Law Review Article: Atkins v Virginia: The need for consistent substantive and procedural application of the ban on executing the intellectually disabled--Kathryn Raffensperger (2013)

The above titled article was recently published in the Denver University Law Review.  It has been added to the Atkins Related Law Review Articles blogroll (available here).

Research Bytes: Individuals with ID/MR in the criminal justice system

The journal Exceptionality had a small special issue addressing issues surrounding the involvement of individuals with disabilities in the criminal justice systems. The two key articles are featured below. Greenspan's article is a nice overview of the key issues in Atkins MR/ID death penalty cases.

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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 Decision: White v KY (2010): Ake (indigent defense) Atkins-related decision

Just the other day I made an FYI iPost re: two recent policy papers addressing failures in the indigent criminal defense system.  This reminded me that the Kevin Foley, a regular contributor to the ICDP blog, had forwarded me a recent KY Supreme Court Atkins-related decision that relates to indigent defense rights.  In legal circles this is called an Ake issue, referring to the relevant SCOTUS decision.  In Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), SCOTUS held that the failure to provide an expert to an indigent defendant deprived him of a fair opportunity to present his defense and violated due  process.

The Karu White v KY (2010)  case case presents an interesting and important issue that is often seen in Atkins cases. An Ake issue concerns the state's obligation to provide expert assistance to an indigent  defendant. 

The trial court refused to provide White with funding for his own private expert (to determine his MR/ID status as per Atkins) and ruled that White could be assessed by a department of corrections psychologist.  White sued the trial judge in the KY Supreme Court in a writ of prohibition action, asking the Supreme Court to "prohibit" the trial judge from enforcing his order.  The KY Supreme Court said no, apparently concluding that White had not shown that a private expert is reasonably necessary for a full presentation of White's case.

But Ake involved an insanity defense situation, pre-conviction, as did one of the Kentucky cases cited by the court in White. It appears that some judges seem to think there is a lesser right involved if involved if the matter comes after the defendant has already been convicted. 

Technorati Tags: psychology, forensic psychology, forensic psychiatry, neuropsychology, intelligence, school psychology, psychometrics, educational psychology, IQ, IQ tests, IQ scores, adaptive behavior, adaptive functioning, intellectual disability, mental retardation, MR, ID, criminal psychology, criminal defense, criminal justice, ABA, Atkins cases, Atkins death penalty, American Bar Association, Atkins cases, death penalty, capital punishment, AAIDD, Atkins MR/ID listserv, ICDP blog, psychiatry, psychiatry and criminal justice, indigent defense, Ake issue, White v KY

ex parte Briseno (2004, TX) decision now posted. Adaptive behavior in TX Atkins cases

The Texas Briseno factors, which relate to the evaluation of the adaptive behavior prong in Texas MR/ID Atkins death penalty cases, is often mentioned in Texas Atkins cases (click here for all ICDP posts that may mention Briseno).  It was brought to my attention that a copy of the original decision was not available here at ICDP.  Thanks to Karen Salekin and on of her students that situation has now been rectified.  You can access ex parte Briseno (2004) now (and it is not listed in the Court Decisions blog roll).

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Court Decision: Arbaleaz v Florida (2010)

I am attempting to catch up on cases that need to be posted.  Arbalaez v. Florida (2010) is now listed in the Court Decisions.

I have only skimmed the decision and see that it is fraught with some of the usual thorny issues of a defendant being born and raised in a different culture (Columbia), demonstrating considerable fluency in his first language, and the inappropriateness (as outlined by expert witness Dr. Tom Oakland) of assessing adaptive behavior in a prison environment.   Lots to chew on in this one.  Given my close personal and professional affiliation with Dr. Oakland (he is listed as an expert here at the ICDP blog and is a good friend) I refrain from additional commentary due to potential conflicts of interest.

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Atkins MR/ID death penalty case a "notable petition" before SCOTUS. Hall v Thaler

Interesting potential SCOTUS development as reported at the SCOUTUS BLOG.  Hall v Thaler (previously listed here at ICDP as Hall v Quartermann;  has now been updated to be Hall v Thaler under the Court Decisions section to reflect recent developments) is reported to be a "notable petition"----which, according to the site, "indicates it is a case scheduled for consideration by the Justices."

The listing is under the notable petitions section of the SCOTUS blog, and includes links to filed background documents (5th Circuit opinion; Petition for certiorari;  Amicus brief of Texas State Senator Rodney Ellis et al; and Amicus brief of AAIDD and ARC.  The case is docket number 10-37.  I've only had time to skim a few pages but this Texas case appears to have the potential to raise a number of critical Atkin's issues---and provide SCOTUS with the chance to address some of the mess left post-Atkins.

Will monitor as close as possible.  Would appreciate others sending me FYI's as they learn and hear more.

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Gresham (2009): Intellectual Assessment in Atkins Cases and Use of School Diagnoses PPT

Dr. Frank Gresham has graciously agreed to make his APA 2009 presentation "Intellectual Assessment in Atkins Cases and Use of School Diagnoses" available via this blog....via SlideShare.  It can be viewed at the blogmaster's SlideShare account....click here. 

Kudos and thanks Frank.

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Court decisions: Hearn v TX (2010), Dunn v LA (2010), Lizcano v TX (2010), Rodrigues v Wong (CA, 2010)

Four recent Atkins Court Decisions have been added to the ICDP Court Decisions (n-105) blog side bar.  They are listed with a only a  few comments--and the comments are gleaned from the emails of the individuals who sent them to me.  I've not had time to digest them properly myself in order to provide anything in the way of an in-depth commentary.  Those days of commentary seem to be over for me for now.....as I simply can't find the time.  I post these for archival purposes and with the hope that others will read them and consider making guest blog commentary posts re: the various issues in any of the decisions.

• Hearn v TX (2010):  Dale Watson and Stephen Greenspan served as experts in this case.  They are two of the experts I've listed at the ICDP Professional Experts blogroll.  I personally know they are top-notch experts, so I would recommend reading this decision to capture the essence of their logic, data and testimony.  I plan to when I can.

• Dunn v LA (2010):  Lots of discussion of the use of the Flynn Effect adjustment of IQ scores.  If you want to get a feel for the pro/con arguments regarding the courts handling of the FE, check the rather lengthy concurring opinion.

• Rodrigues v Cook (CA, 2010):  Apparently a case where the state stipulated that Rodrigues was MR/ID.
  

• Lizcano v TX (2010) This is a long decision.  Of significant interest is the concurring/dissenting opinion of one judge, joined in by two other judges, who question the wisdom (or lack thereof) of the so-called Texas Briseno factors - the court imposed adaptive behavior factors in Texas.  The Texas Court of Criminal Appeals (9 judges) is the highest court in the state for criminal cases, so 6 judges appear to uphold the Briseno factors.    According to the dissenting-concurring opinion--very interesting.
  

"The Court's scattershot approach to adaptive deficits--letting the fact-finder hunt and peck among adaptive deficits, unfettered by the specific diagnostic criteria that inform the expert opinion--will allow some capital offenders whom every rational diagnostician would find meets the clinical definition of mental retardation to be executed simply because they demonstrate a few pronounced adaptive strengths along with their manifest adaptive deficits. Better, I think, to be over-inclusive and mistakenly sentence some borderline intelligent capital offenders to the not-inconsiderable penalty of life imprisonment without the possibility of parole than to inadvertently execute even a single mildly mentally retarded offender in violation of the strictures of the Eighth Amendment."

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MUST READ: Atkins best practice and standard recommendations (McVaugh & Cunningham, 2009)

I've been toying with the idea of jotting down a list of suggested "best practice" recommendations and suggested professional standards based on the mass of literature that I've been reading since starting the ICDP blog.  Every time I think I should start, I have been paralyzed by the sheer scope of the task....reading and taking notes from all relevant literature sources would take massive time...and I have no grad. assistants or employees.  I was thus thrilled when the following article arrived in my email inbox today.

Although I may not agree 100% with everything these authors state, I must say that with regard to what I have read to date, this article is probably the best single and solid source on suggested best practice and professional standard recommendations for the assessment and Dx of MR/ID in Atkins cases.  The authors present 20 different recommended guidelines covering a large number of the critical issues in assessment and DX of MR/ID in a legal context (e.g., practice effects, SEM, Flynn Effect, retrospective assessment of AB, adaptive behavior domains, different state statutes, etc.). 

This is a MUST read for all mental health professionals and folks in the legal profession who are involved in Atkins cases.  I think this document could serve as a foundational starting point for any group working on the development of standards and practice recommendations in Atkins MR/ID cases.

Kudos to the authors for the excellent work.  I plan to reread numerous times, and may add "my variations on a theme" to some of the specific guidelines (when time permits).

MacVaugh, G. & Cunningham, M. (2009).  Atkins v. Virginia: Implications and recommendations for forensic practice. The Journal of Psychiatry the Law, 37, 131-187 (click here to view)

Abstract

In 2002, the United States Supreme Court held in the landmark case of Atkins v. Virginia that the execution of individuals who have mental retardation is unconstitutional. Following the Atkins holding, courts in death penalty jurisdictions have relied heavily upon mental health professionals in making a determination of whether or not capital offenders have mental retardation. The determination of mental retardation in death penalty cases, however, presents complex challenges for both courts and mental health professionals. In addition, there is variability in how death penalty states define mental retardation and in the assessment methods used by mental health professionals to diagnose mental retardation in such cases. The purpose of this article is to (a) describe how statutes in death penalty jurisdictions have operationalized the various clinical definitions of mental retardation, (b) discuss issues confronting examiners in assessing and diagnosing mental retardation in Atkins cases, and (c) provide recommendations for forensic practice.

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More on MR/ID and malingering: Salekin et al. (2010)

Follow-up post to malingering MR/ID research study post earlier today.  In a previously noted Salekin, Olley & Hedge (2010) article, the authors made the following major points re: MR/ID malingering research.
 

Karen L. , Olley, J. Gregory and Hedge, Krystal A.(2010. Offenders With Intellectual Disability: Characteristics, Prevalence, and Issues in Forensic Assessment.  Journal of Mental Health Research in Intellectual Disabilities, 3(2), 97 — 116

Abstracted quotes from Salekin et al. (2010).  Emphasis added by ICDP blogmaster.

• Before the ruling in Atkins v. Virginia (2002), there was a virtual absence of discussion of the possibility of feigned ID in forensic evaluations.

• In recent years, the question of whether the condition of ID can be feigned has been argued in the literature (Baroff, 2003; Ellis, 2003; Mossman, 2003; Stevens & Price, 2006), with empirical data demonstrating the limited utility of effort tests and other measures of cognitive malingering (for reviews see Dean, Victor, Boone, & Arnold, 2008; Graue et al., 2007; Salekin & Doane, 2009). Only one empirical study has been conducted on the ability to feign deficits in adaptive behavior (Doane & Salekin, 2009).

• One of the arguments against successful feigning of the disorder is that the diagnosis requires the presence of deficits in ID and adaptive behavior that were evident before the age of 18 years. It would follow then that a person who asserts a claim of ID in a criminal proceeding would have documentation of impaired cognitive and adaptive functioning before the age of 18 years (e.g., special education records; disability documents; prior psychological evaluations) and/or would be able to provide collateral sources to support this assertion. In short, those who challenge the idea that ID can be feigned in the criminal justice system base their belief on the notion that people do not feign this disorder during a time in which there is no incentive to do so.

• Research on the use of existing measures of malingering has produced disappointing results and overall has demonstrated that existing measures and methods, when used according to the current standards of practice, often misclassify people with bona fide ID as malingerers. The reader is directed to an article by Graue et al. (2007) in which the findings of prior research are detailed and the results are presented regarding malingering on tests of intelligence, malingered mental illness, and neurocognitive measures.

• In short, Graue and colleagues documented the questionable validity of existing measures of malingering when used with an ID population.

• Although additional research is needed regarding the ability to malinger ID successfully, the malingering of ID, no matter how poorly done, will be attempted in some criminal cases. The authors further believe that individuals who would attempt to feign ID are limited to those who have true scores that fall between one and two standard deviations below the mean on either or both prongs of the ID diagnostic criteria. Offenders who fall in the average range of cognitive ability and/or adaptive behavior would not have demonstrated the requisite level of deficits in adaptive behavior in the community to meet the criteria for the diagnosis (this would be true even if they successfully reduced their score on an IQ test). Nevertheless, in light of the possibility that a person can successfully feign the disorder, it has become important to find ways to evaluate this response style while maintaining a very low rate of false positives.

Technorati Tags: psychology, forensic psychology, forensic psychiatry, neuropsychology, intelligence, school psychology, psychometrics, educational psychology, IQ, IQ tests, IQ scores, adaptive behavior, adaptive functioning, intellectual disability, mental retardation, MR, ID, criminal psychology, criminal defense, criminal justice, ABA, American Bar Association, Atkins cases, death penalty, capital punishment, AAIDD, Atkins MR/ID listserv, ICDP blog, malingering

New MR/ID malingering research study: Existing measures not that good for MR/ID

Shandera, A. L., Berry, D. T. R., Clark, J. A., Schipper, L. J., Graue, L. O., & Harp, J. P. (2010). Detection of Malingered Mental Retardation. Psychological Assessment, 22(1), 50-56. (click here to view)

 Emphasis in abstract and conclusion added by IDCP blogmaster


Abstract

In a cross-validation of results from L. O. Graue et al. (2007), standard psychological assessment instruments, as well as tests of neurocognitive and psychiatric feigning, were administered under standard instructions to 24 participants diagnosed with mild mental retardation (MR) and 10 demographically matched community volunteers (CVH). A 2nd group of 25 community volunteers was instructed to malinger MR (CVM) during testing. CVM participants obtained Wechsler Adult Intelligence Scale (3rd ed.; D. Wechsler, 1997) Full Scale Intelligence Quotient scores that were significantly lower than the demographically similar CVH group but comparable to the MR group, suggesting that CVM subjects feigned cognitive impairment. On the basis of standard cutting scores from test manuals or published articles, of the 11 feigning measures administered, only the Test of Memory Malingering (TOMM; T. N. Tombaugh, 1996) retention trial had a specificity rate >.90 in the MR group. However, the 2nd learning trial of the TOMM, as well as a short form of the Digit Memory Test (T. J. Guilmette, K. J. Hart, A. J. Guiliano, & B. E. Leininger, 1994), approached this level of specificity, with both at .88. These results raise concerns about the specificity rates at recommended cutting scores of commonly used feigning tests in defendants with MR.

Conclusion

Overall, although there were some helpful findings in the present study, broadly speaking, neurocognitive feigning measures derived primarily on the basis of traumatic brain injury samples do not seem to work well in patients with MR. Given the fairly consistent reports to this effect in the published literature, it may well be that a new approach is needed to develop feigning detection instruments that are both sensitive and specific for the evaluation of possible malingered MR. Research assessing a broad array of possible approaches to this issue is clearly needed by the forensic clinical community.

Prior ICDP malingering-related posts, inclusive of the current, can be found by clicking here

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AAIDD June conference sessions relevant to ID/MR Dx and Atkins death penalty cases

A number of AAIDD conferences sessions/workshops related to ID/MR Dx and Atkins MR/ID Death Penalty cases.

Death Penalty Session - Wednesday June 9

Atkins v. Virginia : Challenges and Pitfalls in Diagnosing ID in a Forensic Context

Moderator:      Marc J. Tassé, The Ohio State University Nisonger Center

A Quantitative and Qualitative Analysis of Post-Atkins Decisions by Juries and Judges
John H. Blume, Cornell Law School

Assessing Intellectual Functioning
Kevin S. McGrew, Institute for Applied Psychometrics

Assessing Adaptive Behavior in a Forensic Context
James R, Patton, University of Texas at Austin

Assessment of Malingering
Denis William Keyes, College Of Charleston

Retrospective Diagnosis
Sal Blandino, Licensed Psychologist

Closing Commentary

Stephen Greenspan, University of Colorado at Denve

Workshops--Friday June 11

Workshop #1:

Evaluations and Expert Testimony in Criminal Cases
James Ellis, UNM School of Law, University of NM
Disability professionals are increasingly called upon to provide evaluations and expert testimony in criminal cases, particularly in Atkins cases where the defendant's intellectual disability is at issue. Participating in these life-and-death proceedings can be a daunting prospect. This workshop will include explanation of the criminal law issues involved, diagnostic and classification issues under the new AAIDD (11th edition) manual, and practical suggestions from disability professionals who have participated in these cases.

Workshop #2

Understanding and Using the 11th Edition of Intellectual Disability: Definition, Classification, and Systems of Supports
Bob Schalock, PhD, Ruth Luckasson, JD, Wil Buntinx, PhD, Pat Craig, PhD, Alya Reeve, MD, Karrie Shogren, PhD, Marc Tasse, PhD, Jim Thompson, PhD

11th Edition Implementation Committee members will present and discuss in detail key issues in the field related to diagnosis, classification, and supports planning. As a basis for maximum interaction and problem solving, workshop participants will be required to bring or purchase a copy of the 11th edition of the Manual. The workshop format will involve presentations, interactions, and opportunities to problem solve.

Technorati Tags: psychology, forensic psychology, forensic psychiatry, neuropsychology, intelligence, school psychology, psychometrics, educational psychology, IQ, IQ tests, IQ scores, adaptive behavior, adaptive functioning, intellectual disability, mental retardation, MR, ID, criminal psychology, criminal defense, criminal justice, ABA, American Bar Association, Atkins cases, death penalty, capital punishment, AAIDD, Atkins MR/ID listserv, ICDP blog

Guest commentary on the Retrospective Assessment of MR: Effectively Addressing Atkins Questions: Dr. Timothy Derning

Blogmaster introduction and comments:  Below is a guest blog post by Dr. Timothy Derning in response to the recent court ruling regarding Johnston v Fl (click here for prior post that includes links to all prior posts and documents).  This is a longer than usual blog post, but I believe it is worth the space.  Also, I would LOVE to see other professionals (who practice in the area of Atkins cases) offer similar post-hoc analysis of Atkins court decisions.  They can be very educational and instructive.  Such commentaries can serve a valuable function of encouraging discussion, the exchange of ideas, and professional debate.  That being said, if folks would like to engage in further dialogue regarding Dr. Derning's post, I  suggest joining (in not already a member) the public Atkins MR/ID Death Penalty discussion listserv and exchange thoughts, etc. in that medium.  Info regarding the listserv and a sign-up box are near the top of the blogroll on the right-hand side of this blog.  Thanks Dr. Derning for the post.

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

A brief review of the state of Florida decision regarding David Eugene Johnston dated April 5, 2010. Mr. Johnston is on Florida's death row. The issue before the court was whether Mr. Johnston has mental retardation. The court's decision was that Mr. Johnston does not have mental retardation. The defense presented four experts. The State presented two experts.

Mr. Johnston is 61 years old in 2010. He has been given a number and variety of intelligence (IQ) tests throughout his life, beginning in 1967, at age 7, when he was given the Stanford Binet, form LM, and received a 57 IQ. He was administered the WISC twice, once in 1972, FSIQ = 65 (at age 12); and two years later in 1974, FSIQ = 80 (age 14). It's important to note that the examiner in 1967 made a comment in the report that the IQ score of 57 most likely represented a depressed estimate of intellectual functioning due to an unhealthy home environment, moderate to severe perceptual problems and/or brain damage, and severe emotional disturbance.  This examiner stated Johnston’s intellectual ability and potential was "possibly within the lower dull normal range, normal level." Likewise, the 1972 examiner acknowledged that the WISC FSIQ of 65 was in the retarded range, but stated the results were suspect due to possible emotional problems.  The 1972 examiner estimated that Johnston’s ability "would be more in keeping with the slow learner or low average range rather than the mentally retarded." In 1974 the evaluator who administered a WISC and reported a FSIQ of 80, commented that young Mr. Johnston (then age 14) was cooperative and engaged. These comments played a significant role in this court's opinion.

Before proceeding its is worthwhile to pause and recall that the definition of mental retardation (aka intellectual disability) has three parts or prongs: subaverage intellectual functioning (a valid IQ score of approximately 70 + 5 points; 1 SEM); demonstrated deficits in daily adaptive living ability, and onset that begins during development (before age 18). Neither etiology, nor genetics, nor congenital deficits are mentioned or considered in the definition.

In 1988 (when Mr. Johnston was 28 years old) he was tested again with the adult Wechsler. On the WAIS-R there was a large split between Johnston’s Verbal IQ of 75 and Performance IQ of 101. Such a wide difference is statistically rare and unexpected, so much so that the full-scale IQ is regarded as uninterpretable (meaningless). Nonetheless, one of the state's experts in 2009/10 calculated a full-scale IQ 83 for WAIS-R.  Mr. Johnston was next given (at age 40) a newer Wechsler (WAIS-III) in 2000. His WAIS-III FSIQ score was 76. Another WAIS-III was administered in 2005, when Johnston was 45 years old.  On this WAIS-III his FSIQ score was 82 (or 84 - both scores are reported in this opinion). Finally, in July 2009 Mr. Johnston was administered the latest edition of the adult Wechsler IQ test (WAIS-IV, 2009), on which he received a FSIQ score of 61. In short, the pattern of Mr. Johnston's IQ scores is highly variable, ranging from a low of 57 to a high of 84 and then back down to 61. The differences among the IQ scores presented a thorny problem: which scores to accept, which to reject? How to rest comfortably with an opinion about Johnston’s level of general intellectual ability?

The defense experts presented a variety of arguments supporting the opinion that Mr. Johnston is a person with mental retardation; most centered on the IQ scores. One theme among these arguments was the interfering effects of the "Flynn Effect," a statistical phenomenon that IQ scores artificially increase over time in tests that have not been renormed for a number of years.  The defense experts believed that the Flynn Effect could account for the variable IQ scores. The other theme argued for the influence of "practice effects," which refers to the fact that the more an individual takes the same test, the more familiar they become with that test, and the more likely IQ scores will increase artificially due to practice (familiarity). While these reasons were offered, the court’s opinion does not report the experts’ explanations as to how or why these factors should influence an MR/ID Dx (or not) in Mr. Johnston's case---only that it is known that the Flynn Effect and practice effects can be variables that must be considered when evaluating a history of IQ scores. Hopefully, a more complete and relevant explanation was offered during testimony.

Much of the argument from the experts (on both sides) centered on the Wechsler IQ test itself, its validity, its psychometrics, and a comparison of scores between the WAIS-III in WAIS-IV. The defense experts argued that the WAIS-IV (2009) is a superior test to the others, uses a four-factor model to derive IQ scores, and is a superior measure of intelligence compared to the WAIS-III and it’s two-factor model of interpretation. The defense experts argued that the WAIS-IV, and consequently the 61 IQ obtained from Mr. Johnston in 2009, represented the "gold standard" of intelligence testing, and provides the best indicator of his true intellectual functioning, thus meeting the legal and clinical standard for mental retardation (actually only the first prong of the definition).

With respect to the variability in IQ scores over Mr. Johnston's lifetime, the defense experts argued that such variability is to be "expected" as there is much variability among very low IQ scores.  The defense experts then discounted (or gave little weight to) the higher 1974 and 1988 IQ scores "because those tested not reflect the most current testing data." One defense expert said he could not find the actual 1974 report, did not know where it was administered, or who administered the test, and therefore didn't trust the validity of the IQ scores.

The defense expert who administered the WAIS-IV in 2009 also administered the TOMM test as a check against malingering in order to demonstrate the validity of the WAIS-IV FSIQ. Adaptive ability was addressed by several defense experts.  One expert interviewed the mother and brother of the defendant, another administered the Adaptive Behavior Assessment System, Second Edition (ABAS-II) and reported that the defendant scored very low, 4 or less, in all 10 scales of the ABAS-II.

On the other hand the state's experts testified that they assessed Mr. Johnston in 2005 (they did not examine him in 2009, but reviewed the reports of the defense experts). One state expert administered the WAIS-III in 2005 (FSIQ = 82 or 84) and both experts concluded that Mr. Johnston was not a person with mental retardation. Both experts gave greater weight to the 1974 WISC IQ FSIQ score of 80, as they noted the examiner's positive remarks describing the defendant as alert, cooperative, friendly, verbally expressive, and exhibiting self-confidence during the testing.

The defense experts had a more awkward argument to maintain, having to weigh Mr. Johnston’s lower IQ scores more heavily, while giving less weight to higher IQ scores for various reasons. They also had to walk the gauntlet that the WAIS-III, an established and comprehensive measure of intelligence, was not a "piece of junk," while trying to give greater weight and emphasis to the 61 IQ from the WAIS-IV. In spite of various defense experts’ arguments, one of the most important and influential pieces of information came from a state's expert who testified that the correlation between the WAIS-III and the WAIS-IV is .94 "or almost perfect, which signified that the WAIS-III was measuring the same constructs as the WAIS-IV and there was a great deal of overlap between the two instruments, making them almost "identical."" One defense expert who argued for the superiority of the WAIS-IV over the WAIS-III was unable to cite the correlation between the two tests as provided in the WAIS-IV test manual, saying that the correlation was probably "mid-.8", which is about .10 lower in magnitude than is actually the case. Knowing the precise correlation (.94) allowed the state’s expert to testify convincingly that the technical concerns raised by the defense about the "two factor model" versus the "four factor model" were relatively insignificant.

The state’s experts also made a salient point that the TOMM test, administered to establish the validity of the WAIS-IV IQ test performance, was given at a much different time, and the court noted,"... the TOMM was not administered properly in that administering the TOMM and the WAIS-IV some two or three months apart, (so that) the ability to make an extrapolation from one test to the other was lost." True enough.

Also of significance, when addressing the drop in IQ from 2005 (FSIQ 82 to 84) to 2009 (FSIQ 61), the state’s experts examined individual responses to IQ test questions and found unexpected inconsistencies, such as when the defendant answered 4+5 =9 in 2005, but when asked to solve a similar problem in 2009 said, “I can’t add.” Also, Johnston could identify Martin Luther King, Jr. in 2005 but never heard of him in 2009.

While the defense experts attempted to assess adaptive ability, no defense expert interviewed anyone at the prison. The court took note of omission and expressed concern that the defense, "... did not interview any personnel at the Department Of Corrections who would have been familiar with Defendant on a day-to-day basis to further assess this issue." The court found the absence of current first-hand information was a significant weakness in the assessment data in spite of claims that adaptive test data (from the ABAS) indicated adaptive deficits. In addition, the court found the information from the defendant's mother and brother provided, "... far too little information and were too distant in time to have any probative value."

Overall, it would seem that this Atkins opinion regarding the presence of mental retardation turned on several factors in the decision. It was important to the court that IQ scores from the WAIS-III and the WAIS-IV are "virtually identical" [blogmaster coment--click here for CHC analysis of each instruments FS IQ composition] so that all technical arguments about the superiority of one score over another, and arguments advancing the psychometric superiority of the WAIS-IV, became irrelevant. This opinion noted that the “Flynn effect” arguments were made by defense experts, but the court document unfortunately provides no additional information about how the significance of the Flynn effect or practice effects were relevant to Mr. Johnston’s mental retardation claim.

This case is instructive on a number of points. For example, it can be problematic for a contemporary evaluator when childhood IQ scores are accompanied by comments from the earlier evaluator that dismiss a low IQ as not being "representative" of the true functioning of the youngster. It's often the case that less skilled examiners don't trust their own test data and tend to superimpose their own "clinical impressions" that a youngster is not mentally retarded for one reason or another. Usually bias, lack of training or experience, misinformation, or not having the benefit of 40+ years of additional research, play a large part in this clinical interpretation of IQ scores. However, comments about a youngster coming from a dysfunctional home, an unhealthy home environment, and/or having emotional problems, must be considered and given appropriate weight in the retrospective evaluation process. Additionally, when previous evaluators note that a youngster was fully cooperative and engaged during testing, that, too, must be weighed accordingly, especially when there is a noticeable increase in the IQ score. This last point was clear in this case.

In Mr. Johnston’s history of IQ scores the 1967 Stanford Binet IQ of 57 can be seen as an "outlier"-- an extremely low IQ score that is inconsistent with all other reported IQ scores. Nor is there data to support significant adaptive deficits throughout Mr. Johnston's life (i.e., very low functioning consistent with someone having an IQ 57, a very low score). Therefore, subsequent evaluators should consider the 1967 examiner’s comment that the 57 IQ score most likely represented a depressed estimate of intellectual ability as (likely) an accurate caveat. Likewise, the 1972 examiner's similar observation that emotional problems depressed the IQ score must be considered accordingly in the retrospective analysis of IQ scores. The judge in Mr. Johnston’s case found the state’s experts’ reasoning compelling. (Importantly, this judge also found the state’s experts’ explanations more detailed and credible with respect to secondary factors that could depress IQ scores in the past and in the present day, namely, anxiety about his impending execution.) The defense experts failed to overcome the “common sense” questions of the low IQ scores from Mr. Johnston’s childhood: an emotionally distraught youngster living in an unhealthy family environment is not be expected to perform at optimal levels when solving intelligence problems.

Evaluating the adaptive abilities of a defendant who has been living on death row for a number of years presents significant challenges to a contemporary evaluator, not the least of which is collecting valid and reliable information from collateral sources who know how the individual functions. As noted in this opinion, family members may be too unfamiliar and removed from current functioning to provide useful information. Additionally, they may be biased in favor of the defendant. Likewise prison personnel may not be able to provide the kind of information needed in such a limited and structured environment; they, too, may present a different bias toward normalcy. Additionally, prison personnel may not be made available to the evaluator. The court’s opinion in Mr. Johnston's case suggests, however, that it is important to make an honest effort to collect information from contemporary collateral sources, weighing and evaluating the validity of the information after it is collected, or at least after an honest attempt is made.

From a distance (and without benefit of copies of the oral testimonies) it would appear that the defense experts became “blinded” by the bright lights of the IQ test arguments. There is considerable intelligence testing research and expertise to draw upon from the extant literature. Another potential “blinding” of the defense experts is the fact that when one can establish the validity of a higher IQ score, well above the IQ range established for subaverage intellectual functioning (IQ approximately 70), the IQ score alone may have sufficient power to “conclusively refute the mental retardation diagnosis both legally and clinically” as conceded by defense experts. For this reason, a valid higher IQ score can be a “deal breaker” for the first prong of the MR definition, and thus the whole MR claim. Further assessment is not required. It is for this reason, however, that IQ scores are sometimes given more weight and emphasis than they deserve in Atkins arguments. Not infrequently, as in Mr. Johnston’s case, it is not easy to examine a retrospective history of IQ test scores and definitively establish or refute mental retardation, especially in a retrospective evaluation that spans decades, using various tests, and has been conducted by multiple examiners. In such cases retrospective evaluators may need to look elsewhere for data or information to form an opinion, namely, adaptive functioning, the “middle child” of the MR criteria.

The Johnston opinion is a good illustration of the difficulty of evaluating the subaverage intellectual functioning prong of the MR definition in the presence of multiple inconsistent IQ scores. These are typical cases that show up at the doorsteps of psychological experts. Atkins defendants with consistent IQ score histories in the 60’s or 80’s are easier to assess one way or the other. However, someone with Mr. Johnston’s IQ history confounds efforts to reach a firm conclusion regarding subaverage intellectual functioning. Technical expertise regarding psychometric issues may or may not help to untie the knot. In Mr. Johnston’s case most of the tests used were from Wechsler batteries (WISC, WAIS-R, -III, -IV), which is somewhat unusual; often a variety of brief, nonverbal only, group administered, or discontinued IQ tests are present in the defendants records. In this case it would seem the (over-) focus on the Wechsler IQ score validity took precedence among the defense experts’ opinions. Yet, when all is said and done, adaptive functioning (the second prong of the MR definition) may provide the clarity and more accurate insight necessary to evaluate a defendant’s overall functioning with respect to a finding of mental retardation.

This case also highlights the difficulties often encountered by the retrospective Atkins evaluator in both IQ and adaptive deficit domains. Perhaps Mr. Johnston’s argument for a finding of mental retardation would have been more compelling if the presence of adaptive deficits had been more thoroughly documented and presented (assuming the truth of such deficits exists). As this Atkins opinion demonstrates, arguments supporting a finding of mental retardation must balance expertise and technical knowledge about intelligence testing against practical and common sense ‘everyday’ considerations. Common sense sometimes leads and sometimes misleads, but it is always a useful foundation and context for an expert’s curiosity, evaluation focus, and final opinions. It certainly was the thread that ran through this carefully reasoned opinion.

As a result of their significant intellectual deficits, people with mental retardation have difficult lives of a particular kind. The difficulties they may experience “getting by” and “fitting in” can make them more vulnerable to criminal influences. This was the concern originally expressed by the U.S. Supreme Court in the Atkins 2002 decision when it ruled against the execution of individuals with mental retardation. The defense experts in this case had an uphill climb. They chose a thorny path. Nonetheless, the larger lesson from this case is not about psychometric technicalities, but about presenting the (in)adequacy of Mr. Johnston’s life, such as it is, or is not. That information was available to both sides. Sometimes the IQ measurement question cannot be answered to the desired level of certainty. The state’s experts in this case were direct and parsimonious. They did not lose sight of the practical issues of the case and the judge was persuaded.

In the end it is always the impaired life and deficient (dependent and limited) daily functioning that is the hallmark of mental retardation. The burden of proof for mental retardation was on Mr. Johnston; the default position was the absence of mental retardation. When the IQ score waters are muddied, as in this Atkins claim, experts must broaden their focus to include other data that may allow one to better see the forest, not just the trees. The state’s experts provided a relatively direct and persuasive context for their opinions. In this case the defense’s psychometric arguments did not carry the day and other data and explanations were not compelling. As noted, Mr. Johnston’s mental retardation claim was not an easy one to establish, and in the end the judge was not persuaded.

[Thank you to Drs. Kevin McGrew and Greg Olley for the generosity of their time making comments and editing suggestions]
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Dufour v Florida (2010): Webcast of April 7, 2010 hearing

In case you missed the live webcast of the Dufour hearing in Florida a couple days ago (April 7, 2010), you can still view it by clicking here.  Also, PDF copies of all background brief documents (for the hearing) can be found by clicking here.  I've stated my major concerns re: the case in a number of posts, links which can be found by clicking here. 

As I stated previously, and what comes through during portions of the hearing, is that a critical problem for the state of Florida is its bright-line rule for MR/ID Dx....a score must be 70 or below...no allowance for considering SEM.  In my opinion, this is the most important issue  at stake in the Dufour hearing, as is evidenced by the frequent reference to the Cherry court or decision (decision that established this scientifically unsupportable criteria in Atkins cases in Florida).

I am interested in the views of experienced viewers of such proceedings regarding their "take-away" impressions of the hearing.  I was particularly impressed with the lawyer representing AAIDD and her valiant and reasonably clear attempt to explain SEM to the court.  At times Justice Barbara P. appeared to be "getting it"....and in my observation, seemed to understand the possibility of the error of the Cherry based bright-line rule. 

On the other hand, my belief is that most psychologists who engage in intelligence testing will be a bit shocked at how IQ scores and names of IQ (and other) tests are tossed around as mere commodities....with little discussion of the fact that some measures are better than others.  Of course, this is a very time-constrained hearing and all participants have read hundreds of pages of briefs.....so I need to cut them some slack.  Still....it is bothersome to me, as an intelligence test developer, scholar, and applied psychometrician, how the term IQ is discussed in such simple language...which suggests that the courts are not well educated on the science of intelligence testing...which in turn makes them rely on the expertise of different experts in different cases...experts who vary in depth of knowledge of the science, research, and psychometric underpinnings of psychological assessment instruments.

As I said above, I'd like to hear the comments of others who have viewed the hearing.  I would suggest that this may be a good topic to discuss at the Atkins MR/ID Death Penalty listserv.

Technorati Tags: psychology, forensic psychology, forensic psychiatry, neuropsychology, intelligence, school psychology, psychometrics, educational psychology, IQ, IQ tests, IQ scores, adaptive behavior, adaptive functioning, intellectual disability, mental retardation, MR, ID, criminal psychology, criminal defense, criminal justice, ABA, American Bar Association, Atkins cases, death penalty, capital punishment, AAIDD, Atkins MR/ID listserv, ICDP blog, SEM, standard error of measurement, Dufour v Florida