Opinion

Fairchild v. Lockhart

744 F. Supp. 1429
1989 U.S. Dist. LEXIS 5030
1989 WL 224936

Court: District Court, E.D. Arkansas
Filed: Apr 4, 1989
Status: Published
Author: Eisele
On the bench: Eisele
Cited by: 41 cases
Authority: More cited than 86.7%

habeas proceeding after capital murder conviction; IQ Full Scale IQ of 63, a Verbal IQ of 69, and a Performance IQ of 61. The petition alleges that those scores are consistent with a finding that petitioner is "mentally retarded."; relief denied regarding incompetency to stand trial issue

How later courts described this case

habeas proceeding after capital murder conviction; IQ Full Scale IQ of 63, a Verbal IQ of 69, and a Performance IQ of 61. The petition alleges that those scores are consistent with a finding that petitioner is "mentally retarded."; relief denied regarding incompetency to stand trial issue
Fairchild argued that he is mentally retarded, so that his waiver of his constitutional rights before his confessions was not knowing and voluntary, and Arkansas' failure to discover his retardation rendered its pretrial evaluation of his mental condition inadequate
containing a compendium of cases discussing that defendant’s limited cognitive abilities were a factor considered to determine the validity of the waiver
collecting and discussing numerous federal cases where the defendant’s limited cognitive abilities were a factor in determining the validity of the waivers

Written by the judges who cited it.

The opinion

MEMORANDUM OPINION FINDINGS OF FACT CONCLUSIONS OF LAW

EISELE, Chief Judge.

PRIOR PROCEEDINGS AND SUCCESSOR PETITION.

Petitioner Barry Lee Fairchild was convicted of capita] murder and sentenced to death. The Arkansas Supreme Court affirmed the conviction and sentence on direct appeal,

Fairchild v. State,

284 Ark. 289 , 681 S.W.2d 380 (1984)

cert. denied,

471 U.S. 1111 , 105 S.Ct. 2346 , 85 L.Ed.2d 862

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(1985), and denied Mr. Fairchild substantive relief on his petition for post-conviction relief.

Fairchild v. State,

286 Ark. 191 , 690 S.W.2d 355 (1985). Petitioner then sought relief via petition for habeas corpus in this Court, electing to pursue only grounds which could potentially secure him a new trial, as opposed to those which might result in a different sentence. This Court rejected the two claims advanced in petitioner’s original petition,

Fairchild v. Lockhart,

675 F.Supp. 469 (E.D.Ark.1987), aff’d 857 F.2d 1204 (8th Cir.1988),

cert. denied,

488 U.S. 1051 , 109 S.Ct. 884 , 102 L.Ed.2d 1007 (1989).

Petitioner has now filed what he denominates a Successor Petition for Writ of Ha-beas Corpus, seeking to raise two new grounds for reversal of his conviction. The factual basis for both of these new grounds is an IQ test recently administered to petitioner, on which petitioner registered a Full Scale IQ of 63, a Verbal IQ of 69, and a Performance IQ of 61. The petition alleges that those scores are consistent with a finding that petitioner is “mentally retarded.” Appended to the successor petition as supporting material are copies of the petitioner’s medical records from his evaluations by both the Arkansas State Hospital and the Medical Center for Federal Prisoners, affidavits from some of petitioner’s family and friends, petitioner’s school records, the state court order for psychiatric evaluation, the report concerning the latest testing of petitioner’s intelligence, and affidavits of his trial and habeas attorneys.

For his first ground for habeas corpus relief, petitioner alleges that he did not intelligently and knowingly waive his

Miranda

rights before making the two confessions which were key evidence at his trial. Essentially, petitioner claims that he did not knowingly and intelligently waive his rights because he did not understand those rights or the consequences of his waiver thereof immediately before he made those confessions. Petitioner further claims that his inability to understand the rights as read and explained to him was compounded by the stressful situation in which he found himself at the time he was interrogated, stress to which he was espe-dally susceptible because of his retardation. The claim as pled is not that petitioner was incapable of understanding his rights under any circumstances, but rather that he did not understand them under the circumstances obtaining at the time of his confessions.

See

Successor Petition for Writ of Habeas Corpus, at 13-19.

As a second ground for granting the writ, petitioner alleges that the state’s failure to provide a professionally adequate evaluation of petitioner’s mental condition denied him due process of law. Petitioner asserts that the state failed to perform an adequate review of his mental condition, and that it also denied him the means of obtaining an adequate independent evaluation. The result of these failures, according to petitioner, is that neither he, his counsel, nor the jury was advised of petitioner’s retardation. Petitioner further argues that, as a mentally retarded person, he was especially susceptible to being led to agree with statements and suggestions of the interrogating police officers. Also, it is contended that his statements are inherently more unreliable because his experiences and memory are “filtered” through his retardation. In other words, petitioner suggests that his retardation creates grounds for doubting the reliability of his confession, grounds which the jury was not allowed to consider because the state’s acts and omissions prevented petitioner from developing the relevant evidence.

The respondent has moved to dismiss the successor petition on procedural grounds. Respondent asserts that this second petition constitutes abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases and 28 U.S.C. § 2244 (b). Respondent also asserts that petitioner has proeedurally defaulted under the rule of

Wainwright v. Sykes,

433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977).

THE STATE’S MOTION TO DISMISS.

As stated above, the State raises two procedural grounds for dismissal.

A. Abuse of the Writ

The State’s first contention is that Mr. Fairchild’s Successor Petition for Habeas

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Corpus Relief constitutes an abuse of the writ. In essence, the State argues that the latest claims brought by petitioner’s counsel could have been asserted in the earlier petition—and that failure to do so then should preclude review of those claims now. The Court disagrees.

First, it is important to recall the words of the United States Supreme Court in

Sanders v. United States,

373 U.S. 1, 8 , 83 S.Ct. 1068, 1073 , 10 L.Ed.2d 148 (1963):

Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.

Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts requires that a successive petition be dismissed if “it fails to allege new or different grounds for relief and a prior determination was made on the merits.... ” If new and different grounds are alleged, the petition nonetheless may be dismissed “if the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.”

The Rule is essentially a codification of the principles articulated in

Sanders

regarding denial of successive petitions. In trying to gives examples of what it thought constituted an abuse, the Court in that case said:

[I]f a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one ..., he may be deemed to have waived his right to a hearing on a second application.... The same may be true if ... the prisoner deliberately abandons one of his grounds at the first hearing.

Sanders

at 18 , 83 S.Ct. at 1078 .

There has been no showing by the State that Mr. Fairchild has deliberately withheld the current claims raised in the successor petition, or that he deliberately abandoned these claims in the earlier hearing before this court.

Sanders

relied on

Fay v. Noia,

372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963), where the Court laid out the limits of the writ abuse doctrine. In that case the Court held that because habeas corpus is governed by equitable principles, “a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.”

Id.

at 438 , 83 S.Ct. at 848. Thus, according to

Fay ,

a petitioner loses his right to have a new claim considered in a successor petition only if he “understandingly and knowingly” waived the privilege of seeking to vindicate his claims in the earlier proceeding for “strategic, [or] tactical” reasons.

Id.

Again, this is not the situation here.

The burden is on the government to allege with particularity and clarity the abuse of the writ.

Sanders,

373 U.S. at 17 , 83 S.Ct. at 1078 . Once the State has met this burden, the petitioner has the burden of answering the allegation and of proving by a preponderance of the evidence that he has not abused the writ.

Price v. Johnston,

334 U.S. 266, 292 , 68 S.Ct. 1049, 1063 , 92 L.Ed. 1356 (1948). The petitioner may meet this burden by showing that the claim asserted for the first time in a successive petition is based on facts or legal theories of which the petitioner had no legal knowledge when making his first habeas petition.

Williams v. Lockhart,

862 F.2d 155, 159 (8th Cir.1988).

The State rests heavily upon the

Williams

case, in which the Eighth Circuit adopted a rule first articulated by the Fifth Circuit Court of Appeals in

Jones v. Estelle,

722 F.2d 159 (1983). In that case, the Court held that when a petitioner was represented by competent counsel in a prior habeas proceeding, as was Mr. Fairchild, the petitioner cannot justify the omission of claims by asserting personal ignorance because awareness of a potential claim is chargeable to his counsel, and therefore, to the petitioner. The Court recognizes this to be a strong argument. Nevertheless, it is persuaded that that argument should not control here.

In 1986, this Court appointed Mr. John Hall, petitioner’s present counsel, to advise Mr. Fairchild as to what issues might be raised if he chose to pursue his habeas

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remedies. Mr. Hall’s report was filed in September 24, 1986, and neither of the issues raised presently were included in that report. The present petition contends that these claims were not raised earlier because all the parties concerned were lead to believe, on the basis of psychiatric evaluations conducted by the state and the federal government, that Mr. Fairchild was mentally competent to waive his rights. It is further argued that the soundness of those findings have only recently been drawn into question by newly discovered facts following Mr. Fairchild’s performance on an IQ test conducted late last month.

Nonetheless, the State argues that because many of the records which Mr. Hall relied upon in filing the successor petition were available to him when he made his previous report, or could have been discovered with reasonable diligence, his failure to raise these issues should preclude review now. Such a ruling would leave habe-as petitioners in an extremely precarious position—especially in cases such as this one where we are dealing with the death penalty, and the petitioner’s mental status is at issue. It should be noted that no such issue was raised in the

Williams

case. Additionally, adopting the State’s argument here would in no way serve the underlying purpose of the abuse of writ doctrine and of Rule 9(b) which is to avoid hearing successive claims “whose only purpose is to vex, harass, or delay.”

Sanders,

373 U.S. at 18 , 83 S.Ct. at 1078 . As the Court in

Sanders

stated:

The principles governing ... denial of a hearing on successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power—and, if the ends of justice demand, the duty—to reach the merits.

Sanders ,

at 18, 83 S.Ct. at 1078.

The Court finds that the successor petition does not constitute an abuse of the writ of habeas corpus. Moreover, it is the judgment of this Court that the ends of justice require that we reach the merits of Mr. Fairchild’s present petition.

B. Procedural Default

The State’s second procedural argument is that the successor petition rests on grounds that were not presented at any time to the state courts, and are, therefore, procedurally defaulted. As such, the State contends, this Court is barred from reaching the merits of petitioner’s claim unless Mr. Fairchild establishes cause for default and prejudice arising therefrom as required by

Wainwright v. Sykes,

433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977).

As the Eighth Circuit summarized in

Smittie v. Lockhart,

843 F.2d 295 at 296 (1988), “Federal courts must conduct a four-step analysis to determine whether a petition may be considered when its claims have not been presented to a state court.”

citing Laws v. Armontrout,

834 F.2d 1401, 1412-15 (8th Cir.1987).

The first step is to determine if the petitioner “fairly presented the federal constitutional dimensions of his federal habeas corpus claim to state courts.”

Smittie

at 296 . Since Mr. Fairchild did not bring the present claim before any Arkansas state court, the next step in the analysis requires that the federal court determine whether the petitioner has exhausted his state remedies, or if any existing state remedies are futile.

Id.

Following his conviction, Mr. Fairchild filed a post-conviction appeal pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. This appeal was denied in

Fairchild v. State,

286 Ark. 191 , 690 S.W.2d 355 (1985). In

Grooms v. State,

293 Ark. 358, 358 , 737 S.W.2d 648 (1987), the Arkansas Supreme Court held “A successive Rule 37 petition will not be entertained unless the original petition was specifically dismissed without prejudice to filing a subsequent petition.” Since the Arkansas Supreme Court’s earlier denial of Mr. Fairchild’s appeal did not specify that it was without prejudice, this Court must

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conclude that all further State remedies would be futile.

Having so found, the next step in the procedural default analysis is to determine whether the petitioner has demonstrated “adequate cause to excuse his failure to raise the claim in state court.” At least with respect to the procedural aspect of petitioner’s claim, the Court finds that adequate cause exists since at no time prior to this petition was it ever known that Mr. Fairchild possessed an IQ score which would arguably reveal him to be mentally retarded and, therefore, draw into question for the first time his ability to understand and thus intelligently waive those constitutional rights identified in the standard

Miranda

warnings. It does appear that there existed another low IQ report on the petitioner made in 1965-66, but this too was only recently discovered.

The final step is to determine whether failure to address the merits of Mr. Fair-child’s claim in state court would result in “actual prejudice”.

Laws ,

at 1415. Given the critical importance Mr. Fairchild’s confessions played in the prosecution of this case, it is obvious to this Court that failure to consider the merits of the claims in the successor petition would constitute actual prejudice.

On December 30, 1988, the Eighth Circuit rendered its opinion in the case of

Mercer v. Armontrout,

864 F.2d 1429 . Judge Lay, writing for the Court in a section of the opinion dealing with granting a stay of execution, said:

The initial point of inquiry in granting or denying a stay of execution in a death case must be whether the petition is frivolous. If the petition is not frivolous on its face, the

very essence of this court’s duty is to study and research the points raised.

The severity and finality of the death penalty requires the utmost diligence and scrutiny of the court. In capital cases the law is uniquely complex and difficult to understand. No judge can digest, retain, or apply these principles to a voluminous state court record without reflective study and analysis. To suggest that a life or death decision can be made by simply reading a petition is to advocate dereliction of judicial duty. The penalty has already been rendered and approved by the highest court of the state in which the crime has been committed. However, as worthy as state courts may be, the state process does not always ensure constitutional process. Experience has long demonstrated that human judgment rendered through judicial process is not infallible. As long as federal habeas review exists, it is the duty of federal judges to make certain that an individual does not forfeit his life at the hands of the state unless the state process lawfully rendered the punishment, it complied with federal constitutional standards, and the defendant was furnished with competent and effective representation within the norms required by the sixth amendment. Regardless of how heinous the crime, no one may reasonably question that a predicate to carrying out a death sentence is careful review of the constitutionality of the defendant’s conviction and sentence.

Mercer v. Armontrout, supra,

864 F.2d at 1431-32 . (Emphasis in the original)

The Court will deny the State’s motion to dismiss on procedural default grounds, and move to the merits of the claim.

ANALYSIS OF NEW PETITION.

It is important to break down, and separately analyze, the two differing thrusts of Mr. Fairchild’s new “Successor Petition for Writ of Habeas Corpus.” It is alleged that a new and recent IQ test fixes his IQ at 63. It is contended that both the jury and the courts have heretofore operated upon the assumption that “Mr. Fairchild was a person of average intelligence.” The petition goes on to state that, “The validity of his waiver of constitutional rights and the reliability of his confession were assessed on the basis of this assumption.” p. 2 Writ. It argues that the state failed to provide a professionally competent evaluation of Mr. Fairchild’s mental condition before his trial, and that this, “precluded the defense from discovering and presenting to the jury the substantial doubt about the accuracy and reliability of Mr. Fairchild’s confessions

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which was interjected by his retardation and the stressful circumstances in which the confessions were given.” Petitioner contends that “his mental retardation profoundly affected his ability to make an intelligent waiver of his

Miranda

rights, and if known to the jury, likely would have raised substantial doubts about the reliability and accuracy of his confessions.”

It is clear that petitioner is not dealing here with one, but two separate questions: (1) whether petitioner’s IQ on March 5, 1983, was such that he could not, or did not, knowingly and intelligently waive his

Miranda

rights, and (2) whether the level of his IQ on March 5, 1983, could reasonably “raise substantial doubts about the reliability and accuracy of his confessions.”

Before dealing with the question of the effect, if any, of petitioner’s IQ upon his ability to make an intelligent waiver of his

Miranda

rights, the Court first wants to make it clear that, on the basis of the facts previously found and reaffirmed below, no reasonable argument can be made that petitioner’s IQ—whether 63 or 87 or some other number—could in this case raise “substantial doubts about the reliability or accuracy of his confessions.” While it is quite probable—indeed, obvious

—that Mr. Fairchild in his videotaped confessions did not tell “the whole truth and nothing but the truth," the Court is convinced that, in material respects, they reflect Mr. Fair-child’s recollection of the events of February 26, 1983, and his involvement in those ugly and tragic events.

This Court has previously dealt with the issue of the voluntariness of Mr. Fairchild’s confessions. The Court’s finding of fact and conclusions of law are set forth in a 51-page memorandum dated September 11, 1987. The Court also had some comments to make on the videotaped confessions early on during the course of the hearing:

THE COURT: Let’s see. This is being tried to the Court and I think some feedback from the Court as we go along would not be inappropriate and would not, in effect, be considered as pre-judg-ing any of the issues. One of the points that you’ve made is that if we just look at the video tape, that we’ll be able to draw certain inferences and one of the inferences was the suggestion that there had been a lot of coaching and that the man had memorized his statement and so forth. Another inference is that the officers must have talked to him beforehand because they had substantial information or that their questions revealved [sic] that they ■ had some prior information.

* * sfs Sfc * jfi

I do not think it’s obvious at all that the confession was coached or memorized or whatnot. I watched Mr. Fairchild making his statements and when he—His statements give the feeling of truth to me because particularly when he is using his hands to describe on the right-hand side or the left or whatever. ‘And we went up this and down this hill,’ he’s making an uphill or downhill with his hands just automatically as he talks. All of the incidental body language is corroborative, it seems to me, of what is being said. And what is being said is also not—did not given me the impression that it had been rehearsed. Now, there may have been some little feeling about, you know, ‘Be sure that you tell them about the Toyota car having a red stripe.’ You know, you can kind of get that impression that maybe someone knew about that and wanted to be sure that he remembered that. Not only that, there are a few things they kind of wanted him to remember.

But the broad thrust of his confession gives me the impression that it is an honest statement of what happened as he recalled it, and that’s why I’m telling you, you know, that something could come along and maybe change that but I do not agree that looking at those video tapes by themselves would give me cause to believe that this was a hoked up, rehearsed, memorized sort of a packaged type of confession. Rather, it seems to have the indicia of spontaneity and truth.

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There are a few little incidents in which I gather he’s trying to put into it what the police want him to in terms of a detail here and a detail there. But on the whole it seems to me to have that ring.

That comment was made early on during the two-day hearing. After hearing all of the witnesses and reviewing all of the evidence, the Court made the following findings:

It appears that Mr. Fairchild and the officers left Russellville around 11:30 p.m. and arrived in Little Rock close to 1:30 a.m.

When Fairchild arrived at the Pulaski County Correctional Facility, he was turned over to Major Dill, and then possibly to Sheriff Robinson. Mr. Fairchild was read his rights and Officer Waggoner, Major Dill, and others talked with him. Mr. Fairchild talked freely about his involvement in the murder of Ms. Mason. Some notes were taken on Mr. Fairchild’s admissions and then arrangements were made to videotape his statement or confession. There was a casual atmosphere. Coffee and doughnuts were brought in and consumed by the officers and Mr. Fairchild. The Court estimates that Mr. Fairchild was at the Pulaski County Correctional Facility for approximately an hour prior to the time of the commencement of the videotaped interview. A good part of that hour was taken up with Mr. Fairchild’s explaining his role in the crime, but there were also periods when everyone just sat around waiting for the videotape arrangements to be made.

The force to which Fairchild was subjected at Russellville was necessary and incidental to the arrest. No force or threats or physical coercion were used against Mr. Fairchild on the trip back from Russellville to Little Rock, or at the Little Rock facility. Fairchild’s attitude was: “You got me!” He was willing to talk.

Officer Tom Waggoner was with Mr. Fairchild in the interview room. He had worked on the case and was also familiar with Fairchild. He secured the “rights” forms and advised Fairchild of his rights. Fairchild signed the forms and then freely discussed his involvement in the murder of Ms. Mason. When Mr. Fairchild agreed to give a videotaped interview, it was decided to move from the interview room into a larger office for that purpose.

None of the officers who were with Mr. Fairchild suggested to him what his testimony should be.

After the first videotaped statement was completed, Mr. Fairchild agreed to go with Major Dill, Sheriff Robinson and other officers on a “tour,” starting at a point where Mr. Fairchild and his companion kidnapped Ms. Mason on Washington Street in North Little Rock and proceeding to the abandoned farm area near Scott. They then followed the route Mr. Fairchild and his companion traversed in leaving the area to the point where Fairchild’s car ran off the road while being chased by an Arkansas State Police unit. Mr. Fairchild gave the directions which brought them all to the scene where Ms. Mason’s body had earlier been found. He pointed out where they left the body. The Court did not, in the slightest, credit Mr. Fairchild’s statements that the police officers were showing him the route taken and identifying for him the crime scene. At one point on the way back from the murder scene, Mr. Fairchild pointed out where he had thrown his gloves away. The officers stopped the cars and searched for the gloves but were unable to find them. During this “tour,” the officers asked Fairchild about jewelry that they understood was taken from Ms. Mason’s body. Mr. Fairchild told the officers that he had taken a watch from Ms. Mason but had sold it or given it away. When the officers asked who had it, he inquired if that person would get in trouble and was advised that such person would not get in trouble if he or she were not involved with the kidnapping or murder. Fair-child then told the officers that his sister had the watch. The officers then drove to Mr. Fairchild’s house where they obtained the watch. They then returned to

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the Pulaski County Correctional Facility. Shortly thereafter, a deputy prosecuting attorney, Mr. Dale Adams, came to the facility and took another videotaped statement from Mr. Fairchild. A little later, -officers from the Little Rock Police Department arrived and questioned Fair-child about his involvement in the assault on Officer Oberle.

So the Court has already found that, “no force or threats or physical coercion were used against Mr. Fairchild on the trip back from Russellville to Little Rock, or at the Little Rock facility.” Mr. Fairchild’s attitude was: “You got me!” He was willing to talk. And the Court has further found that: “None of the officers who were with Mr. Fairchild suggested to him what his testimony should be.”

After having been advised of his rights, Mr. Fairchild talked freely with the officers about his involvement in the rape and murder of Ms. Mason. As found, “there was a casual atmosphere, coffee and doughnuts were brought in and consumed by the officers and Mr. Fairchild.” Mr. Fairchild had fully confessed his involvement prior to the making of the two videotaped confessions. The officers were aware of the facts and circumstances because Mr. Fairchild had informed them thereof.

So, petitioner’s argument, that his mental retardation makes him more susceptible to suggestion, goes nowhere. The officers made no suggestions. Mr. Fairchild's statements were simply a recitation of facts within his memory or, at least, so much of those facts as he chose to reveal.

This is a death penalty case. It deserves the most careful and serious consideration possible. Back at the time of the hearing in 1987, the Court carefully observed and listened to the videotaped confessions — not once but several times. In the light of the new issues now being raised by the “successor petition,” the Court has viewed those videotapes yet again and has also reviewed the transcript of the two-day hearing. It finds no reason to depart from the factual findings that it made then. On the contrary, that review has reenforced the Court’s confidence in those findings. The Court is convinced that no reasonable person could listen to the evidence presented at the two-day hearing and view the videotaped confessions and still have any doubt about the involvement of Mr. Fair-child in the rape and murder of Ms. Mason. Whether a judge or a jury knew that Mr. Fairchild’s IQ was 50, or 60, or 80, or 100 would in no way shake the confidence of the court or jury in that factual conclusion. (NOTE: Whether the jury might have been influenced by specific evidence of low IQ in assessing the punishment is a different question which will be discussed later.)

This is not to say that the petitioner has not raised a serious issue. But that issue is whether the level of his mental condition was such on March 5, 1983, that he could not, or did not, “knowingly and intelligently waive his

Miranda

rights," and

not

whether the level of his mental condition could affect the confidence of any trier of fact in the finding that Mr. Fairchild was involved in the rape and murder of Ms. Mason. The Court’s prior findings and conclusions filed September 11, 1987, remove the possible predicate for this latter contention.

Since the petitioner has, by his new allegations and by the testimony of certain witnesses during the March 1989 hearing, particularly that of Ms. Luckasson, again attacked the voluntariness and reliability of Mr. Fairchild’s video confessions, the Court has reviewed its prior fact-findings and attached the results thereof to this Opinion as Appendix A.

PAST INQUIRIES INTO MR. FAIR-CHILD’S COMPETENCY.

As everyone knows, who is familiar with this case, the Court has already gone to considerable lengths in an effort to determine Mr. Fairchild’s competency. The issue was first thrust into the limelight when the Court received a letter in June 1986 written by Mr. Darrell Richley on behalf of Mr. Fairchild. It advised that Mr. Fairchild had decided not to continue with his federal habeas corpus case. The letter expressed that Mr. Fairchild’s “feeling is one way or the other he will die at prison, either now or fifty years from now, and he would

*1438

rather it be now.” The letter inquired as to “what documents the court may require to enable Mr. Fairchild’s execution to be carried out.”

The Court concluded that, under the law, if Mr. Fairchild was competent, he had the right to waive his federal habeas corpus rights. The Court held a hearing on August 15, 1986, for the purpose of advising Mr. Fairchild of his rights and assessing his competency. A transcript of that hearing is in the file. After interrogating Mr. Fairchild at some length and going over with him the possible results of his habeas petition, the Court asked Mr. Fairchild if he had thought about these things:

MR. FAIRCHILD: Yes, sir, I’ve thought about it.

THE COURT: But you still want to abandon the writ and go ahead with the execution?

MR. FAIRCHILD: Yes, sir.

THE COURT: Mr. O’Bryan, in your dealings with your client over the years here, do you have any opinion as to his competence, his mental state? Is there anything to suggest to you that he is incompetent or that he has any mental problems or any difficulties that should be explored perhaps before making a determination as to his competency to make this important decision?

MR. O’BRYAN: I can’t say anything that’s occurred in my dealings with Mr. Fairchild to lead me to believe that he’s not competent.

THE COURT: Does the State, Mr. Miller, have any information that would lead it or suggest to it that there is any problem about Mr. Fairchild’s present competence to make this decision?

MR. MILLER: No, Your Honor, we have no such information.

>}! # *

* *

THE COURT: Well, let me hear from your attorney and then from the State what you think the Court should do in the light of this record. Mr. O’Bryan, first you.

MR. O’BRYAN: Your Honor, my feeling is that the Court ought to do what Mr. Fairchild is asking. I think he is competent to request his petition be dismissed. And, certainly, if I was in his shoes, I wouldn’t be asking for that — I don’t think I would — but he does explain rational, logical reasons for his decision. It makes sense to me that he could come to that conclusion. As I say, I'm satisfied that he’s competent. Of course, I’m not a psychologist, but he has been examined by the State Hospital and the psychiatrist at the Department of Correction, and I don’t think he’s ever been found to be incompetent.

* * * *

THE COURT: (addressing petitioner) What weighs on your mind? What is it saying to you, “I want to stop all this. I want to get it over with.” Just the best you can, again, tell me what it is that’s making you come to that conclusion.

MR. FAIRCHILD: Just like I said, I have this death sentence and I’m ready to get it over with.

THE COURT: Well, I think what I’m going to do — I’m watching. Let me ask you this: Have you in the past ever had any problems with any drugs? Has drugs been a problem for you?

MR. FAIRCHILD: Not serious. Not really no problem.

THE COURT: You have used drugs in the past?

MR. FAIRCHILD: I have used drugs, yes.

THE COURT: But you haven’t had any recently, of course.

MR. FAIRCHILD: No. No, sir.

THE COURT: Well, I hesitate to delay in letting you carry out your intentions, but I have sufficient concern and hesitation to feel that it might be to everybody’s advantage if you had the opportunity to be evaluated briefly by professionals and have an opportunity to talk to them about your decision so we can all be satisfied that you’re making — that it’s a firm decision. It’s not one that’s transient; that when you feel and understand everything that there is to be said about it that you still are convinced.

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So, out of an abundance of caution, the Court decided to send Mr. Fairchild to the Medical Center at Springfield, Missouri for a professional evaluation before making its final decision with respect to Mr. Fair-child’s competency to waive his federal ha-beas corpus rights.

On October 2, 1986, the Springfield authorities advised that the psychiatric evaluation had been completed. The Court was further advised “in the opinion of our clinical staff, the above named individual [Mr. Fairchild] is mentally competent to waive his right to habeas corpus relief.” A report was enclosed.

Mr. Fairchild was admitted to the medical center at Springfield on August 21, 1986. He was under observation for over a month. The “Report of Final Forensic Psychiatry Staff Evaluation,” dated September 22, 1986, states,

inter alia:

EVALUATION: Upon admission to the Forensic Psychiatry Unit, the defendant was oriented to the unit rules, regulations, and the policies of the U.S. Medical Center by a correctional counselor. He was seen by the examining psychiatrist and psychologist, as well as the unit manager and case manager. A preliminary physical examination was completed. During the course of the evaluation, a complete psychiatric examination was conducted. A complete physical examination with x-rays as indicated, and complete laboratory examination, was performed. Appropriate consultations by specialists were obtained when indicated. In addition to being seen on a daily basis by the correctional officers and correctional counselors, he was reviewed periodically by the Forensic staff. Correctional officers and correctional counselors observed interpersonal relationships with other patients and staff, and recorded the observations on the clinical chart.

STAFF CONFERENCE: At the staff conference, directed by the examining psychiatrist, the clinical chart was reviewed. All reports were carefully evaluated, including background information furnished by the Court. The defendant was personally interviewed by various members of the staff. Special consideration was given to reports of behavior and clinical observation while in the institution. After the review of all data, comments and opinions were given by members of the staff, and a final opinion was decided by the examining psychiatrist.

OPINION: It is the opinion of the examining psychiatrist that the defendant is MENTALLY COMPETENT TO WAIVE HIS RIGHT TO HABEAS CORPUS, in that he has a factual understanding of legal proceedings, including the ramifications of dismissing said habeas corpus.

That report was signed for the staff by Dr. Donald R. Butts, Forensic Psychiatrist.

Also attached is the “Final Psychiatric Evaluation” in five pages dated September 29, 1986, also signed by Dr. Butts. Some of the pertinent excerpts are:

OCCUPATIONAL HISTORY: The patient said that he had worked in construction at times in the Little Rock area.

EDUCATIONAL BACKGROUND: The patient dropped out of school in the ninth grade in North Little Rock and went to work. He stated that he had a lot of problems reading in school. This affected all of his other subjects.

MEDICAL HISTORY: The patient denies any significant medical history and says that he is in excellent health. MARITAL HISTORY: The patient states that he has never been married and has no children.

FAMILY BACKGROUND: The patient’s father died in 1969 at the age of 95 years of cancer. The patient’s mother is 51 years of age and apparently is in good health. He has one brother and two sisters. He is the second oldest of the siblings. Regarding his educational background, the patient says that he, after nine years in public schools, can neither read nor write.

PSYCHIATRIC HISTORY: The patient states that his only psychiatric history is a 30 day observation that was performed on him in 1983 at Rogers Hall on the grounds of the State Hospital in Little Rock, Arkansas. He was evaluated by Dr. Rosendale and the other staff at that

*1440

facility secondary to his instant offense which is that of robbery, rape, kidnapping and murder. The patient and his records have revealed that he was found to be competent, and he received a diagnostic category of antisocial personality. The patient was subsequently evaluated by Dr. Dolph Ogelsby who performed a psychiatric evaluation in the Maximum Security Unit at the Tucker Unit of the Arkansas Department of Correction after the patient had been on death row for a number of months. Mr. Fairchild at that time had been having some sleep difficulties and these were taken care of with the elimination of caffeine from his diet.

ARREST HISTORY: Mr. Fairchild states that he has had trouble with the law since he was 11 years old at which point he was apprehended for “chunking rocks at police cars in North Little Rock.” In 1971 he was incarcerated at the Cummings [sic] Unit of the State Prison System for robbery of a filling station. This sentence was for one year. In 1974 he again was sent to the Cummings Unit for robbery and he was sentenced for seven years. He did four of these years and had three suspended. In 1979 he was again returned to prison for theft of property for two years and in 1983 he again was returned to prison on his instant offense. The patient, throughout his history of incarceration has never made any suicidal attempts or gestures and apparently has not been thought to be psychotic.

sf: * s}: s*s 4s

MENTAL STATUS AT THE TIME OF ADMISSION:

Appearance, Behavior, and Attitude: The patient is a young black male who is pleasant appearing and was very cooperative and docile in his demeanor. He appears his stated age and was relatively well groomed and clean in prison attire. He appeared to be healthy and in good contact with reality. His speech was coherent and he related in a very appropriate manner.

Affect and Mood: The patient was neither elated or depressed. He seemed somewhat sad, however. He spoke in a coherent manner and he understood why he was at our facility.

Stream of Mental Activity: The patient’s associations were good. His speech was appropriate and he reached goal ideas readily.

Sensorium: The patient was oriented to time, place, person, and situation. His memory for remote and recent material was good. His general fund of knowledge was quite limited, however. Thought Processes: At the present time there did not appear to be any hallucinations or thoughts of mind control. He had no particular ideas of reference and did not feel victimized by the Arkansas Penal System. He seemed rather matter of fact when discussing his situation. Thought Content: There was no evidence of delusions or illusions, no evidence of overt neurotic symptoms.

Cognition: The patient’s IQ was estimated to be in the low-average to average range on mental status evaluation. His judgment and insight seem intact. His interpretation of proverbs was rather concrete. He did not use any particular rationalizations of his behavior and was very straightforward in describing his background. There were no loose associations and no circumstantial or tangential thinking. There was no bizarre mental content nor suicidal ideation noted. The patient does not give a significant history of head injuries and he has never been significantly ill in his life. He expressed no particular anxiety except that he made it rather clear that he did not prefer to be in our facility and would rather be back in Arkansas where he could at least communicate and perhaps receive visitation from his family members.

COURSE IN HOSPITAL: The patient was very cooperative in all respects. He was kept on maximum security, however, on Ward 10-D, due to his status in the Arkansas State System. While he was at our facility he had an initial psychiatric evaluation and was observed daily in

*1441

all aspects on the closed unit of 10-Build-ing. He had medical, psychological, and psychiatric workups with appropriate consultations prior to the final staffing by the Unit Team. The Unit Team consists of one Psychiatrist, one Psychologist, one Unit Manager, one Case Manager, two Counselors, plus several Nurses and the usual number of Correctional Officers. All of these staff members had observational and other appropriate input into the initial, periodic, and final team staffings. The patient had an initial history and physical, chemistry panel, blood count, orinalisis, serology, and chest Xray, all of which were reported as being within normal limits. No consultations were found necessary, as the patient did not have specific medical symptoms. He was not given psychotropic or antidepressant medications during his hospitalization. Psychological evaluation was done and interpreted by Dr. Richard D’Andrea, and his report accompanies mine.

FORMULATION AND CLINICAL IMPRESSION: This is a young, black male who is from North Little Rock, Arkansas. He has had a poor experience in the Educational Systems and this resulted in him not being able to read or write. He apparently started with antisocial behavior quite young in life and had had altercations with the North Little Rock Police as early as 11 years of age. He has spent the majority of his adult life incarcerated in the Arkansas Penal System for primarily robbery charges. His last charge in 1983, however, was of a much more serious nature, that of a capital murder. He has never had a significant psychiatric history and his only other evaluation at Rogers Hall in Little Rock revealed him to be competent. The patient is very plain about his desires now that he does not wish to appeal his death sentence on the capital murder offense. On the other hand, he believes that his chances for obtaining a new trial or of having his sentence reduced to life in prison are remote. Even with the latter option he does not wish to spend his life in prison and as he has had more than an adequate exposure to life in the State Prison System, it can be considered that his opinion was formed after significant experience. Mr. Fairchild was very cooperative and was not a discipline problem at our facility. He was quite plain spoken and matter of fact about his point of view and in no way revealed significant psychopathology or any evidence of incompetency.

DIAGNOSTIC IMPRESSION:

AXIS I: No mental disorder.

AXIS II:

1. Antisocial personality by history. OPINION: In answering the questions asked by the Court, it is my opinion that Mr. Fairchild has no evidence of a significant mental disorder that would adversely affect his competency or capacity to appreciate the legal position that he is in. He is capable of making rational decisions and cooperating with his attorneys. He is capable of making decisions regarding whether to continue or not with further appeals or procedures relating to his rights to appeal his death sentence for a capital murder offense. He is very capable of making the decision to waive his rights if he so chooses. He seemed to understand quite fully the ramifications of continuing with an appeal and he is not interested in the possibilities that could result, particularly that of the death sentence being reduced to life in prison without parole. He has no optimism for obtaining a new trial either and even if he did he doesn’t think the outcome would be any different for him. As stated previously, the patient is quite aware of the day by day existence of life in prison. He quite simply does not wish to receive a long term sentence. He appears in no way impulsive in making these decisions and is under no pressure from anyone else to take this legal stance. He is not an apparently hysterical individual and has no evidence of any irrational thought processes. Whereas Mr. Fairchild was not suffering from an Axis I type mental condition, it is fair to say that he does at times become anxious and the potential for him to be depressed

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is there although he seems to be remarkably intact thus far. He seems to be a person who could become easily frustrated as he is not an extremely talkative or articulate person and is hampered by his inability to read or write. A recommendation of supportive counselling wherein he could cathect his feelings regarding the above would be a humane endeavor.

Also attached is a four-page Psychological Report, dated September 16, 1986, and signed by Richard J. D’Andrea, Ph.D., Staff Psychologist. That report states,

inter alia:

TESTS ADMINISTERED: Revised Beta Examination, Visual Motor Bender Gestalt Test, and Minnesota Multiphasic Personality Inventory.

MENTAL STATUS: Mr. Fairchild was friendly and cooperative during his present study. He was oriented to time, place, person, and situation as evidenced by his understanding of his present legal predicament and the reason for his psychological evaluation. His flow of speech was coherent and his responses were relevant. There were no loosening of associations or circumstantial or tangential thinking. Affect was appropriate and mood was sad. Concentration and attention span were adequate, and there was no disturbance in recent or remote memory. Hallucinations, delusions, or bizarre mental content were denied. Significant head injuries were denied. He was neither clinically depressed nor elated. Suicide thoughts or attempts were denied. He did not indicate any disturbance in eating or sleeping behavior. Alcohol or drug abuse was denied. Mr. Fairchild made an adequate adjustment to the unit during his evaluation. Other than expressing a desire to return to Arkansas where he could be close to his family, he did not appear to be under any immediate distress.

PSYCHOLOGICAL TESTING: Psychological testing indicated that Mr. Fair-child received a Revised Beta Examination IQ score of 87, which places him at the upper limits of the Dull Normal range of intellectual ability. Since Mr. Fairchild was unable to read or write, this test was administered due to its nonreliance on verbal skills. There was no evidence of any motor-perceptual difficulties indicative of any organic brain impairments, as measured by the Visual Motor Bender Gestalt Test.

The MMPI indicated a significant need to appear in a favorable light and to give socially approved answers regarding self-control and moral values. Lack of flexibility in adapting and a poor tolerance for stress and pressure is suggested. Similar individuals are seen as evasive, defensive about admitting to problems, and handling anxiety and conflicts by refusing to recognize their presence. They are described as hostile, irritable, demanding, argumentative, resentful, suspicious, immature, narcissistic, egocentric, and self-indulgent. Rationalization and projection are noted defense mechanisms. These individuals are often seen as impulsive and manipulative and are often in conflicts with authority figures. Poor sexual and marital adjustments are often noted. There was no evidence of the distress signs of anxiety or depression, nor was there any evidence of bizarre mental content which would be suggestive of any psychosis.

DIAGNOSTIC IMPRESSION:

Axis I: No Mental Disorder

Axis II: Antisocial Personality

SUMMARY AND CONCLUSIONS: In regard to the question asked by the court, Mr. Fairchild is not suffering from a mental disorder that would adversely affect his capacity to appreciate his legal position and make a rational choice with respect to continuing or abandoning further litigation in regard to his decision to waive his rights to appeal his death sentence for a capital murder offense. He fully understands that if he were to continue with the appeal, there exists the possibility that he may receive a new trial, and secondly, the possibility that the death sentence could be reduced to life in prison without parole. In regard to the first possibility, he believes that the chances of obtaining a new trial and also being found not guilty are so remote

*1443

that his efforts would be futile. In regard to the second possibility, he adamantly stated that he does not want to spend the rest of his life incarcerated. In regard to this issue, he speaks from experience since he has spent most of his adult life in prison. In addition, the decision to waive his rights to appeal has not been impulsive in nature and has existed for over six months.

RECOMMENDATIONS: Mr. Fairchild is not suffering from a mental disorder requiring psychiatric hospitalization or treatment. However, due to the uniqueness of his present legal predicament, he could benefit from counseling which can offer support and help him vent his frustrations and anxieties concerning the future.

ANALYSIS OF DATA SUPPLIED WITH NEW PETITION.

Petitioner attaches nine appendices to his new “Successor Petition”:

A Arkansas State Hospital Records on Petitioner

B Medical Center for Federal Prisoners Records on Petitioner from 1986 C Affidavot of Merdine Fairchild, Petitioner’s Mother

D Affidavits of Family and Friends

E Petitioner’s School Records

F State Court Order for Psychiatric Evaluation at Arkansas State Hospital

G Report of Ruth Luckasson and Denis Keyes

H Affidavit of Joe O’Bryan

I Affidavit of John Wesley Hall, Jr. We have already discussed the report from the Medical Center for Federal Prisoners and we have referred to comments made on the record by Mr. Fairchild’s lawyers concerning his competence. Mr. Joe O’Bryan in a new affidavit states: “I had my own doubts as to Mr. Fairchild’s mental abilities ...” and felt he needed expert evaluation. However, the state court denied his request for adequate funds to employ an independent expert. He further states: “After the State Hospital did its evaluation and found Mr. Fairchild competent, I had no reason to believe that it had done an inadequate evaluation of his mental capabilities.” Mr. John Wesley Hall, Jr. has also prepared and filed a new affidavit which states that: “At the time I got into the case, the MCFP had determined Mr. Fairchild’s IQ to be 87. I understood from other sources that his IQ had also been determined to be about 80. Based on the apparent thoroughness of the report from MCFP and the court’s own assessment of that in its letter to the attorneys, I felt that I had no legitimate reason to question that finding.” Mr. Hall goes on to state:

I have had frequent contact with Mr. Fairchild during the last two and a half years. My personal belief was that the MCFP finding of an 87 IQ was somewhat higher than Mr. Fairchild really was, but not so substantially off as it was found to be in February 1989 by Ms. Luckasson and Mr. Keyes.

Mr. Fairchild sometimes has a difficult time communicating, and he has to think hard to articulate what he feels and thinks. Nevertheless, when I was informed that his IQ in 1989 was only 63 and that he is qualified as mentally retarded, I was surprised. Based on that, I obtained his school records. We thus found that in 1966, his IQ was tested at 65 by Jacksonville school officials.

The affidavits of petitioner’s mother and of “family and friends” attached to the petition do not, frankly, appear to add anything new or significant to the information already possessed by the professionals who examined Mr. Fairchild at the Arkansas State Hospital or those who examined him at the Medical Center for Federal Prisoners at Springfield, Missouri. For example, Mrs. Fairchild provided a great amount of information by her answers to a questionnaire used by the Arkansas State Hospital experts back in 1983.

Petitioner’s school records, although not specifically brought to the attention of the Court before, are not surprising, being consistent with other history heretofore available including the circumstance that Mr.

*1444

Fairchild cannot, for practical purposes, read or write.

Mr. Fairchild was under observation at the Arkansas State Hospital for nearly three weeks in April 1983. Some additional excerpts from the various reports of the Arkansas State Hospital should be noted:

CIRCUMSTANCES SURROUNDING ADMISSION:

“I didn’t did it. My lawyer told me not to talk about it.” He states that he was arrested on March 5, 1983 in Russellville. “I was on a bus. I was going to California. They stopped the bus in Russellville and took me off.” He states this was some two weeks after the alleged crime occured [sic]. He states that he is charged with Murder, Rape, and Robbery, and when asked what type of charge this would be, he answered “capital felony.” He was asked if he knew the possible penalty, and he replied, “death or life without parole.”

PREVIOUS LEGAL DIFFICULTY:

He has had one previous conviction for Theft of Property, and was sentenced to two (2) years and served 18 months, this was in 199 [sic]. He states that he was assigned in the Vo-Tech area and he learned welding, and was given a certificate. He states he never worked in this area because he did not particularly like welding. He states that he has probably been arrested 10 to 12 times, but other than the aforesaid, these arrests have been the result of misdemeanors.

FAMILY HISTORY:

His father is dead, he died at the age of 95 in 1959. His mother is 50. He has four brothers and five sisters. One brother and two sisters are at home. He is single. He has been living commonlaw and has four children, 3 boys and one girl, ages 12, 14, 17, and 9.

PAST HISTORY:

He was born in Little Rock, at the University Hospital, on March 5, 1954. He started school at about the age_, and went to the 11th grade in the Jacksonville Public School System. He stated that he repeated no grades. He considered himself an average student, he made B’s and C’s. He states that he quit to go to work. He states that he has followed the construction trade for the most part. He has never been in any military service.

It is noted that he apparently told the hospital authorities, just as he did the Pulaski County officers, that he had an eleventh grade education. But he went even further when he stated that he considered himself an average student who made B’s and C’s. (He also told the police officers on the night he confessed that he had eleven years of school and could read and write.) But the staff at the Arkansas State Hospital independently obtained information from Mr. Fairchild’s mother and through their staff social workers that the last grade he attended was the ninth grade, that he never enjoyed school, but always skipped school. See Social Service Report of April 28, 1983, “Educational History.” And in 1986, he told the authorities at Springfield the truth: that he had a ninth grade education but could not, for practical purposes, read or write.

Another Arkansas State Hospital report states,

inter alia:

CONTENT & TREND OF THOUGHT: OBSESSIONS & COMPULSIONS: Nothing can be obtained concerning obsessional thinking or compulsive actions as such. During the last interview, which was conducted this date, he spent the majority of the time trying to convince the examiner that he is hallucinating. He says that he is hearing voices, but he cannot identify the voices, and the voices seem to be originating from his head. He cannot identify what the voices are saying. He claims that he has been hallucinating all of his life and he has wanted to get help in the past, but was too scared to ask for same. He says that he now realizes that he needs help, and wants same. When he was informed that under circumstances that during the period of observation and evaluation he was not to receive medicine, there was a sudden flash of anger across his face as evidenced by a very hostile look, but he immediately controlled same.

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DELUSIONS & HALLUCINATIONS: There is nothing listed suggestive of delusional thinking, and in spite of his allegations, it is the examiner’s opinion that he is not hallucinating.

PARANOID IDEATION: He makes the statement that he feels that the police unduly arrested him.

JUDGMENT & INSIGHT: The defendant’s judgment is grossly intact. His attorney told him not to discuss his case, and he certainly has been able to follow this advice. He claims that he was not read the miranda rights when he was arrested, but when asked to recite these rights, he rapidly goes though the four steps. He claims that he has not made a statement to the police. He is competent to stand trial.

SUMMARY Barry Lee Fairchild is a 29-year old, black male, who is charged with Capital Felony Murder. He claims that he is innocent, but his lawyer told him not to discuss the case. During the initial interview, he was in contact, he gave the date of his arrest, and the circumstances surrounding arrest. He is single, he lives in commonlaw status and claims that he has four children. He has served one sentence in prison, of 18 months. He claims that he has been arrested 10 to 12 times, but usually a result of misdemeanors. His father is dead and his mother is living. He has one brother and two sisters at home. He was born in Little Rock, Arkansas. He went to the 11th Grade in school at Jacksonville Public School system. He repeated no grades. He claims that he has had no fulltime jobs with any degree of regularity. He has worked as busboy at restaurants. He has done construction work. He claims that he was a patient at the Benton Unit of the state hospital in 1974 for 7 to 8 months. During the period of observation, he has not been overly cooperative with the examiner, claiming that he cannot remember. Although he can give a good account of several incidents that happened in the past. On initial interview, he was in contact. He said that his lawyer told him not to discuss the case, even though he alleges that he had nothing to do with the alleged crime, and that the police are unduly arresting him. He is now complaining of auditory hallucinations, which he says are imminating from inside his head, but he cannot describe the voices or identify what is being said to him. In spite of his allegations, his affect does not register the concern expected from auditory hallucinations. There is no evidence of delusional thinking. He has refused to cooperate with the psychologist, Dr. Dave Pritchard. He has refused to cooperate with the examiner in a brief intellectual assessment. It is thought that at the time of the commission of the alleged crime, he was responsible, and further, that he is competent to stand trial. He will have no difficulty in assisting his attorney in a court of law.

DIAGNOSIS:

Axis I Malingering

Axis II Personality Disorder, mixed,

Passive-Aggressive and Antisocial features

Axis III None

Particularly important to the issue before the Court is Dr. Rosendale’s statement that Mr. Fairchild “claims that he was not read the

Miranda

rights when he was arrested, but, when asked to recite these rights, he rapidly goes through the four steps.”

Mr. Fairchild contends that the state should have properly examined him and provided a competent and professional evaluation of his mental condition. The “Psychological Evaluation” submitted April 29, 1983, includes the following:

BEHAVIORAL OBSERVATIONS: Mr. Fairchild sat with his head bowed and gaze averted during most of the evaluation. Mr. Fairchild appeared to be hostile and uncooperative in the examination.

PROCEDURES: Interview April 28, 1983

Wechsler Memory

Scale April 28, 1983

Memory Malingering Test April 28, 1983

INTELLECTUAL NEUROPSYCHO-LOGICAL FUNCTIONING: Mr. Fair-child’s responses to the Wechsler Memory Scale indicated a severe memory prob

*1446

lem, consistent with total dementia. Mr. Fairchild’s responses to the Memory Malingering Test indicated that he was grossly exaggerating or inventing any memory problems. Because of Mr. Fair-child’s uncooperativeness with the examination, no formal assessment of his current intellectual functioning was undertaken.

PERSONAL FUNCTIONING: Because of Mr. Fairchild’s uncooperativeness in the examination, no examination of Mr. Fairchild’s current level of personal functioning was undertaken.

So, it is the State’s position that it did not deny Mr. Fairchild an adequate, competent and professional evaluation -of his mental condition. Rather he chose not to cooperate and thereby frustrated at least part of the State’s efforts. The State asks what more could reasonably be expected of it in the light of both Mr. Fairchild’s uncoopera-tiveness and the evidence of his malingering?

The reports of Ms. Ruth Luckasson and Mr. Dennis Keyes will be discussed when reviewing their testimonies,

infra.

HISTORY PERTAINING TO CURRENT ISSUES.

The petitioner filed a motion to suppress in the state court and a

Denno

hearing was held pursuant thereto. However, the motion to suppress did not raise any issue concerning the giving of the

Miranda

warnings or whether the petitioner voluntarily and intelligently waived his

“Miranda

rights.” The motion to suppress was based solely upon the theory that the defendant’s videotaped statements were made “under threat of physical force,” reflected “only the suggestions of law enforcement officers” and “were not made voluntarily.” However, the trial court listened to the evidence about the giving of the

Miranda

rights and the waiver during the suppression hearing and treated the issue of the voluntary and intelligent waiver of such rights as having been properly raised. At the conclusion of the hearing, the judge identified the issues as follows:

First of all, the voluntariness of the execution of the rights waiver, which is State’s Exhibit Number One. And basically, whether or not the Defendant, or the evidence reflects that the Defendant intelligently, voluntarily and knowingly executed the waiver of rights, which is before the Court.

The second issue to be decided is the voluntariness of the first video statement made by the Defendant on March 5, 1983, at 2:31 a.m.

The third issue is the sufficiency of the Defendant being apprised of his rights before the commencement of the second video statement.

Then, the fourth issue is the validity or the voluntariness of the second video statement made March 5, 1983, at 6:40

a.m.

The fifth issue deals with the volun-tariness of statements allegedly made by the Defendant in a vehicle between the first video statement and the second video statement, which vehicle was being driven by Major Larry Dill, and which were oral statements made by the Defendant.

The Court then ruled:

The Court having heard the evidence presented in this suppression hearing finds for the record first, that the document labeled “State’s Exhibit No. One,” which has been referred to as the rights waiver, or statement of rights and rights waiver, was, from the evidence, voluntarily, intelligently and knowingly executed by the Defendant. The Defendant having been made aware of his Constitutional rights, as set forth in the document.

And this Court found in 1987 after two days of hearings that Pulaski County Sheriff officers advised Mr. Fairchild of his

“Miranda

rights” immediately after he was taken into the Pulaski County Correctional Facility in Little Rock after his trip from Russellville. This was over an hour before the first videotaped confession was recorded. (See p. 9, Findings of Fact and Conclusions of Law.) The Court made this finding based on the testimony of the witnesses and the circumstantial evidence despite the denial of Mr. Fairchild.

*1447

From viewing the first videotape, it was obvious that Mr. Fairchild had, before the videotape recording began, signed and initialed the

Miranda

rights waiver form. The transcript of the pertinent portion of the videotape is as follows:

LT WAGGONER: Today’s date is March 5, 1983, the time is 2:31 a.m_ This interview is going to be in reference to the Marjorie Mason homicide which occurred on or about 2-26-83. Barry,

pri- or to this,

were you advised of your rights on a standard rights form?

MR. FAIRCHILD: Yes, sir.

LT WAGGONER: Is that this form here?

MR. FAIRCHILD: Yes, sir.

LT WAGGONER: Okay. Is this your signature here?

MR. FAIRCHILD: That’s right.

LT WAGGONER: Okay.

We’re going to go over this rights form again,

Okay. And I need for you to answer yes after each sentence if you understand them, okay. It starts out, it says, “The date is 3/5/83, time is 2:31 a.m. Subject has an eleventh grade education.” You can read and write, is that correct?

MR. FAIRCHILD: Right.

LT WAGGONER: Okay. It says, “I, Barry Lee Fairchild, date of birth of 3/5/54, now live at 1213 East 4th Street, North Little Rock.” Says that you’ve been advised that you’re a suspect in a Capital Murder, do you understand that?

MR. FAIRCHILD: Right.

LT WAGGONER: Okay. It says that you have the right to use the telephone, do you understand that?

MR. FAIRCHILD: Right.

LT WAGGONER: Okay, it says that you have the right to remain silent—

MR. FAIRCHILD: Right.

LT WAGGONER: You understand that?

MR. FAIRCHILD: Right, I understand that.

LT WAGGONER: Okay. That you have the right to talk to an attorney, either retained by you or appointed by the court before giving a statement—

MR. FAIRCHILD: Right.

LT WAGGONER: You do understand that?

MR. FAIRCHILD: I understand.

LT WAGGONER: Okay. Also, to have your attorney present when answering any questions, do you understand that?

MR. FAIRCHILD: Right, I understand that.

LT WAGGONER: Okay.

You’ve been advised that

if you waive these rights, you have the right to stop the interrogation at any time—

MR. FAIRCHILD: Yes, sir.

LT WAGGONER: Also, any statement you make, can and will be used against you in a court of law.

MR. FAIRCHILD: Right.

LT WAGGONER: And that is your signature right here?

MR. FAIRCHILD: Yes, sir.

LT WAGGONER: The second part of this waiver says, ‘Tve read the above statement of my rights and understand them.” Any questions about your rights? The ones we’ve just read to you?

MR. FAIRCHILD: No, sir.

LT WAGGONER: You fully understand your rights?

MR. FAIRCHILD: Yes, I do'.

LT WAGGONER: Okay. No promises or threats have been made to induce you into making any type of statement?

MR. FAIRCHILD: No, sir.

LT WAGGONER: No threats?

MR. FAIRCHILD: No, sir.

LT WAGGONER: Okay. And that is your signature here?

MR. FAIRCHILD: Yes, sir.

(Emphasis supplied)

The second videotaped interview was conducted by Deputy Prosecuting Attorney Dale Adams. It began some three hours after the end of the first videotape. As the first order of business, Mr. Adams administered the oath and then went over the “rights” form with Mr. Fairchild as follows:

MR. ADAMS: Okay, Mr. Fairchild, I have in front of me here a rights form that’s used by the Sheriff’s Office. It

*1448

says, “I have been advised that I am a suspect in Capital Murder, that I have the right to use the telephone.” Is that initial “BF” out there yours?

MR. FAIRCHILD: Yes, sir.

MR. ADAMS: Okay. “That I have the right to remain silent,” you’ve initialed that?

MR. FAIRCHILD: Yes, sir.

MR. ADAMS: All right. “I have the right to talk with an attorney, either retained by me or appointed by the court before giving a statement,” you’ve initialed that?

MR. FAIRCHILD: Yes, sir.

MR. ADAMS: “To have my attorney present when answering any questions,” your initial there, correct?

MR. FAIRCHILD: Yes, sir.

MR. ADAMS: “That I have also been advised that if I waive these rights, I have the right to stop the interrogation at any time,” did you initial that?

MR. FAIRCHILD: Yes, sir.

MR. ADAMS: That any statement I give will be used against me in a court of law, your initial there, you signed it there? MR. FAIRCHILD: Yes, sir.

MR. ADAMS: “And I have read the above statement of my rights and understand them. No promises or threats have been made to induce me into making this statement,” and you signed “Barry Fairchild?”

MR. FAIRCHILD: Yes, sir.

MR. ADAMS: And it’s witnessed by Lieutenant Tom Waggoner and Allen Swint?

MR. FAIRCHILD: That’s right.

Since no challenge was ever made to the confessions on the ground that Mr. Fair-child was not advised of his rights or did not intelligently waive those rights, the state was never directly called upon to show the circumstances attendant to the original giving of, and waiver of, those rights. Nevertheless, the state trial court record is not completely silent on that issue. In fact, there is a great deal of testimony in that record concerning the manner in which Officer Waggoner went about advising Mr. Fairchild of his rights. See, e.g., State Trial Transcript, pp. 920-22. According thereto, Lt. Waggoner gave Mr. Fairchild a copy of the rights and waiver form and then read each item thereon from an identical copy and obtained petitioner’s statement that he understood same. At the time, the officers believed that Mr. Fairchild could read because he told them he could. The Court doubts that Mr. Fair-child read back any of those rights but he probably did repeat or paraphrase same, thereby leading the officers to accept his statement that he could read. The Court accepts that Officer Waggoner explained the rights orally to Mr. Fairchild. This is clear from Mr. Fairchild’s own testimony. When Mr. Fairchild was on the stand during his capital murder trial, his own attorney inquired about the matter:

Q. Barry, I want to hand you an exhibit marked State’s Exhibit 1. Just start right up there at the first word and tell me what it says, right at the top? ,

A. Up here?

Q. Yeah.

A. What the number?

Q. Okay.

A. 03—

Q. What does it say right before the number? What is that D-A-T-E, right before the number there, the first thing? Can you see any word on that form you can read, anywhere?

A. My name.

Q. Your name?

A. Yes.

Q. Your initials?

A. Right.

Q. You did write these initials on here, didn’t you?

A. Yes, I wrote them.

Q. Do you remember Lieutenant Tom Waggoner showing you this? He asked you all of these questions, didn’t he? A. He asked me those questions.

Q. Did he ask you if you understood you had a right to use the telephone?

A. That was after they had done did what they did.

Q. Right. He went and asked you everyone [sic] of these questions?

*1449

A. He asked me those.

Q. He explained them to you?

A. Right.

Q. Did you understand them?

A. Yes, I understood them.

Q. And then he asked you to initial them?

A. Right.

Q. You did understand that?

A. Yes.

Q. He had to read them to you?

A. Yes.

DISCUSSION OF THE PERTINENT LAW.

The relevant analytic framework is summarized in

Moran v. Burbine,

475 U.S. 412 , 106 S.Ct. 1135, 1114-1 , 89 L.Ed.2d 410 (1986). It is worth repeating this summary at length:

Miranda v. Arizona,

the Court recognized that custodial interrogations, by their very nature, generate “compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” To combat this inherent compulsion, and thereby protect the Fifth Amendment privilege against self incrimination,

Miranda

imposed on the police an obligation to follow certain procedures in their dealings with the accused. In particular, prior to the initiation of questioning, they must fully apprise the suspect of the state’s intention to use his statements to secure a conviction, and must inform him of his rights to remain silent and to have counsel present if he so desires.

Echoing the standard first articulated in

Johnson v. Zerbst

[ 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938)],

Miranda

holds that “the defendant may waive effectuation” of the rights conveyed in the warnings “provided the waiver is made voluntarily, knowingly and intelligently.” The inquiry has two distinct dimensions. First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an un-coerced choice and the requisite level of comprehension may a court properly conclude that the

Miranda

rights have been waived.

(Citations and original punctuation omitted in part.)

See also, United States v. Marchildon,

519 F.2d 337 , 342 n. 9, 344 (8th Cir.1975) (Court considers defendant’s age, education, mannerisms, intelligence);

United States v. Stith,

479 F.2d 315, 317 (8th Cir.1973), ce

rt. denied,

414 U.S. 845 , 94 S.Ct. 107 , 38 L.Ed.2d 83 (1973) (Court considers intelligence and education). As with all decisions made on the totality of the circumstances, the cases tend to be rather fact-specific.

The most pertinent Eighth Circuit cases on this point are

Winfrey v. Wyrick,

836 F.2d 406 (8th Cir.1987) and

United States v. Voice,

627 F.2d 138 (8th Cir.1980). In

Wyrick,

the court held that:

Based on the state and district court findings and the undisputed facts, we conclude that Winfrey’s confession was voluntary. The primary facts suggesting coercion are Winfrey’s age and low IQ. Yet, in past cases this court considered facts similar to these and held that confessions were voluntary.

Hall v.

*1451

Wolff,

539 F.2d 1146 (8th Cir.1976) (defendant 19 years old, of low order of intelligence);

Coney v. Wyrick,

532 F.2d 94 (8th Cir.1976) (defendant 16 years old, of “subnormal intelligence”).

Accord, Vance v. Bordenkircher,

692 F.2d 978 (4th Cir.1982),

cert. denied,

464 U.S. 833 , 104 S.Ct. 114 , 78 L.Ed.2d 114 (1983) (defendant 15 years old, IQ of 62, no lawyer or parent present).

836 F.2d at 411 . Similarly, in

Voice ,

the court held that the defendant had knowingly waived his right to remain silent based on the following facts:

Defendant, although having a “dull-normal” IQ, was not mentally retarded. He had a fifth grade education and could read, write, and do math problems and crossword puzzles. When examined by doctors before trial he was responsive and followed directions. [He was read his rights by the interrogating officers before each questioning session, he was not threatened, and he indicated he understood his rights. On earlier occasions, he had asserted his right to remain silent.]

627 F.2d at 145-6 .

Four reported decisions have expressly or implicitly found that the defendant’s lack of mental capacity, including low IQ, precluded a knowing waiver of rights under the totality of circumstances.

The most recent of these four, and the most recent located decision to consider the issue, is

Smith v. Zant,

855 F.2d 712 (11th Cir.1988). There, the court held that “[t]he record in this case compels the conclusion that [the defendant] did not intelligently waive his

Miranda

rights.” 855 F.2d at 716 . A psychologist testified that the defendant’s IQ was approximately 65, and that a person with defendant’s low mental ability would be unlikely to “appreciate what he is doing when his

Miranda

rights are read to him.”

Id.

717 . A second expert testified that the defendant was unable to complete the MMPI because he could not read the test, and also stated that the defendant would not understand the warning and the waiver decision unless everything was explained to him slowly, simply and repeatedly. This expert also explained that the defendant’s difficulties in comprehension would be compounded if he was under stress at the time the waiver was executed.

Id.

718 . The district court and the court of appeals both accepted this testimony as establishing a lack of knowing waiver.

The court of appeals also rejected the claim that the waiver was valid because the defendant had been given the

Miranda

warnings during an earlier arrest for an unrelated crime:

We agree with the state that prior experience with criminal justice may be relevant in determining whether a waiver of constitutional rights is valid, but we find no evidence on the record to convince us that the prior prosecution of [the defendant] was particularly important in this case. The state offered no testimony to rebut the deeply pessimistic opinions of [defendant’s] experts about [defendant’s] capacity to understand and waive his rights.... Accordingly, we conclude that petitioner did not intelligently waive his

Miranda

rights.

Id.,

855 F.2d, at 718-19 .

The defendant in

Henry v. Dees,

658 F.2d 406 (5th Cir.1981) was a twenty year old marginal mental retardate with an IQ between 65 and 69. He had completed the sixth grade, but had reading skills at the second grade level. “His mental capacity brings into serious question his understanding of the documents he signed. The record contains uncontradicted testimony of a psychologist that it was unlikely [defendant] could have understood the complex waivers and their consequences. Given this evidence, we are persuaded [defendant] did not ... waive his constitutional rights....” 658 F.2d at 411 .

Cooper v. Griffin,

455 F.2d 1142 (5th Cir.1972), begins with the broad statement that “[i]n view of the undisputed evidence in the record that both boys are mentally retarded, we hold that they did not knowingly and intelligently waive their rights.” 455 F.2d at 1143 . But the facts upon which the case rested were broader, and indicate that the court was looking at the

*1452

totality of the circumstances to ascertain that the confessions were not knowingly and intelligently made. The court also appears to have used the word “retarded” to encompass general mental incapacity rather than merely low IQ. It based its conclusion on the following facts: the boys were 15 and 16 years old; they had no prior experience with the criminal justice system; one had an untreated gunshot wound at the time of the interrogation; the other was interrogated for 12 hours before confessing; there was substantial uncontroverted evidence both boys were extremely slow and that neither of them could comprehend the

Miranda

warnings; and their IQ’s were judged to be between 61 and 67. 455 F.2d at 1144 . “[T]he boys surely had no appreciation of the options before them or of the consequences of their choice. Indeed it is doubtful that they even comprehended all of the words read to them.” 455 F.2d at 1146 .

Finally, the court in

Toliver v. Gath-right,

501 F.Supp. 148, 150 (E.D.Va.1980), did not decide the issue because it suppressed the defendant’s confession on another ground. However, the Court noted that “it would be hard pressed to find that the state met its ‘heavy burden’ of demonstrating a knowing waiver,” because defendant was retarded, with an IQ of approximately 60; his rights were read to him in a summary fashion, without explanation; and a psychiatrist testified that persons of defendant’s mental capacity are generally unable to comprehend complex ideas without detailed explanation. 501 F.Supp. at 150 . “While it has been held that the fact that a suspect is of limited mental capacity is not dispositive on the issue of waiver where the circumstances support the conclusion that he did in fact comprehend his rights, this is not the case here.”

Id.

There have also been a number of cases in which defendants with below average intelligence, even some who were mildly retarded, were held to have understood their rights well enough to make a knowing waiver.

Reddix v. Thigpen,

805 F.2d 506 (5th Cir.1986), a psychologist claimed that defendant suffered from mental retardation and psychosis. However, the court found that defendant’s waiver was knowingly and intelligently made, based upon the facts that defendant had been arrested a number of times on previous occasions, and had been read his rights each time; that he had been read his rights repeatedly before giving his statement; that he admitted he understood his right to have a lawyer present and knew the meaning of threat; and that he was capable of understanding the simple meanings of simple words and of applying them to real life situations. 805 F.2d at 516-17 .

De La Rosa v. Texas,

743 F.2d 299 (5th Cir.1984),

cert. denied,

470 U.S. 1065 , 105 S.Ct. 1781 , 84 L.Ed.2d 840 (1985), a borderline retarded or dull normal defendant was held able to understand the meaning of

Miranda

warnings given orally four different ways: read in Spanish and English and stated in informal language in Spanish and English. 743 F.2d at 301-3 . Similarly, in

Conner v. Auger,

595 F.2d 407 (8th Cir.1979),

cert. denied,

444 U.S. 851 , 100 S.Ct. 104 , 62 L.Ed.2d 67 (1979), the court of appeals affirmed the district court’s acceptance of state court findings that defendant’s “low intelligence did not, in these circumstances, preclude his understanding the nature and significance of his constitutional rights.” 595 F.2d at 411 .

The facts in

United States ex rel. Cooper v. Warden,

566 F.2d 28 (7th Cir.1977), were that defendant had a low IQ and was not spontaneous. On the other hand, defendant’s own experts testified that defendant was able to read his rights, that he responded quickly and directly, and that he could read and understand

Miranda

rights if assisted. Also, defendant’s “behavior and actions when he testified at the suppression hearing were clearly discernible to the [state court] trial judge.” That direct observation, combined with the equivocal nature of the expert’s report, supported the state court decision that the confession was knowingly made. The district court deferred to that finding under section 2254, and was affirmed by the court of appeals. (As indicated above, deferral to state court

*1453

findings on this ultimate issue is no longer held appropriate.)

The defendant in

Harris v. Riddle,

551 F.2d 936 (4th Cir.1977),

cert. denied,

434 U.S. 849 , 98 S.Ct. 160 , 54 L.Ed.2d 118 (1977), was 17 years old and had an IQ of 67, in the dull-normal range. The expert testified that he had sixth-grade intelligence but only third-grade language skills. But he also testified that defendant understood the right to remain silent, though not all of the consequences of giving up that right. The court held that defendant’s comprehension was sufficient. 551 F.2d at 939 .

United States v. Young,

529 F.2d 193 (4th Cir.1975), the defendant had a below average IQ, limited education and reading problems. But the court held that:

[T]hese factors are not in themselves determinative of the voluntariness of a waiver, for one must examine the totality of circumstances surrounding the waiver. Numerous other factors pertinent to defendant’s comprehension of the

Miranda

warnings appear in the record. [Defendant] signed a waiver statement; he told the postal inspectors that he understood the

Miranda

warnings recited to him; he repeated at trial, although with some hesitation, that he had understood the inspector’s warning; he was able to read aloud much of the waiver form without difficulty in court.

529 F.2d at 195 .

Miller v. United States,

396 F.2d 492 (8th Cir.1968),

cert. denied,

393 U.S. 1031 , 89 S.Ct. 643 , 21 L.Ed.2d 574 (1969), involved a thirty-five year old black man with a third or fourth grade education and a limited ability to read or write. The trial court was affirmed in its finding of intelligent waiver because:

[I]t had an opportunity to observe the defendant and was in a position to form a judgment as to his ability to comprehend. The hearing on the motion [to suppress] was thorough, and the defendant was given every opportunity to present evidence.

396 F.2d at 495 .

This issue has been considered in several district court opinions. In

United States of America ex rel. Lopez v. Chrans,

696 F.Supp. 1210 (N.D.Ill.1988), the state court’s finding that an IQ of 86 did not render the waiver unknowing or involuntary was held to be supported by the record. 696 F.Supp. at 1212 . In

United States v. Nash,

414 F.Supp. 1213 (S.D.Tex.1976), an 18-year-old defendant with a verbal IQ of 71, performance IQ of 89 and full scale IQ of 78, all above the defective level of 70, who had the vocabulary of a fourth-grader and sporadic knowledge of words up to eighth or ninth grade and who was able to read waiver form in court, though slowly, was found able to make a knowing waiver. 414 F.Supp. at 1218-19 . Finally, in

Lavallis v. Estelle,

370 F.Supp. 238 (S.D. Tex.1974),

aff'd mem.

500 F.2d 1182 (5th Cir.1974), the defendant had an IQ between 65 and 71 and a psychologist testified that defendant would have difficulty understanding ideas that entail appreciation of future events or reasoning. But the same expert concluded that the defendant could have understood his rights and the waiver if the person explaining these concepts to him got down on defendant’s level and used simple vocabulary, pausing between statements and placing no pressure on defendant. The evidence showed that under the totality of the circumstances, defendant’s rights were adequately explained and understood. 370 F.Supp., at 245 .

The Court accepts that no single factor, such as IQ, is necessarily determinative in deciding whether a person was capable of knowingly and intelligently waiving, and do so waive, the constitutional rights embraced in the

Miranda

rubric.

IQ TESTING AND MENTAL RETARDATION IN THE COURTS.

A. Efforts to Define Mental Retardation.

In arguing that Mr. Fairchild is mentally retarded, the petitioner’s brief states that Mr. Fairchild was given the Wechsler Adult Intelligence Scale-Revised (WAIS-R) test in late February, and registered IQ scores ranging in the 60’s. “These scores place him within the lowest 1% of the population. Fairchild has mental retardation.” Successor Petition for Writ of Habeas Corpus, p.

*1454

10 1123. Although the brief notes that Fairchild’s evaluation included a comparison with results of an IQ test administered to Fairchild in the 1960’s and Fairchild’s overall academic record, the brief seems to place paramount emphasis upon Fairchild’s 1989 IQ score in concluding: (1) that he is mentally retarded, and (2) was, therefore, unable to intelligently waive his constitutional rights. There are a number of analytic flaws in this argument.

First, the authorities seem to be in agreement that IQ scores are not dispositive of mental retardation, and that such measurements of intelligence make up only one of three elements of the overall clinical definition of retardation.

Second, petitioner’s giving paramountcy to IQ levels runs counter to most current teaching on the subject since advocates for the mentally retarded have usually argued that courts should place less emphasis on IQ scores when passing on such a defendant’s competency and, instead, inquire more into the specific functional disabilities of putative mentally retarded criminal defendants.

Finally, there is substantial recognition in the courts, growing out of long experience, that IQ tests and other forms of standardized testing have in the past exhibited patterns of racial, socio-economic, and cultural bias which would further call into question the accuracy of IQ scores. This recognition suggests a cautious approach when dealing with such a volatile “science” even though it does now appear that recent revisions of the most frequently used tests have been purged of such biases.

B. Mental Retardation and IQ.

There seems to be general agreement as to the clinical definition of mental retardation.

The essential features [of mental retardation] are: (1) significantly subaverage general intellectual functioning, (2) resulting in, or associated with, deficits or impairments in adaptive behavior, (3) with onset before the age of 18.

Diagnostic and Statistical Manual of Mental Disorders, 36 (3d ed. 1980) [hereinafter cited as DSM-III],

Similarly, the American Association on Mental Deficiency, one of the principal professional organizations in the field, refers to mental retardation as “significantly sub-average intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.” American Association on Mental Deficiency, Classification in Mental Retardation 1, (H. Grossman ed. 1983) [hereinafter cited as AAMD, Classification in Mental Retardation].

These definitions have been accepted by various courts, including the United States Supreme Court in

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 , 442 n. 9, 105 S.Ct. 3249 , 3255 n. 9, 87 L.Ed.2d 313 (1985) (quoting the AAMD, Classification in Mental Retardation). See also

United States v. Masthers,

539 F.2d 721 , 724 n. 16 (D.C.Cir.1976).

Only the first element of the retardation definition — intellectual functioning — is measured by reference to a person’s IQ score. Both the DSM-III and AAMD define “significantly subaverage intellectual functioning” as an IQ level of 70 or below on an individually administered IQ test. DSM-III at 36. Because of the fallibility of such tests, however, “an IQ score is generally thought to have an error of measurement of approximately five points; hence an IQ of 70 is considered to represent a band zone of 65 to 75.”

Id.

Mentally retarded individuals are grouped into four categories or subtypes, which use IQ scores as guides or points of reference. These categories are known as “Mild” (IQ levels of between 50-70), “Moderate” (IQ between 35-49), “Severe” (IQ between 20-34) and “Profound” (IQ level below 20). DSM-III at 39. Thus, if Mr. Fairchild fits the other criteria for mental retardation, he would most likely be classified as “mildly retarded” based solely on his 1989 IQ scores.

However, such a classification depends upon establishing that Mr. Fairchild has deficits in adaptive behavior, which are not

*1455

measured by IQ scoring. “Adaptive behavior refers to the effectiveness with which an individual meets the standards of personal independence and social responsibility expected of his or her age and cultural group.” DSM-III at 37. According to Prof. Ruth Luckasson, one of the evaluators upon whose testing the successor petition relies:

For an individual to be classified as mentally retarded, the deficit in intellectual functioning must be accompanied by impairments in adaptive behavior defined as ‘significant limitations in an individual’s effectiveness in meeting the standards of maturation, learning, personal independence, and/or social responsibility that are expected for his or her age level and cultural group, as determined by clinical assessment and, usually standardized scales.’ Thus, adaptive behavior is a term of art.... The inclusion of adaptive behavior in the definition of mental retardation requires that intellectual impairment, measured by an intelligence test, have some practical impact on the individual’s life.

J. Ellis & R. Luckasson, “Mentally Retarded Criminal Defendants,” 53 Geo.Wash.L. Rev. 414, 422 (1983) [hereinafter cited as Ellis & Luckasson]

quoting

AAMD, Classification in Mental Retardation, at 11.

C. De-emphasizing IQ.

Aside from the fact that an individual’s IQ is only a part of what constitutes a diagnosis of mental retardation, giving paramount importance to IQ runs counter to the analysis many advocates of the mentally retarded say courts should use when a criminal defendant’s intelligence is called into question. These advocates note that, in the past, courts have confused mental illness, which is an organic condition with psychologic or behavioral manifestations, and mental retardation, which is not an illness but rather a limitation on a person’s ability to learn. Consequently, it is argued, courts have ignored many of the disabilities that are characteristic of the mentally retarded such as inability to handle stress, suggestibility, and the so called “cheating to lose” phenomena whereby a defendant will accept blame in order to win the favor of an authority figure. Ellis & Luckasson, 445-52; J. Person, “The Accused Retardate”, 4 Colum.Hum.Rts.L.Rev. 239, 242-55 (1972). They argue that, in the past, courts have placed too much emphasis upon an individual’s IQ score without comprehending the specific disabilities a mentally retarded individual may have. Ellis & Luckasson,

supra,

423-24. And note the comments of Professor Mickenberg:

In large part, legal treatment of retarded defendants has been distorted by the law’s ignorance of exactly what mental retardation means. Virtually all cases dealing with this subject have simply recited a defendant’s IQ, noted that it was below normal, and then stated that simply because the defendant might be stupider than the average person does not mean that he is incompetent.

These courts have adopted the common fallacy that mental retardation is defined by IQ scores. Actually, IQ is no more than a convenient numerical scale used to categorize degrees of mental aptitude. While certain categories at the lower end of the IQ scale have been assigned the classification of ‘retarded’, the scores themselves say little about a person’s skills and aptitudes.

It is therefore essential that courts recognize that ‘mental retardation is a relative concept, the limits of which have meaning only in terms of social conditions.’ The degree of a person’s retardation, and even the very fact of his retardation, is determined by the ability to perform various functions. * * * ‘Mental retardation is not a unitary disorder in the sense that all persons who are so designated share a common condition.’ Certain retarded persons may have severe mental and physical disabilities which make life outside a hospital impossible. ‘The term mental retardation is likewise applied to persons who have no noticeable physical defect and whose intellectual abilities, although inadequate

*1456

for some tasks, are perfectly adequate for many others.’

* * * * * *

This distinction is crucial.... In making [competency] decisions, courts cannot merely rely upon IQ scores. Rather they must inquire into the manner in which the defendant’s retardation impairs his abilities to perform the functions required of a competent defendant. This necessitates an analysis of the sympto-mology of a defendant’s retardation and a correlation of those manifestations with the catalogue of necessary trial skills.

I. Mickenberg, “Competency to Stand Trial and the Mentally Retarded Defendant: The Need for a Multi-Disciplinary Solution to a Multi-Disciplinary Problem”, 17 Cal. W.L.Rev. 365, 390-92 (1981). And consider the approach taken by Professor Person:

‘[MJeasured intelligence falling below IQ 70’ seems adequate as a practical indicator to the court to require subsequent psychiatric testing. It will not prevent a defendant with an IQ greater than 70 from raising these issues; it will not be the

ratio decidendi

of these issues; it is only a signal that these issues must be raised and that psychiatric examination is necessary.

Person,

supra,

4 Colum.Hum.Rts.L.Rev. at 242.

One exception to the above is being forwarded in a case currently before the U.S. Supreme Court,

Penry v. Lynaugh,

— U.S.-, 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989). In that case, the petitioner contends that it would be cruel and unusual punishment to execute a person with a reasoning capacity of a seven years old and an IQ level between 50 and 63. Brief of Petitioner at 35-50,

Penry v. Lynaugh, supra.

Several psychological associations acting as

amici,

argue that “mental retardation always involves a substantial impairment that reduces a defendant’s level of blameworthiness and moral culpability for a capital offense.” Brief of

Amici Curiae

in Support of Petitioner at 10-11. They contend that “all persons with mental retardation lack that level of ability that would allow them to be capable of the level of culpability required for the death penalty.”

Id.,

at 15. Thus, they argue that the execution of such individuals would violate the Eighth Amendment since it would be disproportionate to the defendant’s degree of culpability. But while calling for a

per se

rule banning the execution of all mentally retarded defendants, petitioner and

ami-ci

Penry

caution:

American law has never held, nor do

amici

contend, that people with mental retardation cannot be held responsible or punished for criminal acts they commit. Some defendants who have mental retardation are entitled to acquittal because the effect of their disability matches the jurisdiction's test for insanity or because they lack the requisite

mens rea.

Other mentally retarded defendants properly can be convicted and subject to appropriate punishment.

Id.,

at 10.

Thus, despite the Eighth Amendment claim that the death penalty is .never appropriate punishment for a mentally retarded defendant, it is conceded that these defendants may be perfectly competent to function in other phases of a criminal prosecution. While courts should be sensitive to the kinds of disabilities found among the mentally retarded, it does not follow that there is a “bright line” rule based on IQ— or for that matter mental retardation itself — that automatically determines a defendant’s competence or ability to waive constitutional rights. The preferred analysis, the literature suggests, is one that compares the defendant’s specific intellectual deficits with the intellectual ability necessary to perform competently in various settings.

See generally

Ellis & Luc-kasson,

supra.

As the Supreme Court observed in

City of Cleburne v. Cleburne Living Center, supra,

“it is undeniable, ... that those who are mentally retarded have a reduced ability to cope with and function in the everyday world. Nor are they all cut from the same pattern.”

Id.,

473 U.S. at 442 , 105 S.Ct. at 3255.

*1457

D. IQ Testing and the School Cases.

The other seeming irony in placing paramount importance upon Mr. Fairchild’s IQ score is that such measures of intelligence have been repeatedly attacked for their racial and cultural bias against blacks, immigrants and other minorities.

It is well documented that minorities do not perform as well as Anglo-Americans on standardized exams — principally because of cultural and socioeconomic differences.

Columbus Board of Educ. v. Penick,

443 U.S. 449 , 511 n. 17, 99 S.Ct. 2941 , 2964 n. 17, 61 L.Ed.2d 666 (Rehnquist, J., dissenting).

The inherent cultural, linguistic and racial bias of employment tests, and their perceived threat as tools for discrimination, in part helped lead to the passage of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which prohibits discriminatory hiring practices including discriminatory testing. Note, “Employment Testing: The Aftermath of

Griggs v. Duke Power Company”,

72 Colum.L.Rev. 900, 900-01 (1972).

Similarly, in the area of education, these defects in standardized tests lead many to see competency testing programs as a subtle means to effect “re-segregation” of schools “since unequal educational opportunities may cause black children to score lower than their white counterparts.” M.S. McClung, “Competency Testing Programs: Legal and Educational Issues”, 47 Ford-ham L.R. 651, 688 (1979).

In numerous cases, the Fifth Circuit Court of Appeals proscribed the use of various tests used in recently desegregated school districts on the grounds that such tests would not accurately reflect intelligence or scholastic ability of black children, but rather would measure the effects of past discrimination. See e.g.,

Lemon v. Bossier Parish School Board,

444 F.2d 1400 (1971);

United States v. Sunflower County School District,

430 F.2d 839 (1970);

United States v. Tunica County School District,

421 F.2d 1236 (1970);

Singleton v. Jackson Municipal Separate School District,

419 F.2d 1211

rev’d. in part on other grounds

396 U.S. 290 , 90 S.Ct. 608 , 24 L.Ed.2d 530 (1969). More recently, school district policies denying high school diplomas to students who failed minimum competency tests were challenged (although upheld) because of the disproportionate impact these tests had on black students.

Debra P. v. Turlington,

644 F.2d 397 (5th Cir.1981) (78 percent of all black students failed competency exit exam compared with 25 percent of all white students). See also,

Anderson v. Banks,

520 F.Supp. 472 (S.D.Ga.1981); Note, “Testing The Tests: The Due Process Implications of Minimum Competency Testing”, 59 N.Y.U.L.Rev. 577 (1984).

After tracing the history of the impact IQ tests have had on minorities, one writer on the subject summed up as follows:

The interpretation of IQ data seems never to be free both of policy implications and of ideological overtones.

* * * * # *

The consequence has been that the IQ test has served as an instrument of oppression against the poor — dressed in the trappings of science, rather than politics. The message of science is heard respectfully, particularly when the tidings it carries are soothing to the public conscience. * * * The poor, the foreign-born, and racial minorities were shown to be stupid. They were shown to have been born that way. The underprivileged are today demonstrated to be ineducable, a message as soothing to the public purse as to the public conscience.

L. Kamin, “The Politics of IQ” in

The Myth of Measurability

63-64 (1977).

One of the earliest cases to discuss the discriminatory impact of IQ testing in schools was

Hobson v. Hansen,

269 F.Supp. 401 (D.D.C.1967) (Wright, J.)

appeal dism’d

393 U.S. 801 , 89 S.Ct. 40 , 21 L.Ed.2d 85 (1968),

aff'd. sub nom Smuck v. Hobson,

408 F.2d 175 (D.C.Cir.1969). The issue in that ease was whether the District of Columbia Board of Education had, through its policies, deprived black and poor students of an equal educational opportunity. Circuit Judge J. Skelly Wright,

*1458

sitting by designation, found that the school board had discriminated against black children through various policy decisions. Among these was the use of a “track” system, whereby all students were assigned according to academic ability to one of four separate, self-contained curricular tracks ranging from “Honors” for gifted children to “Basic” for those with severe academic deficits. To measure students academic potential, the school administered various standardized tests at several grade levels in both the elementary and the junior high level. Only one of these was an IQ test (Otis Quick Scoring Mental Ability test).

Hobson v. Hansen, supra,

269 F.Supp. at 518-19 . The criteria for assignment to the “Basic” track was

inter alia

IQ test scores of 75 or below.

Id. at

448 . The court found “at both the elementary and junior high school levels the per cent of Negroes enrolled in the lowest track exceeds their proportionate representation in the total student body.”

Id.

at 456 . The court went on to find that various social and environmental influences, as well as the fact that these tests were standardized against the performance of white, middle class school children, increased the likelihood that black and poor students would do poorly on such tests.

When standard aptitude test are given to low income Negro children, or disadvantaged children, however, the tests are less precise and accurate — so much so that test scores become practically meaningless. Because of the impoverished circumstances that characterize the disadvantaged child, it is virtually impossible to tell whether the test score reflects lack of ability — or simply lack of opportunity.

Id.,

at 485 .

Larry P. v. Riles,

495 F.Supp. 926 (N.D.Cal.1979),

aff'd in part, rev’d in part

793 F.2d 969 (9th Cir.1984) the district court held that IQ test scores generated from the Stanford-Binet and Wechsler Intelligence Scale for Children-Revised (WISC-R) tests that were used to place children in special education groups for the “educable mentally retarded” (E.M.R.) had a disproportionate effect on black children and violated the Rehabilitation Act of 1973, 29 U.S.C. § 794 , Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., Education of the Handicapped Act, 20 U.S.C. § 1415 (e)(2) and the Fourteenth Amendment. As Judge Wright did some 12 years earlier in

Hobson,

the Court in

Larry P.

described in detail the inherent inaccuracies and biases of IQ tests and then concluded that the school district should not have used such tests as a basis for assigning students to E.M.R. programs where they would ultimately receive less education than their white counterparts.

Id.

952-60.

For instance, the court noted that the original Stanford-Binet and Wechsler tests were standardized against the test results of several thousand white children.

Id.,

at 955 and 957 n. 64. Variations in tests scores among male and female children led to subsequent revisions in the test to remove the unwanted bias. However, at least as of the date of the opinion, no similar revisions had been made to account for variations among black and white children.

Id.

The tests were developed and standardized in the United States on white, essentially middle-class groups_ Although several leading figures in the early testing movement saw no problem with this situation, given their own racial prejudices or at least strong ethnocentrism, others, including Dr. Wechsler, the developer of the Wechsler battery of tests central to this litigation, frankly admitted the problem. Wechsler stated in 1944 that the tests were not valid for the ‘colored population of the United States.’ His tests, like the others involved here, had not been made suitable for minority racial and ethnic groups. The tests had been adjusted, for example, to eliminate difference in the average scores between the sexes, but a comparable effort was not made and has never been made for black and white children.

Id.,

at 971

citing

D. Wechsler, The Measurement of Intelligence 107 (1944).

The school cases do draw into serious question the accuracy and probative value

*1459

of the IQ score Fairchild received in elementary school in the 1960’s. Consequently, the ability to use that score as verification of the accuracy of the latest IQ tests must be questioned and analyzed in the light of current information. And even though the latest WAIS-R and Stanford-Binet tests have apparently been purged of the biases found in their predecessors, the history of scientific development in this field suggests caution in uncritically accepting the IQ numbers produced by such tests. Not only does this history so suggest but also the evidence and testimony received in the most recent hearings (see discussion below) make clear the necessity of critical factual analysis in order to arrive at an intelligence appraisal of significance of such scores in answering the legal questions posed in individual cases.

So it appears that the experts in the field of psychological testing are also of the opinion that IQ tests alone do not necessarily give an accurate picture of a person’s mental or intellectual ability. This scientific conclusion is consistent with the legal standard, discussed above, which requires the trier of fact to take into consideration the “totality of the circumstances” in determining whether a person voluntarily and intelligently waived his

“Miranda”

rights. IMMEDIATE OCCASION FOR HEARING.

Mr. Fairchild’s execution date was set for March 8, 1989. When he filed his “Successor Petition for Writ of Habeas Corpus” on March 1, 1989, alleging that an IQ test had been performed providing a score of 63 and indicating “mental retardation,” the Court had to decide whether a full hearing should be held. It was suggested that the parties might agree on a neutral expert to examine Mr. Fairchild. Thereupon, the attorneys for the petitioner and the State chose Dr. Judy White Johnson who then tested Mr. Fairchild on March 2, 1989, and reported thereon on March 3, 1989. Her tests yielded a composite IQ score of 60. To aid in deciding whether a full scale hearing was required, the Court had Dr. Johnson orally review for it her written report.

Dr. Johnson, from the beginning, noted some inconsistencies. For instance, her report states:

During this examination, Mr. Fairchild did not display behaviors typical of mentally retarded examinees such as persev-eration, impulsivity, distractibility, poor attention span, task avoidance, and lack of perseverance. His conversation was appropriate as were his questions such as how long I’d been in practice, if I liked being a psychologist, what kind of practice, etc. At times, he showed an understanding of concepts and vocabulary that are not expected from someone with his level of measured intelligence.

She was questioned about this at the session on March 3, 1989:

Q. Now, I would like to get some idea of the significance of those comments. I guess I’ll put it to you this way: Are you suggesting that the level of the measured intelligence is not reflecting his actual intelligence?

A. Well, “intelligence” is an artificial construct, and tests are devised to measure this artificial construct but it doesn’t tell you everything about a person. And with him, some of the words he used like when he was defining words, some of his vocabulary words were far above what you would expect with someone with an IQ of 60.

Q. In other words, if a person came in to you and you knew that person had an IQ of 60 and you had reliable information that that was so and you interrelated with that person in terms of conversation, and so forth, you would expect some typical behavior, such as perseveration. That’s a tendency to repeat.

A. Right. Do the same thing over and over.

Q. And impulsivity.

A. Right.

Q. And distractibility and poor attention span, task avoidance and lack of perseverance.

So, you have a person there that tests would be such that you would

*1460

expect to find those behavior characteristics, and you did not.

A. That’s right.

Q. What conclusion do you draw from that?

A. Well, I think that he has a potentially higher level of functioning and that shows up in the testing where there was a lot of variability. There are 15 tests and each test is made up of 20 or 30 items. Normally a person will show a pattern of passing items and then they will start failing items and then they will fail completely. And he had a pattern more of knowing things and failing things back and forth. He might fail some easy ones and pass harder ones.

Q. Are you suggesting most of them are progressively more difficult?

A. That’s correct.

Q. And so you would expect the failure to start coming more and more.

A. Right.

Q. When you don’t see that, when you do well here and you do poorly here and on more difficult things you do well again, once again, what conclusion do you draw from that?

A. Well, that that person can do better. One of the things that he showed was anything that was school-like, he was very positive he couldn’t do it.

Q. Turned off by attitude?

A. Right. Like, “I can’t do that. I just don't do that. I never understood numbers.” But then on another part of the test when he wasn’t being asked to deal with numbers, he might quickly answer. For example, there was a page that has like two quarters, two dimes and a penny. And I show this page to him with these pictures, and I say, “How much money would this be?” And within less than five seconds he say, “Seventy-one cents.”

Q. Seventy-one cents.

A. Right. But I think if I had said, “Add 25 plus 25 plus 10 plus 10 plus 1,” he wouldn’t have been able to do it because he wouldn’t expect that he would be able to do it because of his long history of school failure.

Q. What does that comment convey or should that convey to the Court in terms of the significance of IQ tests such as this?

A. Well, regarding the issue of mental retardation in general, I think it goes to the issue of adaptive abilities because for retardation you have to have a low IQ but you also have to have impaired adaptive abilities. I didn’t attempt to evaluate that and I could not with a test or in a short period of time.

Q. I do want to make clear for everyone’s benefit the last paragraph of your report you say: “In summary, his level of measured intelligence is in the mentally retarded ability classification. A diagnosis of mental retardation requires three features: (1) significantly subaverage general intellectual functioning, accompanied by, (2) significant deficits or impairments in adaptive functioning, with (3) onset before the age of 18. The latter two features of this diagnostic classification were not evaluated.”

And, of course, two would require you to become familiar with how Mr. Fairchild adapts every day.

A. Right.

Dr. Johnson then went over and described the fifteen different tests that make up the Stanford-Binet, identifying various things that “surprised” her. The Court nevertheless concluded that a full hearing would be required to resolve the issues raised. That hearing started on Thursday afternoon, March 16, 1989, and ended on Tuesday evening, March 21, 1989.

CONCLUSION.

On the basis of all of the evidence and the totality of the circumstances including:

1. A review of the state court record and the transcript of the testimony of Mr. Fairchild and the other witnesses in the state court proceedings;

2. A review of the transcripts of all of the appearances and hearings in

this

*1461

Court with particular focus on Mr. Fairchild’s performance as a witness and his awareness of the issues and his communicative skills;

3. The views and opinions of his attorneys and others who have had close association with Mr. Fairchild, as disclosed in the record;

4. A careful review of the factual reports and also the opinions of those who examined or observed Mr. Fair-child when he was at the State Hospital in 1974 and in 1983, and at the Federal Hospital in Springfield in 1986;

5. A careful consideration and evaluation of the documentary evidence, testimony and the opinions of Dr. George Baroff, Dr. Judy White Johnson, Ms. Ruth Luckas'son, Dr. Theodore Blau, Dr. Pritchard, Dr. Rosen-dale, Mr. Dennis Keyes and Dr. Donald Butts and the other witnesses who testified in person or by deposition at the hearing which commenced on Thursday afternoon, March 16, 1989, and ended Tuesday evening, March 21, 1989;

The Court finds and concludes that Mr. Fairchild was not only capable of but did, in fact, voluntarily, knowingly, and intelligently waive his

Miranda

rights before confessing his involvement in the robbery, rape, and murder of Ms. Mason on March 5, 1983.

And the Court further finds and concludes that petitioner has not sustained his contention that the State failed to provide him with a professionally adequate evaluation of his mental condition before his 1983 state court trial.

The Court can also state at this time that it is convinced, and so finds, that Mr. Fair-child is not now retarded and was not in 1983. It is also convinced, and so finds, that in March of 1983, he understood not only the language and terminology of the

Miranda

warnings but also the practical meaning and effect thereof.

The Court’s own judgment as to the mental status of Mr. Fairchild based upon all of the evidence and based upon observing him testify and communicating in court on different occasions, upon viewing and reviewing the videotaped confessions, and upon reading transcripts of his testimony in the state court proceedings and listening to witnesses — expert and lay — describe his actions and conduct was, and continues to be, that he would fall in the “dull, below normal” category but that he is not “retarded.” Because of the circumstances under which the various “IQ” tests were given, probably the Revised Beta Examination conducted by Dr. Richard D’Andrea at Springfield is the least contaminated by by motivational or “secondary gain” phenomenon. Although by hindsight one might wish that a WAIS-R or Revised Stanford-Binet test had been administered under those optimal motivational circumstances, the Court is nevertheless convinced that the 87 IQ received by Mr. Fairchild on the Revised Beta is closer by far to an accurate IQ reading on Mr. Fairchild than either the 1989 WAIS-R or the Stanford-Binet test results. It is the Court’s opinion that the best tests, administered under optimal circumstances, would yield an IQ for Mr. Fair-child somewhere between 75 and 87.

Although it is not true, as alleged by petitioner, that the jury and the courts have previously operated upon the assumption that “Mr. Fairchild was a person of average intelligence,” it is true that they probably operated upon the assumption that he was not retarded even though he was below normal. And this latter assumption we now know to be correct.

Petitioner’s successor petition for habeas relief will therefore be denied and dismissed and the Stay of Execution entered on March 3, 1989, will be cancelled and set aside.

THE COURT’S INITIAL REACTION TO CLAIM OF RETARDATION.

When the Court, on March 1, 1989, first learned that Mr. Fairchild had received an IQ score of 63, it was, frankly, puzzled. Mr. Fairchild’s mental status had been before this Court and the State courts before. He had been examined by many experts. Neither they, nor anyone else, including Mr. Fairchild’s attorneys, suspected that he

*1462

was mentally retarded. The Court notes Mr. Hall’s affidavit of March 1,1989, which contains the following:

3. At the time I got into the case, the MCFP had determined Mr. Fairchild’s IQ to be 87. I understood from other sources that his IQ had also been determined to be about 80. Based on the apparent thoroughness of the report from MCFP (and the court’s own assessment of that in its letter to the attorneys), I felt that I had no legitimate reason to question that finding at the time.

4. I have had frequent contact with Mr. Fairchild during the last two and a half years. My personal belief was that the MCFP finding of an 87 IQ was somewhat higher than Mr. Fairchild really way, but not so substantially off as it was found to be in February 1989 by Ms. Luckasson and Mr. Keyes.

5. Mr. Fairchild sometimes has a difficult time communicating, and he has to think hard to articulate what he feels and thinks. Nevertheless, when I was informed that his IQ in 1989 was only 63 and that he is qualified as mentally retarded, I was surprised. Based on that, I obtained his school records. We thus found that in 1966, his IQ was tested at 65 by Jacksonville school officials.

And this Court’s own evaluation of Mr. Fairchild gave it no reason to doubt the validity of the report that it had received from the MCFP. So the Court, in preparation for the new hearing, went back through, and reviewed, all of the evaluations on Mr. Fairchild. See “Past Inquiries Into Mr. Fairchild’s Competency,”

supra.

THE SCOPE OF THE CONTROVERSY.

All parties to this controversy acknowledge that Mr. Fairchild is of below normal intelligence, is a functional illiterate, and that he had a disastrous academic experience. And there is general agreement that Mr. Fairchild does

presently

understand the

Miranda

rights and waiver.

There is a controversy about Mr. Fair-child’s correct IQ, the extremes ranging from the low 60’s to the middle 80’s. There is a controversy as to whether Mr. Fairchild is “mentally retarded." And there is the controversy over Mr. Fair-child’s understanding of the

Miranda

rights and waiver back on March 5, 1983, immediately before he gave the videotaped confessions.

Finally, there is the controversy over whether the State failed to provide Mr. Fairchild a professionally adequate evaluation of his mental condition prior to his state court trial in 1983.

As to the issue of mental retardation, petitioner’s experts would place him in the “mildly” retarded group while respondent claims he is clearly not "mentally retarded" at all, as that term is scientifically and legally defined. Additionally, petitioner does not claim that mildly retarded persons cannot understand the

Miranda

rights. Rather, he claims that he did not understand them on March 5, 1983.

REVIEW OF IMPORTANT PARTS OF PETITIONER’S CASE.

It is petitioner’s position that his IQ is in the low 60’s which would place him in the “mildly retarded” classification. Dr. Ba-roff’s testimony in this regard is informative:

THE COURT: Now, retardation, they usually use the level of 70 to cut it off. If you’re above 70, you’re considered not retarded?

THE WITNESS: That’s correct.

THE COURT: I mean, do you have some—

THE WITNESS: Yes, that's correct. THE COURT: Now, within the retarded areas, I am hearing you talk using such terms as mild and moderate and so forth. What are the categories of mentally retarded starting from the least to essentially the most? Are there several?

THE WITNESS: Four.

THE COURT: Four. And what are they?

THE WITNESS: Mild. And on the Stanford-Binet and on the Wechsler scales between 55 and 69, mild. Forty to 54, moderate. Twenty-five to 39, severe. And Zero to 24, profound.

*1463

THE COURT: So on that type of classification he would, in any event, fall within the mild?

THE WITNESS: That’s correct. As does he on the composite.

THE COURT: And although you’ve given me a definition of retardation, can you — has anyone broken out these in terms of definition: What is mild? What is moderate? What is severe? What is profound? In other words, can you characterize them verbally?

THE WITNESS: Yes, oh, yes.

THE COURT: All right. For instance, mild. What is the definition that you would use for mild?

THE WITNESS: Well, it’s not a definition. In my book, for example, I have developed — and these are also provided in the diagnostic classification system— what level of adaptation is expected of an individual with mild, moderate, severe or profound retardation as a function of chronological age. So that if we talk about someone like Mr. Fairchild who is an adult and you want — would you like me to distinguish between those four levels?

THE COURT: Yes, I would.

THE WITNESS: Okay. The person, as I said, who is mildly retarded as an adult is an individual again who has an IQ score between 55 and 69, who has the potential — we are now talking post school age — to work. That is, to be employed in regular employment. To function adaptively in his community, to have friends, same sex and opposite sex, and marry, to become a parent, to vote, to drive a car if in some cases they can take a driver’s test orally. And to essentially function in a way not very different from yours and mine.

In fact, in one of the more recent famous books the author refers to the— what he calls the cloak of competence. That is to say, that in spite of these intellectual limitations which are particularly pejorative during the person’s school experience, as an adult they are functioning relatively effectively in the community. They are likely to have problems in the management of money. They are often — they are likely to be functioning at unskilled kinds of jobs and then are subject to greater unemployment.

They are less capable of dealing with stress and a mentally retarded parent increasingly becomes a poor parent as the number of children that she has to take care of increase. They are often— they have a less likelihood of marriage and they are more likely to be socially isolated. Loneliness is not an uncommon problem. And they are also likely to develop what are called benefactor relationships in which they seek out some normal individual who can be there to assist them during periods of stress.

Now, once we move beyond the level of mild mental retardation, we are dealing with a group of individuals who will not be generally able to function independently in society. That is, once they leave — once they become adults. They will always need some degree of assistance.

And petitioner’s witnesses do not contend that mildly retarded persons cannot understand

Miranda

warnings or that they cannot knowingly and intelligently waive the rights embraced in such warnings. In fact, Dr. Baroff examined Mr. Fairchild specifically in this regard and concluded that he “certainly demonstrated adequate understanding of those rights.” Note his testimony:

THE WITNESS: Washington University, I think so, yes. Grisso in 1981 — I got this book from our law school library— published this book on the

Miranda

and juveniles. And what he did was to develop a little multiple choice. Well, he developed schemes for evaluating understanding of the four warnings by asking the person what the warning means and then rating the person’s response on a scale of zero, one to two; two being apparently adequate understanding by the criteria that he provides.

And Barry, when we evaluated him at the prison, certainly demonstrated adequate understanding of these rights.

*1464

THE COURT: He did?

THE WITNESS: He did.

And although Dr. Baroff found certain deficits in his understanding of such terms as “waive” and “interrogation,” he concluded:

So he has at this point — there are still aspects which he does not understand and which, of course, I didn’t attempt to teach him, but he certainly does have adequate understanding by Grisso’s criteria of the four rights that, as I understand it, make up the heart of

Miranda.

But petitioner contends that he did not understand those rights back on March 5, 1983, when the rights were read to him and he signed the waiver, i.e., shortly before he confessed to the crimes against Ms. Mason. It is argued that he knows and understands his rights now only because he has been taught those rights by his fellow death row inmates and, more particularly, by Mr. Parker.

Ms. Ruth Luckasson of Albuquerque, New Mexico, can fairly be described as Mr. Fairchild’s key witness in the March 1989 hearing. She, along with Mr. Dennis Keyes, performed the tests that became the basis for the filing of the Successor Petition.

Ms. Luckasson has a national reputation in the field of mental retardation. She serves as an Associate Professor of Special Education at the University of New Mexico. She earned her law degree from the University of New Mexico in 1980. She teaches courses on the Characteristics of Mental Retardation and the Legal Rights of the Handicapped. Although she does not have her Ph.D., she does have a Masters Degree in Special Education.

In response to a call from Mr. Fairchild’s lawyer, Ms. Luckasson agreed to put together a team to evaluate petitioner. The team consisted of herself, Mr. Dennis Keyes, a Certified School Psychologist, and Dr. Jack Stark, a consultant from Nebraska. She and Mr. Keyes came to Arkansas on February 22, 1989, and saw Mr. Fair-child on February 23, 1989. They administered a series of tests in the period from 9:15 a.m. until 1:45 p.m. on that date.

It is interesting to note that Ms. Luckas-son testified that she had no impression that Mr. Fairchild was mentally retarded during the course of testing. She said, “That came later.”

After she scored the tests she concluded that Mr. Fairchild was mentally retarded. On the WAIS-R test she found a composite IQ of 63 with a 69 on the Verbal part and a 61 on the Performance part. She felt that Mr. Fairchild’s functioning during the tests was corroborative of her opinion. She observed that when Mr. Fairchild was allowed “to be just interacting he functioned in an adequate way.” But when he was “required to do things on testing” his mental retardation seemed clear to her.

It is Ms. Luckasson’s opinion that Mr. Fairchild has substantial cognitive difficulties. He cannot read “to any useful degree” and cannot spell. She found his “school skills” immature.

Ms. Luckasson then reviewed Mr. Fair-child’s school records which confirmed that his academic skills were poor and that the problems existed from an early age. She places Mr. Fairchild in the mildly retarded range.

Ms. Luckasson then dealt with the

Miranda

issue: whether Mr. Fairchild made a knowing and intelligent waiver of his constitutional rights on the morning of March 5, 1983. She pointed out that the whole concept of such rights is complex and, at best, presents difficult ideas to comprehend. But she had to acknowledge that Mr. Fairchild performed very well on the Grisso CMR tests, the tests specifically designed to measure comprehension of one's

Miranda

rights.

It was apparent to the Court that, at some point, Ms. Luckasson began to lose her scientific objectivity and skepticism. The problem appeared to be that she started out with absolute confidence in the validity and accuracy of the WAIS-R score results. Then, assuming this conclusion represented unassailable sacred ground, everything else had to be bent and forced to fit. For instance, she quickly found that “significant deficits in adaptive behavior

*1465

were observed in his performance on the remainder of the tests.” Surely such bootstrapping cannot substitute for a careful and critical evaluation of Mr. Fairchild’s adaptive behavior based upon the most reliable evidence available. But here again the WAIS-R numbers — the sacred ground — appear to be driving the methods used to assay other critical areas of inquiry.

And her defensive posture with respect to the WAIS-R score explains her reluctance to fully accept the results of the CMR tests dealing directly with

Miranda

comprehension. Nevertheless she was forced to deal with the fact that Mr. Fair-child scored extremely high on that test. Her response basically was to restate the question. She asked, in effect, “Assuming that Mr. Fairchild now has an adequate understanding of

Miranda

rights how could he have achieved that level of understanding?” Again, being convinced that Mr. Fairchild is mentally retarded, she logically concludes that Mr. Fairchild could not have developed this knowledge on his own. This brought Ms. Luekasson to the conclusion that only an “extraordinary intervention” involving intensive, long sustained training — consistent with good special education techniques — could have produced this 'level of comprehension in Mr. Fair-child. She states that Mr. Fairchild simply

could not

have arrived at his present state of knowledge without such an intervention. So having brought herself to this conclusion, she quickly and, the Court believes, uncritically, embraced the petitioner’s prof-ferred explanation: his fellow inmates taught him. In the vernacular she “bought Mr. Parker,” finding him entirely persuasive and believable. As explained elsewhere, the Court is not so charitable toward Mr. Parker or toward the “extraordinary intervention” theory.

It is clear that Ms. Luekasson is an extremely intelligent, able, conscientious and highly motivated person. She is a sincere and, the Court expects, very effective advocate for the mentally retarded. But advocacy can interfere with objectivity. The hope and the wish can be the parents of the belief. The singularly most revealing evidence of this phenomenon arose out of the Court’s questioning of Ms. Luekasson about another confession that Mr. Fairchild had made involving a robbery in December of 1982. There was a transcript of his confession concerning this crime. Mr. Fairchild had acknowledged its accuracy and the police officers involved corroborated its details, but Ms. Luekasson was reluctant to accept it as true:

THE COURT: Now, then, if you walk into the kitchen after the murder and find the pantyhose in the cabinet, what is his — I mean, what is it? Are you saying that — does a mentally retarded person of the mental retardation that you say he is, does he not remember if he drove down and did something? Are you saying his recollection of those events is not to be trusted? He just started to tell you — he came back and he started telling you “where I’ve been,” would he not tell you what had happened or could he not?

THE WITNESS: I think that the important thing is to remember that a person who has mental retardation has very serious — the results of the mental retardation will affect almost every dimension of his life and almost every dimension of his functioning, and mental retardation is a serious disability. And that whenever we are interacting with a person who has mental retardation in any way that we have to remember that his perception of the world and his communication of the world is colored by his mental retardation.

Now, this is not to say that people who have mental retardation can’t ever remember things or that they can’t do things. This is not to make those generalizations.

THE COURT: Were you in court this morning when I read the questions and answers, the statement that he gave in connection with another criminal event?

THE WITNESS: Yes.

THE COURT: And described getting in the car, driving and getting out and running and the man shooting, and so forth. Is there anything in your — I mean, is there any reason why he can’t tell what

*1466

happened if he went on that episode with that man?

THE WITNESS: Well, according to the testing that we did and in what I believe is an accurate picture of his functioning, he has very impaired abilities in putting things in logical order. So if he’s trying to put something in order or describe a sequence of events, it seems to me highly suspect that what he is describing accurately reflects reality. Now, he may believe it does.

Note the premise of her inability to deal with what, to the Court, was clear, admitted, and corroborated reality: Our tests show him to have very impaired abilities in putting things in logical order. Ergo, if he does clearly and coherently relate events, “it seems to me highly suspect that what he is describing accurately reflects reality.” Ms. Luckasson appears incapable of abandoning or even questioning the “sacred ground” of her IQ numbers and mental retardation diagnosis. She does not say, “Hey, he is obviously accurately and clearly relating what happened in a manner inconsistent with our diagnosis. Therefore, we should look back at that diagnosis and consider whether we might be mistaken.” Note the continuing colloquy:

THE COURT: Even in connection with this thing this morning about getting in the car, driving down to College Station, all that — is that just something that he’s making up as he answers questions?

THE WITNESS: It could be in response to suggestions from the people around him and they don’t have to be malevolent suggestions. I mean, they don’t have to be evil people who are putting these ideas in his head. They can do this with perfectly good motivation. Suggest ideas to him.

THE COURT: You understand that he’s admitted that this was true and that doesn’t bother you to think he — do you think really it’s not true? This is the incident involving this other officer and robbing this man and driving off and—

THE WITNESS: Well, the question — I think it’s likely that he believes that it’s true and I think it’s likely that he believes that it’s accurate. For me the question is: Can a description that involves conceptual skills in which he is very impaired accurately reflect reality?

THE COURT: Well, are you doubtful of it in this case? This particular one that you heard us read in which he described —“Now, let’s go back to December 23, 1982, somewhere in the early morning hours. Do you recall being with somebody driving about that time in a car?”

"Yeah, I was with Harold Green.”

“You were with Harold Green. And what had you — all just done?”

“We took some money from an old guy-”

“Okay. Where did you take the money from an old guy? Do you remember the location or anything?”

“In front of some old cafe.”

“What part of town?”

“On Roosevelt.”

Is he, in your view, just making all this up answer by answer as he goes along? THE WITNESS: Well, he's responding answer by answer.

THE COURT: The next question is: “Could it be around the Circle-B Restaurant?”

“Yeah.”

“What were you driving at that time?” He said, “What kind of car?”

“A blue Malibu maybe?”

“Yeah.”

“What route did you take after you pulled this robbery?”

“We went like going down to College Station.”

“Okay. You were on Roosevelt then?”

“Well, we had turned off Roosevelt. We turned off like going to College Station.”

“Let's back up a minute to the robbery. Were you-all armed?”

“Yeah, he was.”

“With what?”

“A gun.”

“Do you remember what kind of a gun?”

“A .38 or a .32, something like that.”

*1467

“How did you-all come up to the old man? What was he doing?”

“He was getting a paper out of a box and Harold walked up there, put the gun on him and took his money.”

Now, is this all fiction? He says it’s true. Are you saying it’s not true?

THE WITNESS: I’m saying that it’s possible that he believes it’s true but that his — but that it may not reflect reality. He may believe it’s true but it may not reflect reality.

THE COURT: Now, then, let’s say, you know, in testing the reality of it, that a car came up — a police ear and the lights came on and they slowed down and then they sped off and the officers say that’s exactly what happened, and that somebody shot at them, you know. And he says, “Yes,” they shot. Now, is there any — why would you not — there’s nobody that says it’s not true. He says it’s true, the officer says it’s true. What is it about that that makes you suspect this is not a true statement of what happened? It’s not this crime we’re talking about now; this is another one.

I gather you do suspect that it’s not true; is that correct?

THE WITNESS: I suspect that it is not entirely accurate.

Ms. Luckasson starts, and stays with, the assumption that Mr. Fairchild is mentally retarded. Then with that talisman in hand, she rejects anything and everything that is inconsistent with that assumption.

So while the Court admires Ms. Luckas-son for her sincerity and for her willingness to fight for what she believes in, it finds her critical opinions in this case flawed and unsubstantiated by the evidence.

The Court had an opportunity to hear Mr. Dennis Keyes explain the WAIS-R test that he administered to Mr. Fairchild. In the Court’s view, those details further explain how Mr. Fairchild scored so low on the test. Mr. Keyes acknowledged some variability in the results — such as was discovered by Dr. Johnson re the Stanford-Bi-net test. And it was clear to the Court that Mr. Fairchild feigned ignorance on certain responses.

Since Mr. Keye’s testimony was taken by telephone, he being in New Mexico, the record does not include the raw WAIS-R data. Nevertheless, Mr. Keyes gave an adequate explanation and description of that data. Dr. Johnson did not have an opportunity to study the WAIS-R data. She was therefore not in a position to comment specifically thereon while she was on the stand.

On the basis of all the evidence in the case, the Court is convinced that the WAIS-R numbers — just like the Stanford-Binet numbers — are unreliable. The only testing milieu that the Court believes to be reasonably reliable is that at the federal prison in Springfield in 1986. The motivation of Mr. Fairchild at the State Hospital in 1983 and in connection with the 1989 tests is suspect. But at Springfield, the petitioner’s objective was to be found competent so that he could waive his federal habeas corpus rights and be executed. The Revised Beta test was administered by experienced experts. Although this test, being more of a screening device, is not as precise as either the WAIS-R or the Stanford-Binet, it is probably the most reliable rough indication of Mr. Fairchild’s intellectual and cognitive ability that we have.

The last of petitioner’s witnesses which the Court needs to assess is Mr. William Frank Parker, also a deathrow inmate. Mr. Parker’s contribution became important once it was demonstrated in tests given by Dr. Johnson and also by Dr. Baroff and Ms. Luckasson that Mr. Fairchild

presently

understands the

Miranda

rights. Even petitioner’s experts conceded that some mildly retarded persons — as they believe Mr. Fairchild to be — can understand and intelligently waive their

Miranda

rights. So the next question was: did Mr. Fairchild have this knowledge and awareness back on March 5, 1983, when he “waived” his rights before confessing? If so, petitioner loses on this issue. If not, how do we explain his present knowledge? As discussed above, Ms. Luckasson, being convinced that Mr. Fairchild is mentally

*1468

retarded, is of the opinion that Mr. Fair-child could not have developed his present understanding of his rights absent some “extraordinary” educational intervention. So if he did not understand his rights in 1983, he must have experienced such a massive intervention sometime

since

1983. Enter Mr. Parker who Mr. Fairchild identifies as his key teacher in this scenario.

Mr. Parker, who admits his own guilt of capital murder, was the most blatantly cynical of all the witnesses. To him most legal rights are viewed as screens behind which the guilty criminal can successfully hide. At one point, he was asked whether he would ever advise an arrested person to make a statement. His answer, “Always keep quiet.” Then he was asked, “Regardless of fault?” and his answer was, “Regardless of fault. Especially if you’re guilty.” He further explained, “I wouldn’t want to help a police officer do his job.”

Since coming to death row in November 1985, Mr. Parker has taken a two-year correspondence course as a paralegal. He states that he has taken courses in criminal law, trial procedure, research and trial practice.

Mr. Parker first met Mr. Fairchild when they were at Cummins, around the first of 1986. They would walk and talk in the yard. Someone told Mr. Parker that he should study the cases of his fellow death row inmates “because they’re tried for the same thing you are.” So he did. He testified that he was “only interested in cases that affect my case, which is capital felony murder, kidnapping, attempted murder.”

When he read about Mr. Fairchild’s case, Mr. Parker said to himself, “Hold it here. There’s something wrong.” He told Mr. Fairchild, “Man, if you hadn’t confessed, they wouldn't have had nothing on you.” He told Mr. Fairchild “that I felt that he wasn’t guilty.” He stated that Mr. Fair-child “felt the same way, that he didn’t want to confess.”

After they moved to Tucker, Mr. Parker testified that he really got into law courses and became fascinated with Mr. Fairchild’s case. So he and Mr. Fairchild did a lot of talking. At some point he asked Mr. Fair-child why he confessed and he replied, “They told me to.” Mr. Parker asked Mr. Fairchild if he did not understand that he had a right to remain silent and he replied, “yes,” but, Mr. Parker states, “He didn’t understand that right.” Mr. Parker explained that since he himself was at that time making his plans to go back for another trial and was going to represent himself he just “tested him on his

Miranda

rights.” He further explained:

The real reason I was drilling him on his

Miranda

rights was for disciplinaries. We're always getting disciplinaries on deathrow.

Mr. Parker was then asked how an understanding of

Miranda

rights would help one in connection with a prison disciplinary proceeding. His response:

A. You’re actually in a trial. You’re actually in a trial. And I was explaining to him about how to plead. You go in there and there’s a judge and then there’s witnesses or whatever and they take pictures of the evidence if you have contraband or statements — witness statements and the majority of the guys, they don’t understand that, you know.

Q. Well, what’s the

Miranda

rights got to do with it?

A. Because he has the right not to talk to that judge.

Q. Do they read the rights to you when you’re charged with a disciplinary?

A. They — usually, Your Honor, that guy sits down there and he’s got a tape recorder going and he’s going so fast you don’t know really what he’s saying.

Q. Well, has anyone ever read you your rights in connection with a prison disciplinary?

A. When there's violence involved like assault on an officer or something like that, there is, sir.

Q. When they might prosecute you; not—

A. Where there’s—

Q. —in the prison discipline system but in the courts?

*1469

A. Well, usually, the way I understand it is, if you’ve done something wrong like assault on an officer or something like that or — which is — I mean is Barry Fairchild or myself either spitting on an officer or throwing something on an officer, they have a right to charge you with assault. And I think it’s procedure — I wouldn’t swear to it — that they read you your

Miranda

rights.

Q. Do you recall that you’ve had your—

A. I’ve had my

Miranda

rights read to me.

Q. By a prison officer?

A. Yeah. It concerned an Officer Den-ton.

Q. How many disciplinaries have you been involved in?

A. I think in the years that I’ve been there about six — five or six.

Q. And were your rights read to you on each occasion?

A. I think just once.

Q. Go ahead.

Q. [BY MR. BURR] Do you know whether Barry has been involved in any disciplinary charges where

Miranda

rights might have been read to him?

A. I don’t know.

I know that once Barry had a fight with Charles Singleton. An assault on another officer — I mean, another inmate is a felony, I guess. But they usually don’t do it. It depends. But you’ve got to see, guys on deathrow, anything you do wrong they want to use against you later on so that they can blow it out of proportion or make it, you know, where they charge you with a felony or—

Q. So explain again, if you could, what the need was for Mr. Fairchild to be able to assert — or understand and make an intelligent decision about whether to assert his

Miranda

rights on death row.

A. A lot of times officers will come to your door. They're looking for contraband or something or just trying to stir up trouble. And, myself, I don’t talk to them. I just stand in my door and just don’t talk to them. A lot of guys that don’t know any different will just talk to them, would answer their questions or — there’s a bunch of situations where you would have to just not talk. If you got in a fight, they’d say, “Who threw the first fight?” [Sic] They’re just fishing. You just say — don’t talk. And it took me a long time to make Barry Fairchild understand: Don’t answer their questions, no matter what they are or how harmless they sound.

The explanation Mr. Parker gives of the reasons he instructed Mr. Fairchild in his

Miranda

rights is full of holes and unworthy of belief. Apparently, Mr. Parker reasoned that if he wanted the Court to believe he actually systematically trained Mr. Fairchild in understanding his rights, he obviously had to come up with an answer to the question, why? Why train a person on deathrow about his

Miranda

rights? Of what early benefit would that knowledge have for someone under a sentence of death? Later, Mr. Parker appeared to realize his explanation was not credible. He frankly acknowledged that “teaching Barry Fairchild his

Miranda

rights, to me was like feeding a dead horse, you know, I figured, you know, it was already over with.” So then he switched by explaining his teaching motivation as “a game.” He states, “I would play with Barry.”

The idea that Mr. Fairchild now has the

Miranda

rights well in mind is inconsistent with another observation of Mr. Parker: “You could sit him down and teach him something and he’ll know it and come back two days later and ask him the same question and he won’t remember it.” Mr. Parker testified that he had explained the

Miranda

rights to Mr. Fairchild “at least a hundred times.” He was asked if he knows if Mr. Fairchild understands them today. His answer:

I don’t think he does. He understands the rights; he doesn’t understand the concept.

But the CMR tests show that he does.

The Court simply does not credit Mr. Parker’s testimony. The Court has observed his demeanor on the witness stand.

*1470

It has assessed the reasonableness or unreasonableness of his testimony. Although petitioner’s counsel attempted to show that Mr. Parker was unaware of the need or effect of his testimony and, therefore, would not have any motive for fabricating same, there is evidence to the contrary:

Q. Mr. Parker, do you know that one of the issues that’s now being litigated before Judge Eisele is Barry’s understanding of his

Miranda

rights and his understanding of what it means to waive those rights?

A. Yes, sir, I do.

Q. When did you first become aware that this was an issue in his case?

A. A few months back.

Q. Do you recall how you became aware of it?

A. Well, read the paper every day and I read about it and—

THE COURT: You get the newspapers every day?

THE WITNESS: Yes, sir.

THE COURT: Can you watch television every day?

THE WITNESS: Yes, sir.

Q. [BY MR. BURR] Do you recall exactly what you read in the newspaper or heard on TV that made you aware of this issue?

A. All along I’ve known that Barry Fairchild is not playing with a full deck. We have others on deathrow that are retarded. And when I seen that Barry Fairchild had to understand his

Miranda

rights and I taught him that

and then I seen in the paper where they was using that against him

and I didn’t — I didn’t feel too good about that.

Q. Why is that?

A. I felt it was my fault.

Q. Explain that a little bit more.

A. I felt they was going to kill Barry Fairchild because I taught him something.

(Emphasis Supplied)

The CMR tests were not conducted by Dr. Johnson until March 5, 1989. The test results were reported in the newspaper along with petitioner’s counsel’s statement that such tests, even if valid, did not prove that Mr. Fairchild understood his rights back in 1983. As soon as Mr. Fairchild found out that he had passed the CMR, and the media so reported, Mr. Parker became privy to that information. See colloquy above. The rest follows.

The Court wishes to make it clear that it is not suggesting that petitioner’s lawyers had anything to do with this. To the contrary, it has all the hallmarks of something worked out between Mr. Fairchild and Mr. Parker and served up to petitioner’s lawyers and experts as the answer to their problem.

As stated elsewhere, the Court is convinced on the basis of the totality of the circumstances that Mr. Fairchild not only understands his

Miranda

rights now, but that he also understood them on March 5, 1983. His knowledge and understanding is

not

the consequence of the alleged extraordinary educational intervention since 1983 by Mr. Fairchild’s fellow deathrow inmates and, more particularly, by Mr. Parker.

REVIEW OF IMPORTANT PARTS OF RESPONDENT’S CASE.

Under the Section “Immediate Occasion for Hearing,”

supra

the Court went over Dr. Johnson’s report of March 3, 1989, and noted her skepticism as to the accuracy of the IQ test she had administered to Mr. Fairchild and the bases for her concern about its reliability. Dr. Johnson’s later studies confirmed that the original IQ score of 60 was unreliable.

On March 6, 1989, Dr. Johnson filed a second report. She had found and administered to Mr. Fairchild a test called the “Comprehension of

Miranda

Rights” (CMR). Mr. Fairchild obtained the following scores:

Test Mr. Fairchild’s Score Maximum Score

CMR 8 8

CMR-TF 12 12

CMRV 11 12

So, Mr. Fairchild came within one point of making a perfect score on the CMR.

When Dr. Johnson testified again at the full hearing, she concluded that Mr. Fair-child was not retarded. She roughly esti

*1471

mated his IQ at between 72 and 78. The bases for her revised opinion will be stated in some detail.

After her first court appearance on March 3, 1989, Dr. Johnson checked to determine if there were some more specific tests that had been devised to measure the competence of a person to waive his or her

Miranda

rights. Through a colleague, she found such a test. It is called the “Comprehension of Miranda Rights, Vocabulary” (CMRV) Test. It apparently was developed by Dr. Thomas Grisso. She thereupon obtained a copy of the test and the instructions for its proper use and administered same to Mr. Fairchild with the results indicated above. See her report dated March 6,1989, Respondent’s Exhibit B. As stated in that report, “These findings indicate that Mr. Fairchild understands the meaning of the

Miranda

warnings as assessed by all three of these measures.” Plaintiffs experts have also, since March 3, 1989, tested Mr. Fairchild with the use of the CMRV and have come to the same conclusion. See Dr. Baroff’s testimony.

Although Dr. Grisso’s book is entitled “Juveniles’ Waiver of Rights,” he has included a section on adults. Dr. Johnson reviewed the research conducted to determine if the number of prior felony arrests was significantly related to CMR scores. That research indicated that, for adults, the number of arrests does relate significantly to an understanding of the

Miranda

rights and therefore to the CMR scores. In this connection, it should be noted that Mr. Fairchild has a lengthy arrest record. See p. 8 of the Appendices to petitioner’s “Successor Petition for Writ of Habeas Corpus.” However, the evidence makes it clear that Mr. Fairchild’s actual arrest record is much more extensive than that revealed on his official “rap” sheet. In this connection, it will be recalled that Mr. Womack, a black officer and a friend of the Fairchild family, testified that he had arrested Mr. Fairchild at least three times before 1970 and, on each occasion, read him his rights.

It is important to read the entire report made by Dr. Johnson on March 6, 1989 and the three appendices attached thereto because that report and those appendices not only reveal Mr. Fairchild’s comprehension, but also show vocabulary usage and sophistication that would not be expected of one who had a 60 IQ on the Stanford-Binet or a 63 IQ on the WAIS-R test. Dr. Johnson herself expressed surprise at Mr. Fair-child’s performance — especially in vocabulary performance.

In addition to administering the CMRV test, Dr. Johnson, after March 3, 1989, did the following things:

a. She had extensive conversations with Mr. Fairchild to learn how he thinks about things and to learn how he put sentences together and to determine if he understood her questions and responded appropriately. The results:

Q. And what did you learn from your conversation with him, or what did he tell you?

A. Well, he had no trouble at all understanding any of the questions, and he was very responsive and, I think, would have talked for hours if we hadn’t had an ice storm going on. Was just very self-disclosing and revealing and anything I asked he tried to answer.

Q. And the answers were appropriate to your questions?

A. Yes.

Q. And was there any evidence of unusual thought process or anything abnormal about his conversation with you?

A. No.

b. She reviewed the contents of petitioner’s “Successor Petition for Writ of Ha-beas Corpus.” The petition is 32 pages in length and the appendices add an additional 109 pages.

c. She read the transcript of the 1986-87 federal court hearings.

d. She observed both of the videotaped “confessions” twice and listened to both of those tapes once.

e. She reviewed the literature on the “Revised Beta IQ Examination” and on the Henman-Nelson IQ t

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.