Error in Dr. James Flynn's (2009) WAIS-IV norming date: Quest blog post by Dr. Dale Watson

This is a guest blog post by Dr. Dale Watson.  The opinions expressed do not necessarily reflect the official position of the ICDP blog or the blogmaster.  However, it is of interest to note that the error Dr. James Flynn (2009) made in reporting the WAIS-IV norming date (here reported by Dr. Dale Watson) is true, and was also in a published review that I received a few days after I received Dr. Watson's guest post.  This second verification source (Kaufman, Dillon, & Kirsch, 2013) will be the subject of my next post.

Dr. Dale Watson's guest post 

In an article entitled, The WAIS-III and WAIS-IV: Daubert motions favor the certainly false over the approximately true, Dr. James Flynn analyzed data from a number of IQ tests, including the WAIS-R, WAIS-III, and WAIS-IV to estimate the rate of the “Flynn Effect” on the Wechsler scales in the U.S. over time.[i] He concluded, as have others, that in order to account for the obsolescence of aging IQ test norms, a “Flynn Effect” adjustment of 0.30 points per year from the date of a tests norming should be applied to the obtained IQ test scores (Flynn, 2009; Fletcher et al., 2010). For example, if the WAIS-III (normed in 1995) was administered to an individual in 2005, the obtained IQ should be downwardly adjusted by 0.30 x 10 or 3.0 points. Thus, an obtained IQ score of 72 would result in a Flynn-adjusted score of 69. Such adjustments have been recommended for use in Atkins evaluations (Flynn, 2009; Gresham & Reschly, 2011; cf Hagen et al., 2010).[ii]

Flynn compared the IQ scores obtained on the WAIS-III and the WAIS-IV in a sample of 240 examinees reported in the Technical and Interpretive Manual for the WAIS-IV (2008).[iii] The Technical Manual reported that the mean IQs differed by 2.9 points with the sample mean for the WAIS-IV being 100 and for the WAIS-III 102.9 (Wechsler, 2008, p. 75). However, because these IQ scores were calculated using different combinations of subtests, Flynn re-calculated the IQ scores utilizing the same combination of 11 subtest scores used on the WAIS-III to calculate the IQs. Flynn (2009) noted, “The list of subtests used to compute Full Scale IQ had not only changed, but had dropped from 11 to 10. But, once again, they gave the comparison group all 11 of the old WAIS-III subtests, and once again that was fortunate because it meant that the true obsolescence of the WAIS-III could be measured. I calculated the total standard score the group got on the same 11 WAIS-III and WAIS-IV subtests. Using the totals and the WAIS-III conversion table, I calculated Full Scale IQs for the two tests” (p. 102). 

In examining Flynn’s Table 2, it appears that these calculations included scores for the Picture Arrangement subtest for both the WAIS-III and WAIS-IV. However, the Picture Arrangement subtest is not included in the WAIS-IV so it is quite unclear how this calculation was performed. Moreover, there is a footnote to this table indicating that the “WAIS-IV estimate is eccentric in carrying over WISC-III subtests (and scoring vs. the WAIS-III tables)…” but the meaning of this statement is also uncertain. In addition, substitution of the Symbol Search subtest for Picture Arrangement appears to yield very similar results.

In any case, the point of this note is not to recalculate Flynn’s estimates but rather to point out what appears to be a discrepancy between WAIS-IV norming date provided by Flynn and that found in the Technical and Interpretive Manual for the WAIS-IV. Flynn indicated that the WAIS-IV was normed in 2006 (Table 1) whereas the Manual reported, “The WAIS-IV normative data was established using a sample collected from March 2007 to April 2008.” [iv] If we use 2007 as the mid-point norming date, the time between the norming of the WAIS-III and WAIS-IV is 12 years and not 11 as provided by Flynn. Using the Flynn 2006 date resulted in a calculated Flynn Effect between the WAIS-III and WAIS-IV of 0.306 points per year (+3.37 / 11 years). Using the norming date provided in the manual resulted in a calculated score of 0.281 points per year (+3.37 / 12 years). It is understood that this discrepancy of just 0.025 points is of little practical significance but it should be noted nonetheless. Moreover, the metaphorical splitting of hairs is not uncommon when discussing the Flynn Effect. Hagan et al. (2010) asserted, “Decades of FE research and testimony… depict the amount of this shift as a moving target. For example, Flynn (1998) once identified the annual shift as 0.25 rather than 0.30, but later testified in Ex Parte Eric Dewayne Cathey (2010) that 0.29 would be appropriate. Schalock et al. (2010) have called for an annual adjustment of 0.33” pp. 1-2.[v] Flynn has acknowledged that the results reported in his report are estimates for the Wechsler scales, writing, “It is quite possible that the rate of gain on Wechsler tests is 0.275 or 0.325 points per year” (Flynn, 2009, p. 104). The recalculation noted here is consistent with this judgment. Further, the weight of the available evidence, including that of a recent meta-analysis, continues to support the Flynn Effect adjustment of 0.3 points per year.[vi]

---

[i] Flynn, J. R. (2009). The WAIS-III and WAIS-IV: Daubert motions favor the certainly false over the approximately true. Applied Neuropsychology, 16(2), 98-104. doi: 10.1080/09084280902864360

[ii] Gresham, F. M., & Reschly, D. J. (2011). Standard of practice and Flynn Effect testimony in death penalty cases. Intellectual and Developmental Disabilities, 49(3), 131-140. doi: 10.1352/1934-9556-49.3.131

[iii] Wechsler, D. (2008). Wechsler Adult Intelligence Scale: Technical and interpretive manual (4^th ed.). San Antonio, TX: Pearson.

[iv] Id., p. 22.

[v] Hagan, L. D., Drogin, E. Y., & Guilmette, T. J. (2010). IQ scores should not be adjusted for the Flynn Effect in capital punishment cases. Journal of Psychoeducational Assessment, 28(5), 474-476. doi: 10.1177/0734282910373343

[vi] Fletcher, J. M., Stuebing, K. K., & Hughes, L. C. (2010). IQ scores should be corrected for the Flynn Effect in high-stakes decisions. Journal of Psychoeducational Assessment, 28(5), 469-473. doi: 10.1177/0734282910373341

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 10^th 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 10^th Circuit defendants and petitioners claiming mental retardation per Atkins v. Virginia, 536 U.S. 304 (2002). In one fell swoop, the 10^th 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.

Date	Test	Score
1970	SB	80
1972	WISC	70
1978	WAIS	61
1979	WAIS	57
1982	BETA-II	61
1988	WAIS	80
1994	WAIS-R	72
2002	K-BIT	76
2004	WAIS-III	53

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 10^th circuit defendants and petitioners who assert protection from the death penalty under Atkins. With Hooks in the 10^th 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 10^th 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 10^th 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.

Atkins MR/ID Death Penalty Decision: "When in doubt...give 'em a hearing." Guest post by Kevin Foley re Branch v Epps (2011)

This is a quest post by Kevin Foley.

        Anyone familiar with the Atkins cases knows that there are cases where, despite a colorable claim of intellectual disability, the courts have refused to give the defendant an opportunity to fully develop the claim with appropriate expert assistance and/or an evidenciary hearing.  Lawrence Branch’s case is one of those cases. 

            Several months before Atkins was decided, Branch was assessed by a psychologist who “found Petitioner’s full-scale IQ score to be 84, his reading ability to be at a high school level, and his mathematic skills to be at a sixth grade level.” Branch v. Epps, 4:07-cv-138 (N.D. Miss. Dec. 2, 2011).  Despite the fact that Branch had been labeled as mentally retarded when a child, the Mississippi Supreme Court refused to grant Branch a hearing, finding his mental retardation claim to be without merit.  Branch v. State, 882 So.2d 36 (Miss. 2004).

            Branch moved for rehearing from the rejection of his appeal and attached to it the affidavit of psychologist Dr. Daniel H. Grant, who stated that all the documents submitted to him for review “support a diagnosis of mental retardation.”  The court granted the State’s motion to strike the affidavit, and denied the motion for rehearing.  Branch later moved for post-conviction relief, which was denied, and in his 2007 appeal to the Mississippi Supreme Court from this denial,  he argued that he had “not been afforded an opportunity to present a mental retardation claim.”  The Mississippi high court, relying on its earlier “paper review” of Branch’s ID claim, labeled Branch’s assertion “false” and denied relief.  Branch v. State, 961 So.2d 659 (Miss. 2007).

            As is typically seen in the Atkins cases, Branch’s next move was to seek habeas corpus relief in a federal district court.  Here, the court agreed “to hold an evidentiary hearing and to

review Petitioner’s claim without the deference ordinarily afforded under the AEDPA[federal habeas law].”  Interestingly, the court did not need an evidenciary hearing because, after a more complete assessment and analysis of the evidence, the State “filed a notice confessing that Petitioner suffers from mental retardation.” Branch v. Epps, slip op. at 10.  In other words, after fighting for years to keep Branch from getting a full hearing on his ID claim, the state was forced to concede the issue, once an appropriate assessment had been done.

            As for the earlier full scale IQ score of 84 from 2002, an examination of the raw data “reveals that a student administered the intelligence testing and made several errors in scoring and administration that make the report invalid.  . .  Discounting the invalid 2002 score, the remainder of Petitioner’s obtained scores fall within the range of mild mental retardation.” Id. at 11.  Unfortunately, the psychological report that discussed the raw data has been sealed by the federal court and is not available for review. Ostensibly, however, the state had ample opportunity to dispute the conclusions related to the 2002 testing, and it must have agreed that the 2002 testing was infirm.

            Branch’s case illustrates the need for appropriate assessments, proper hearings, and caution when using earlier IQ scores that have not been examined for accuracy.   While every Atkins claimant is obviously not ID, whenever there is a colorable claim of ID, due process demands the individual have his day in court.

Technorati Tags: Atkins case, mental retardation, intellectual disability, Atkins death penalty, Branch v Epps, capital punishment, death penalty

Atkins MR/ID Court Decision: Turner v US (FL; 2011)

Thanks again to Kevin Foley for sending me this interesting case with a brief summary overview.

The Eleventh Circuit Court of Appeals recently decided the William Turner case. The case was an application for permission to file a subsequent federal habeas corpus claim. The 11th Circuit denied the application, and in doing so, upheld the Florida Courts' denial of Turner's Atkins claim.

After Atkins was decided, Turner sought to prove he was ID. Apparently, he initially presented the courts with evidence that he obtained childhood IQ scores of 72 and 73. Eventually, the Florida trial court appointed two experts to assess Turner. Turner obtained a FSIQ of 98 on the WAIS-III and a FSIQ of 108 on the SB-5. The trial court summarily denied the claim, without an evidenciary hearing, on the basis that there was no way Turner could show he was ID. The FL Supreme Court affirmed.

Of some significance was the fact that Turner served a combat tour in Vietnam and was honorably discharged from the military. He also graduated from high school - according to the 11th Circuit:

"Turner graduated from high school in the third quartile of his class and attended junior college [which] also refutes Turner’s contention."

His lawyers were nonplussed. Similar to the another recent case commented on via a guest blog post by Kevin Foley, the attorneys appeared to believe that all they had to show was that Turner was ID before age 18. As for the problem with the 26 or 36 point gain in IQ (depending on whether you look at the WAIS-III or the SB-5) from childhood to adult, the attorneys argued in their brief to the Florida Supreme Court that,

"for the past 24 years on death row he has strenuously worked to improve his intellectual functioning and academic skills. Now 64 years old, and a survivor of prostate cancer and radical surgery, Turner has spent the last quarter century doing virtually nothing but watching educational public television every day and diligently practicing his reading, communication, social sciences, and math skills. . . This hard work over the past 24 years is reflected in substantial increases in Turner’s IQ scores since childhood."

Interesting argument, but such a large increase in IQ scores make an ID/MR claim dubious and raises interesting issues about the third prong of the Dx (MR/ID during the developmental period)


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Court Fails To Bite on Defense Chicanery (Guest post): Atkins MR/ID decsions--Meyers v AL (2011)

A recent Atkins MR/ID decision re: Myers v Allen (AL; 2011, 2009, 2007) has been posted to the ICDP Court Decision blogroll. In addition, regular ICDP contributor, Kevin Foley, has provided the following guest blog commentary.


Court Fails To Bite on Defense Chicanery - Guest post by Kevin Foley.



Alabama inmate Robin Myers’ federal habeas attorneys claimed that Myers was mentally retarded (intellectually disabled). Myers had a big problem – his most current IQ testing on the WAIS-III, administered in 2006 - a year or so before his hearing when he was about 45 years old - showed a valid full scale IQ score of 84. Under most current definitions of intellectual disability, such a score sounds the death knell for an Atkins claim, since a person must prove that he currently intellectually disabled, and that he has scores which satisfy the first prong of the diagnosis. If the Flynn Effect was applied to his score, the most Myers could gain would be about 3 points, meaning his level of intellectual functioning would still be an 81, outside the range for a diagnosis of intellectual disability.

​Since Myers had some full scale IQ scores when he was a child that were in the intellectual disability range (75, 74, 71, and 64), his attorneys argued that what was relevant to the claim was whether Myers was intellectually disabled before age 18. The defense expert, “testified . . . that he was asked only to form and express an opinion about petitioner’s mental capacity before the age of 18, not his current capacity or his capacity at the time of the murder.” The court rejected the ploy, concluding that, “it is clear that Alabama courts would find that evidence of an IQ below 70 as a child, absent additional evidence of similar current scores and current deficits in adaptive skills, is not sufficient to render a defendant exempt from the death penalty. The Alabama Supreme Court specifically noted that ‘focus on [the defendant’s] functioning before the age of 18 is misplaced’ when that defendant’s ‘intellectual functioning and behavior as an adult places him above the mentally [retarded] range.’”

​The court was also unimpressed with the defense expert’s attempt to explain the 20 point increase in IQ score from childhood to adult (the expert contended that the childhood IQ score of 64 to be “the most accurate and complete’). According to the magistrate judge’s opinion, the defense expert “further explained the improvement in Mr. Myers’ IQ scores as a result of brain injury”. Of course, one typically associates a brain injury with a potential decline in intellectual functioning, not a gain. But the expert’s proffered explanation was of no consequence to the court, which pointed out that notwithstanding this explanation, the expert, “does not consider [Myers] to be mentally retarded at the present time.”


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But he doesnt look mentally retarded (intellectually disabled): Guest post by Kevin Foley

The following is a guest blog post by a regular ICDP contributor, Kevin Foley.

But He Doesn’t Look Mentally Retarded (Intellectually Disabled)! Kevin F. Foley

    Two federal courts have approved trial court findings that persons – both of whom alleged they were mentally retarded (ID) – simply did not look and act as if they were mentally retarded.  In the Atkins matter concerning James Lee Henderson, where the state court concluded that Henderson was not mentally retarded, “The trial judge also explicitly relied upon his personal knowledge and recollection of Henderson’s in-court demeanor during both the trial and [the state court] habeas hearing.” [1]

    In an appeal from a denial of a disability claim, the federal appeals court stated, “The ALJ did not err in discrediting Hine’s IQ scores as there is substantial evidence in the record to support this decision. . . . Second, the ALJ found Hines’s demeanor at the hearing inconsistent with a finding of retardation.” [2]

    While the word demeanor may sound formal and legalistic, make no bones about it – the word refers to the way a person looked and acted.  Demeanor has been defined as the “outward behavior or bearing” of a person. [3]

     One has to question the wisdom of such conclusions. As a more insightful federal district judge observed, “The mildly mentally retarded ‘usually live independently or semi-independently in the community and . . . . [o]ften the mildly mentally retarded persons ‘pass’ in the community. In other words, neither their appearance nor demeanor, particularly on brief interaction, reveals the severity of their intellectual deficiency.’” [4]  In other words, the conclusion, “But he doesn’t look retarded,” is a dubious one at best.

    More recently a district court judge disapproved of a lower tribunal’s use of the “eyeball” technique of diagnosis in a federal disability case. “[I]t appears that the ALJ relied on his personal observations, in part, to discredit the plaintiff’s claim of significantly subaverage general intellectual functioning with deficits in adaptive functioning . . . But here, the court is not convinced that the ALJ’s personal observations, without support from other evidence or professional opinions, can constitute substantial evidence to support the rejection of the plaintiff’s I.Q. score.” [5]

    While a person with Down Syndrome may be readily identifiable by the way he or she looks, the majority of the mildly mentally retarded do not suffer from this or a similar genetic disorder.  With regard to the way a mentally retarded person looks,  “The physical examination may provide evidence of an obvious etiology often associated with mental retardation, such as Down syndrome.  More often, however, it will provide only supportive evidence . . .  or it will not provide any useful information about etiology at all.” [6] In other words, many mentally retarded persons do not any look any different than their non-intellectually disabled peers.

    A primary problem with lay conclusions that someone doesn’t sound or look mentally retarded is there is no reliable way to distinguish those who just barely qualify as “mentally retarded” from those who just barely miss qualifying – simply by the way they act in the formal setting of a courtroom – or elsewhere.  As Professor Karen Salekin and colleagues noted, “in comparison with their more severely disabled counterparts, individuals with mild ID are less likely to be identified as having a disability because their outward presentation is not recognizably different from the nonimpaired population.” [7]   Moreover, conclusions about a person not appearing to act as if he was mentally retarded can be misleading due to the fact that, “People with mental retardation often respond to such treatment [stigmatization] by trying to ‘pass’ as a person of average intelligence.” [8] 

    So there we have it – just like with many other aspects of adjudicating intellectual disability, courts can be found coming to the opposite conclusion on the same issue, without apparently being aware of their colleagues’ opposite approach.  The need for better guidance and uniformity is obvious, but apparently nowhere on the horizon.


1  Henderson v. Quarterman,  U.S.D.C., E.D. Tex., Civil Action No. 1:06-CV-507 (filed Mar. 31, 2008), slip op. at pg. 10 (emphasis added).
2  Hines v. Astrue, Case No. 07-3788 (8th Cir., Mar. 25, 2009), slip op. at 6 (emphasis added).  A third example can be found in  State v. McManus, __ N.E. 2d __, No. 82S00-0503-PD-78 (Ind. 2007), slip op. at pg. 8 (emphasis added), where the court noted, “Dr. David Hilton, a court-appointed psychiatrist, testified that his ‘abbreviated assessment of cognitive functioning would suggest probably low average intelligence,’ and he noted that McManus’ ‘general presentation, communication skills, and use of vocabulary . . . would not suggest mental retardation’”.  Of course, a person’s presentation refers to the way he presents himself – or looks – to others.
3  Oxford Dictionaries Online,  http://oxforddictionaries.com/view/entry/m_en_us1239284#m_en_us1239284 (accessed Mar. 31, 2011).
4  U.S. v. Hardy, No.  94-381  (E.D. La. Nov. 24, 2010), slip op. at 110-11, quoting from, MANUAL OF DIAGNOSIS AND PROFESSIONAL PRACTICE IN MENTAL RETARDATION (John W. Jacobson &  James Anton Mulick, eds., 1996).
5  Order, Whitmire v. Astrue, No. 3:09-3245-JFA (D. S.C., March 28, 2011), at pg. 9.
6  Mental Retardation: Definition, Classification, and System of Supports 75 (9th ed. 1992).
7  Karen L. Salekin, et al, Offenders With Intellectual Disability: Characteristics, Prevalence, and Issues in Forensic Assessment, 3 J. Mental Health Res. Intell. Disab. 97 (2010).
8  Elizabeth Nevind-Saunders, Incomprehensible Crimes: Defendants With Mental Retardation Charged With Statutory Rape,  N.Y.U.L.Rev. 1100 (2010).


Technorati Tags: mentally retarded, intellectual disability, MR, ID, demeaner, Atkins cases

More on relevance of Daubert Standard to Atkins MR/ID death penalty cases

Ten days ago I made a post about an interesting Law Review Article dealing with scientific evidence and the Daubert standard.

Interestingly, a non-MR/ID court decision came to my attention almost simultaneously. The case is Millward & Millward v Acuity Speciality Products Group.

I am no lawyer and am not qualified to comment on the relevance of this court decision to Atkins MR/ID cases. However, a couple of trusted and respected colleagues of mine, who have extensive experience in law or psychology and law sent me comments and their permission to share their reactions and comments. They are reproduced below (with minor editing for format and readability) without comment.




Commentator # 1

The federal appeals court in Boston decided a case this week dealing with causation and stated that, “In this mode of reasoning [used by the expert], the use of scientific judgment is necessary.” And that, “No matter what methodology is used, ‘an evaluation of data and scientific evidence to determine whether an inference of causation is appropriate requires judgment and interpretation.’" Pgs 12-13.

There was no discussion whatsoever about “error rate.”

While disease causation and ID/MR assessment are far apart in the world of expert testimony, the court’s discussion is relevant in either situation, IMHO. With the ID/MR cases, since courts must decide whether the person is ID/MR, and can only do so with the use of expert testimony, experts have to be allowed to give their opinions. There are just some situations where the calculation of an accurate error rate is just not practical. But, my argument is there still needs to be some sort of definitive guidance in the areas, both legal-wise and psychology-wise. It shouldn't be like the Wild West.


Commentator # 2

That is a great opinion regarding admissibility. I read it and found many places that are great teaching points on admissibility, especially for those of us testifying in an area often referred to as "soft science." I cut and pasted some of the more interesting passages below. The entire opinion is really well written and the court clearly took time to reason through cases like Kumho, Joiner, and Daubert and examine he total picture rather than focusing on the narrow findings that came from Daubert (or at least the way many courts interpret the findings in Daubert).

---------------------------------------------

These factors "do not constitute a 'definitive checklist or test.'"
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (emphasis
omitted) (quoting Daubert, 509 U.S. at 593). Given that "there are
many different kinds of experts, and many different kinds of
expertise," these factors "may or may not be pertinent in assessing
reliability, depending on the nature of the issue, the expert's
particular expertise, and the subject of his testimony." Id.

Exactly what is involved in "reliability" was not and could not have been filled out by Daubert. Rather, the answers must come from developing case law in adjudicating individualcontroversies. "[T]he question of admissibility 'must be tied to the facts of a particular case.'" Beaudette v. Louisville Ladder,Inc., 462 F.3d 22, 25-26 (1st Cir. 2006) (quoting Kumho Tire, 526U.S. at 150).

Although Daubert stated that trial courts should focus "on principles and methodology, not on the conclusions that they generate," Daubert, 509 U.S. at 595, the Court subsequently clarified that this focus "need not completely pretermit judicial consideration of an expert's conclusions," Ruiz-Troche, 161 F.3d at 81 (citing Joiner, 522 U.S. at 146). In Joiner, the Court explained that "conclusions and methodology are not entirely distinct from one another" and "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the
ipse dixit of the expert." Joiner, 522 U.S. at 146. Expert
testimony may be excluded if there is "too great an analytical gap
between the data and the opinion proffered." Id. "[T]rial judges
may evaluate the data offered to support an expert's bottom-line
opinions to determine if that data provides adequate support to
mark the expert's testimony as reliable." Ruiz-Troche, 161 F.3d at
81.

This does not mean that trial courts are empowered "to determine which of several competing scientific theories has the best provenance." Id. at 85. "Daubert does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert's assessment of the situation is correct." Id. The proponent of the evidence must show only that "the expert's conclusion has been arrived at in a scientifically sound and methodologically reliable fashion." Id.; see also United States v. Vargas, 471 F.3d 255, 265 (1st Cir. 2006). The object of Daubert is "to make certain that an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."Kumho Tire, 526 U.S. at 152.

So long as an expert's scientific testimony rests upon "'good grounds,' based on what is known," Daubert, 509 U.S. at 590,
it should be tested by the adversarial process, rather than
excluded for fear that jurors will not be able to handle the
scientific complexities, id. at 596. "Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence."


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Mississippi Justice Takes Cheap Shot at the Flynn Effect (and Flynn Himself)-Guest blog post

This is a guest blog post by Kevin Foley, a regular contributor at the ICDP blog.




The Mississippi Supreme Court recently held that Frederick Bell is entitled to an evidenciary hearing on his claim that he is intellectually disabled. One unhappy justice dissented to this part of the majority opinion, and in doing so, took an inappropriate cheap shot at the Flynn Effect and Dr. Flynn himself.

As for Dr. Flynn, the dissent stated that, “The 'Flynn Effect' is a theory advanced by a political scientist who, under the Mississippi Rules of Evidence, could not be qualified as an expert on mental retardation by 'knowledge, skill, experience, training, or education . . . .' Miss. R. Evid. 702.” Bell v. State, No. 2010-DR-01907-SCT (Miss., Feb 3, 2011) (J. Randolph, concurring and dissenting, at note 20). The justice implied that Dr. Flynn would not even be permitted to take the stand to testify about the Flynn Effect, since he is not “an expert on mental retardation.” But the validity of the Flynn Effect, as a scientific concept, does not rest on any expertise Dr. Flynn might have as a mental retardation expert. As Dr. Kevin McGrew's Flynn Effect bibliography (available on this blog) shows, Dr. Flynn's research which concluded with what is now known as the Flynn Effect has reached a very high level of respectability in the intelligence testing field. The dispute is not with the Flynn Effect itself; the dispute concerns the cause of the effect; whether is should be used to adjust scores in high stakes litigation; whether it will continue apace; and whether it should be assumed to apply to later versions of extant test batteries. No one has convincingly argued that Dr. Flynn was not competent to conduct the research that led to the Flynn Effect.

As for the concept itself, the Mississippi justice argued, “Furthermore, the scientific validity of the “Flynn Effect,” utilized by Dr. Zimmerman, repeatedly has been rejected by the Fifth Circuit Court of Appeals. See id. [referring to the Chase case] (citing In re Salazar, 443 F.3d 430, 433 n.1 (5th Cir. 2006)).” This statement is not accurate. The Fifth Circuit Court of Appeals has not rejected the Flynn Effect, it has simply not addressed the issue head-on. In the Fifth Circuit case cited by the dissenting Mississippi justice, the federal appeals court specifically stated, “Even assuming that the Flynn Effect is a valid scientific theory and is applicable to Salazar's individual I.Q. score and we express no opinion as to whether this is actually the case . . .” In re Salazar, 443 F. 3d 430 (5th Cir. 2006). More recently, in Maldonado v. Thaler, 625 F. 3d 229, 238 (5th Cir. 2010) the court stated only that it had not recognized the Flynn Effect to be a valid scientific concept. And in Wiley v. Epps, 625 F. 3d 199, 214 (5th Cir. 2010) the court did not “reject” the validity of the Flynn Effect, and it would have been hard pressed to do so, in light of the fact that, “All three experts who testified at the evidentiary hearing stated that the Flynn effect is generally accepted in the scientific community”. Not addressing an issue is a lot different than holding that an issue (or concept) is invalid from a scientific standpoint.

Moreover, on page 30 of Bell, this justice claimed that the Flynn Effect is “a suspect theory” and that the defense expert's opinion using the Flynn Effect was a “fallacious, inadmissible opinion” under Mississippi Rule of Evidence 702, the state's counterpart to the U.S. Supreme Court's Daubert standard. The justice's conclusions in this regard were a stretch indeed. Experts both prosecution and defense - are testifying about the Flynn Effect all over the country, in both federal and state courts. Whether the courts have decided to apply the Flynn Effect to adjust IQ scores is one thing; refusing to admit testimony about the Flynn Effect because it is an untested pseudoscientific theory is another matter completely.


The most the Fifth Circuit stated with regard to the Flynn Effect and its validity was, “We need not resolve the weight, if any, to be given to the Flynn effect, however, because the district court also found that even without it the evidence supported a finding that Wiley had significant subaverage intellectual functioning.” Id. at 214.


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