UNITED STATES of America v. Paul HARDY, 762 F. Supp. 2d 849

HELEN G. BERRIGAN, District Judge. OPINION I. BACKGROUND...........................................................852 a. The AAMR & DSM-IV-TR

Definitions of Mental Retardation...............852 b. The Expert Witnesses..................................................855 II. ANALYSIS...............................................................856 a. Factor One: Significantly Subaverage Intellectual Functioning...........856 L The Cutoff IQ Score................................................856 2. Hardy’s IQ Score...................................................857 i The Flynn Effect in General....................................857 ii. The Flynn Effect as Applied to Hardy............................863 3.

The Adequacy of Hardy’s Effort......................................867 i. Practice Effects................................................867 ii. Personality Testing............................................870 in. Other Discrepancies ...........................................871 iv. Malingering/Response Bias.....................................873 4. Other Evidence of Hardy’s IQ,........................................875 5. The 1996 Testimony................................................876 b.

Factor Two: Significant Limitations in Adaptive Functioning............879 L The Definition and Assessment of Adaptive Functioning/Behavior.........879 2. Retrospective Diagnosis.............................................881 3. Hardy’s Level of Adaptive Functioning................................882 i. Dr. Swanson’s Assessment......................................885 A. Dr. Swanson’s VABS-II Assessment of Hardy Based on Tony Van Burén ........................................886 B. Dr. Hayes’ Interview with Toni Van Burén...................887 C. Dr. Swanson’s Other Interviews.............................890 D.

Dr. Swanson’s Interviews and Testing of Hardy...............891 ii. Dr. Hayes’Assessment.........................................891 A. Dr. Hayes’ VABS-II Assessment of Hardy Based on Javetta Cooper..........................................892 B. Criticism of Dr. Swanson’s Evaluation........................893 C. Other Evidence of Hardy’s Level of Adaptive Functioning.....894 a. Additional Interviews .................................894 b. Direct Observation....................................895 c. Records and Other Sources.............................896 Hi.

The Court’s Findings of Fact....................................896 c. Factor Three: Onset Before Age 18.....................................903 III. CONCLUSION............................................................904 APPENDIX A..................................................................905 Remaining Reasons Cited by Dr. Hayes for Discrediting Dr. Tetlow’s IQ Test APPENDIX B..................................................................910 Dr. Hayes’ Alternative Sources for Estimating Hardy’s IQ a. School Records........................................................910 b.

Family Data..........................................................911 c. Lay Opinions.........................................................912 d. Demographic Imputation...............................................912 APPENDIX C..................................................................913 Defense Diagnoses in 1996 and Their Similarities to Mild Mental Retardation APPENDIX D..................................................................917 Interviews and Other Information Relevant to Adaptive Behavior a. Dr. Hayes’ Interview with Theresa Minor.................................917 b. Dr.

Hayes’ Interview with Vance Ceaser..................................917 c. Dr. Hayes’ Interview with Greg Williams.................................918 d. Daim Dedeaux Videos..................................................920 e. Hardy’s Telephone Calls from Jail.......................................920 APPENDIX E..................................................................923 Dr. Hayes’ List of Additional Facts Relevant to Hardy’s Adaptive Behavior a. Communication.......................................................923 b. Self Care..............................................................923 c.

Home Living..........................................................923 d. Social/Interpersonal Skills..............................................924 e. Use of Community Resources ...........................................924 f. Self Direction.........................................................924 g. Functional Academic Skills.............................................925 h. Work.................................................................925 i. Leisure...............................................................925 j.

Health & Safety .......................................................925 This matter comes before the Court on a motion for pre-trial determination of mental retardation filed by Paul Hardy ( Hardy”), the defendant in this capital case. An evidentiary hearing was held on September 14-18, 2009, and September 21-23, 2009, and the matter was taken under advisement. Having thoroughly considered the record¡ the eyidence and testimo„ ny adduced at trial, and the law, the Court now issues its opinion. I.

BACKGROUND Hardy stands convicted of two crimes for which the government seeks the death penalty: (1) conspiracy to injure, oppress, threaten and intimidate Kim Groves (“Groves”) and another person in the right to be free from the use of unreasonable force by one acting under color of law and in the right to provide information to law enforcement authorities about a federal crime, resulting in the death of Groves, in violation of 18 U.S.C. § 241; and (2) deprivation of Groves’ civil rights in violation of 18 U.S.C. § 242 and 2.

Hardy claims that he is mentally retarded and is therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and the Federal Death Penalty Act, 18 U.S.C. § 3596(c). The propriety of determining the issue before the Court without a jury and pre-trial is uncontested, as is Hardy’s burden of proof by a preponderance of the evidence. a. The AAMR & DSM-IY-TR

Definitions of Mental Retardation Mental retardation is a developmental disability, the definition of which the Court derives from the two sources recognized by the Supreme Court in Atkins: The American Association on Mental Retardation (“AAMR”), now known as the American Association on Intellectual and Developmental Disabilities (“AAIDD”), and the American Psychiatric Association (“APA”).

The AAMR/AAIDD defines mental retardation in the 10th edition of its standard reference work as follows: Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18. Mental Retardation Definition, Classification, and Systems of Supports 1 (2002) (“AAMR 10th Edition”).

The definition and diagnostic criteria for mental retardation of the APA is contained in its standard reference work, the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (2000) (“DSM-IV-TR”). It provides in relevant part that a diagnosis of mental retardation requires: A. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning). B.

Concurrent deficits or impairments in present adaptive functioning (i.e., the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, soeial/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety- C. The onset is before age 18 years of age. DSM-IV-TR at 49.

The DSM-IV-TR categorizes mental retardation as mild, moderate, severe, and profound, with a residual category of “mental retardation, severity unspecified.” Id. at 42-44. Mild mental retardation is associated with an IQ of 50-55 to 70-75, and the DSM-IV-TR further describes it as follows: Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of “educable.” This group constitutes the largest segment (about 85%) of those with the disorder.

As a group, people with this level of Mental Retardation typically develop social and communication skills during the preschool years (ages 0-5 years), have minimal impairment in sensorimotor areas, and often are not distinguishable from children without Mental Retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth-grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance and assistance, especially when under unusual social or economic stress.

With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings. DSM-IV-TR at 43. The American Psychological Association’s Division of Mental Retardation and Developmental Disabilities (“Division 33”) echoes this point and further elaborates: People classified with mild MR evidence small delays in the preschool years but often are not identified until after school entry, when assessment is undertaken following academic failure or emergence of behavior problems.

Modest expressive language delays are evident during early primary school years, with the use of 2- to 3-word sentences common. During the later primary school years, these children develop considerable expressive speaking skills, engage with peers in spontaneous interactive play, and can be guided into play with larger groups. During middle school, they develop complex sentence structure, and their speech is clearly intelligible. The ability to use simple number concepts is also present, but practical understanding of the use of money may be limited. By adolescence, normal language fluency may be evident.

Reading and number skills will range from 1st- to 6th-grade level, and social interests, community activities, and self-direction will be typical of peers, albeit as affected by pragmatic academic skill attainment. Baroff (1986) ascribed a mental age range of 8 to 11 years to adults in this group. This designation implies variation in academic skills, and for a large proportion of these adults, persistent low academic skill attainment limits their vocational opportunities. However, these people are generally able to fulfill all expected adult roles.

Consequently, their involvement in adult services and participation in therapeutic activities following completion of educational preparation is relatively uncommon, is often time-limited or periodic, and may be associated with issues of adjustment or disability conditions not closely related to MR. Am. Psychol. Ass’n, Manual of Diagnosis and Professional Practice in Mental Retardation 17-18 (John W. Jacobson & James A. Mulick eds., 1996). The Supreme Court in Atkins recognized that the two “official”

definitions of mental retardation are similar, but left to states the “task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Atkins, 536 U.S. at 317,122 S.Ct. 2242. In doing so, it noted that: [C]linical

definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial.

Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders.

Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. Atkins, 536 U.S. at 318, 122 S.Ct. 2242. The AAIDD recognizes that, with regard to persons with mental retardation or intellectual disabilities (“MR/ID”) in the criminal justice system, some criminal defendants fall at the upper end of the MR/ID severity continuum (i.e. people with mental retardation who have a higher IQ) and [they] frequently present a mixed competence profile!] They typically have a history of academic failure and marginal social and vocational skills.

Their previous and current situations frequently allowed formal assessment to be avoided or led to assessment that was less than optimal. Robert L. Schalock, Et Al., User’s Guide: Mental Retardation Definition, Classification And Systems of Supports — 10th Edition 18 (AAIDD 2007) (“User’s Guide”) (citations omitted).

According to the most recent manual from the AAIDD, Intellectual Disability Definition, Classification, and Systems of Support, 51-52 (2010)(“AAIDD 11th Edition”), the higher IQ mentally retarded are also “more likely to mask their deficits and attempt to look more able and typical than they actually are.” Moreover, “persons with ID typically have a strong acquiescence bias or a bias to please that might lead to erroneous patterns of responding.” b. The Expert Witnesses Three expert psychologists testified at the hearing.

All had the necessary education and credentials to testify as experts in psychology and all had published extensively in their respective areas of interest. They have each received recognition for their work as psychologists, but their professional experience with the mentally retarded varies. The first psychologist, Mark D. Cunningham, Ph.D., was called by the defendant and accepted by the Court as an expert in forensic and clinical psychology. Dr. Cunningham received his bachelor degree with a major in psychology from Abilene Christian College in 1973.

He received his masters and Ph.D. in clinical psychology from Oklahoma State University in 1976 and 1977, respectively. He had an clinical internship at the National Naval Medical Center in 1977-1978, and participated in part-time post doctoral training at Yale University School of Medicine between 1979 and 1981. He is licensed in sixteen states including Louisiana, and he is board certified in clinical psychology and forensic psychology by the American Board of Professional Psychology. Dr.

Cunningham testified that he has performed many mental retardation assessments in a forensic context, including determinations of competency to stand trial, social security eligibility and for Atkins purposes. He has co-authored a paper on Atkins determinations and has testified extensively in federal capital cases. The second expert, Victoria Swanson, Ph.D., was also called by the defendant. Dr. Swanson is a licensed psychologist who was accepted by the Court without objection as an expert in mental retardation.

She has specialized in the field of mental retardation and developmental disabilities throughout her 35 year career. She received her bachelors degree in psychology from the University of Southwestern Louisiana in 1973 and then began working with the intellectually disabled in rural Louisiana. Dr. Swanson received her masters degree from Northwestern State University in 1991, writing her thesis on the Vine-land test, a test of adaptive behavior. She has continued her work in the area of mental retardation and received a Ph.D. in psychology in 1999 from Louisiana State University. She is licensed in Louisiana. Dr.

Swanson testified that she has either performed or supervised approximately 6,000 assessments for mental retardation, and has administered approximately 300 IQ tests a year along with over 10,000 Vineland tests of adaptive behavior. She estimated that less than one percent of those assessments related to litigation in court, and less than that related to an Atkins determination. Numerous awards and distinctions from the AAMR and AAIDD are included on her curriculum vitae, and she has served as the President of the National Psychology Division of the AAMR.

The third psychologist who testified at the hearing, Jill S. Hayes, Ph.D., was called by the government. She received a bachelors degree in psychology from Armstrong State College in 1990, a masters in applied psychology from Augusta State College in 1992, a masters degree in clinical psychology from Louisiana State University in 1995 and a doctorate in clinical psychology with a specialty in neuropsychology and a minor in behavioral neurology from Louisiana State University in 1998.

She did a one-year internship at the Medical University of South Carolina in 1997-1998, followed by a one-year fellowship at Louisiana State University Health Sciences Center in 1998-1999. She is licensed in Louisiana as a neuropsychologist and clinical psychologist, and is licensed as a clinical psychologist in Arizona. Dr. Hayes testified that she has performed about 20 mental retardation assessments and 10 Vineland tests since receiving her license in 1998. She identified at least five articles authored by her that involved some aspect of mental retardation, three of which concerned malingering.

Over the defendant’s objection, the Court accepted Dr. Hayes as an expert in the area of mental retardation based on her publications, education, teaching and court experience. It considered the defense objection as relevant to the weight to be given her testimony regarding mental retardation, not its admissibility. II. ANALYSIS The diagnostic criteria for mental retardation developed by the APA and AAMR contain three essential factors: significantly subaverage intellectual functioning, significant limitations in adaptive behavior, and onset prior to age 18. The Court will discuss Hardy’s showing as to each. a.

Factor One: Significantly Subaverage Intellectual Functioning The first criterion for a diagnosis of mental retardation requires “significant limitations ... in intellectual functioning,” or put another way, “significantly subaverage intellectual functioning.” The APA and AAMR define this to mean an IQ score approximately two standards deviations below the mean of 100, taking into consideration the standard error of measurement for the IQ test used. L The Cutoff IQ, Score Two standard deviations below the mean of the test relevant here would be a score of 70.

That is not, however, the cutoff score typically used, because the APA and AAMR direct that the test’s measurement error must be taken into account when interpreting its result. The AAMR has noted that the standard error of measurement (“SEM”) has been estimated to be three to five points for well-standardized measures of general intellectual functioning. This means that if an individual is retested with the same instrument, the second obtained score would be within one SEM (i.e., ± 3 to 4 IQ points) of the first estimate about two thirds of the time....

Therefore, an IQ of 70 is most accurately understood not as a precise score, but as a range of confidence with parameters of at least one SEM (i.e., scores of about 66 to 74; 66% probability), or parameters of two SEMs (i.e., scores of 62 to 78; 95% probability).... This is a critical consideration that must be part of any decision concerning a diagnosis of mental retardation. As can be gathered from the above, the range typically given for IQ scores is plus or minus four to eight points.

All the experts in this case agree that a score of 75 should be used as the upper bound of the IQ range describing mild mental retardation. Indeed, there is almost universal agreement on this point. The Court therefore finds as a factual matter that a diagnosis of mental retardation requires an IQ score of 75 or less on one of the standard IQ tests. 2. Hardy’s IQ Score Hardy was not given an IQ test until 1996, when — in about a one month period- — he was twice tested using the same standard measure of intelligence (the WAIS-R). Dr. L.

Mulry Tetlow administered the first test in February 1996, which yielded a Full Scale IQ score of 73. The second WAIS-R test was given by Dr. Daniel Martell in March 1996 and yielded a Full Scale IQ score of 76. The government and defense psychologists agree that the first February 1996 test is the most reliable estimate of Hardy’s IQ, assuming adequate effort, because “practice effects” could have artificially enhanced Hardy’s score on the second test.

So, assuming adequate effort was made, Hardy’s score on the most reliable of the two tests of his IQ falls within the range of scores diagnostic of mild mental retardation. “The Atkins Court recognized that IQ scores from 70 to 75 are generally considered to be the cutoff for the intellectual functioning prong of the test for mental retardation.” Wiley v. Epps, 625 F.3d 199, 214 (5th Cir.2010) (citing Atkins, 536 U.S. at 309, 122 S.Ct. 2242).

While that score would be sufficient to satisfy the first criterion for a diagnosis of mental retardation, the Court is not persuaded that Hardy’s score of 73 is the best estimate of his true IQ. Rather, for the reasons that follow, the Court finds that Hardy’s score must be corrected for a phenomenon referred to as the Flynn Effect. i The Flynn Effect in General When a new IQ test is developed, but before it is released for general use, it is given to a large group of people (ideally reflective of the demographics of the population at large) in order to create a standardized norm.

Once those test results are collected, the average or mean score of the group is declared as 100, with a bell shaped curve sloping off on either side reflecting higher and lower intelligence from the average. In order to further categorize the shape of that curve, called a normal distribution, a concept called the standard deviation is used, which here has a numerical value of 15. As noted above, scores below approximately two standard deviations, i.e., 30 points, of the mean of 100 fall into the range associated with mental retardation.

After an IQ test is standardized according to this process it is released for use in the population at large. The scores of those persons subsequently taking the test are determined by comparing their results to the standardized norms. Hence the continuing accuracy of those norms is crucial in assessing the validity of individual test scores. In a series of studies beginning in the early 1980’s, Dr. James R. Flynn determined that IQ test scores have steadily increased over the years. He found this to be true across almost all developed countries and across many versions of the test for IQ.

The cause of this increase is largely unknown, although some speculate that improved socioeconomics, education and even better nutrition have increased the scores, that the test themselves have become more sophisticated, or that perhaps people are simply getting “smarter.” See, e.g., Thomas v. Allen, 614 F.Supp.2d 1257, 1277-78 (N.D.Ala.2009). Dr. Flynn was able to consistently document this phenomenon through comparative studies encompassing many years of data. The amount of the average increase in IQ is approximately three points per decade, or 0.33 points per year.

When a new IQ test is developed, it is standardized through a current population sample, creating a “new” average of 100. Since this new test is normed with a population that has steadily done better (“is smarter”) than the prior generation, the “new” average of 100 is actually “higher” than the old 100. For example, if the old test — normed as it was before the population “got smarter” — were given today, the average score would not be 100, but something closer to perhaps 103.

But when the new test is standardized, that “old 103” must be redefined as the “new 100,” because the average score of the test is defined to be 100. What this means in practical terms is that someone who receives a score of 80 on a test that was normed a decade ago could be expected, on average, to score a 77 on a newly normed test — without any actual change in his intelligence. Respected psychologists have reviewed and accepted Dr. Flynn’s findings. Dr.

Stephen Greenspan is a member of the Ad Hoc Committee on Mental Retardation and the Death Penalty, created by Division 33 of the American Psychological Association, which focuses on mental retardation and developmental disabilities. He admits to being “initially skeptical” of the Flynn Effect, but, after study, he has become “firmly convinced that the use of the Flynn Effect to adjust individual IQ scores is an appropriate, indeed essential, practice.” Echoing Dr.

Flynn, he suggests that correction for “the Flynn Effect is a useful, and valid, method for increasing the likelihood that a psychologist will correctly diagnose MR in someone deserving of that label.” He noted that this is particularly helpful in the case of mild mental retardation, because “mild MR is still a somewhat inadequately defined category.” In a later article, Dr.

Greenspan explained that the purpose of correcting for the Flynn Effect in IQ testing is not to correct for possible changes in actual intelligence in an individual or subgroup but rather to ensure that all individuals (regardless of their demographics) are measured by the same yardstick when being compared to an arbitrary (70 or 75) general population diagnostic criterion. Another psychologist, Dr. J.

Gregory Olley, also a member of Division 33 and chairman of the Ad Hoc Committee on Mental Retardation and the Death Penalty, has concluded that the Flynn Effect is a real phenomenon that must be accounted for. “It is important,” he wrote, “to understand this ‘Flynn Effect’ because a person’s IQ score may be artificially raised if an out of date test is given. A study by Kanaya, et al., indicated that persons with mental retardation may be particularly susceptible to this effect.” The Kanaya Study referenced by Dr. Olley was published in 2003 and dealt with children being evaluated for special education services.

It was an exhaustive survey, spanning 36 years of data and drawing information from thousands of scores on IQ tests across various geographical regions, neighborhoods and socioeconomic statuses. For those children in the borderline intelligence range, their scores dropped on average from a 78.4 on the older test to a 73.9 on the newer test, or a drop of 4.5 points. For those in the mild mental retardation range, their scores dropped even more — from, on average, a score of 64.2 to one of 58.9, or a drop of 5.3 points.

Professional organizations in the field of psychology have taken note of the Flynn Effect as well. The AAIDD, the successor to one of the two organizations whose definition of mental retardation the Supreme Court favorably referenced in Atkins, provides this recommendation to clinicians: 4. Recognize the “Flynn Effect.” In his study of IQ tests across populations, Flynn discovered that IQ scores have been increasing from one generation to the next in all 14 nations for which IQ data existed. This increase in IQ scores has been dubbed the Flynn Effect....

The main recommendation resulting from this work is that all intellectual assessments must use a reliable and appropriate individually administered intelligence test. In cases of tests with multiple versions, the most recent version with the most current norms should be used at all times. In cases where a test with aging norms is used, a correction for the age of the norms is warranted.

For example, if the Wechsler Adult Intelligence Scale (WAIS-III; 1997) was used to assess an individual’s IQ in July 2005, the population mean on the WAIS-II was set at 100 when it was originally normed in 1995 (published in 1997). However, based on Flynn’s data, the population mean on the Full-Scale IQ raises roughly 0.33 points per year; thus the population mean on the WAISIII Full-Scale IQ corrected for the Flynn Effect would be 103 in 2005.

Hence, using the AAMR 2002 System, significant deficits in intellectual functioning of “at least two standard deviations below the mean” the approximate Full-Scale IQ cutoff would be approximately 73 (plus or minus the standard error of measurement). Thus the clinician needs to use the most current version of an individually administered test of intelligence and take into consideration the Flynn Effect as well as the standard error of measurement when estimating an individual’s true IQ score. According to Dr.

Cunningham, the WAIS-III Technical Manual also notes the reality of IQ score inflation because of the Flynn Effect. It gives an inflation rate of about 0.3 points per year after the test is normed, consistent with the rate reported by Dr. Flynn. Deft. Exh. 19 at 3-4. The Handbook of Assessment in Persons with Intellectual Disability acknowledges the significance of the Flynn Effect as well, and the substantial support for its applicability — including in the Borderline and Mentally Retarded range. It specifically recommends that evaluators “seriously consider the Flynn effect” in making a diagnosis.

Finally, and most recently, defense psychologist Dr. Cunningham conducted an extensive literature review, which he later published in a peer-reviewed journal, that found the Flynn Effect is “well-established” and recommends that IQ scores be “Flynn corrected.” The Fifth Circuit has not yet ruled on the validity of the Flynn Effect.

In In re Salazar, a Texas habeas case on federal review, the Fifth Circuit “expressed] no opinion” on the scientific validity of the Flynn Effect or its applicability to individual test scores, because it noted that even if the correction were applied in that case, Salazar’s IQ score would still be above 70, the cut-off used by Texas for Atkins purposes. 443 F.3d 430, 433 & n. 1 (5th Cir.2006).

Similarly, in In re Mathis, another Texas habeas case, the Fifth Circuit again declined to pass on the validity of the Flynn Effect, finding that Mathis’ IQ score of 64 (without a Flynn correction), along with other evidence, made out a prima facie case that he was mentally retarded and therefore able to proceed with a successive habeas petition. 483 F.3d 395 (5th Cir.2007). In an unpublished opinion, Thomas v.

Quarterman, the Fifth Circuit dealt with yet another Texas habeas case that involved the Flynn Effect, but not in a context where it could independently determine the validity of the phenomenon. 335 Fed.Appx. 386 (5th Cir.2009). Rather, the case presented the complex AEDPA question of whether “reasonable jurists would not debate that the state court decision” to reject the Flynn Effect “was reasonably based on the evidence before it.” Id. at 392.

In other instances, the Fifth Circuit has granted certificates of appealability to state habeas petitioners claiming that the state courts erred by not finding them mentally retarded for reasons including the failure of the state’s expert to inform the state courts of the Flynn Effect. Pierce v. Thaler, 355 Fed.Appx. 784, 794-795 (5th Cir.2009) (per curiam) (unpublished); see also Maldonado v. Thaler, 389 Fed.Appx. 399, 403-04 (5th Cir.2010) (per curiam) (unpublished). Several district courts within the Fifth Circuit have dealt more directly with the application of the Flynn Effect. In Butler v.

Quarterman, a state capital habeas case, the district court first acknowledged that Salazar and Mathis “neither accepted nor rejected the validity of the Flynn Effect.” 576 F.Supp.2d 805, 814 (S.D.Texas, 2008). It then noted that in the state court proceeding, the state and defense experts agreed that the Flynn Effect is generally accepted in the psychological community and disagreed only as to how much correction is necessary to account for its effect. The defense expert argued for a correction of .3 points per year, in line with Dr. Flynn’s conclusions. The state’s expert, Dr.

George Denkowski, contended that a correction of only .13 points per year should be applied. As in Thomas, the state court credited the state’s expert and found that Butler was not intellectually deficient. Significantly, the federal district court found that the state court, while correctly identifying the governing legal rule, arguably “unreasonably” applied the rule to the facts of the case. The court specifically found that Dr. Denkowski’s view that only a .13 point per year correction was appropriate for the Flynn Effect was “not supported by other, credible, evidence.” Id. at 816.

While the district court did not grant habeas relief, it did issue a certificate of appealability on the basis that the state court’s ruling on intellectual deficiency “was based almost entirely on ... Dr. Denkowski’s heavily disputed opinions.” In Wiley v. Epps, the district court confronted a situation where the state court had refused to hold an evidentiary hearing on mental retardation at all. 668 F.Supp.2d 848 (N.D.Miss.2009).

The district court granted an evidentiary hearing, and all the experts in that case agreed that the Flynn Effect was accepted by the relevant professional community and “must be taken into consideration in evaluating Petitioner’s scores.” Id. at 894. The district court therefore did take it into consideration and calculated Wiley’s scores both with and without correction for the Flynn Effect. Without correction for the Flynn Effect, three of Wiley’s five prior IQ scores were below the Mississippi cutoff score of 75; with the Flynn adjustment, four of the five fell below. Id. at 895-97.

The district court then concluded that “once all of Petitioner’s IQ scores ... are adjusted for test obsolescence (the Flynn Effect), the confidence interval for each of those tests results overlaps at 68 to 70.” Id. at 898. It then added that, “[e]ven if test obsolescence is not considered,” Wiley had established by a preponderance of the evidence that he suffers from significantly subaverage intellectual functioning. Id. The court went on to find that Wiley was in fact mentally retarded and exempt from the death penalty. The Fifth Circuit Court of Appeals recently affirmed this decision.

Wiley, 625 F.3d 199 (5th Cir.2010). However, it once again declined to pass on the validity of the Flynn Effect, upholding the district court finding that, even without correction for the Flynn Effect, Wiley had significant subaverage intellectual functioning While the Fifth Circuit has not definitively passed on the Flynn Effect, cases from the Fourth and the Eleventh Circuits expressly endorse use of the Flynn Effect, sometimes even requiring it to be considered. E.g., Thomas v.

Allen, 607 F.3d 749, 753 (11th Cir.2010) (“An evaluator may also consider the ‘Flynn effect,’ a method that recognizes the fact that IQ test scores have been increasing over time.... Therefore, the IQ test scores must be recalibrated to keep all test subjects on a level playing field.”); Holladay v. Allen, 555 F.3d 1346, 1350 n. 4, 1358 (11th Cir.2009) (crediting the psychologist that concluded the IQ scores needed to be adjusted for the Flynn Effect); Walker v.

True, 399 F.3d 315, 322-23 (4th Cir.2005) (remanding for an evidentiary hearing in part because the district court “refused to consider relevant evidence, name the Flynn Effect evidence.”); Davis, 611 F.Supp.2d at 488 (“In conclusion, the Court finds the defendant’s Flynn effect evidence both relevant and persuasive, and will, as it should, consider the Flynn-adjusted scores in its evaluation of the defendant’s intellectual functioning.”); Thomas v.

Allen, 614 F.Supp.2d 1257, 1278 (N.D.Ala.2009) (“It also is undisputed that Professor Flynn’s recommendation — i.e., ‘deduct 0.3 IQ points per year [three points per decade] to cover the period between the year the test was normed and the year in which the subject took the test — is a generally accepted adjustment.”); Green v. Johnson, 2006 WL 3746138, at *45 (E.D.Va.2006) (“Considering all of the case law and evidence, this Court concludes that the Flynn Effect should be considered when determining whether Green’s scores fall at least two standard deviations below the mean.

There is sufficient evidence in the record to show the Flynn Effect is recognized throughout the profession.”); see also United States v. Parker, 65 M.J. 626 (NM.Ct.Crim.App.2007). As already noted, Hardy’s score of 73 places him in the range of mild mental retardation after considering the standard error of measurement, and without correcting for the Flynn Effect. Nevertheless, the Court’s obligation is to ascertain the best estimate of Hardy’s IQ.

In light of the substantial evidence supporting the existence of the Flynn Effect, the Court concludes that Hardy’s score of 73 should be corrected to take it into account. ii The Flynn Effect as Applied to Hardy Paul Hardy was given the WAIS-R IQ test in 1996 and obtained a Verbal IQ score of 74, a Performance IQ score of 76, and a Full Scale IQ score of 73. The defense expert, Dr. Cunningham, opined in his report that this score was inflated due to the Flynn Effect. He noted that the WAIS-R was originally normed in 1978, but Hardy took the test eighteen years later.

Applying the inflation rate of .3 points per year, Hardy’s Full Scale score should, according to Dr. Cunningham’s report, be corrected by 5.4 points, to below 68. Dr. Cunningham testified to the same effect at the hearing, reaffirming his belief in the validity of the Flynn Effect, the appropriateness of reducing Hardy’s score to 67.5 or 68 to account for it, and the Flynn Effect’s wide acceptance in scientific circles based on substantial research published in peer-reviewed journals. Dr.

Swanson affirmed that the Flynn Effect “is a well-established statistical phenomenon” and testified that it should be recognized and applied in a retrospective diagnosis, regardless of any lingering controversy in the larger community of psychologists. Deft. Exh. 1 at 5; Rec. Doc. 2125 at 698-699. The government’s expert, Dr. Hayes, agreed that the Flynn Effect exists with respect to those persons of normal intelligence. However, she was skeptical that it applies to persons with IQ scores below 75, like Hardy.

Part of her reasoning was that almost all of the studies that have been done on the Flynn Effect dealt with people in the normal range of intelligence. She did acknowledge that one “really good study” was done with those in the borderline and mentally retarded ranges (the Kanaya Study cited by Dr. Cunningham and discussed earlier in this opinion).

The authors of the study concluded that, on the basis of the means, medians, and regression estimates: [T]he size of the Flynn effect in these groups is very close to Flynn’s (1998) estimate of a 5.3-point difference between the average scores of the older WISC-R and the average scores of the newer WISC-III norms. So, our best estimate is that the Flynn effect falls between 5 and 6 IQ points in the mild MR and borderline ranges, almost exactly the same magnitude that Flynn found in the middle of the IQ distribution. Dr.

Hayes was nonetheless skeptical that these results were transferable to adults because IQ tests geared for children were used. Defense counsel probed this objection at the hearing, first pointing out that those tests are used up to the age of 17 and then asking, “What happens when somebody turns 17 years and one day?” Dr. Hayes denied that she was saying the Flynn Effect would then simply disappear and suggested instead only that more research is needed.

That is, after declaring that the Flynn Effect is “100 percent” applicable to adults within the normal range of intelligence, and is applicable to those 17 years of age and younger who are mentally deficient, Dr. Hayes claimed that the “jury is still out” on whether it is applicable to mentally deficient adults. On rebuttal, Dr. Cunningham relayed a discussion he had with Dr. Flynn regarding Dr. Hayes’ view. Dr.

Flynn “could identify no logical reason why this phenomenon (the Flynn Effect) would exist at age 17 and then suddenly cease to exist simply because someone had moved out of the zone of eligibility for the WISC and into adulthood, where they would be given some rendition of the WAIS.” Moreover, Dr. Hayes candidly acknowledged that “the best researchers in this area all say that, yes, the Flynn Effect holds water in people with mental retardation.” When asked if she was aware that her view on the Flynn Effect is an “outlier position in the profession,” she agreed.

And finally, she testified that “I think my opinion related to the Flynn Effect is not consistent with what the research says in the field.” These candid concessions would be reasons enough for the Court to disregard Dr. Hayes’ opinion on the applicability of the Flynn Effect to Hardy’s score. They are not, however, the only reasons the Court does. Dr. Cunningham noted that research from the first version of the WAIS forward, which includes the WAIS-R, indicates that the Flynn Effect is operative in adults with IQs in the 70 to 75 range.

So, there is in fact published, peer-reviewed research supporting the existence of the Flynn Effect for the test Hardy took and the IQ range in which his score fell. For example, Dr. Cunningham referenced a study by Jean Spuill and Brett L. Beck, which compared performance on the WAIS and the WAIS-R. They gave both tests to 108 people applying for special education services, the average age of whom was 25.5 years. Those in the borderline range of intelligence, which was identified as those having a Full Scale IQ of 70-84, averaged 4.75 points lower on the new test. Dr.

Cunningham also testified about a meta-analysis of 13 studies, involving participants with an average age of 29.5, conducted by Dr. Herman Spitz. While Spitz found that at an IQ level in the lower 60s, the Flynn Effect on the WAIS to the WAIS-R flattened out or even reversed, Spitz also found a clear Flynn Effect in the IQ range of 70 to 75. Hardy scored a 73, which puts him well within the range of people who exhibit the Flynn Effect according to Dr. Spitz’s meta-analysis. Dr. Cunningham also cited a 2007 study by Suzanne Fitzgerald, Nicola S. Gray and Robert J. Snowden.

It compared the scores on the WAIS-R and the newer WAIS-III in the lower ranges of IQ. This is significant as Paul Hardy was given the WAIS-R test, the older test. The researchers gave both tests to 45 individuals with diagnosed learning difficulties. Their scores were on average 4.1 points lower on the new test, which is in line with the predicted Flynn Effect. Dr.

Hayes cited some of the same studies, but claimed that her literature review revealed that “the majority of researchers have found that the Flynn Effect is either smaller in adults with Lower IQ’s or that the Flynn Effect can ‘reverse’ itself in individuals with IQ’s in the mentally retarded range.” To the extent the studies already discussed also support a “reverse” Flynn Effect, they only do so for persons with an IQ too low to be relevant (under approximately 65), while they in fact prove the Flynn Effect exists in the relevant IQ range — Hardy’s range. Several other studies cited by Dr.

Hayes were also performed on people more severely mentally retarded than Hardy, and so are likewise not helpful since Hardy’s score does not fall in those ranges. Of course, if it had, presumably there would have been no dispute at all that he is mentally retarded. To the extent Dr. Hayes claims that Hardy is not mentally retarded, she cannot claim that studies based on people far more mentally retarded than him prove the Flynn Effect does not apply to him. Dr. Hayes’ last two criticisms of the Flynn Effect will be dealt with only briefly.

In the first, she opines that some researchers believe adjusting for the Flynn Effect is unscientific and not supported by the data, citing a 2007

article by George C. Denkowski and Kathryn M. Denkowski. However, the main thrust of that

article is to criticize Dr. Flynn for claiming that the WAIS-III results should not only be adjusted for 0.3 points per year in general, but also adjusted downward an additional 2.34 points because the scores were already inflated as of the time the test was normed. Fortunately, it is not necessary for the Court to enter into that thicket as Hardy did not take the WAIS-III test, but rather the WAIS-R. Dr. Hayes next cited a survey showing that a majority of psychologists did not, at the time of the study, correct IQ scores for the Flynn Effect as part of their regular practice. The survey, by Leigh D.

Hagan, Eric Y. Drogin and Thomas J. Guilmette does in fact make that finding, but the Court does not find it particularly relevant. Regardless of what most psychologists do, the evidence before the Court indicates that correcting for the Flynn Effect is a “best practice” in the field and therefore should be done. In any event, Dr. Swanson testified that the profession recognizes that correction for the Flynn Effect in a retrospective assessment is distinctly appropriate. Rec. Doc. 2124 at 698-99. In response to a point similar to Dr.

Hayes’ that was advanced by the government in Davis, that court responded as follows: The goals of an IQ assessment are dramatically different in the clinical versus the forensic setting. In the clinical context, the purpose of such an assessment is typically to get an accurate picture of the individual’s current functioning so that appropriate systems of support may be devised to assist that individual in everyday living. In most cases, a recentiy-normed instrument will be used for the IQ assessment, rendering unnecessary any Flynn adjustments.

In the forensic context, however, where an individual’s eligibility for a death sentence depends on a somewhat arbitrary numerical cutoff, precision and accuracy in determining that individual’s IQ score, both at present and in the past, become critically important. Eligibility for the death penalty is not a lottery, and a greater effort to achieve accurate results is both necessary and appropriate.

Apart from eligibility for certain entitlement programs, in the clinical setting, the precise value given to an individual’s IQ has very little consequence, so there would be very little gained by adjusting the numerical score to account for changed norms when the clinician could simply take the phenomenon into account when interpreting the scores. 611 F.Supp.2d at 488. The Court finds that the Flynn Effect is well established scientifically and that Dr. Hayes’ skepticism is unpersuasive. Hence, the Court will correct for the Flynn Effect in determining Hardy’s IQ.

The WAIS-R was normed in 1978 and Hardy took the test in 1996, eighteen years later. Applying Dr. Flynn’s formula, Hardy’s score of 73 is in fact a score of 67.06. Applying the same standard error of measurement used above, Hardy’s Full Scale IQ must be said to fall somewhere between 62.06 and 72.06. As already noted, even without the Flynn Effect, and assuming adequate effort, Hardy’s performance on the 1996 IQ test by Dr. Tetlow demonstrates that he has significantly subaverage intelligence and therefore meets the first criterion of the definition of mental retardation. As Dr.

Hayes did not administer her own IQ test to Hardy, the Court must credit Dr. Tetlow’s results unless they cannot be treated as reliable evidence of Hardy’s IQ. Dr. Hayes claims these results are not in fact reliable, citing a number of alleged inconsistencies in Hardy’s performance. The Court now turns to those objections. 3. The Adequacy of Hardy’s Effort Dr. Hayes gives a number of reasons in her report for dismissing the IQ score obtained by Dr. Tetlow.

They can be grouped into three broad categories: (1) the claim that Hardy failed to demonstrate expected practice effects on some tests, indicating a lack of effort; (2) personality testing of Hardy suggests a tendency to malinger; and (3) other miscellaneous discrepancies in the data. The Court discusses each in turn. i. Practice Effects Dr. Hayes noted that Hardy took the WAIS-R test twice within one month, first with Dr. Tetlow and then with Dr. Martell, the government’s psychologist at the time. She testified that Hardy should therefore have obtained a higher IQ score with Dr.

Martell because of the concept of “practice effects.” That is, having already taken the identical test with Dr. Tetlow, Hardy should have done better when he later took it with Dr. Martell. The Court is inclined to agree as a matter of common sense. And, in fact, Hardy did do better with Dr. Martell than with Dr. Tetlow— Hardy’s Full Scale IQ rose, as did his score on seven of the WAIS-R’s subtests. Dr.

Hayes contended this was not sufficient evidence of the expected practice effect, however, as Hardy’s scores decreased on two of the WAIS-R’s subtests — the Picture Arrangement and the Object Assembly subtests — that are the most sensitive to practice effects. The Court first notes that, regardless of how Hardy performed on those two subtests, he clearly demonstrated overall improvement during the testing by the government. That improvement is inconsistent with any malingering strategy and is indicative of adequate effort. Furthermore, as Dr.

Cunningham explained, the two subtests at issue, of Picture Arrangement and Object Assembly, have the lowest reliability rating — or, put another way, the highest standard error of measurement. So, while Hardy’s scores may have declined on those two subtests, they are the most unreliable ones. Meanwhile, his scores improved on the seven more reliable subtests. Moreover, Dr. Cunningham noted that Hardy’s two subtest score declines were still “well within the standard error of measurement” for those subtests. In fact, similar or greater score declines occurred within the normative sample. Dr.

Cunningham explained that expected variations within the normative sample are often set at a 90 percent range, meaning that 90 percent of the standardization sample had variations within that range. He reported that only one of Hardy’s scores was outside the 90 percent variation range of the normative sample, and that one was in a positive direction, consistent with the expected practice effects. Dr.

Cunningham also noted in his report that to the extent that Hardy’s improvement was more modest than that of many others, this is “unsurprising ... given that persons with deficient intelligence may profit less from learning opportunities.” Hence, any reduced practice effect is supportive of a finding of mild retardation. Dr. Hayes mentioned neither the 90 percent range nor the standard error of measurement in her report or in her direct testimony, apparently considering them irrelevant.

When questioned about these two particular subtests on cross-examination, she opined that Hardy’s two score declines were “statistically significant” because his scores were outside one standard deviation of the norming group that took the test.

But when pressed on whether one standard deviation was in fact “statistically significant,” she could not bring herself to answer one way or the other and instead stated that “the fact that he is doing worse when he should be doing better is what you should be focusing on.” The Court finds this reasoning perplexingly circular, because consideration of the standard error of measurement and assessment of whether a change in score is statistically significant is essential in determining whether Hardy did in fact do “worse” in the first place. Dr.

Hayes makes substantially the same kind of argument concerning Hardy’s performance on the neuropsychological testing by Dr. Martell in late March of 1996 and that by Dr. Kevin Bianchini in early April of that year. Dr. Hayes pointed out that, on the Wechsler Memory Scale-Revised, Hardy received an Attention/Concentration Index Score of 80 during Dr. Martell’s evaluation, but scored only 70 two weeks later when assessed by Dr. Bianchini.

From this she concluded that “the reliability and validity of the psychological and neuropsychological assessment data is questionable and is likely an underestimate of [Hardy’s] true abilities.” Yet, exactly as with the two IQ tests, Dr. Hayes again bypassed that test’s standard error of measurement when drawing her conclusions. Dr. Cunningham testified that the variation in Hardy’s score was still within the 90 percent reliability range of the standardization sample. With respect to Hardy’s drop from 80 to 70 on the Attention/Concentration Index of the Wechsler Memory Scale, Dr.

Cunningham had several additional relevant observations. First, the standardization sample for that test was less than 400 people and did not include those in Hardy’s age range, with some scholars recommending the test not be used with individuals in the excluded age ranges. Second, Dr. Cunningham testified that few of the subtests meet “even minimal standards for reliability.” He asserted that, moreover, all of Hardy’s scores were within the applicable standard error measurement.

With respect to the Attention/Concentration Index in particular, he testified it is the most reliable of the various tests, but still subject to a broad standard error of measurement. In fact, according to Dr. Cunningham, Hardy’s Attention/Concentration score of 80 with Dr. Martell had a range of 73 to 90. His score of 70 with Dr. Bianchini fell within a range of 64-81. As the ranges of the two scores substantially overlap, Dr.

Cunningham testified that the score of 70 is not “meaningfully less than an 80.” Put more technically, the “score discrepancy of nine to ten points is well within the 14-point discrepancy at a 95 percent confidence interval,” ergo the difference is “not statistically significant.” The rest of Dr. Hayes’ alleged inconsistencies in Hardy’s neuropsychological testing fall prey to the same problems: There is no evidence of inconsistency, at least using the standard quantitative methods of her field. Dr. Cunningham is hardly an outlier in his use of such methods.

When asked at the first trial about Hardy’s drop in scores on the neuropsychological testing, Dr. Bianchini answered that “there is a normal sort of variability that goes along with these tests. There’s a range within people tend to perform. Someone could, you know, vary within that range and it not be especially significant. So say, for example, if the standard variability on a test is ten points, if somebody is two to three points lower, that’s just statistical fluctuation.” Perhaps Hardy did not benefit from as great a practice effect as others might have. This may indicate, as suggested by Dr.

Cunningham earlier, a “deficient intelligence” in that Hardy may have a lesser capacity to benefit from learning opportunities. Whatever it indicates, the Court has seen no evidence that it indicates Hardy failed to make an adequate effort on the IQ test with Dr. Tetlow. First, other than the two WAIS-R subtests (and Hardy did show overall improvement the second time he took the WAIS-

R) none of the tests Dr. Hayes discusses are tests of intelligence. Moreover, Hardy’s scattershot pattern of improvement and decline on these other tests is not consistent with a rational malingering strategy. The Court sees no reason to assume Hardy failed to make an adequate effort with Dr. Tetlow on the IQ test when no evidence indicates malingering in the other testing data. Second, Dr.

Bianchini himself gave Hardy high marks for effort, noting in his report that Hardy was “reluctant to give up when he could not remember all the correct responses,” as, for example, when Hardy “did not want to move on to the next trial on the RAVLT until he had thought of every possible correct response to the previous trial.” He also concluded that Hardy “appeared to put forth much effort in an attempt to solve each task” and that his scores were a “valid measure of his current level of functioning.” Lastly, as discussed before, each of the inconsistencies Dr.

Hayes claims exist here could, according to the standard understanding in the profession, be due to chance. Dr. Hayes’ overall argument appears to be that test score discrepancies, if enough are present, raise red flags, regardless of whether the differences in scores are statistically meaningful. The Court frankly finds this testimony unsettling, as it evidences a casual attitude towards the science that undergirds IQ testing, and more specifically, the proper statistical

interpretation of the various tests at issue. Based on the evidence in the record on this point, the Court must credit Dr. Cunningham’s succinct criticism: “eyeballing test scores” for discrepancies, as Dr. Hayes did, is not appropriate. ii Personality Testing The next indicator of malingering/response bias identified by Dr. Hayes was Hardy’s results on the Minnesota Multiphasic Personality Inventory-2 (“MMPI2”). Quoting from Dr.

Martell’s report, she stated that Hardy “was inconsistent in answering questions and over-reported his level of psychopathology in an effort to appear more disturbed than he really is.” Unfortunately, the details of Hardy’s MMPI administered by Dr. Martell are no longer available and Dr. Martell did not describe the specific test results that led him to his conclusion. Nevertheless, Dr. Cunningham candidly noted that Dr. Tet-low also administered the MMPI to Hardy and likewise came up with a very elevated score on the same issue. He also agreed that one

interpretation of that elevated score is that Hardy was deliberately exaggerating his pathology. Other explanations include test resistance, situational stress or marginal reading ability. As it turns out, the Court need not delve too deeply into these issues. Dr. Cunningham testified that the standardization group for the MMPI did not include borderline or mentally retarded people. In fact, nearly 75 percent of the group had some college education. For that reason, Dr. Cunningham and a co-author, Dr.

Macvaugh, recently wrote that “[t]he MMPI is not an appropriate instrument for any purpose in the assessment of persons who may be suspected to have mental retardation.” Dr. Hayes agreed that an MMPI is not an appropriate test to give to someone who is mentally retarded. Obviously, the issue is whether in fact Paul Hardy is mentally retarded. If he is, then both Dr. Cunningham and Dr. Hayes agree that the MMPI results are meaningless. Consequently, the assessment of whether Hardy is or not retarded must be made without considering his MMPI. Dr.

Hayes next highlighted Hardy’s results on the The Millón Clinical Multiaxial Inventory-II, administered by Dr. Tetlow in February 1996. According to him, its results “may indicate a broad tendency to magnify the level of experienced illness or a characterological inclination to complain and to be self-pitying ... or may convey feelings of extreme vulnerability, which are associated with a current episode of acute turmoil.” Dr. Hayes included it because it indicated Hardy possibly had a tendency to magnify his psychological problems.

The Court notes that, at the time he took the test, Hardy was incarcerated for the instant capital crimes. Dr. Bianchini noted in his evaluation that Hardy’s brother Wayne had recently been murdered, and that Hardy saw a psychiatrist in prison and was on medication as a result. These circumstances might very well qualify as an “episode of acute turmoil” that may very well have induced “feelings of extreme vulnerability.” But whether or not they do or did, this test, like the MMPI, also requires an 8th grade reading level to comprehend its questions. And, again as with the MMPI, both Dr. Hayes and Dr.

Cunningham agree that this test is not appropriate for people who are mentally retarded. So, the Court finds this test score irrelevant for the same reasons it found the MMPI score to be irrelevant. iii Other Discrepancies Only two of Dr. Hayes’ additional discrepancies deserve much serious discussion. They involve Hardy’s performance on two clinical tests, the Weehsler Adult Intelligence Scale-Revised (WAIS-

R) Digit Span Subtest and the “Serial 7’s” test. Dr. Hayes noted that Hardy could recite a four digit number backwards when tested by Dr. Tetlow using the Digit Span Subtest in February 1996, but when he was asked to do the same task some weeks later for Dr. Bianchini on the Wechsler Memory Scale-Revised, he could only successfully recite two numbers backwards. The Court’s initial reaction to this “discrepancy” is to regard it as de minimis— hardly the kind of evidence needed for the Court to throw out Dr. Tetlow’s IQ test. Dr.

Hayes is correct that Hardy was able to correctly recite a four digit number backwards when Dr. Tetlow tested him, however he was only able to do that one time successfully. A second attempt failed. He was also able to recite backwards two sets of three digits and two sets of two digits. When Dr. Bianchini tested him, Hardy was only able to recite two digits backwards, failing twice at trying to recite three. Worth noting, however, is that even though he failed at reciting three digits backward for Dr.

Bianchini, he actually got all the numbers correct, but in a forward sequence instead of backwards (4-9-3 he recited as 9-3-4 instead of 3-9-4 and 5-2-6 he recited as 2-6-5 instead of 6-2-5). So, for both Dr. Tetlow and Dr. Bianchini, Hardy was able to recite two digits backwards; for Dr. Tetlow he was able to recite three and four digits backwards, and with Dr. Bianchini, he got the three digits correct, but went forward instead of backward.

Noteworthy also is that for the forward digit span test, Hardy’s performance was consistent between the two test sessions as the differences are not statistically significant. In addition, Dr. Cunningham testified that the digit span sub-test is “remarkably sensitive to distraction or preoccupation.” Considering Hardy’s overall performance on this digit span sub-test, the Court finds that Hardy’s mix-up on the three digit backward sequence to be de minimis. Dr. Hayes was also concerned that Dr. Swanson stated that Hardy was unable to count backwards from 100 by sevens, yet he was able to do so with Dr.

Hayes, using his fingers. When Dr. Swanson testified at the Atkins hearing, she elaborated that Hardy first requested to use paper and pencil for the task and she told him no. Dr. Swanson also told Hardy that he could not use his fingers; he had to count in his head. She said that he went six backwards from one hundred, instead of seven, and then said he could not do it. In her hearing testimony, Dr. Hayes testified Hardy was able to complete the task in a minute and fifteen seconds, and that Dr. Cunningham, in his 1996 report, likewise stated Hardy did not have difficulty with the task.

However, as is apparent from the video, Dr. Hayes allowed Hardy to use his fingers in doing the counting. Dr. Cunningham testified that the proper way to do the test is for the person to hold the numbers in their head and subtract, without external props, like counting fingers as Hardy did. In Dr. Cunningham’s opinion, Hardy actually performed “serial ones” for Dr. Hayes because he counted down, one by one, on his fingers through each seven digit sequence.

He did point out that it had diagnostic value in that Hardy needed to use the manual aid to help him, which illustrated his concreteness of thought and is consistent with mental retardation. With respect to his own testing of Hardy in 1996, Dr. Cunningham recorded that Hardy completed the task without error but did so slowly and by calculating out loud, similarly to what he did with Dr. Hayes. Dr. Bianchini also asked Hardy to do the Serial 7’s test and he reported Hardy finished it in 36 seconds. This is significantly shorter than the time that Dr.

Hayes reported, when Hardy used his fingers, and it appears likely that Dr. Bianchini did not have Hardy count below 65, which would account for that discrepancy. His report is silent as to whether Hardy used his fingers or counted aloud. With respect to Serial 7’s, the Court concludes that Hardy is apparently able to complete the task, but only by either counting out loud or using his fingers, and taking considerable time. His performance is consistent. The Court finds the remaining alleged discrepancies cited by Dr. Hayes to be in essence insignificant.

The Court nevertheless feels an obligation to address them given the gravity of the issue before it. Therefore, a discussion of them is incorporated into “Appendix A,” attached to this opinion. iv. Malingering/Response Bias The Court has serious concerns with Dr. Hayes’ treatment of the first substantive issue addressed in her report, “Malingering/Response Bias,” which relates to the adequacy of Hardy’s effort. Dr. Hayes began by citing the DSM-IV-TR’s criteria regarding when malingering should be suspected, which include a medicolegal context and the presence of antisocial personality disorder.

After noting that Hardy was obviously being tested in a medicolegal context, Dr. Hayes spent considerable time in her report and testimony discussing why Hardy could be diagnosed with antisocial personality disorder, even going so far as to present a PowerPoint presentation on the topic. And, Dr. Hayes affirmatively stated in her report that “Markers indicative of malingering were evident in Mr. Hardy’s psychological assessment measures and available records” and then lists as “examples” four pages of these alleged discrepancies in his assessment.

This particular issue caused a significant excursion down an Alice in Wonderland rabbit hole that turned out to be largely unnecessary. Despite clearly indicating by the above that Hardy’s IQ assessment evidenced malingering, Dr. Hayes ultimately stated repeatedly on the witness stand, but unfortunately not until cross-examination, that she did not believe Hardy malingered at all. Dr. Hayes would have been considerably more helpful to the Court had she been similarly forthcoming in her report, and at the outset of her direct testimony.

As it was, the defense spent a considerable amount of time eliciting repetitive evidence, ultimately unnecessary, that the discrepancies cited by Dr. Hayes were not indicative of “malingering” because they charted no logical course of “malingering strategy.” Likewise her testimony regarding whether Hardy met the characteristics of anti-social personality disorder was irrelevant. With respect to the issue of malingering, Dr. Bianehini tested Hardy for it in 1996 with the Portland Digit Recognition Test.

He testified at the first sentencing hearing that Hardy “did fine ... with no indication of malingering.” The government’s psychologist, Dr. Martell, tested Hardy with the Dot Counting Test and the Memory for Fifteen Items Test. He described Hardy as “cooperative and friendly throughout most of two days of examination and testing” and that on “tests specifically designed to detect efforts to malinger brain damage, his performance was within acceptable limits.” Dr.

Hayes acknowledged that these malingering tests in 1996 were all within normal limits, but she then suggested that the specific tests used are either ineffective in a mentally retarded population or have yet to be evaluated in that population. This was a puzzling position for her to take, since she maintained that Hardy is not mentally retarded. Nevertheless, she opined that the tests used by government psychologist Dr.

Martell, the Dot Counting Test and the Memory for Fifteen Items Test, “fare poorly in distinguishing individuals with mental retardation from those feigning this level of functioning.” But that is only true if the person does poorly on the test, not well, as Hardy did. As Dr. Cunningham testified, these tests are designed to look difficult, but are in fact easy. Consequently, if someone who is mentally retarded scores poorly, then the examiner might be concerned whether the low score was due to deliberate lack of effort.

But if a person scores well on it, even a mentally retarded person, then it indicates he is making good effort despite the disability. Only poor scores create the issue raised by Dr. Hayes, not good scores like Hardy’s, as indicated in the testimony of Dr. Cunningham. So the issue raised by Dr. Hayes, aside from being contrary to her own assessment of Hardy’s intellectual functioning, is in fact no issue at all. The Court concludes, as did Dr. Hayes ultimately, that Hardy did not malinger during any of his testing in 1996. The Court also concludes that Dr.

Hayes alternative claim — that Hardy’s IQ test results were “inconsistent” and that perhaps it was not his “best effort,” due to any number of reasons, such as being hungry, or the room being at an uncomfortable temperature, or having an upset stomach or not feeling well, or having attentional difficulties — are not supported by any evidence either. Dr. Hayes concluded based on all of the above that, “to a reasonable degree of psychological certainty, Mr.

Hardy’s amount of effort expended on the 1996 and 2008 assessment measures were inconsistent” and therefore the results indicated no more than Hardy’s “minimum” level of functioning. Yet Dr. Hayes conceded that none of the several psychologists who testified indicated any problems with Hardy’s level of effort during the testing. And, as described above, a number of the alleged inconsistencies were not, in fact, inconsistencies at all. Others were largely insignificant, merely minor variations to be expected within any repetitive testing procedures.

And others were actually consistent with someone who is mildly mentally retarded. The Court concludes that Dr. Hayes inappropriately discounted data supportive of the accuracy of the IQ testing, and disregarded essential scientific principles, such as the standard error of measurement in reaching her opinions. The Court finds that Dr. Hayes’ rationale for rejecting the reliability of Hardy’s 1996 IQ test results is unpersuasive. 4.

Other Evidence of Hardy’s IQ Both the APA and AAMR/AAIDD indicate that a diagnosis of mental retardation should be made based on IQ test results where it is possible to perform such a test. As the Court has concluded that Hardy made an adequate effort on the most accurate IQ test in evidence, it need not look to other sources to measure his intelligence. But because Dr. Hayes discounted Hardy’s score as unreliable, she sought to determine his intelligence using other methods.

Her sources fall into several categories: (1) school records; (2) data about his family; (3) the opinions of lay persons; and (4) demographic variables. The Court, in keeping with the views of the APA and AAMR/AAIDD, has and will rely on Hardy’s IQ test score to determine whether he meets the first criterion of the definition of mental retardation. A discussion of Dr. Hayes’ testimony concerning these other sources of information is nevertheless both instructive and necessary.

It is instructive, as the relevant evidence is consistent with the conclusion that Hardy has significantly subaverage intelligence functioning. It is necessary, as Dr. Hayes’ testimony on these other sources informs the Court’s assessment of her overall credibility. The Court provides a discussion of the problems with her testimony in “Appendix B,” attached to this opinion. 5. The 1996 Testimony The Court now must now address the “elephant in the room” from the 1996 IQ testing. While the Court has been critical of segments of Dr.

Hayes’ evaluation for failing to adhere to the scientific methodology of her field, the Court is equally concerned, and for the same reason, with the questionable conclusions of two of the defense psychologists from 1996. Both of these psychologists opined that the tests of Hardy’s IQ underestimated his cognitive abilities, which they claimed to be in the normal range — despite his scores to the contrary. The first, Dr. Tetlow, administered the WAIS-R test to Hardy and scored his Full Scale IQ as 73, which could have led to a diagnosis of mild mental retardation. Nonetheless, Dr.

Tetlow did not diagnose Hardy as mentally retarded because he was of the opinion that, based on Hardy’s educational and socioeconomic background, I estimate that his actual functioning and cognitive functioning is not an adult in the low average but actually about 10 points higher, so he would just be an adult normal. At the same time Dr.

Tetlow testified to this, he stated that Hardy “does give the impression of being more intelligent than he really is.” He also noted that Hardy’s lowest score was in “comprehension,” which is the “measure of how much one has picked up from one’s environment, the do’s and don’t’s and should and shouldn’t from the environment.” There Hardy “scored a three, which is very, very low, which a very small percentage of people score any lower than that.” Yet Dr. Tetlow ignored the results of his scientifically based testing and surmised that Hardy’s IQ was in fact significantly higher. The second defense psychologist, Dr.

Cunningham, accepted Dr. Tetlow’s findings as to Hardy’s IQ score and also thought it underestimated Hardy’s cognitive abilities. He testified that Hardy’s scores “are probably about 15 points lower than his true intellectual horsepower,” and he therefore did not diagnose Hardy with mental retardation. Instead, Dr. Cunningham diagnosed him with “post-traumatic personality disorder” on Axis II of the DSM-IV (Personality Disorder Not Otherwise Specified, # 301.9).

When asked in 1996 to explain why, he testified: There is some research, Matarozo is one of the guys that has written in this area, that indicates that when you give standardized intelligence tests like this, that blacks score about 15 points lower nationally than you would statistically expect, so for — you know, this number is only relevant as you compare it to other people, and so when you compare this number to a black population, it really is more like — when you’re looking at the distribution, it’s more like an I.Q. of 90, so .... Dr.

Cunningham further suggested that language problems and “cultural components ... suppress performance on these tests.” In his 2009 expert report and testimony at the Atkins hearing, Dr. Cunningham repudiated his earlier conclusion that Hardy’s IQ test results in 1996 underestimated his cognitive skills. He did, however, maintain that his earlier testimony was consistent with research data available in 1996, which suggested socio-economic factors were at play and so Hardy’s score should be compared to others of his race, rather than the population in general.

In his own words, he “was making a race based adjustment ... as compared to other black Americans,” which led him to testify that Hardy has “an IQ of 88 rather than 73.” Like Dr. Tetlow, Dr. Cunningham ignored the actual, scientific test results used to diagnose mental retardation in his field to come to this conclusion. At the Atkins hearing, Dr.

Cunningham stated he no longer believed that race-specific scoring was appropriate, explaining: It is now my view that whatever the etiologies of an observed IQ score (e.g. genetic, neurological insult, deprivation), this score is most meaningfully understood in comparison to all Americans rather than in comparison to a specific racial or ethnic group. In recognizing the validity of the use of national norms at the Atkins hearing, Dr.

Cunningham admitted his 1996 IQ enhancement was “an attempt to be more culturally sensitive,” that it was not a “sound diagnostic procedure ” and it was “regretful.” It is true that Dr. Cunningham did not administer an IQ test to Hardy in 1996, and was not engaged to provide an IQ assessment. That does not excuse his use of unsound diagnostic procedures to the extent he ventured an opinion on IQ. In addition to Dr. Cunningham’s disregard of the actual test results back in 1996, the Court is also disturbed by the complete reversal of Dr. Cunningham’s position now.

The Court must question whether it is a reversal of convenience simply to accommodate a finding of mental retardation. Furthermore, even in 1996 (prior to Atkins), a federal statute prohibited the execution of the mentally retarded, and so the possibility of mental retardation should have been explored. It was Dr. Cunningham’s — and defense counsel’s — duty to consider this issue, which they apparently neglected to do. Nevertheless, all the experts in this case now agree that it was error to provide a race-based enhancement to Hardy’s IQ score in 1996. Dr.

Hayes agrees that Hardy’s scores should not be compared only to African-Americans but to all Americans. She pointed out that the publishers of the WAIS-R tried to make the normative sample as demographieally similar to the American population as possible, so that comparing any individual’s score to it would be appropriate. Dr. Hayes also opined that Hardy’s IQ score of 73 in 1996 should have triggered a further inquiry into mental retardation, a view currently shared by Drs. Swanson and Cunningham. Indeed, even in 1996, Dr.

Cunningham concluded that Hardy has “impaired intellectual development.” For these reasons, the Court concludes that Dr. Cunningham’s reversal of opinion on this one issue is an honest one and not result-driven. Indeed, it took some degree of professional courage for him to re-appear in this case and admit his own mistake, one apparently shared by at least some others at that time. The Court also appreciates Dr. Cunningham’s contrition, which it will take into account going forward.

To recapitulate, all the experts in this case agree that Hardy’s IQ of 73 puts him in the range where a diagnosis of mild mental retardation must be considered. Moreover, as detailed in Appendix C, the actual findings made by Dr. Cunningham in his earlier assessment of Hardy, including a possible diagnosis of attention deficit disorder and mild brain injury from multiple head traumas during the developmental years (facts confirmed by Dr. Bianchini), along with the diagnosis of an unspecified Personality Disorder, share characteristics in common with mild mental retardation.

Furthermore, the results of the Rorschach test administered by Dr. Tetlow uncovered a similar pattern, as further discussed in Appendix C. In effect, the various defense experts in 1996 circled around a diagnosis of mild mental retardation, but because both Dr. Tetlow and Dr. Cunningham believed the IQ scores were an underestimate of Hardy’s intellectual functioning, neither one drilled down into that possibility.

The Court finds that, notwithstanding the differences between the testimony at the 1996 hearing and this one, Hardy has established by a preponderance of the evidence that his intellectual functioning is approximately two standard deviations below the mean. He therefore possesses significantly subaverage intellectual functioning as that term is used to diagnose mental retardation. The Court now turns to the other criteria relevant to this diagnosis. b.

Factor Two: Significant Limitations in Adaptive Functioning Hardy has established that he has significantly subaverage intellectual functioning, which is the first prong of the mental retardation test. The Court must now consider whether he exhibits [c]oncurrent deficits or impairments in present adaptive functioning (i.e., the person’s effectiveness in meeting the standards expected for his or her age by his or

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