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.