in mitigation. The COA did not find that Hooks’s counsel was ineffective in his Atkins proceedings. Barring successful appeal of the Atkins issue to the U.S. Supreme Court, the determination that Mr. Hooks does not have mental retardation is final. It is unlikely that the Atkins proceedings will be appealed.

Mr. Hooks’s case was remanded to state court for a new sentencing hearing. However, current and future 10th circuit defendants and petitioners now face greater difficulty in proving that they have mental retardation
[Note: Though “Intellectual Disability” is the term preferred by the AAIDD, the courts still, and almost uniformly, use and refer to “Mental Retardation”.]

[i] Nancy Haydt is an attorney practicing in California and Colorado. Her research includes a nation-wide database of Atkins cases.

Monday, September 24, 2012

"Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law"

Recently Posted to SSRN: "Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law" Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law, in The Constitution and the Future of the Criminal Law, John Parry & Song Richardson, eds....

Perlin on Mental Disability Law and the Death Penalty

Michael L. Perlin (New York Law School) has posted Mental Disability and the Death Penalty: The Shame of the States (Rowman & Littlefield, 2012) (in Press) Chapter 1: An Introduction and the Dilemma of Factual Innocence on SSRN. Here is...

LAW REVIEWS: Ethics of Mental Incompetence and Death Row

A new article by Professors Brian D. Shannon (pictured) and Victor R. Scarano examines the ethical implications of mental incompetence among death row inmates, particularly with regards to forcible medication. According to the authors, cases involving incompetence to be executed and forced medication pit "the ethical duties of the medical and legal professions in opposition and [cast] a shadow over the legitimate and appropriate intentions and professional responsibilities of physicians and lawyers." While the U.S. Supreme Court has ruled that mentally incompetent prisoners cannot be executed, only lower courts have ruled on the issue of forcing death row inmates to take medication with the purpose of rendering them competent for execution. The article concludes with a legislative recommendation that would "obviate the ethical dilemma" of forcible medication: "upon a determination by the trial court that the defendant is incompetent to be executed (and following any appeal), the court should vacate the death sentence and substitute a life sentence without the possibility of parole," thus allowing psychiatrists to "proceed to treat the symptoms of the inmate's serious mental illness, without the ethical concern that such treatment could lead to the inmate's execution."

(B. Shannon and V. Scarano, "Incompetency to Be Executed: Continuing Ethical Challenges & Time for a Change in Texas," Texas Tech Law Review, Vol. 45, 2013.)

See Mental Illness and Death Row.

Article: Psychometrics from the Ground Up 9: Standard Scores and Why We Need Them

Friday, September 14, 2012

"Challenging the Death Penalty with Statistics: Furman, McCleskey and a Single County Case Study"

The title of this post is the title of this notable new paper on SSRN authored by Steven Shatz and Terry Dalton. Here is the abstract:

In the forty year history of the Supreme Court's modern death penalty jurisprudence, two cases — Furman v. Georgia (1972) and McCleskey v. Kemp (1987) — stand out above all others.  Both cases turned on the Court's consideration of empirical evidence, but they appear to have reached divergent — even altogether inconsistent — results.  In Furman, the Court relied on statistical evidence that the death penalty was infrequently applied to death-eligible defendants to hold that the Georgia death penalty scheme was unconstitutional under the Eighth Amendment.  In McCleskey, the Court, despite being presented with statistical evidence that race played a significant role in death-charging and death-sentencing in Georgia, upheld the revised Georgia scheme and McCleskey's death sentence against Equal Protection and Eighth Amendment challenges.  The McCleskey decision called into question the use of statistical evidence to challenge the death penalty.

In the present article, we report on a unique empirical study of the administration of the death penalty in Alameda County, California — the largest single-county death penalty study and the only study to examine intra-county geographic disparities in death-charging and death-sentencing.  The data set, drawn from 473 first degree murder convictions for murders occurring over a 23-year period, compares death-charging and death-sentencing in the two halves of the county.  During the study period, the two halves differed significantly in racial makeup — the population of North County was over 30% African-American, and of South County less than 5% African-American; and the two halves differed in the race of homicide victims — in North County, African-Americans were homicide victims roughly 4.5 times as often as Whites, while, in South County, Whites were homicide victims more than three times as often as African-Americans.

The study reveals that there were statistically significant disparities in death-charging and death-sentencing according to the location of the murder: the Alameda County District Attorney was substantially more likely to seek death, and capital juries, drawn from a county-wide jury pool, were substantially more likely to impose death, for murders that occurred in South County.  We argue that, McCleskey notwithstanding, statistical evidence such as the "race of neighborhood" disparities found in the present study should support constitutional challenges to the death penalty under both the Equal Protection Clause and the Eighth Amendment.

Wednesday, September 12, 2012

Bennion on the Insanity Defense and Graham v. Florida

Elizabeth Bennion (Brigham Young University - J. Reuben Clark Law School) has posted Death is Different No Longer: Abolishing the Insanity Defense is Cruel and Unusual Under Graham v. Florida (DePaul Law Review, Vol. 61, pp. 1-56, 2011) on SSRN....

Tuesday, September 11, 2012

Kovarsky on Habeas

Lee Kovarsky (University of Maryland, Francis King Carey School of Law) has posted Habeas Verite (Tulsa Law Review, Vol. 47, No. 1, 2011, p. 13) on SSRN. Here is the abstract: Three recent books from varied academic disciplines demonstrate that...

Friday, September 7, 2012

Historical review of WISC to WISC-IV

This article is an open access article and thus I am providing a link to a copy.

The article helps users understand the various changes that have occurred in this series, changes which may help explain IQ score differences in individuals who may have taken various versions over time.

Thursday, September 6, 2012

J Am Acad Psychiatry Law Table of Contents for 1 September 2012; Vol. 40, No. 3

JAAPL Online Table of Contents Alert
Journal of the American Academy of Psychiatry and the Law Online
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JAAPL Online Table of Contents Alert

A new issue of Journal of the American Academy of Psychiatry and the Law Online is available online:
1 September 2012; Vol. 40, No. 3

The below Table of Contents is available online at: http://www.jaapl.org/content/vol40/issue3/index.dtl?etoc

A Case of Insanity: Diagnostic Relevance in the Shadow of Columbine
Richard Martinez
J Am Acad Psychiatry Law 2012;40 312-317

Regular Article
Postpartum Psychosis and the Courts
Melissa L. Nau, Dale E. McNiel, and Renée L. Binder
J Am Acad Psychiatry Law 2012;40 318-325

Commentary: Postpartum Psychosis, Infanticide, and Insanity—Implications for Forensic Psychiatry
Susan Hatters Friedman and Renée Sorrentino
J Am Acad Psychiatry Law 2012;40 326-332

Transferring Juvenile Defendants From Adult to Juvenile Court: How Maryland Forensic Evaluators and Judges Reach Their Decisions
Ronald F. Means, Lawrence D. Heller, and Jeffrey S. Janofsky
J Am Acad Psychiatry Law 2012;40 333-340

Commentary: Nuances of Reverse-Waiver Evaluations of Adolescents in Adult Criminal Court
Camilla L. Lyons, Adria N. Adams, and Abigail L. Dahan
J Am Acad Psychiatry Law 2012;40 341-347

Risk of Death for Veterans on Release From Prison
Hal S. Wortzel, Patrick Blatchford, Latoya Conner, Lawrence E. Adler, and Ingrid A. Binswanger
J Am Acad Psychiatry Law 2012;40 348-354

Firesetting, Arson, Pyromania, and the Forensic Mental Health Expert
Paul R. S. Burton, Dale E. McNiel, and Renée L. Binder
J Am Acad Psychiatry Law 2012;40 355-365

A Training Program for Defendants With Intellectual Disabilities Who Are Found Incompetent to Stand Trial
Barry W. Wall and Paul P. Christopher
J Am Acad Psychiatry Law 2012;40 366-373

Brief Rating of Aggression by Children and Adolescents (BRACHA): A Reliability Study
Drew Barzman, Douglas Mossman, Loretta Sonnier, and Michael Sorter
J Am Acad Psychiatry Law 2012;40 374-382

Analysis and Commentary
CRIPA, Olmstead, and the Transformation of the Oregon Psychiatric Security Review Board
Joseph D. Bloom
J Am Acad Psychiatry Law 2012;40 383-389

Compensation Neurosis: A Too Quickly Forgotten Concept?
Ryan C. W. Hall and Richard C. W. Hall
J Am Acad Psychiatry Law 2012;40 390-398

Firearms Inquiries in Florida: "Medical Privacy" or Medical Neglect?
Brian K. Cooke, Emily R. Goddard, Almari Ginory, Jason A. Demery, and Tonia L. Werner
J Am Acad Psychiatry Law 2012;40 399-408

Sexual Sadism: Avoiding Its Misuse in Sexually Violent Predator Evaluations
Allen Frances and Richard Wollert
J Am Acad Psychiatry Law 2012;40 409-416

A Model Treatment Refusal Procedure for Defendants Found Incompetent to Stand Trial in the Ninth Circuit
Martin Epson, Liban Rodol, and Joseph D. Bloom
J Am Acad Psychiatry Law 2012;40 417-421

Legal Digest
Procedures Governing the Involuntary Commitment of a Minor to a Drug and Alcohol Treatment Program
Lacey Levitt and Debra A. Pinals
J Am Acad Psychiatry Law 2012;40 422-424

Treatment Disclosures in Sex Offender Civil Commitment Evaluations
Derek T. Hess and Ira K. Packer
J Am Acad Psychiatry Law 2012;40 424-426

Limitations on the Use of Evidence From Evaluations of Competence to Stand Trial in the Penalty Phase
Natalie M. Anumba and Kenneth L. Appelbaum
J Am Acad Psychiatry Law 2012;40 426-429

Instructions to Jury With Regard to Intoxication and Insanity Defense
Zoe Selhi and Debra A. Pinals
J Am Acad Psychiatry Law 2012;40 429-431

Expert Testimony on Extreme Emotional Disturbance in Criminal Proceedings
Melissa K. Poole, Raymond K. Molden, and Robert P. Forrest
J Am Acad Psychiatry Law 2012;40 431-433

Mandatory Admission of Guilt in Sex Offender Programs
Leah G. Brar, Hal S. Wortzel, and Richard Martinez
J Am Acad Psychiatry Law 2012;40 433-435

Required Sex Offender Treatment and Due Process Rights
Ashley Wheeler, Hal S. Wortzel, and Richard Martinez
J Am Acad Psychiatry Law 2012;40 435-437

Federal District Court's Ordering of Multiple Competency Examinations
Patricia Westmoreland, Hal S. Wortzel, and Richard Martinez
J Am Acad Psychiatry Law 2012;40 437-439

Books and Media
Handbook of Violence Risk Assessment
Alec W. Buchanan
J Am Acad Psychiatry Law 2012;40 440-442

The Psychology of Female Violence: Crimes Against the Body
Susan Hatters Friedman
J Am Acad Psychiatry Law 2012;40 442-444

Contemporary Issues in Family Law and Mental Health
Stewart S. Newman
J Am Acad Psychiatry Law 2012;40 444

Matthew D. Lerner, Omar S. Haque, Eli C. Northrup, Lindsay Lawer, and Harold J. Bursztajn
J Am Acad Psychiatry Law 2012;40 445

Linda J. Gottlieb
J Am Acad Psychiatry Law 2012;40 445-446

Judith M. Pilla
J Am Acad Psychiatry Law 2012;40 446

Michael H. Stone
J Am Acad Psychiatry Law 2012;40 447

Timothy M. Houchin, John Ranseen, Phillip A. K. Hash, and Daniel J. Barnicki
J Am Acad Psychiatry Law 2012;40 447-448

Test post with new blogging iPad app (Blogsy)

Testing one two three? Inserting old brain drawing as test.



Tuesday, September 4, 2012

Intriguing account of how Justices deal with last-minute capital appeals

This new Sidebar column by Adam Liptak in the New York Times, headlined "To Beat the Execution Clock, the Justices Prepare Early," provides details of how SCOTUS handles capital cases as a scheduled execution looms. Here are excerpts:
[The Supreme] court goes to extraordinary lengths to get ready, and its point person is a staff lawyer named Danny Bickell.   "Cases where there is an execution date," he said with a sigh, "that's where I come in."  Mr. Bickell's formal title is emergency applications clerk, but capital defense lawyers have an informal title for him, too.  They call him the death clerk.

In remarks at a conference of lawyers specializing in federal death penalty work..., Mr. Bickell provided a rare inside look at the Supreme Court's oversight of the machinery of death in the United States. It starts with a weekly update.

"Every Monday morning," Mr. Bickell said, "I put out a list to the court of all the executions that are scheduled in the country in the next six or seven weeks, and that gets distributed to all of the justices."

The Supreme Court clerk's office is famously helpful to lawyers who have questions about the court's rules and procedures, but in capital cases it goes further.  "As the date approaches," Mr. Bickell said, referring to impending executions, "I will be in touch with the attorney general's office. I will be in touch with you, if you are representing the inmate, and with the lower courts, trying to figure out what is pending below and what is likely to make its way up to the Supreme Court.

"Once we make contact about 10 days or two weeks before the scheduled execution, I will start asking you to forward me everything that you file in the lower courts.  Once you forward it to me, I forward it on to the law clerks and to the justices so that they can begin reviewing the case."...

[I]ndividual justices almost never rule by themselves on requests to halt executions.  "I would say 99.9 percent of the time the circuit justice is going to refer the application to the full court, and all nine justices are going to act on the application [for a stay]," Mr. Bickell said.

He added that the court always makes sure it can rule on such applications in time for its decision to matter, even in states not inclined to wait for word from the justices.  "The court won't always act on it by 7 o'clock," he said.  That hour, 7 p.m., is important because it is when Texas executes people, Eastern time.  The state has executed seven inmates this year.

"If we're getting to the point where we're short on time — it's 6:30 or 6:15 for a scheduled 7 o'clock execution — I will call my contact" at the state attorney general's office to see "whether they're going to go forward with the execution while the case is pending or if they're going to hold off and wait," Mr. Bickell said.

If the state will not wait, the court will give itself time to think and to vote.  That responsibility again falls to the justice in charge of the judicial circuit.  "If we're told they're going to go forward with it and they're not going to wait," Mr. Bickell said, "the practice of the court recently — this has happened with Justice Thomas a few times last term — is the justice will issue a temporary interim stay." Justice Clarence Thomas oversees the 11th Circuit, which covers Alabama, Florida and Georgia.

Dillard on Competency Doctrine in Capital Cases

Amy Dillard (University of Baltimore - School of Law) has posted Madness Alone Punishes the Madman: The Search for Moral Dignity in the Court's Competency Doctrine as Applied in Capital Cases (Tennessee Law Review, Vol. 79, p. 461, 2012) on...

Monday, September 3, 2012

ICDP adds social media "share" buttons to bottom of posts

First post to test the automatic inclusions of various "share" social media buttons to the bottom of all posts.  Hope it also works when I post from iPad and iPhone.