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
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.
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 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.
