Atkins court decision: Farad Roland v USA (NJ; 2018)

Today the opinion regarding the Atkins ID decision for Farad Roland was issued.  As per my policy, having served as an expert witness in this particular case, I offer no comments.  The opinion can be found here.

Research review of efficacy of effort testing with culturally, ethnically, and linguistically diverse populations

Cross-Cultural Feigning Assessment: A Systematic Review of Feigning Instruments Used With Linguistically, Ethnically, and Culturally Diverse Samples

Alicia Nijdam-Jones and Barry Rosenfeld Fordham University

The cross-cultural validity of feigning instruments and cut-scores is a critical concern for forensic mental health clinicians. This systematic review evaluated feigning classification accuracy and effect sizes across instruments and languages by summarizing 45 published peer-reviewed articles and unpublished doctoral dissertations conducted in Europe, Asia, and North America using linguistically, ethnically, and culturally diverse samples. The most common psychiatric symptom measures used with linguistically, ethnically, and culturally diverse samples included the Structured Inventory of Malingered Symptom-atology, the Miller Forensic Assessment of Symptoms Test, and the Minnesota Multiphasic Personality Inventory (MMPI). The most frequently studied cognitive effort measures included the Word Recogni-tion Test, the Test of Memory Malingering, and the Rey 15-item Memory test. The classification accuracy of these measures is compared and the implications of this research literature are discussed.

Public Significance Statement This study suggests that there is only a modest amount of research examining the use of feigning assessment measures with linguistically, ethnically, and culturally diverse populations. As psychol-ogists in the United States and other Western, English-speaking countries assess individuals from diverse linguistic, ethnic, and cultural backgrounds, it is important that the assessment techniques that they rely on have demonstrated utility in non-English cultures and languages.

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More on the Daubert standard: Two reports

Thanks to Kevin Foley for sending me these two Daubert related publications. Click on images to enlarge. Links provided under each image.

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Research bytes: Two new Wechsler embedded malingering index studies

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Research Bytes: Two new malingering studies

FYI. I can't access these is my library but thought others might be interested.

Wisdom, N. M., Brown, W. L., Chen, D. K., & Collins, R. L. (2012). The Use of All Three Test of Memory Malingering Trials in Establishing the Level of Effort. Archives of Clinical Neuropsychology, 27(2), 208-212.

Young, J. C., Caron, J. E., Baughman, B. C., & Sawyer, R. J. (2012). Detection of Suboptimal Effort with Symbol Span: Development of a New Embedded Index. Archives of Clinical Neuropsychology, 27(2), 159-164


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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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Book nook: Roger's 3rd edition on clinical assessment of malingering--book review

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intelligence intelligence testing Atkins cases ICDP blog psychology school psychology neuropsychology forensic psychology criminal psychology criminal justice death penalty capital punishment ABA IQ tests IQ scores adaptive behavior AAIDD mental retardation intellectual disability malingering

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Research Brief: Accuracy of SIRS-2 with MR/ID subjects

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Research brief: DSM-5 and malingering--proposal by Berry & Nelson (2010)

Berry, D. & Nelson, N. (2010). DSM-5 and Malingering: a Modest Proposal. Psychol. Inj. and Law. DOI 10.1007/s12207-010-9087-7


Abstract

The DSM criteria for identifying malingering are reviewed and found to be flawed on both conceptual and practical grounds. Alternative models for diagnosing feigned psychiatric, physical, and neuropsychological symptoms are presented. A number of useful features of these systems are highlighted for potential contributions to modified DSM criteria. It is recommended that the present DSM text on malingering be replaced with feigned psychiatric, physical, or neuropsychological symptoms and suggestions for developing criteria for this condition are made

intelligence intelligence testing Atkins cases ICDP blog psychology school psychology neuropsychology Forensic psychology criminal psychology criminal justice death penalty capital punishment ABA IQ tests IQ scores adaptive behavior AAIDD mental retardation intellectual disability malingering DSM DSM-V American Psychiatric Association

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Dr. Keyes and Dr. Blandino on malingering and retrspective MR/ID Dx in Atkins DP cases

Thanks to Dr. Denis Keyes and Dr. Sal Blandino for making their joint PPT slide presentations, which were part of a 2010 AAIDD Atkins MR/ID Death Penalty Symposium, available for viewing via my SlideShare account (click here).  The file is available for viewing on-line but the download feature has been disabled.  If you want to read a brief summary of the presentation, click here. Contact information for each presenter is on their last slide.

Two other PPT shows (by Stephen Greenspan and John Blume) that were part of this symposium can be found by clicking here and here.


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

Dr. Tedd Judd comments on Arbaleaz v Florida (2010) decision: Guest blog comment

Dr. Tedd Judd sent me the following comments re: the recent posting of the Arbaleaz v Florida case.  His comments were too long for the blog post comment feature.  His comments are reproduced "as is"

Dr. Judd states:

This case raises a host of issues. In this comment I would like to mention several and then discuss one, measuring adaptive behavior, in more depth.

1.       Should U.S. norms for IQ and/or adaptive behavior be used since that is the population they are being judged against and the context of the Atkins decision? Or should we use national norms from the nation of origin or some other subpopulation norms? Or national norms for childhood and U.S. norms for current?

2.       MR is not necessarily lifelong. Which time period is relevant? Childhood is relevant by definition. Time of the crime? Time of trial? Time of execution? (The reasoning behind various Atkins decisions suggests to me that all 4 of these time periods are pertinent, so perhaps Atkins evaluations should address all 4 distinctly.)

3.       Clinically measuring adaptive behavior in prison and using prison guards is problematic and prone to misinterpretation by the court but should not be entirely ruled out, since such behavior can be pertinent. Just by way of example, if a defendant earned a college degree while in prison it would not be intellectually honest to say that that was irrelevant.

4.       Potential bias in rating adaptive behavior (whether by self, family members, friends, teachers, prison guards, etc.) is problematic not only for Atkins but also when mitigation or access to services and disability accommodations and payments may be at stake. For this reason, validity scales in future versions of adaptive behavior scales would be useful. How to devise such scales is tricky, but I have some suggestions to offer here:

a.       Items that are very similar to one another could be included and compared for consistency of response, as is done in the PAI, BRIEF and others. This would address accuracy of comprehension, etc. but not systematic bias.

b.      Instead of presenting items in order of increasing difficulty by category, as the ABAS and Vineland do, they could be mixed, as in most personality inventories. Then a computer analysis may be able to discriminate if responses regarding the easy versus hard activities show consistency. I believe that a similar strategy is used in the VIP malingering test.

c.       The rating scale could be linked to a performance scale concerning selected items on the rating scale. For example, there might be an item, “Is able to read a telephone number of 10 digits and dial it accurately.” This ability could then be tested directly. A few such measures might be unobtrusive, such as filling out their name and address and other information on the rating form and following certain written directions on the form. Norms could be developed regarding how closely performance matches rating and significant deviations might suggest invalid ratings. While an individual might still malinger on both rating and performance, they might not do so consistently. Such a matching could potentially pick up both overly negative and overly positive rating sets and may be particularly useful with respect to the validity of informant ratings.

d.      With respect to cultural bias, peer comparisons might be used instead of more absolute ability norms. In other words, items might be constructed as follows: “Compared to others his/her age, his/her ability to ____________ is: Much better, somewhat better, about the same (or average), somewhat worse, much worse.” A similar approach has been used with the Informant Questionnaire on Cognitive Decline in the Elderly (IQCODE) in which the person rated is compared to themselves 10 years earlier on various everyday memory and executive abilities. The IQCODE has been found to be sensitive to dementia and insensitive to effects of culture and education.



Tedd Judd, PhD, ABPP-CN

Cross-Cultural Neuropsychologist

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, Arbeleaz v Florida, cultural issues, cultural sensitivity

AAIDD 2010 Atkins MR/ID death penalty symposium summary

Below is a summary, as per Marc Tasse (extracted from recent AAIDD Psychology Division News update), of recent Atkins MR/ID death penalty symposium at 2010 annual AAIDD conference.  I've provided URL links to each presenter if you want to communicate with the person.

 


TITLE: Atkins v. Virginia: Challenges and Pitfalls in Diagnosing ID in a Forensic Context.
Moderator: Marc J. Tassé, PhD

This panel presentation consisted of 5 papers and a thought provoking closing commentary. The panel was composed of an attorney, IQ researcher, adaptive behavior expert, forensic psychologists, and disability researchers who presented an overview of the recent court decisions in ID determination death penalty cases and discussed the key issues facing ID experts and fact finders.  This Panel Presentation focused on the critical issues related to making or ruling-out a diagnosis of intellectual disability in a forensic context. Since the 2002 Atkins v. Virginia Supreme court decision, individuals with a diagnosed intellectual disability are exempt from the death penalty. Making a diagnosis of intellectual disability is always a high stakes decision. Making or rejecting a diagnosis of ID can result in obtaining or losing special education services, federally and state-funded waiver services for independent living, employment supports, social security payments, and relief from a death sentence. Undeniably, determining whether or not an individual has an intellectual disability in a death penalty case if the highest of "high stakes". And as such, diagnosing an ID in a forensic context poses many particular challenges to the professionals and the fact finders. This panel also presented the professional challenges that face the experts when assessing intellectual functioning and adaptive behavior of individuals who are currently incarcerated and in many cases have been incarcerated for several years. Panel members presented the key challenges and provided recommendations regarding the steps needed to address these issues.

Paper 1: Atkins:  A Quantitative and Qualitative Analysis of Post-Atkins Decisions by Juries and Judges - John H. Blume, JD

John Blume is a nationally respected law scholar and death penalty attorney. Mr. Blume presented a succinct analysis of the most recent Atkins decisions. He summarized the important factors related to jurors and judges as they relate to the understanding and determination of intellectual disability in the context of a court room.

Paper 2: Assessing Intellectual Functioning - Kevin S. McGrew, PhD

For better or worse, IQ scores typically are at the center of Atkins arguments.  Court decisions have reflected a wide range of knowledge about intelligence and IQ testing from both experts and the courts.  IQ test scores, and associated measurement issues (SEM, Flynn Effect, practice effects, full scale v part scores, norms for non-English speaking defendants, reasons for different IQ scores, etc.) have been used and abused in Atkins decisions.  Dr. McGrew presented a summary the key intelligence testing issues and controversies in Atkins cases and provided research-based guidelines and recommendations for the use of intelligence testing in Atkins cases.

Paper 3: Assessing Adaptive Behavior in a Forensic Context - James R. Patton, EdD

This presentation focused on the essential practice information regarding the procedures to assess adaptive behavior for the purpose of diagnosing ID. Dr. Patton reviewed the challenges with administering standardized assessment AB instruments, the issues related to retrospective assessment, and use of multiple information and sources of information. Dr Patton’s presentation also discussed the problematic issues related to using prison guards as respondents, self-report, typical performance issues, and the need to assess the reliability of the respondents.

Paper 4: Intellectual Disability Assessment - Malingering in Death Penalty Cases – Denis W. Keyes, PhD.

Dr. Keyes presented an overview of the literature on the measures of malingering and reviewed their applicability to persons with an intellectual disability.  He also presented an overview of the properties and utility of the current standardized measures of malingering. Dr. Keyes presented important recommendations when assessing malingering in individuals with low IQ.

Paper 5: Intellectual Disability Assessment in Death Penalty Cases and Retrospective Assessment – Sal M. Blandino, PhD.

Dr. Blandino presented the issues related to establishing/ruling-out a diagnosis of intellectual disability in persons over the age of 18 years. Dr. Blandino reviewed the issues related to conducting a retrospective assessment in a forensic context, including reviewing of important records, prior assessments and conducting a retrospective adaptive behavior evaluation.

Closing Remarks/Comments by an “eminence grise” - Stephen Greenspan, PhD

Dr. Greenspan provided an exciting commentary of the field of intellectual disability, focusing on issues with the current AAIDD definition and assessment issues in a forensic context. Greenspan highlighted the salient pitfalls and challenges in Atkins Claims as they relate to the assessment and diagnosis of ID in a forensic context.

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

Research brief 8-16-10: Do warnings deter malingering during psych testing?

Schenk, K., & Sullivan, K. A. (2010). Do warnings deter rather than produce more sophisticated malingering?
Journal of Clinical and Experimental Neuropsychology, 32(7), 752-762.

Following Youngjohn, Lees-Haley, and Binder's (1999) comment on Johnson and Lesniak-Karpiak's (1997) study that warnings lead to more subtle malingering, researchers have sought to better understand warning effects. However, such studies have been largely atheoretical and may have confounded warning and coaching. This study examined the effect on malingering of a warning that was based on criminological-sociological concepts derived from the rational choice model of deterrence theory. A total of 78 participants were randomly assigned to a control group, an unwarned simulator group, or one of two warned simulator groups. The warning groups comprised low- and high-level conditions depending on warning intensity. Simulator participants received no coaching about how to fake tests. Outcome variables were scores derived from the Test of Memory Malingering and Wechsler Memory Scale-III. When the rate of malingering was compared across the four groups, a high-level warning effect was found such that warned participants were significantly less likely to exaggerate than unwarned simulators. In an exploratory follow-up analysis, the warned groups were divided into those who reported malingering and those who did not report malingering, and the performance of these groups was compared to that of unwarned simulators and controls. Using this approach, results showed that participants who were deterred from malingering by warning performed no worse than controls. However, on a small number of tests, self-reported malingerers in the low-level warning group appeared less impaired than unwarned simulators. This pattern was not observed in the high-level warning condition. Although cautious interpretation of findings is necessitated by the exploratory nature of some analyses, overall results suggest that using a carefully designed warning may be useful for reducing the rate of malingering. The combination of some noteworthy effect sizes, despite low power and the small size of some groups, suggests that further investigation of the effects of warnings needs to continue to determine their effect more fully.

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, Flynn Effect, psychiatry, psychiatry and criminal justice, malingering, TOMM

Court Decisions: Weston v Arkansas (2006)

Thanks to Kevin Foley (again) for sending me an Atkins decision from Arkansas that was missing from the ICDP Court Decisions blog roll.  This now makes n=99 different cases that are listed.

The decision is Weston v Arkansas (2006).  The published document is sparse with regard to the ID/MR information, so it is very difficult to ascertain the specific arguments and issues involved in this Atkins case.   The decision indicates that two different mental health experts had tested the defendant and reported IQ scores in the 50's, but the issue of malingering was present, so the case was sent to jury.

Of interest is the Arkansas statute related to Atkins, which is a bit different from most other states.  As extracted from the ruling: Ark. Code Ann. § 5-4-618 (Repl. 1997), which states that “there is a rebuttable presumption of mental retardation when a defendant has an intelligence quotient of sixty-five (65) or below,” and, that “no defendant with mental retardation at the time of committing capital murder shall be sentenced to death.” Ark. Code Ann. § 5-4-618(a)(2)"  It is my understanding of the statute that if a person has intellectual functioning measured at 65 or below, that the death penalty cannot apply---and it is the burden of the state to prove otherwise.  For individuals above the score of 65 (65-70/75 range), the burden of proof of ID/MR then shifts to the defendant.

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, Weston v Arkansas 2006

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

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, TOMM, Test of Memory and Malingering

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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