PEBS Neuroethics Roundup (JHU)

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http://kolber.typepad.com/ethics_law_blog/2012/11/pebs-neuroethics-roundup-jhu-2.html

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Atkins MR/ID Court Decision: Lewis v Thaler (2012, TX)

A new decision in Lewis v Thaler (2012). Prior Lewis court decisions are here.

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AP 101 Brief #18: Misunderstanding and misuse of achievement test scores in Atkins MR/ID death penalty cases: Part 2--Range of expected grade equivalents

AP 101 Brief #18:  Misunderstanding and misuse of achievement test scores in Atkins MR/ID death penalty cases:  Part 2 -- Range of expected grade equivalents

Kevin S. McGrew, PhD.

Institute for Applied Psychometrics (IAP)

            In Part 1 of this AP 101 Brief Report (AP 101 Brief #17:  Misunderstanding and misuse of achievement test scores in Atkins MR/ID death penalty cases:  Part 1 -- Range of expected standard scores), the 95% confidence band around the expected/predicted achievement standard score for an individual with an IQ of 70 was calculated to be 36 points (+18), assuming a correlation between IQ and achievement tests of .75.[1]  The point-specific expected/predicted achievement standard score (that accounted for regression-to-the-mean) was 78 (+18; 60 to 96 95% confidence band for expected/predicted scores).  If the reader has not read the first installment in this series, I strongly recommend you stop reading the current brief and read the first brief.  Part 1 provides considerable background information upon which this second part in the series is based.  Below is the visual-graphic summary of Part 1 of this series. [Click on all images to enlarge them for better viewing]

            In Part 2 of this series, the expected/achievement score of 78, as well as the expected range (@ 95% confidence) of standard scores of 60 to 90 are converted to grade equivalents (GE) for Broad Reading, Math and Written Language at ages 25, 35, and 45 years of age in the WJ III NU norm data.  The following general procedure was followed by accessing the WJ III norm tables.  The WJ III NU norm tables were used as they provide data-based values associated with expected standard scores (and GEs) and not values based on prediction equations not based on real data or statistical simulations.

·         For each of the three WJ III achievement clusters, the specific WJ III  W-score[2] associated with a standard score (based on age norms) of 78 was identified.  This W-score was then entered in the WJ III NU grade norm tables to identify the specific GE associated with the W-score.  This step was repeated for the lower (60) and upper (96) standard scores of the 95% confidence band scores—resulting in GE values for both standard scores for each of the three achievement clusters.  This resulted in three GE values at each of the three selected age groups (GE for achievement SS = 78; GE for achievement SS = 60; GE for achievement SS = 96).  These three sets of values were then plotted on graphs and lines connecting each corresponding GE/SS value connect.

The three resulting figures are presented below.  The Broad Reading figure is discussed with the general interpretation being the same for Broad Math and Written Language, although the specific GE values in each figure should be substituted for those discussed with regard to Broad Reading. [Click on images to enlarge for better viewing].

            The Broad Reading GE values associated with the expected/predicted SS of 78 is 5.5 (25 years of age), 4.1 (35 years of age), and 4.4 (45 years of age)—ranging from the beginning of 4^th grade to the middle of 5^th grade.  This is the bold middle line.  The Broad Reading GE values associated with the expected/predicted SS of 60 is 3.0 (25 years of age), 2.0 (35 years of age), and 2.7 (45 years of age).  This is the bottom line in each figure.  The Broad Reading GE values associated with the expected/predicted SS of 96 is 10.9 (25 years of age), 11.2 (35 years of age), and 11.4 (45 years of age).  This is the top line in each figure.

             Thus, for a person with an IQ score of 70, the expected WJ II Broad Reading achievement GE’s range between 4.1 and 5.5, depending on age.  However, given the large range of standard scores associated with the 95% prediction confidence band (range of 36 points), it is not surprising that this range, when converted to GE’s, can vary from between 2.0 /3.0 to the end of 10^th grade and the beginning 11^th grade (10.9 to 11.4). 

            A quick review of the figures most likely raises many questions.  For example, why is the distance between the bottom line (GE’s associated with SS=60) and the middle line (GE associated with expected/predicted score of 78) much narrower than the distance between the same middle line and the top line (GE associated with expected/predicted score of 96).  Also, why are the three lines not consistently linear?  The answers to these questions would require excessive detail, statistical explanations, more graphs, etc., that would likely confuse readers.  The answer lies in the fact that (a) standard scores are equal interval metrics and GE’s are not, (b) standard scores are partially derived from the standard deviation (SD) of the W-scores at each age within each achievement domain, and these values are not the same across achievement domains nor across ages, and (c) W-score growth score curves show differential rates of rapid growth during the early ages/grades, then a plateau, and then a much slower rate of decline.  Enough said.

Summary

            Similar to the conclusion from Part 1 of this report, which dealt with expected standard scores, the expected range of GE’s for adults (ages 25 to 45) with an IQ of 70 can, for some individuals, vary tremendously.  The presence of some achievement scores significantly above expectations for an IQ associated with mild MR/ID (70), possibly into the junior and senior high grade levels, are possible when the less-than-perfect correlation between IQ and achievement scores is acknowledged.  One must recognize that although correlations in the .70’s are high and statistically significant, they indicate that IQ scores can only account for up to approximately ½ (50% of tested achievement scores).[3] 

Too many lay persons and, unfortunately many educators and psychologists, have fallen prey to the IQ-Ach fallacy, which is the non-science based assumption or belief that individuals can only achieve at or below their measured achievement.  The appropriate scientific fact is that for any IQ score there is a symmetrical range of possible expected achievement scores which, whether reported in terms of standard scores or GE’s, can be large.  Achievement scores that are above predicted levels based on measured IQ scores will occur with some degree of regularity for individuals with mild MR/ID and should not be incorrectly interpreted as a knee-jerk indication that a person may not considered for diagnoses as MR/ID, assuming they meet all relevant criteria or prongs.

Finally, the all the calculations in Part 1 and 2 of this series are based on the WJ III NU norm data.  The extent to which the results, especially the GE results, generalize to other achievement tests is unknown.  However, I am reasonably confident that although the specific GE's that would be obtained by completing the same methods with the norm data from different achievement tests (e.g., WIAT series) might vary slightly, the overarching conclusion that  "achievement scores that are above predicted levels based on measured IQ scores will occur with some degree of regularity for individuals with mild MR/ID and should not be incorrectly interpreted as a knee-jerk indication that a person may not considered for diagnoses as MR/ID, assuming they meet all relevant criteria or prongs" would generalize. 

[1] If a lower level of IQ/ACH correlation is assumed then the range of expected standard scores (Part 1 report) or grade equivalents (GE) will be larger.

[2] The WJ III scales are based on Rasch Item Response Theory (IRT) scaling methods that results in raw scores being converted to the equal interval W-score growth metric, which is then used to calculate all derived scores (AE, GE, SS, etc.)

[3] This percent figure represents the coefficient of determination which is calculated by squaring a correlation (e.g., r = .70 squared is .49) and then multiplying the value by 100% (thus, 49%).

AP 101 Brief # 17: Misunderstanding and misuse of achievement test scores in Atkins MR/ID death penalty cases: Part 1--Range of expected standard scores

AP 101 Brief #17:  Misunderstanding and misuse of achievement test scores in Atkins MR/ID death penalty cases:  Part 1 -- Range of expected standard scores

Kevin S. McGrew, PhD.

Institute for Applied Psychometrics (IAP)

Individually administered comprehensive intelligence tests (IQ) demonstrate strong and significant correlations with individually administered achievement tests (ACH).  However, the magnitude of the IQ/ACH correlation is not at the level that allows for precise prediction of expected achievement for individuals.  Unfortunately, many educators, lay persons, and psychologists have a false understanding of the IQ/ACH relationship—what I call the IQ-ACH fallacy.  The IQ-ACH fallacy can be misunderstood and misused in the diagnosis of MR/ID.  The goal of this IAP Applied Psychometrics Brief report (which will be a 2 or 3 part series) is to educate professionals and non-professionals on the scientific evidence regarding IQ/ACH relations.  The focus is on Atkins MR/ID contexts, but the information is relevant to all situations where IQ and ACH test scores are compared.  I have previously written about this topic at the ICDP blog (that prior post may be worth reading before reading the rest of the current brief report - Can a mild MR/ID person fail to be formally diagnosed before the age of 18? Do Forrest Gump's exist?)

What is the typical correlation between IQ and achievement test scores?

First, what is the typical correlation between measured IQ and ACH?  I have frequently seen a value of .50 referenced for adult populations and values from .60 to .65 for school-age populations.  I decided, given that most IQ tests have been revised as per contemporary neurocognitive and psychometric (CHC theory) research during the past 25 years, that these correlations needed to be re-verified or revised. 

  

Given the current focus on adult forensic settings (Atkins cases), I turned to the WAIS-IV technical manual.  Table 5.13 (page 87) reports correlations between the WAIS-IV scales and achievement scales from the WIAT-II in a sample of 93 subjects.  The WAIS-IV FS IQ correlated .76, .84, and .65 with the WIAT-II Reading, Mathematics, and Written Language Composites.  Given the small sample size of this validity study (n = 93), I, as a coauthor of the WJ III, was able to access the norm data of the WJ III Battery (NU norms) and calculated the correlation between the WJ III NU General Intellectual Ability—Standard (GIA-Std) and the WJ III NU Broad Reading, Math, and Written Language clusters in adults from ages 20 thru 45 (sample sizes ranged from 733 to 751 subjects).  Correlations were .74, .68, and .71 between the WJ III GIA and WJ III Broad Reading, Math, and Written Language clusters.  These WJ III IQ/ACH correlations were similar to those for the WAIS-IV/WAIT-III ACH correlations.  Taking all six correlations together, I calculated the average (median) value which was approximately .75.  This .75 value is much higher than the typical .50 to .65 values often cited in the literature.  It is my conclusion that contemporary IQ batteries (e.g., WAIS-IV, WISC-IV, WJ III, Stanford-Binet IV) are better predictors of ACH (than their earlier counterparts) and the typical IQ/ACH correlation used in adult (Atkins) settings should be approximately .70 to .75.

When predicting ACH scores from IQ scores, how much error in prediction is present?

Given that the most common IQ/ACH analysis is to determine if a person’s measured ACH scores are within the expected range for a person’s measured IQ, I next calculated the Standard Error of Estimate (SEest) for each of the six correlations measured above (ranged from 8.2 to 11.4).[1]  In simple terms, when using a specific correlation between two variables to predict one variable from the other, there will be error in the prediction.  More importantly, this error, just like the SEM around a single score, is in the form of a normal distribution with a mean (zero is the average or mean IQ/ACH expected differences) and standard deviation of predicted/expected scores.  This SD of expected or predicted scores is the SEest.  I then calculated the median SEest of these six values and obtained a value of 9.15 points, which I rounded to 9 points (for ease of computation and discussion). 

An SEest of 9 means that for any specific IQ score there is an expected/predicted score that has a 68% confidence band of prediction of + 9 points (from 9 points lower to 9 points higher than the expected/predicted score).  The 95% prediction confidence band is twice the 68% value—18 points.  Thus, if one wants to use a 95% confidence band, which has become the accepted standard of precision in life or death Atkins cases, then a person’s expected/achievement achievement score needs to be bounded by a range of scores from 18 points lower to 18 points higher—a span of 36 standard score points!

What is the range of expected/predicted achievement scores (in standard scores) for a person with an IQ of 70?

For illustrative purposes, I took an IQ score of 70 as a hypothetical person’s measured IQ.  Using the IQ/ACH correlation of .75 (and assuming both the IQ and ACH score are on a standard score scale with M = 100, SD = 15), I then calculated an expected/predicted ACH score, a calculation that must take into account the phenomena of regression to the mean (see Cahan et al., 2012 for detailed discussion of history and critical analysis of IQ-ACH regression procedures).   This calculation is of the form [(IQ-100) x IQAch r] +100.  Thus, [(70-100) x .75] +100 = 77.5 (rounded to 78 for discussion purposes).  Thus, for a person with an IQ of 70, the best single point estimate of their expected achievement is a standard score of 78.

This expected/predicted score of 78 must now be bracketed with the 95% SEest (+ 18).  This produces a 95% confidence band of expected/predicted ACH standard scores from 60 to 96!  This means that individuals with mild MR/ID (in this case IQ = 70) can obtain achievement standard scores well below their measured IQ score (with 95 % confidence down to as low as 60).  More importantly, and often misunderstood and misused in MR/ID determination, individuals with mild MR/ID (defined here as an IQ of 70) can, when using a 95% prediction confidence band and accounting for regression to the mean effects, obtain ACH standard scores up in the normal range (low average).  Of course, most expected/predicted achievement scores will bunch around the point-specific predicted score of 78 in the same manner that scores bunch around the mean in a normal curve.)  

Thus, ACH standard scores (based on a psychometrically sound individually measured ACH test) can be significantly higher than an individual’s IQ score, due to the less than perfect correlation between IQ and ACH.  For further explanation and detail review see McGrew and Evans (2004).  The presence of ACH test standard scores above a person’s measured IQ score, when that IQ score is in the mild MR/ID range, should not be used as clear and reliable evidence that the person is not MR/ID.  The IQ-Ach fallacy does not allow for such conclusions.  The only scientifically sound interpretation is that assuming that IQ/Ach test correlate at approximately .75, after the best regression-to-the-mean expected/predicted score is calculated, this score must be bounded by a range of standard scores 18 points lower and 18 points higher (95% confidence band of prediction/estimation).

Summary

            The essence of the above information is summarized in the figure below.  [Click on the figure to enlarge]

What about the range of expected grade equivalents?

            In the next installment of this series, the above hypothetical scenario will be presented in the form of range of expected (95% confidence) grade equivalent (GE) scores.  Given the unequal interval characteristics of GE’s and the non-linear growth curves of cognitive and achievement abilities, the results may shock many professionals and non-professionals.  Stay tuned.

---

[1] A brief description and the relatively simple formula for calculating the SEest is available in Anastasi and Urbina (1997).

"Neuroscience, PTSD, and Sentencing Mitigation"

The title of this post is the title of this notable new article by Professor Betsy Grey just published in the October 2012 issue of the Cardozo Law Review. Here is how the piece's introduction starts and ends:

Recent years have seen an increasing acceptance of a link between Post Traumatic Stress Disorder (PTSD) and criminal behavior, both in the general populace and in the criminal justice system. The link appears to be most widely accepted in the case of military combat veterans.  Lawyers and scholars have called for use of PTSD related to military service both as a defense to criminal charges and as an argument for reducing the sentences of convicted military veterans.  Courts are generally more hospitable to military veteran PTSD claims at sentencing than as a defense at trial....

This Article proceeds in four parts.  Part I discusses the anxiety disorder of PTSD, highlighting legislative and judicial developments, as well as the federal sentencing guidelines, concerning the use of PTSD in criminal sentencing proceedings involving veterans and battered women.  It looks at these two areas against a backdrop in which courts generally hesitate to give weight to PTSD mitigating evidence.  In Part II, this Article reviews different theoretical justifications of mitigation use in sentencing and how those justifications apply in the context of PTSD.  Part III examines advances in neuroscience research that have begun to shed light on the biological basis of the harm suffered when an individual is exposed to extreme stress and explores whether those advances justify changes in our thinking about PTSD mitigation.  In conclusion, the Article suggests that advances in neuroscience research may cause lawmakers and judges to clarify policies on the use of PTSD in sentencing and proposes other limiting principles that should be considered.  In our efforts to recognize PTSD as a mitigating factor, we should identify whether we are concerned with the source of the traumatic event (e.g., from one's military or combat service), or simply that the defendant has manifested PTSD symptoms.  Addressing this question may lead to a more principled and consistent approach to the use of this evidence in sentencing.

http://sentencing.typepad.com/sentencing_law_and_policy/2012/11/neuroscience-ptsd-and-sentencing-mitigation.html

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2013 Law & Society Association CrimProf Shadow Conference

It is my pleasure to promote the efforts of Professors Carissa Byrne Hessick and Dan Markel to give criminal law professors an extra special reason to participate the Law and Society Annual Conference. Here is the pitch via Professor Hessick:

The LSA conference will be taking place from May 30 to June 2 at the Boston Sheridan in Boston, MA. Some background and the call for participation can be found here.

For the last few years, criminal law and criminal procedure professors have used the LSA conference to host a shadow conferences on criminal justice topics. This year Dan Markel (Florida State) and I will once again organize both paper panels and book panels with a criminal justice theme.

The paper panels will cover a range of subjects. Those panels are designed to match up people working in similar areas. Past panels have covered topics such as substantive criminal law, investigative criminal procedure; adjudicative criminal procedure; punishment theory; race, class, and gender themes in criminal justice; white collar issues; privacy and criminal law; juvenile justice, and sex crimes. We will do our best to match you up with other people working in relatively similar areas so that there are more synergies among panelists than would likely result if you were to submit a paper proposal directly to the LSA people. In addition, by participating in a paper panel, you'll receive the feedback of other panelists (we ask all paper presenters to circulate their drafts in advance to the other panelists with the understanding that all panelists give each other feedback). This is a great way to have more in-depth connections with scholars working in your area.

In addition to paper panels, we are also open to organizing a sessions on book manuscripts. If you are working on a book manuscript and would like to have a few people give you feedback in advance of publication, let us know, and let us know who you might be interested in reading that manuscript and discussing it at LSA. If you are interested in an author-meets readers panel for an already published book, let us know about that too.

We would also like to identify people who are interested in serving as moderators or discussants for our various panels. So if you plan to attend the conference and you are not necessarily interested in presenting your own work, please consider contacting us to volunteer to serve as a moderator or discussant.

In sum, if you're interested in participating in this shadow conference, there will be a variety of opportunities for you to present your own work or serve as a discussant or moderator of book or paper panels. Please note LSA has a stringent participation policy. Generally you are limited to only ONE participation as a paper presenter OR a roundtable participant for the entire conference. If you plan on being involved with the shadow conference, you must let us know if you are contemplating any other participation with the LSA conference so we can make sure you will not jeopardize our panel formation efforts. We will assume that, unless you tell us otherwise, you are using your "one substantive participation" with us. But if you are slated for something else, but still want to be a moderator or discussant, let us know, as we might be able to work that out with the LSA folks.

If you would like to participate in the Shadow Conference in Boston: By November 19th, please send an email to me and Dan with the subject line "LSA 2013 CrimProf Shadow Conference." That email should include: (a) an expression of interest; (b) an indication of whether you would like to participate in a book or paper panel; (c) a description of your topic (an abstract would be preferable); (d) whether you are also available to serve as a moderator or discussant; (e) any limitations on the dates of your availability during the LSA; (f) if necessary, a heads up if you are contemplating participation on another LSA panel.

Shortly after November 19, we will get back to you all with a list of folks who will be your co-panelists. You'll have to each register with LSA but we will assign a panel organizer who will oversee the logistics and ensure things go smoothly. In other words, Dan and I basically serve as matchmakers for the panels, and we also do some interfacing with LSA's Judy Rose to make sure the panels will not conflict with each other.

Please do not sign up to participate in the shadow conference unless you will definitely attend the LSA conference. (The LSA folks get kind of annoyed with us if our participants drop out. And each time a panelist drops out, it raises the possibility that LSA will force us to cancel the panel.)

Feel free to contact me and Dan with any questions.

http://sentencing.typepad.com/sentencing_law_and_policy/2012/11/2013-law-society-association-crimprof-shadow-conference.html

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Article: National Academies Report Says Teen Neurology Should Shape Juvenile Justice Reform Efforts

National Academies Report Says Teen Neurology Should Shape Juvenile Justice Reform Efforts
http://jjie.org/national-academies-report-says-teen-neurology-should-shape-juvenile-justice-reform-efforts/98667

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Reforming Juvenile Justice: A Developmental Approach

http://www.nap.edu/catalog.php?record_id=14685&utm_medium=etmail&utm_source=The%20National%20Academies%20Press&utm_campaign=NAP+mail+new+11.13.12&utm_content=Web&utm_term=

Criminal Minds: Use of Neuroscience as a Defense Skyrockets - US News and World Report

I saw this article when reading The Brain Clock "Times" on the Paper.li Mobile Edition and thought you might be interested:

Criminal Minds: Use of Neuroscience as a Defense Skyrockets - US News and World Report

Criminal defense lawyers are increasingly using brain scans and other neurological evidence to defend their clients, according to a new study. Neuroscience advances in recent years haven't gotten t...
Read the full article on usnews.com

"Lie-Detection, Neuroscience, and the Law of Evidence" - Neuroethics & Law Blog

I saw this article when reading The Brain Clock "Times" on the Paper.li Mobile Edition and thought you might be interested:

"Lie-Detection, Neuroscience, and the Law of Evidence" - Neuroethics & Law Blog

"Lie-Detection, Neuroscience, and the Law of Evidence" FREDERICK SCHAUER, University of Virginia School of Law This paper, prepared for the "State of the Art" Law and Neuroscience Conference at the...
Read the full article on kolber.typepad.com

Brain Trials: Neuroscience Is Taking a Stand in the Courtroom - ABA Journal

http://www.abajournal.com/mobile/mag_article/brain_trials_neuroscience_is_taking_a_stand_in_the_courtroom/

Article: Top-Ten Recent SSRN Downloads

Top-Ten Recent SSRN Downloads
http://lawprofessors.typepad.com/crimprof_blog/2012/11/top-ten-recent-ssrn-downloads.html

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Article: "Lie-Detection, Neuroscience, and the Law of Evidence"

"Lie-Detection, Neuroscience, and the Law of Evidence"
http://kolber.typepad.com/ethics_law_blog/2012/11/lie-detection-neuroscience-and-the-law-of-evidence-.html

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BOOKS: "The Death Penalty In a Nutshell"

The fourth and latest edition of Victor Streib's "The Death Penalty in a Nutshell" is now available.  The book discusses substantive and procedural law of capital cases, along with relevant history, jurisprudence and constitutional law. Streib also addresses international issues, the complex role of defense counsel, systemic bias, and execution of the innocent. The new edition also provides analysis of emerging trends in the death penalty: fewer states have the death penalty on the books, even fewer capital offenders are being sentenced to death, and fewer yet are being executed.

(V. Streib, "The Death Penalty in a Nutshell, 4th Edition," October 2012.  See Books.

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Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 473 The Curious History of Fourth Amendment Searches Orin S. Kerr, George Washington University - Law School, Date posted to database: October 1, 2012 2...

http://lawprofessors.typepad.com/crimprof_blog/2012/10/top-ten-recent-ssrn-downloads-3.html

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Article: Top-Ten Recent SSRN Downloads

Top-Ten Recent SSRN Downloads
http://lawprofessors.typepad.com/crimprof_blog/2012/10/top-ten-recent-ssrn-downloads-2.html

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Atkins MR/ID Court Decisions: Pruitt v Wilson (IN, 2012) Tarver v Thomas (AL, 2012)

Two new Atkins court decisions. Thanks to Kevin Foley for sending these.

Tarver v Thomas (AL, 2012).

Pruitt v Wilson (IN, 2012). Two prior decisons regarding Pruitt can be found here.

 

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Article: Will Neuroscience Radically Transform the Legal System?

Will Neuroscience Radically Transform the Legal System?
http://www.slate.com/articles/technology/future_tense/2012/10/fmri_in_court_neuroscience_may_change_the_legal_system.html

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Forensic psychology competencies: New article from Professional Psych-Research and Practice

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Article: MENTAL ILLNESS: Federal Court Stays Texas Execution Because of Inadequate Hearing

MENTAL ILLNESS: Federal Court Stays Texas Execution Because of Inadequate Hearing
http://www.deathpenaltyinfo.org/mental-illness-federal-court-stays-texas-execution-because-inadequate-hearing

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Today’s transcripts

The transcript in Tibbals v. Carter is here.

The transcript in Ryan v. Gonzales is here.

In association with Bloomberg Law

http://feedproxy.google.com/~r/scotusblog/pFXs/~3/1ypplOhyYpg/

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Article: Argument preview: Sorting out competency : SCOTUSblog

Argument preview: Sorting out competency : SCOTUSblog
http://www.scotusblog.com/2012/10/argument-preview-sorting-out-competency/

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Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 518 Jay-Z's 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps Caleb E. Mason, Southwestern Law School, Date posted...

http://lawprofessors.typepad.com/crimprof_blog/2012/10/top-ten-recent-ssrn-downloads.html

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Article: SUPREME COURT: Justices to Consider Whether Death Penalty Appeals Can Continue When Defendant Is Incompetent

SUPREME COURT: Justices to Consider Whether Death Penalty Appeals Can Continue When Defendant Is Incompetent
http://www.deathpenaltyinfo.org/supreme-court-justices-consider-whether-death-penalty-appeals-can-continue-when-defendant-incompeten

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APA Speciality Guidelines for Forensic Psychology now available via American Psychologist

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Article: Brain-Damaged Man Wins New Trial In Two-Decades-Old Killing

Brain-Damaged Man Wins New Trial In Two-Decades-Old Killing
http://www.npr.org/blogs/thetwo-way/2012/10/02/162125183/brain-damaged-man-wins-new-trial-in-two-decades-old-killing

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Article: Top-Ten Recent SSRN Downloads

Top-Ten Recent SSRN Downloads
http://lawprofessors.typepad.com/crimprof_blog/2012/09/top-ten-recent-ssrn-downloads-4.html

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Article: Intellectual Disability Often Not Inherited

Intellectual Disability Often Not Inherited
http://www.disabilityscoop.com/2012/09/27/intellectual-disability-not-inherited/16538/

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Guest post: The 10th Circuit COA Creates More Holes in the Atkins Safety Net: Nancy Haydt, J. D. on Hooks v Workman

This is a Guest Post by Nancy Haydt, J. D. re: Hooks v. Workman  Nancy Haydt is an attorney practicing in California and Colorado. Her research includes a nation-wide database of Atkins cases.  As per the typical policy of the ICDP blog, I post guest posts "as is" without comment.  The only additional information I am providing are links to all court related decisions (I could locate) for this case (2005, 2010, 2012a, 2012b)  

The 10^th Circuit COA creates More Holes in the Atkins Safety Net

by Nancy Haydt, J.D.[i]

Hooks v. Workman, --- F.3d ----, 2012 WL 3140916 (C.A.10 (Okla.), 8/3/2012.

In August, the Tenth Circuit Court of Appeals (COA) granted a habeas corpus petition’s claim of ineffective assistance of counsel, and, at the same time, created bad law for current and future 10^th Circuit defendants and petitioners claiming mental retardation per Atkins v. Virginia, 536 U.S. 304 (2002). In one fell swoop, the 10^th Cir. COA barred IQ score adjustment for the Flynn Effect, discredited any meaningful application of the Standard Error of Measurement, accepted the KBIT as a valid measurement of intelligence for Atkins purposes, and adopted the principle that adaptive functioning is defined by weighing adaptive weaknesses against adaptive strengths.

In Hooks, the Court of Appeals took the position that the AAIDD’s definition of mental retardation is appropriate for clinical application, but the AAIDD’s recommended diagnostic procedures are not binding in legal proceedings. Hooks greatly undermines the scientific and clinical basis of the diagnosis of mental retardation. Hooks widens the ever-expanding gap between science and the science-like proceedings created by the judiciary which will determine the fate of many Atkins clients.

Legal Proceedings

In 1989, Victor Wayne Hooks was tried and convicted by a jury of the capital murder of his pregnant wife and their unborn child. He was sentenced to death. In 2004, an Atkins hearing was tried before a jury. Evidence was presented of IQ test scores ranging from 53 to 80.

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

Experts for the prosecution and defense agreed that some test scores were probably unreliable. These so-called “experts” also agreed that Hooks’s most reliable scores were the K-BIT and the 1994 WAIS-R. There was testimony that the scores from many tests could be adjusted downward for norm-obsolescence, but neither defense expert was willing to endorse adjustment for the Flynn Effect. Defense experts testified that Mr. Hooks’s IQ “was in the gray area” of subaverage intelligence, but was “most likely mentally retarded.” In light of such underwhelming defense testimony, it was not surprising that the jury found that Hooks did not prove that he had sub-average intellectual functioning.

Defense evidence showed Mr. Hooks’s adaptive limitations from early childhood to his present functioning in custody. Through their experts, they painted the picture of a child who was developmentally delayed, placed in special education classes and diagnosed as mentally retarded while still in grade school. Mr. Hooks’s limitations in communication, social skills, work, self-direction and academics were documented and extensive. The prosecution presented evidence of criminal behavior as evidence of adaptive functioning. That evidence, along with Hooks’s ability to drive, his ability to have children, his daily reading of the bible, and his letters to his daughters was the prosecution’s case against adaptive limitations. The trial court refused to instruct the jury that intellectual disability is defined by a person’s limitations, and not by his strengths. With no expert evidence lending understanding to the concept of adaptive behavior, the jury found that Hooks did not prove that he had limitations in adaptive functioning. The jury found that Mr. Hooks did not have mental retardation.

On appeal Hooks’s conviction and death sentence were affirmed. The jury finding that Hooks did not have mental retardation was affirmed.

On Habeas Corpus: Failure to Establish Scientific Structure for a Clinical Determination of MR

The habeas corpus petition in Hooks contained few references to current scientific source material. They contain no references to the AAIDD User’s Guide or standards of practice. There was no evidence in the habeas record, either by testimony or affidavit, from scholars in the field of intellectual disability. The scientific basis of MR assessment, including psychometric issues and standards of practice, was never entered into evidence by expert testimony or affidavit. The COA was presented no clinical structure for making a reasonable determination of mental retardation. This vacancy of structure gave the COA carte blanche to create their own definition of mental retardation and their own standard for diagnosis.

Binding precedent for the 10th Circuit

Among the damaging holdings are:

 “[T]he Flynn Effect, whatever its validity, is not a relevant consideration in the mental retardation determination for capital defendants." Also, “Atkins does not mandate an adjustment for the Flynn Effect. Moreover, there is no scientific consensus on its validity.”

The K-BIT is a valid measure of intelligence for Atkins purposes.

For legal purposes, Atkins does not require that determination of mental retardation be “based solely on deficiencies to the exclusion of strengths”. The AAIDD definition is a clinical standard, not a legal standard. “[W]hether the legal standard is satisfied depends upon the facts: What is a given defendant able and unable to do? Both strengths and deficiencies enter into this equation because they make up the universe of facts tending to establish that a defendant either has ‘significant limitations’ or does not.”

The SEM supports the concept that “a rational trier of fact could conclude from this evidence that Mr. Hooks indeed functions at a sub-average intellectual level, but it could also rationally draw the conclusion that he does not.”

Hooks sets a bad precedent for 10^th circuit defendants and petitioners who assert protection from the death penalty under Atkins. With Hooks in the 10^th Circuit, and In re Briseno, 135 S.W.3d 1 (Tex.Crim.App.2004),  in Texas, we are seeing an ever widening gap between legal and clinical standards for the determination of mental retardation.

Good News for Mr. Hooks; Bad News for 10^th Cir. Atkins Defendants

The COA granted Mr. Hooks’s claim of ineffective assistance of trial counsel in the sentencing phase of his case. The COA determined that Mr. Hooks’s counsel did not prepare or present material in mitigation. The COA did not find that Hooks’s counsel was ineffective in his Atkins proceedings. Barring successful appeal of the Atkins issue to the U.S. Supreme Court, the determination that Mr. Hooks does not have mental retardation is final. It is unlikely that the Atkins proceedings will be appealed.

Mr. Hooks’s case was remanded to state court for a new sentencing hearing. However, current and future 10^th circuit defendants and petitioners now face greater difficulty in proving that they have mental retardation

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[Note: Though “Intellectual Disability” is the term preferred by the AAIDD, the courts still, and almost uniformly, use and refer to “Mental Retardation”.]

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[i] Nancy Haydt is an attorney practicing in California and Colorado. Her research includes a nation-wide database of Atkins cases.

"Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law"

Recently Posted to SSRN: "Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law" Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law, in The Constitution and the Future of the Criminal Law, John Parry & Song Richardson, eds....

http://kolber.typepad.com/ethics_law_blog/2012/09/neurotechnologies-at-the-intersection-of-criminal-procedure-and-constitutional-law-.html

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