Opinion

Thomas v. Allen

614 F. Supp. 2d 1257
2009 U.S. Dist. LEXIS 50825
2009 WL 1353722

Court: District Court, N.D. Alabama
Filed: Apr 21, 2009
Status: Published
Author: Smith
On the bench: Smith
Cited by: 21 cases
Authority: More cited than 72.5%

holding that "[a] court must consider the Flynn Effect and the standard error of measurement in determining whether a petitioner’s IQ score falls within a range containing scores that are less than” seventy

How later courts described this case

holding that "[a] court must consider the Flynn Effect and the standard error of measurement in determining whether a petitioner’s IQ score falls within a range containing scores that are less than” seventy
noting that, even though the Alabama Supreme Court recognized the legal cut-off score for a finding of significantly subaverage intellectual functioning as an IQ of 70 or below, a court should not look at a raw IQ score as a precise measurement and must consider the “Flynn effect” and the standard error of measurement in determining whether IQ score falls within range containing scores less than 70
noting that even though recognized legal cutoff score for finding of significantly subaverage intellectual functioning is IQ of 70 or below, a court should not look at raw IQ score as precise measurement and must consider “Flynn effect” and standard error of measurement in determining whether IQ score falls within range containing scores less than 70
noting that the AAMR manual states at least eight times that the clinical standard for significantly subaverage intelligence functioning is two standard deviations below the mean considering the standard error of measurement for the specific assessment instruments used and the instruments’ strengths and limitations

Written by the judges who cited it.

The opinion

MEMORANDUM OPINION

C. LYNWOOD SMITH, JR., District Judge.

Petitioner, Kenneth Glenn Thomas, is an inmate in the custody of the Alabama Department of Corrections. He was sentenced to death by the Circuit Court of Limestone County, Alabama, for the intentional murder of Mrs. Flossie McLemore during the course of a burglary.

See

Ala. Code § 13A-5-40(a)(4) (1975). Following exhaustion of his direct appeal rights and post-conviction remedies in the state court system,

Thomas filed a petition in this court, seeking relief in the nature of

habeas corpus. See

28 U.S.C. § 2254 . All but one of his claims for relief were dismissed in an order and memorandum opinion entered on March 6, 2007;

the sole claim that survived the motion for summary judgment filed by the respondent Commissioner of the Alabama Department of Corrections was Thomas’s contention that he is mentally retarded.

If Thomas is retarded, then the Supreme Court’s decision in

Atkins v. Virginia,

536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002) — holding under the Eighth Amendment that “death is not a suitable punishment for a mentally retarded criminal,”

id.

at 321 , 122 S.Ct. 2242—will require his death sentence to be vacated.

This court originally ordered that Thomas’s

Atkins

contention be remanded to the state court system, with instructions to reevaluate his claim in accordance with standards established by binding authorities.

Upon joint motion of the parties,

*1260

however, this court was persuaded to withdraw that remedy in favor of an order amending the judgment to reflect that the claim would be litigated on the merits in this court.

An evidentiary hearing commenced on May 19, 2008, and concluded on May 20, 2008.

Thereafter, the parties filed post-hearing briefs.

Respondent’s brief concedes that the evidence presented during the May hearing establishes that “Thomas’s IQ now falls in the mild mental retardation range,”

but goes on to argue that

Atkins

provides him no relief because he failed to prove that “he suffered from significantly sub-average general intellectual functioning or substantial deficits in adaptive behavior in the developmental period.”

Respondent thus reduced his argument against a finding of mental retardation to this question:

Has petitioner proven, by a preponderance of the evidence,

that he met the criteria for mental retardation prior to the age of eighteen years

(the so-called “developmental period”)? The remainder of this opinion addresses that question, as well as other issues.

*1261

Table of Contents

I. The Legal Criteria Defining Mental Retardation............................1262

II. Diagnostic Criteria Defining Mental Retardation ...........................1263

A. Assessment of Intellectual Functioning................................1263

Standardized assessment

instruments...............................1264

The Wechsler Adult Intelligence

Scales...........................1265

The Stanford-Binet Intelligence

Scales...........................1267

Measurement errors and cut

scores..................................1268

The effect of “standard errors of measurement” on “true” IQ

scores......................................................1269

The stipulated SEM and its effect upon determination of petitioner’s

IQ..............................................1271

The “Flynn Effect, ” IQ gains over time, and cut

scores.................1275

Conclusions

......................................................1279

B. Assessment of Adaptive Behavior......................................1281

Standardized assessment

instruments...............................1282

The importance of clinical

judgment.................................1283

The assessment instrument used in this case

.........................1284

III. Expert Witnesses and “Best Practices”.....................................1286

A. Petitioner’s Experts..................................................1286

Dr. Karen

Salekin.................................................1286

Dr. Daniel

Marson................................................1287

B. Respondent’s Expert.................................................1288

C. “Best Practices”.....................................................1289

IV. Assessments of Petitioner’s Intellectual Functioning........................1293

A. Intelligence Assessments Performed Prior to Age Eighteen..............1293

October I, 1968

— age

nine years and seven

months....................1293

October 12,1972

— age

thirteen years and seven

months................1294

June 28,1978

— age

fourteen years and two

months....................1294

March 18,1975

— age sixteen........................................1296

5. Findings.........................................................1296

B. The Intelligence Assessment Performed on April 11, 1977................1297

C. Intelligence Assessments Performed Near the Date of the Offense........1300

March 21, 1985

— age

twenty-six years

...............................1300

January 2j, 1986

— age

twenty-six years and ten

months...............1301

3. Findings.........................................................1301

D. Intelligence Assessment Performed in Preparation for Hearing..........1301

V. Assessments of Petitioner’s Adaptive Behavior..............................1303

A. Petitioner’s Deficiencies Prior to Age Eighteen.........................1303

The home environment

— birth

to age

12..............................1304

Adolescence and foster care

— ages

12 through

18......................1305

Schooling

........................................................1307

Assessments by third-party

informants..............................1309

5. Findings.........................................................1311

B. Petitioner’s Deficiencies at the Time of the Offense.....................1312

C. Petitioner’s Present Adaptive Functioning Abilities.....................1321

VI.Conclusions 1322

*1262

I. THE LEGAL CRITERIA DEFINING MENTAL RETARDATION

The Supreme Court’s decision in

Atkins v. Virginia

did not dictate a national standard for determining whether a criminal defendant is mentally retarded and, for that reason, not subject to the ultimate sanction of the law. Instead, the Court left to the states “the task of developing appropriate ways to enforce the constitutional restriction” upon the execution of mentally retarded convicts.

Atkins,

536 U.S. at 317 , 122 S.Ct. 2242 (citation, internal quotation marks, and footnote omitted).

The Court’s reticence to propound hard and fast rules undoubtedly was grounded in the fact that the statutory definitions of mental retardation adopted by Congress and those states that then prohibited the execution of mentally retarded persons were not identical. Even so, the Court observed that all of the existing statutes generally conformed to diagnostic criteria promulgated by the American Association on Mental Retardation and the American Psychiatric Association.

The American Association on Mental Retardation (AAMR) defines mental retardation as follows:

“Mental retardation

refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed.1992).

The American Psychiatric Association’s definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication,' self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70.

Id.,

at 42-43.

Atkins,

536 U.S. at 309 n. 3, 122 S.Ct. 2242 (emphasis in original). The

Atkins

opinion thus pointed the states in the direction of clinical definitions that have three constituent parts: that is, in order to be diagnosed as “mentally retarded,” the person under evaluation must exhibit (i) before the age of eighteen years

(ii)

significantly sub-average intellectual functioning, accompanied by (iii) significant limitations in adaptive functioning.

Similarly, the Alabama Supreme Court subsequently held that a defendant seeking the benefit of

Atkins

“must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the develop

*1263

mental period (i.e., before the defendant reached age 18).”

Ex parte Perkins,

851 So.2d 453, 456 (Ala.2002).

The Alabama Supreme Court layered a gloss on the

Perkins

definition in

Smith v. State,

No. 1060427, 2007 WL 1519869 (Ala. May 25, 2007), holding that a defendant must exhibit significantly subaverage intellectual functioning abilities and significant deficits in adaptive behavior during

three periods

of his life: before the age of eighteen; on the date of the capital offense; and currently.

All three factors must be met in order for a person to be classified as mentally retarded for purposes of an

Atkins

claim.

Implicit in the definition is that the subaverage intellectual functioning and the deficits in adaptive behavior must be present at the time the crime was committed as well as having manifested themselves before age 18.

This conclusion finds support in examining the facts we found relevant in

Ex parte Perkins

and

Ex parte Smith

and finds further support in the

Atkins

decision itself, in which the United States Supreme Court noted: “The American Association on Mental Retardation (AAMR) defines mental retardation as follows:

‘Mental retardation

refers to substantial limitations in

present

functioning.’ ” 536 U.S. at 308 n. 3, 122 S.Ct. 2242 , 153 L.Ed.2d 335 (second emphasis added). Therefore, in order for an offender to be considered mentally retarded in the

Atkins

context, the offender must

currently exhibit

subaverage intellectual functioning,

currently exhibit

deficits in adaptive behavior,

and

these problems must have manifested themselves before the age of 18.

Smith,

2007 WL 1519869, at *8 (emphasis supplied).

See also, e.g.,

doc. no. 110-2 (Report of Karen Salekin, Ph.D.) at 16 (“There exist numerous scales of adaptive behavior that can be used for the purposes of diagnosis, classification, and planning for supports; [but]

no single measure is best for all three.”)

(alteration and emphasis added).

For that reason, review of school records, medical histories, public records, employment records, and personal observations of the test subject in face-to-face interviews, as well as consideration of other, collateral sources of information — such as interviews of “third-party informants”

(e.g.,

family members, friends, school teachers, and other persons who know the subject

well)

— are all used by clinicians to complement, but not replace, standardized assessment measures.

See

AAMR,

Mental Retardation at

84.

Those who use most current adaptive behavior scales to gather information about typical behavior rely primarily on the recording of information obtained from a third person who is familiar with the individual being assessed. Thus assessment typically takes the form of an interview process, with the respondent being a parent, teacher, or direct service provider [e.g., prison guards] rather than from direct observation of adaptive behavior or from self-report of typical behavior. It is critical that the interviewer and informant or rater fully understand the meaning of each question and response category in order to provide valid and reliable information to the clinician. It is also essential that people interviewed about someone’s adaptive behavior be well-acquainted with the typical behavior of the person over an extended period of time, preferably in multiple settings. In some cases it may be necessary to obtain information from more than one informant. The consequences of scores to the rater, informant, or individual being rated should also be taken into consideration, as well as the positive or negative nature of the relationship between the rater or informant and the person being assessed. Observations made outside the context of community environments typical of the individual’s age peers and culture warrant severely reduced weight.

Id.

at 85 (citations omitted).

The importance of clinical judgment

As a result of the fact that no currently available assessment instrument can measure all domains of adaptive behavior, the importance of “clinical judgment” increases.

See id.

at 84. Clinical judgment is particularly important in cases such as this one, where the passage of many years limits the use and valid interpretation of standardized test instruments administered to third-party informants.

Id.

at 94 (“Clinical judgment is often required when ... difficulties arise in selecting informants and validating informant observations [or] ... direct observation of the individual’s actual performance has been

*1284

limited and additional direct observation is necessary.”).

Respondent’s expert, Dr. Harry McClaren, acknowledged the importance of clinical judgment. When he was asked if the fact that no currently-available assessment instrument completely measures all domains of adaptive behavior means that the question of whether a person is significantly limited in adaptive behavioral skills “essentially comes down to [a clinician’s] professional judgment,” Dr. McClaren answered: “absolutely correct,” “[t]hat’s right.”

However, Dr. McClaren’s unequivocal embrace of the importance of clinical judgment in the assessment of a test subject’s adaptive skills only begs a question:

What do psychologists mean when they use the term “clinical judgment”?

The AAIDD’s

User’s Guide

answers that query as follows:

Clinical Judgment is a special type of judgment that emerges directly from extensive data and is rooted in a high level of clinical expertise and experience. Its three characteristics are that it is (a) systematic (i.e., organized, sequential, logical), (b) formal (i.e., explicit and reasoned), and (c) transparent (i.e., apparent and communicated clearly). The result of competent clinical judgment is that its use enhances the precision, accuracy, and integrity of the clinician’s decisions and recommendations. It is important to point out that clinical judgment is not (a) a justification for abbreviated evaluations, (b) a vehicle for stereotypes or prejudices, (c) a substitute for insufficiently explained questions, (d) an excuse for incomplete or missing data, or (e) a way to solve political problems.

AAIDD,

User’s Guide

at 23.

Moreover, “it is crucial that clinicians conduct a thorough social history and align data and data collection to the critical question(s) at hand.”

Id.

The assessment instrument used in this case

Petitioner’s expert, Dr. Karen Salekin, administered the Scales of Independent Behavior — Revised (SIB-R) test instrument to third-party informants for the purpose of probing their memories of petitioner’s adaptive skills prior to age eighteen. She also administered the SIB-R to prison guards for the purpose of exploring their observations of petitioner’s behavior, both currently and during the entire time

*1285

he has been incarcerated.

According to respondent’s expert, the SIB-R test instrument is designed for administration to third-party informants, to assess their knowledge of the subject’s

current

adaptive

skills

— not twenty- to thirty-year-old memories of the subject’s past behavior.

Respondent’s expert also asserts that the SIB-R is not normed for inmates who have been incarcerated in a highly-restrictive, death-row environment for long periods of time.

Dr. Salekin candidly confessed that the SIB-R was not created to be utilized in the manner she employed it. Nevertheless, she chose to make use of it in an effort to discern some sense of the petitioner’s adaptive skills, and also because the 2002 AAMR definition requires administration of a standardized assessment instrument for diagnostic purposes.

In short, any conclusions regarding the limitations of petitioner’s adaptive-behavioral skills prior to the age of eighteen, during adulthood, or as a result of his twenty-year stint on death row ultimately hinge upon the strength and credibility of each expert’s clinical judgment, as applied to the other sources of information she or he explored. As has been observed, how

*1286

ever, clinical judgments can “represent both the best and worst of assessment data. Judgments made by conscientious, capable, and objective individuals can be an invaluable aid in the assessment process. Inaccurate, biased, subjective judgment can be misleading at best and harmful at worst.”

III. EXPERT WITNESSES AND “BEST PRACTICES”

A. Petitioner’s Experts

Dr. Karen Salekin

Dr. Salekin is a clinical and forensic psychologist. She earned a Bachelor of Science degree with double majors in Psychology and Kinesiology

from Simon Fraser University in Burnaby, British Columbia, during 1991, and a Master of Science degree and a Doctorate in Psychology from the University of North Texas in 1994 and 1997, respectively. Between 1995 and 1998, Dr. Salekin completed pre- and post-doctoral clinical training at a Federal penal facility and two University medical centers. She has maintained a private practice in clinical and forensic psychology in Tuscaloosa, Alabama, since 2001, but in 2003 she also was appointed an Assistant Professor of Psychology at the University of Alabama. She has various publications in print.

Dr. Salekin estimated that she has performed hundreds of forensic assessments throughout her career, and she has conducted eleven

Atkins

evaluations in Alabama death penalty cases — a number that includes petitioner, Kenneth Thomas.

All of those evaluations were conducted at the request of defense counsel.

Even so, Dr. Salekin has concluded that only three of those

*1287

eleven subjects were mentally retarded.

That fact indicates that Dr. Salekin is not a trained parrot, and enhances her credibility.

When conducting a forensic evaluation, Dr. Salekin follows recommendations contained in a treatise discussing the legal and clinical contexts of forensic assessments, including “best practice” guidelines for participating effectively and ethically in civil and criminal proceedings:

ie.,

Gary B. Melton, John Petrila, Norman G. Poythress

Christopher Slobogin,

Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers

(New York: The Guilford Press 3d ed.2007).

One section of that treatise discusses the information that should be addressed in a written report of evaluation. For example, diagnosticians are encouraged to document, among other things: the reasons for conducting the mental assessment; the names of all contacts; the date, time, place, and length of interviews; what each informant said; and, the collateral sources and records that were reviewed.

Dr. Daniel Marson

Dr. Marson has been a professor of neurology at the University of Alabama in Birmingham since 1990. He earned a Liberal Arts degree from Carlton College in Northfield, Minnesota during 1976. From 1977-78, he studied law at the University of Edinburgh in Scotland, and he earned a Juris Doctor degree from the University of Chicago School of Law in 1981. Dr. Mar-son pursued further graduate training in clinical psychology at Northwestern University Medical School in Chicago, and he obtained a Ph.D. in Clinical Psychology (with a specialization in geriatric issues) from that school in 1990.

As the term “neuropsychology” suggests, it is a field of study that combines neurology and psychology. It is concerned primarily with clinical and scientific aspects of the relationship between brain structure and human behavior. Neuropsychologists search for possible organic causes of mental disorders, including retardation.

Dr. Marson explained his discipline this way:

Well, to begin with, a good neuropsychologist is, first and foremost, a clinical psychologist. So I received that training at Northwestern.

While I was there I took classes in brain science within the medical school. And then as part of my Ph.D., I took a specialty internship in neuropsychology at Westside V.A. [Hospital] in Chicago.

*1288

Neuropsychology is a subspecialty of clinical psychology [that] focuses on disorders of higher cortical functioning or disorders of brain function. And so we’re psychologists who focus on brain behavior relationships.... [W]e use clinical interviews and specialized psychological tests to evaluate for brain dysfunction across a range of disorders.

With specific reference to the diagnosis of mental retardation, Dr. Marson said that neuropsychology allows a clinician to

conduct an evaluation [focusing upon] a wide range of specific or discreet cognitive functions, like memory, attention, perceptual abilities, problem solving.

And that can help the parties in a case, the Court understand how these specific deficits translate into specific kinds of problems in adaptive functioning .... A neuropsychologist can look at sort of the component cognitive abilities and relate them to specific deficits in everyday functioning.

Marson testified that, since 2000, he had “been involved in about ten forensic cases in which mental retardation was potentially an issue,” and all but one involved the death penalty.

Marson found mental retardation in the non-death-penalty case, and in only two of the nine death penalty cases.

Again, that statistic enhances Dr. Marson’s credibility.

B. Respondent’s Expert

Dr. Harry A. McClaren is a licensed clinical psychologist specializing in criminal forensic psychology. He earned a Bachelor of Science degree in Psychology from the University of Virginia in 1973, a Master’s degree in Clinical Psychology from Mississippi State University in 1974, and a Ph.D. in Clinical Psychology from Virginia Polytechnic Institute in 1981. He is licensed to practice psychology in Alabama and Florida, and he is a member of the American Psychological Association, as well as the American College of Forensic Examiners.

Dr. McClaren has maintained a private practice in Clinical and Forensic Psychology since 1996. He also has served as a staff psychologist at three institutions, including as Chief of Psychology at Alabama’s Taylor Hardin Secure Medical Facility in Tuscaloosa from November 1983 to May of 1985.

In that role, McClaren “worked with Norm Poythress to develop ... forensic examiner training for the State of Alabama.”

When asked by the court if he considered the

Handbook for Mental Health Professionals and Lawyers

referenced by Dr. Salekin to be an authoritative and learned treatise,

Dr. McClaren responded that he owned a copy of the book, and that he was “[a]wful proud of it,” because one of the four co-authors, Norman G. Poythress, “is a very fine psychologist. Knows a lot about the psychology and law.”

*1289

It is a book that talks about different kinds of forensic psychology, about applying psychology to the nexus of mental health and the law.

And it gives suggestions by people that are well known about how to go about doing evaluations, writing reports.

And it’s the kind of thing that is not like a guideline, but it’s a way to help people think about what they’re doing.

Dr. McClaren has been trained to conduct clinical forensic interviews and intelligence testing.

He has testified “[h]undreds of times” at the request of trial judges, defense attorneys, district attorneys, and private counsel.

He estimated that ten to fifteen of his cases have involved

Atkins

evaluations, and all were done “at the request of some division of the State of Florida or the State of Alabama.”

In those few instances in which Dr. McClaren found people to be retarded, the find had been “stipulated to” by the State.

C. “Best Practices”

Atkins v. Virginia

has required mental health professionals to hone diagnostic techniques originally designed for salutary

purposes

— e.g., supporting and promoting the education and welfare of persons afflicted with mental retardation — to the forensic evaluation of persons charged with or convicted of the most heinous offenses known to the law. Forensic assessments in such cases are more difficult than the ordinary case, at least in part because clinicians are asked to perform a retrospective diagnosis under less than optimal circumstances.

The AAIDD’s 2007

User’s Guide

was “developed to assist ... in understanding the 2002 [AAMR diagnostic] System fully and applying best practices based on that understanding.”

User’s Guide

at 2. “Best practices in [diagnosing] mental retardation are based on professional ethics, professional standards, research-based knowledge, and clinical judgment.”

Id.

at 1. The pertinent portions of the guidelines for clinicians performing “retrospective diagnoses” read as follows:

Considerations. A retrospective diagnosis ... may be required when clinicians are involved in determining ... sentencing eligibility questions such as those related to the recent Atkins (2002) case. As with all assessments for diagnosis, such situations require clinicians to act consistent with best practices— that is, to act consistent with professional ethics, professional standards, research-based knowledge, and clinical judgment.

[I]n reference to people in the criminal justice system, some criminal defendants fall at the upper end of the MR/ID [Mental Retardation / Intellectual Disability] severity continuum (i.e., people with mental retardation who have a higher IQ) and frequently present with a mixed competence profile. They typically have a history of academic failure and marginal social and vocational skills. Their previous and current situations frequently allowed formal assessment to be avoided or led to assessment that was less than optimal:

Guidelines. The following guidelines for clinicians are important in retrospective diagnoses....

*1290

1. Conduct a thorough social history that includes: (a) the investigation and organization of all relevant information about the person’s life including status, trajectory, development, functioning, relationships, and family; and (b) the exploration of possible reasons for absence of data or differences in data including poorly trained examiners, selection of inappropriate assessment instruments, improper interpretation of test scores, or lack of sensitivity or awareness of the impact of changing norms and practice effects (see Guidelines 4 & 5, below).

2. Conduct a thorough review of school records. Ideally, school records are available across the elementary-, middle-, and high-school years. Locate all those that are available and arrange them chronologically, numbering the pages. One also needs to make a summary table that lists placement on a year-by-year basis including any changes in the school or school system as well as special education or alternative placements. Citing page numbers from the school records is one way to provide documentation for each piece of relevant information identified. The thorough review should include:

(a) mapping out the grades earned across the school years, looking for consistency of low grades in the core academic areas such as reading, math, English, and science (only in the upper grades)

(b) indicating any grade levels failed or repeated

(d) identifying relevant teacher comments to student or parents and requests for, as well as actual, parent-teacher conferences

(e) identifying when periodic achievement assessment happened (instruments and results) and, if necessary, learn more about the psychometrics of instrument used and how to interpret the scores

(f) identifying results of hearing and vision and any other school-wide screening

(g) searching for failure or patterns that normally would trigger parent-teacher conferences, prereferral meetings, or referrals for special education consideration

(h) identifying the outcome of any eligibility assessment(s) and whether an individualized education plan was developed; if special education was provided, note the diagnosis (typically a developmental disability label is used until age 8), the years given, the type of placement (resource room, self-contained, separate school), and other supports

(i) noting any services that might be viewed as substitutes to special education, which could indicate difficulties in cognitive adaptive behavior (e.g., remedial reading, Chapter I services)

(j) looking for other evidence of difficulties in cognitive adaptive skills besides grades and test performance (e.g., student often late to class or confused about schedule, difficulty following classroom directions, poor record of handling homework, failing driver’s education, etc.)

(k) looking for difficulties in practical adaptive skills (e.g., poor grooming, unable to use money correctly, getting lost in school or on school grounds, unable to tell time, etc.)

*1291

gullible, does not understand social humor, etc.)

In addition to the above, having contact with the teacher is also valuable, if possible, as a means of clarifying questions in the records and getting specific comments on the student or explanations about gaps in the records. Getting peer comments from school years is another valuable source of anecdotal information.

3. In reference to the assessment of adaptive behavior: (a) use multiple informants and multiple contexts; (b) recognize that limitations in present functioning must be considered within the context of community environments typical of the individual’s peers and culture; (c) be aware that many important social behavioral skills, such as gullibility and naivete, are not measured on current adaptive behavior scales; (d) use an adaptive behavior scale that assesses behaviors that are currently viewed as developmentally and socially relevant; (e) understand that adaptive behavior and problem behavior are different constructs and not opposite poles of a continuum; and (f) realize that adaptive behavior refers to typical and actual functioning and not to capacity or maximum functioning.

4. Recognize the “Flynn Effect.”

[The text of this paragraph was quoted previously,

in Part 11(A)(3)

supra.]

5. Recognize the impact of practice effect. Practice effect refers to gains in IQ scores on tests of intelligence that result from a person being retested on the same test.... For example, ... [t]he WAIS-III manual reports an average increase of 5 points on the Full-Scale IQ between administrations with intervals of 2 to 12 weeks. Thus clinicians need to be sensitive to these practice effects and best practices in intellectual assessment recommendations against administering the same intelligence test to someone within the same year. Practice effects can apply as well to normal achievement tests and state tests to measure school and district performance.

6. Recognize that self-ratings have a high risk of error in determining “significant limitations in adaptive behavior.” However, consistent with the need for multiple informants or respondents, self-ratings can be used under the following cautions: (a) people with MR/ID are more likely to attempt to look more competent and “normal” than they actually are — which is sometimes interpreted as “faking”; (b) people with MR/ID typically have a strong acquiescence bias or inclination to say yes or agree with authority figures; and (c) MR/ID is a social status that is closely tied to how a person is perceived by peers, family members, and others in the community.

7. Conduct a longitudinal approach of adaptive behavior that involves multiple raters, very specific observations across community environments (especially in regard to social competence), school records, and ratings by peers in the development process. This longitudinal evaluation needs to be sensitive to the subtle issue of “the stigma of the label” and the concern that families and schools have about the label of “mental retardation” and over-representation of specific racial or ethnic groups within particular communities and/or schools.

8. Do not use past criminal behavior or verbal behavior to infer level of adaptive behavior or about having MR/ ID. Greenspan and Switzky (in press) discuss two reasons for this guideline. First, there is not enough available information; second, there is a lack of normative information.

*1292

AAIDD,

User’s Guide

at 17-20 (citations omitted, bracketed alterations added). None of the experts who testified in this case explicitly referenced the foregoing portions of the

User’s Guide,

but the reports tendered by petitioner’s experts, Dr. Karen Salekin and Dr. Daniel Marson, substantially adhere to the guidelines for conducting retrospective diagnoses.

In contrast, the report submitted by respondent’s expert, Dr. McClaren, is most notable for what it does

not

contain.

For example, Dr. McClaren did not evaluate petitioner’s adaptive behavior before the age of 18,

and he did not summarize interviews conducted with third-party informants for the purpose of obtaining some insight into petitioner’s adaptive skills during the developmental period.

100

Indeed, Dr. McClaren did not even identify the individuals to whom he spoke, and he devoted no attention to a discussion of diagnostic criteria.

101

Dr. McClaren acknowledged the absence of this information, but asserted that he did not include it in his reports “as a matter of practice.” He declared that, in his opinion, it was important to state his conclusions regarding petitioner’s pre-ageeighteen adaptive functioning only “if that is what the bottom line turned upon.”

102

That opinion is contradicted by the APA’s

Diagnostic and Statistical Manual,

which notes that, when a ± 5 point standard error of measurement is taken into account, “it is possible to diagnose Mental Retardation in individuals with IQs

between 70 and 75 who exhibit significant deficits in adaptive behavior.

Conversely, Mental Retardation would not be diagnosed in an individual with an IQ

lower than 70 if there are no significant deficits or impairments in adaptive functioning.”

DSM-IV-TR at 41-42 (emphasis supplied).

Dr. McClaren attempted to defend the paucity of substantive information included in his abbreviated report by answering ‘Tes” to the following, leading question posed by respondent’s counsel: “[T]hat report ... doesn’t include all of the work that you did in order to make your evaluation of Mr. Thomas; it’s just a summary, isn’t that correct?”

103

When asked by petitioner’s counsel if it was his “custom and practice ... to include all ... important conclusions and the supporting information in your report?,” Dr. McClaren answered: “I think it’s important to explain what the conclusion is based on. And I guess you could have a debate about broad-brush reports that may be three to six pages, seven pages long or fine-brush reports that may be 17, 20 pages long. And most of my reports are in the three-to six-page range.”

104

Regardless of Dr. McClaren’s rationalizations, this court finds that his approach to forensic report writing leaves a great deal to be desired, especially in eases such as this one, where important societal and

*1293

legal policies collide. Dr. McClaren’s report stands in stark contrast to the careful analysis and well-documented statements contained in the reports of petitioner’s witnesses. For such reasons, it is less persuasive.

Even so, Dr. McClaren reviewed the same historical records as Drs. Salekin and Marson; he conducted interviews (albeit, it is not clear how many, with whom, the length of each, and the questions that were asked); and he administered testing instruments. Thus, while the deficiencies of Dr. McClaren’s written report are painfully obvious, this court still must examine and consider his testimony at the evidentiary hearing to determine whether the paucity of substantive information contained in his written report simply reflects poor reporting practices, or whether it is indicative of an abbreviated, cursory evaluation.

IV. ASSESSMENTS OF PETITIONER’S INTELLECTUAL FUNCTIONING

As discussed in Part I

supra,

this court must determine whether petitioner’s intellectual functioning ability was significantly subaverage during three periods of his life: (1) before he reached the age of eighteen; (2) on the date the offense of conviction was committed; and (3) currently.

See Smith v. State,

No. 1060427, 2007 WL 1519869, at *8 (Ala. May 25, 2007).

A. Intelligence Assessments Conducted Prior to Age Eighteen

Intelligence tests were administered to petitioner at least seven times before his conviction for the capital murder that eventually brought him into this court. Four of those were conducted before March 7, 1977, the date upon which he attained the age of eighteen years.

October Ip, 1968

— age

nine years and seven months

The first evaluation occurred on October 4, 1968, when Thomas was nine years and seven months of age. A psychologist on the staff of the North Central Alabama Mental Health Center in Decatur, Alabama, David Loiry, Ph. D., administered a short form version of the Wechsler Intelligence Scales for Children (WISC). The WISC was normed in 1949, and consisted of a series of twelve tests for minors between the ages of five and sixteen years. Verbal, performance, and full-scale intelligence quotients could be derived from computation of the subtest scales. According to Dr. Loiry’s report, Thomas’s estimated full-scale IQ score of 56 placed him

near the middle of the range of moderate mental deficiency according to the classification system used by the American Psychiatric Association. There is little variability in the sub-tests used to estimate his IQ and it is felt that this represents a valid estimate of his present intellectual functioning.

Kenneth was recommended for placement in [a] Special Class for the Educable Mentally Retarded.

105

Neither the standard error of measurement nor the Flynn effect can be taken into account, because the former is not known for this particular test, and no empirical studies of the latter phenomenon have been conducted using the short form of the WISC test instrument.

106

Even with

*1294

out such adjustments, however, Thomas’s full-scale IQ score of 56 clearly indicated significant limitations in his intellectual functioning at a young age.

October 12, 1972

— age

thirteen years and seven months

The second evaluation occurred on October 12, 1972, when Thomas was thirteen years and seven months of age.

107

He was tested by the Athens, Alabama, School System with the California Test of Mental Maturity — Short Form (CTMM-SF). The scales of that test measured various aspects of intellectual functioning, such as memory and logical reasoning, at five different levels of difficulty. The test was administered to groups of students, as opposed to individual test subjects.

108

Thomas received a composite IQ score of 68. Again, even without taking into account either the standard error of measurement or the Flynn effect, Thomas’s composite IQ score of 68 indicated significantly sub-average intellectual functioning abilities.

109

June 23, 1973

— age

fourteen years and two months

The third intelligence assessment occurred on June 23, 1973, when Thomas was fourteen years and two months of age. He was re-evaluated by David Loiry, Ph. D., at the request of Dr. Frank M. Cauthen, M.D. Dr. Loiry administered four tests: the full Wechsler Intelligence Scales for Children (WISC);

110

the Wide Range Achievement Test (WRAT);

111

the Bender Visual-Motor Gestalt Test (BVMGT);

112

*1295

Figure Drawing test;

113

and a Rorschach test.

114

Thomas’s performance on the WISC test instrument yielded a verbal IQ score of 69, a performance IQ score of 67, and a full-scale IQ score of 64 — clearly within the range of mental retardation. The WRAT was administered for the purpose of assessing Thomas’s level of academic achievement, and it revealed that he functioned at only a 3.7 grade level in spelling, a 3.9 grade level in reading, and a 2.9 grade level in arithmetic. Based upon these results, Dr. Loiry concluded:

“There appears to be little doubt about his mental

retardation.”

115

Without question, a full-scale IQ score of 64 on the WISC meets the intellectual functioning prong of a diagnosis of mental retardation. That score points even more strongly in favor of Dr. Loiry’s conclusion of mental retardation when the Flynn effect is taken into account. The WISC was standardized (“normed”) in 1949, but administered to Thomas 24 years later. Multiplying 24 by the Flynn factor of minus 0.30 points for each year elapsed after the date of standardization yields a correction of 7.2 points that must be deducted from Thomas’s full-scale IQ performance score, resulting in an adjusted IQ score of 57

(i.e.,

64-7.2 = 56.8, rounded-up to 57).

Not only is a score of 57 well below the cutoff for a diagnosis of mental retardation, it still is subject to adjustment by a ± 5 point standard error of measurement, resulting in a conclusion that can be stated with a 95% degree of confidence,

116

that Thomas’s “true” full-scale IQ score then lay within a band ranging from 52 on the low end to 62 on the high end.

Even if the Flynn effect is not taken into account, and the full-scale IQ performance score of 64 is adjusted only by the ± 5 point standard error of measurement, the high end of the resulting band (59 to 69) still is below the cutoff for mental retardation specified by the Alabama Supreme Court in

Ex parte Perkins,

851 So.2d at 456 .

*1296

In short, regardless of how the full-scale IQ performance score produced by this test administration is sliced or diced, the numbers

always

lead to only one conclusion: Thomas’s intellectual functioning was significantly below average at the age of fourteen years.

March 18, 1975

— age

sixteen

The final intelligence assessment conducted prior to Thomas’s eighteenth birthday occurred on March 18, 1975, eleven days after his sixteenth birthday. He was tested on the Wechsler Adult Intelligence Scales (WAIS) by Jim Lenz, a psychometrist for the Limestone County School System,

117

for the purpose of determining whether Thomas should remain in the “special education” curriculum.

118

Thomas marked the highest, raw performance scores to that point in his life: verbal IQ 75, performance IQ 75, and full-scale IQ 74.

119

Lenz concluded, nevertheless, that Thomas was “functioning in the educable range of mental retardation,” and recommended that he remain in special education.

120

Thomas’s raw, full-scale IQ score of 74 does not bar the conclusion that he suffered from significantly subaverage intellectual functioning prior to the age of eighteen.

121

Adjustment for the Flynn effect alone reveals a diagnostically sound IQ score of less than 70. The Wechsler Adult Intelligence Scales were standardized (“normed”) in 1955, and Jim Lenz administered the assessment instrument to petitioner 20 years later. Multiplying 20 by the Flynn standard of minus 0.30 points for each year elapsed after the test was normed yields a correction of 6 points that must be deducted from Thomas’s raw performance score, resulting in an adjusted full-scale IQ of 68. Not only is that score below the cutoff for a diagnosis of mental retardation, but the score still is subject to adjustment by ± 5 points for measurement error, resulting in Thomas’s hypothetical, “true” IQ score lying within a 63 to 73 band of confidence.

122

Accordingly, this court concludes that petitioner did not present with a true IQ score that was greater than 70 based upon the results of the intelligence examination administered to him on March 18,1975.

Findings

Based on the foregoing evidence, this court finds that petitioner has demonstrated, by a preponderance of the evidence, that he suffered from significantly subaverage intellectual functioning prior to the age of eighteen years:

i.e.,

during the so-called “developmental period.”

*1297

B. The Intelligence Assessment Performed on April 11,1977

The first assessment of Thomas’s intellectual functioning following the end of the developmental period was performed on April 11, 1977, just one month after his eighteenth birthday. A Wechsler Adult Intelligence Scales (WAIS) test instrument was administered by Joyce Raley, a counselor at the West Limestone School. The record is not clear on the questions of why Ms. Raley, as opposed to Jim Lenz, administered the test, or the purpose for which it was given.

123

In any event, Thomas’s raw test scores on that occasion were the highest he has ever recorded: verbal IQ 78, performance IQ 79, and full-scale IQ 77.

124

As noted in the previous section, however, the WAIS assessment instrument was standardized (“normed”) in 1955, and Ms. Raley’s administration of the test occurred 22 years later. Multiplying 22 by the Flynn corrective factor of minus 0.80 points for each year elapsed after the test was normed yields a correction of 6.6 points that must be deducted from Thomas’s raw score, resulting in an adjusted full-scale IQ of 70.4, which rounds down to 70.

125

Even that is not an absolute score, because a further correction of ± 5 points for the standard error of measurement must then be applied to the adjusted IQ score. In doing so, this court can be 95% confident

126

that Thomas’s “true” IQ on the date of Ms. Raley’s assessment fell within a band extending from 65 (65.4) on the low end to 75 (75.4) on the upper extreme.

This court cannot conclude its discussion of these test results, however, without addressing Dr. McClaren’s belief that Thomas’s raw, full-scale IQ score of 77 on the WAIS administered by Joyce Raley, a counselor, as opposed to the School System’s psychometrist, not only should be considered as an accurate measurement of his intellectual functioning abilities

prior to

age eighteen,

127

but also should be considered as proof that Thomas was not then, and is not now, mentally retarded. These contentions are deserving of at least some attention because it appears that there is a certain amount of arbitrariness in the selection of eighteen years as the end of the so-called “developmental period,”

128

and also because of Dr. McClaren’s opinion

*1298

that Thomas’s performance on this exam is

the

defining fact upon which his intellectual functioning ability during the developmental period should be determined.

Dr. McClaren made no effort to determine how many points, in his clinical judgment, should be deducted from Thomas’s IQ score for either measurement error or the Flynn effect. When asked to explain why he felt so strongly about the validity of Thomas’s raw, full-scale IQ score of 77, McClaren replied:

That appears to be the high point, and it happens at 18 years, one month. So I think it is highly likely that 30 days earlier before he was 18 that he would have scored in a like manner.

However, you do have the Flynn factor, which

if you gave every break and decided he should get the maximum discount, so to speak, from the Flynn effect, it

could reduce it about seven points.

— but

that’s not how IQ tests were interpreted in those days nor now when I see reports.

It’s with a score. And I often hear the psychologists say, well, probably the best in this confidence interval is the score you got.

And

— but

you know that things like the age of the test, the atmosphere of the testing situation, the environment in which the person is living all matters.

And when you report IQ scores, you report the score that you got and usually a confidence interval.

129

Several points in the foregoing portion of Dr. McClaren’s testimony require close scrutiny.

First — and addressing Dr. McClaren’s statement that “that’s not how IQ tests were interpreted

in those days

” — he is undeniably correct, but not for the reason he implies. Rather, that is a correct statement only because — as noted in Part 11(A)(3) of this opinion

supra

— the statistical phenomenon bearing Dr. Flynn’s name was not discovered until the middle of the following decade,

130

and clinicians did not begin to take it into account as a standard interpretative procedure until the 1990s, as the number of studies validating the accuracy of Flynn’s observations nudged his statistical data across the line dividing debatable propositions from empirically-proven, generally-accepted facts.

Second, Dr. McClaren’s assertion that he had not recently reviewed IQ reports interpreted in that

manner

— i.e., “nor now when I see reports” — conflicts with his acknowledgment that

“things like the age of the test,

the atmosphere of the testing situation, the environment in which the person is living

all matter

[ ].”

Third, if Thomas’s raw performance score was reduced by “seven points,” as Dr. McClaren conceded it could be, the resultant full-scale IQ score of 70 would indicate mental retardation.

Finally, Dr. McClaren simply ignored the generally-accepted practice of all competent professionals in the fields of statistics, test theory, and psychology of being concerned with how measurement errors affect the interpretation of an individual’s performance on a particular test. (See the discussion in Part 11(A)(2)

supra.)

In sum, Dr. McClaren glossed over the Flynn effect, ignored the standard error of measurement (which the parties’

stipulated

as being ± 5 points), and rational

*1299

ized his conclusion that Thomas did not meet the intellectual functioning prong of the clinical definition of mental retardation prior to the age of eighteen because the “trajectory” of Thomas’s IQ scores was “going up” during the developmental period,

131

and reached a peak one month after his eighteenth birthday.

132

This court does not find Dr. McClaren’s testimony persuasive, and concludes that the raw, full-scale IQ score discussed here was an aberration. The flaw in Dr. McClaren’s “trajectory” hypothesis was highlighted during further questioning by respondent’s counsel:

Q So do you have an opinion as to whether or not he meets the diagnostic criteria for mentally [sic] under the DSM-IV-TR?

A [McClaren] In my opinion, he does not meet the criteria for mental retardation.

Q So what would be his correct diagnosis as far as his intellectual ability is concerned?

A Borderline intellectual functioning. I believe that he probably does have some cerebral impairment. Whether that is related to his intellectual deficits or something distinct or some mixture is very hard to know.

But after 18 and the tests got re-normed, [and] he again, begins to drop off,

you would predict, using a Flynn

effect,

133

The last sentence in the foregoing quotation encapsulates the contradictions inherent in Dr. McClaren’s testimony. He is there referring to the 1981 standardization (“renorming”) of the first revised version of the Wechsler Adult Intelligence Scales, the so-called “WAIS-R.” (As will be discussed in the following section (Part IV(C)(1) of this opinion), the WAIS-R assessment instrument was administered to Thomas approximately eight years later, on March 21, 1985, and his raw, full-scale IQ score on that occasion was

71.)

In other words, Dr. McClaren was

tacitly conceding

that the only way to reconcile

(a)

Thomas’s raw, full-scale IQ score of 77 obtained at the age of eighteen years and one month with (6) his raw, full-scale IQ score of 71 obtained eight years later was by taking into account the “renorming” of the WAIS-R and,

thereby, the Flynn effect.

Stated differently — and considering the fact that during the eight years elapsed between April 11, 1977 (when Ms. Raley administered a 22-year-old WAIS assessment instrument) and March 21, 1985 (when, as discussed in the following Part of this opinion, a psychologist administered a four-year-old WAIS-R test), Thomas’s raw, full-scale IQ performance score dropped 6 points, from 77 to 71—

neither

those raw scores

nor

their “trajectory” can be rationally explained in the

*1300

absence of taking into account

both

the Flynn effect

and

the standard error of measurement. If that is done, then we can be 95% confident

134

that Thomas’s “true” IQ on the date he was tested by Ms. Joyce Raley was, in round numbers, 70 (70.4):

ie.,

virtually the same as when he was tested eight years later.

Another factor that causes the court to view Thomas’s performance on the April 11, 1977 test as an aberration is the fact that the record is silent on the question of what training or experience Ms. Raley had in the procedures for administering and scoring intellectual assessment instruments like the WAIS. The importance of that question is underscored by the facts summarized in the tables attached to the written report of Dr. Karen Salekin as Appendix A:

that is,

there is a consistency in the full-scale IQ scores recorded by Thomas both before and after Ms. Raley’s April 11, 1977 administration of the WAIS that causes his raw score on that date to stand out as not only the highest IQ score registered in Thomas’s lifetime, but also the

only

unadjusted, full-scale score above 74.

For all of these reasons, as well as those addressed in the following section, this court accepts Dr. Salekin’s well-supported, well-reasoned, and inherently-consistent analysis, and finds that the results of the April 11, 1977 IQ test are an aberration and should not be taken into account when determining Thomas’s intellectual functioning abilities during any of the relevant times:

ie.,

the developmental period, on the date of the offense, or currently.

C. Intelligence Assessments Performed Near the Date of the Offense

March 21, 1985

— age

twenty-six years

The offense for which Thomas was convicted and sentenced to death occurred during the late-night or early-morning hours of December 15,1984.

135

Three months later, and prior to trial, he was evaluated by a “Dr. K. Hall” at the State of Alabama’s Taylor Hardin Secure Medical Facility in Tuscaloosa. Thomas then was twenty-six years of age. Dr. Hall administered the Wechsler Adult Intelligence Scales — Revised (WAIS-R), and Thomas’s raw scores were verbal IQ 70, performance IQ 74, and full-scale IQ 71. Dr. Hall concluded that he was “functioning within the borderline range of intellect.”

136

The WAIS-R was standardized (“normed”) in 1981, and Dr. Hall’s administration of it occurred four years later.

137

Multiplying 4 by the Flynn factor of minus 0.30 points for each year elapsed after the date of standardization yields a correction of 1.2 points that must be deducted from Thomas’s full-scale IQ score, resulting in an adjusted score of 69.8, rounded-up to 70.

138

Consideration of the ± 5 point standard error of measurement results in the conclusion, stated with a 95% degree of confidence,

139

that Thomas’s “true” full-scale IQ score lay within a band extending from 65 on the low end, to 75 at the upper extreme.

140

*1301

January 2b, 1986

— age

twenty-six years and ten months

Thomas was evaluated once more prior to trial by a Ph.D. psychologist named James Crowder. The evaluation occurred on January 24, 1986, in the Limestone County Jail. Thomas then was twenty-six years and ten months of age. Dr. Crowder administered another WAIS-R assessment instrument, and Thomas’s raw scores were verbal IQ 65, performance IQ 69, and full-scale IQ 65. Even without taking the Flynn effect or standard error of measurement into account, these scores clearly fell within the range of mental retardation.

141

Findings

In consideration of the evidence gleaned from the results of the March 21, 1985 and January 24, 1986 assessments, this court concludes that petitioner suffered from significantly subaverage intellectual functioning on the date of the offense.

See Smith v. State,

2007 WL 1519869, at *8 (noting that “subaverage intellectual functioning ... must be present at the time the crime was committed”).

D. Intelligence Assessments Performed in Preparation for Hearing

Dr. McClaren administered a WAIS-III intelligence assessment instrument to Thomas on September 6, 2007, and he obtained a verbal IQ score of 66, performance IQ score of 72, and a full-scale IQ score of 65.

142

Those results clearly support a finding of mental retardation, but the adjusted scores unquestionably do so. The WAIS-III assessment instrument was standardized (“normed”) in 1997, but it was administered to Thomas by Dr. McClaren some ten years later. Multiplying 10 by the Flynn factor of minus 0.30 points for each year elapsed after the date of standardization yields a correction of 3.0 points that must be deducted from Thomas’s raw, full-seale-IQ performance score, resulting in an adjusted IQ of 62 (65-3 = 62). Not only is that score well below the cutoff for a diagnosis of mental retardation, it still is subject to adjustment by a ± 5 point standard error of measurement, resulting in a conclusion that can be stated with a 95% degree of confidence that Thomas’s “true” full-scale IQ then lay within a band ranging from 57 to 67.

This court’s confidence that Thomas currently suffers from significantly subaver

*1302

age intellectual functioning abilities is bolstered by at least four additional facts. First, Dr. McClaren also administered a so-called “Test of Memory Malingering,”

143

and its results “did not suggest malingering” by Thomas during administration of the WAIS-III:

144

that is, deliberate feigning of mental retardation in order to avoid the death penalty.

145

Second, Dr. Salekin administered an SB5 intelligence assessment instrument to Thomas on November 11, 2007,

146

and it produced a full-scale IQ of 62 — identical to Thomas’s full-scale IQ score on the WAIS-III, when adjusted for the Flynn effect. Third, the “correlation coefficient” for the full-scale IQ scores produced by the WAIS-III and SB5 assessment instruments is + 0.82:

147

ie.,

very close to a perfect correlation coefficient of + l.O.

148

Finally, respondent

*1303

and Dr. McClaren concede this point.

149

Accordingly, the third requirement of

Smith ,

as that case construes

Atkins

and

Ex parte Perkins,

has been satisfied: petitioner has demonstrated, by a preponderance of the evidence, that he “currently” exhibits significantly subaverage intellectual functioning.

See Smith v. State,

2007 WL 1519869, at *8 ;

see also Holladay v. Allen,

555 F.3d at 1353 .

V. ASSESSMENTS OF PETITIONER’S ADAPTIVE BEHAVIOR

A. Petitioner’s Deficiencies Prior to Age Eighteen

No standardized, adaptive-behavior, assessment instruments were administered to Thomas prior to his eighteenth birthday. While consideration of a person’s limitations in adaptive skills became a component of the definition of mental retardation in 1959, “the notion that you had to test for it” did not become a diagnostic requirement until 2002, when the tenth edition of AAMR’s

Mental Retardation

manual was published.

150

Before then, psychologists relied primarily upon clinical judgment and the observations of third-party informants to assess a person’s adaptive skills. As Dr. Salekin put it, “we could talk to the school, we could talk to mom, we could talk to a bunch of people, [but we would] not hand over one of these [standardized tests], and be comfortable with giving a diagnosis that way.”

151

In order to gather information about Thomas’s adaptive skills during the period prior to his eighteenth birthday, therefore, the parties were relegated to a review of records maintained by public schools and social workers employed by the Alabama Department of Pensions and Security (“DPS”),

152

as well as the recollections of persons who were acquainted with petitioner during his youth.

153

Petitioner’s at

*1304

torneys argue that an objective assessment of such information establishes that Thomas’s adaptive behavioral skills during the developmental period were substantially below average in the areas of “functional academics, work, social and interpersonal skills, home living, and self-direction.”

154

Those assertions are evaluated below.

The home environment

— birth

to age 12

DPS records establish that Kenneth Glenn Thomas was the third of nine children born into the marriage between William Thomas and Annie Ratcliff Thomas. The family was so socially and economically deprived that “even the poor people called them dirt poor.”

155

Dr. Salekin summarized the dysfunctional and abusive environment into which Thomas was born as follows:

With regard to his home of origin, records obtained from the Department of Pensions and Securities (DPS) are replete with information indicating that the parents of Mr. Thomas were repeatedly deemed to be unfit and that when in the home he was exposed to alcoholism (father), criminal activity (father), domestic violence (father toward mother), and there was evidence that Mr. Thomas Sr. had been molesting one or more of his daughters. Furthermore, there is information in the DPS records that suggests that on numerous occasions the Thomas family was without adequate food, clothing, and shelter (e.g., the home was unkempt and was too small for the amount of people residing there), and that Mrs. Thomas did not access appropriate medical services for the care and treatment of her children. In a notation dated 01/23/1963 (initials of writer IBM), the family was described as “destitute” and Mrs. Thomas was noted to have been wearing unseasonably thin and worn out clothing, and was described as “very cold and pitiful looking.”

Review of available documents provides ample information regarding DPS’s desire to reunify the family and the multitude of problems that prevented this from occurring. Throughout the records there are references made to the illegal, corrupt, violent, and unpredictable behavior of Mr. Thomas Sr., and the ineffective and dependent nature of Mrs. Thomas. During discussions with Ms. Carole Russell it became clear that the primary problem for the family lay in the relationship between the parents and the inability for Mrs. Thomas to extricate herself from this damaging union. According to Ms. Russell, it was common place for Mrs. Thomas to state that she would leave her husband permanently, but after a short period of separation (often times when he would be incarcerated or would otherwise abandon the family) she would return to the union. Over the course of the family’s involvement with DPS, Mrs. Thomas was informed multiple times that, should she make the decision to end the relationship with her husband, [she] and her children [could] be reunited. Mrs. Thomas was well aware of this fact, but routinely returned to their dysfunctional and violent relationship.

*1305

According to multiple informants (as well as information provided in court documents), Mr. Thomas was heavily influenced by his father who taught Mr. Thomas how to steal and to engage in other illegal activities. During Mr. Thomas’s testimony at trial, he stated that his dad would take him to bars when he was young, and that he witnessed him committing theft, arson, and assault. These accounts were corroborated by record review and interviews with numerous collateral sources (e.g., Connie Allen, Carole Russell, and Wayne Ridgeway). It is important to note that all nine of the children were at one point removed from the care of their natural parents, and in three of the nine cases the parental rights were terminated and the children adopted outside of the family.

According to records located in the DPS file, the Thomas family’s first contact with DPS occurred in 1957 at the time that Mr. Thomas’s father was first sentenced to prison (one year sentence). At this time Mrs. Thomas applied for assistance and did so again in 1963 when her husband was again incarcerated. In 1969 the family began to receive Social Security benefits due to Mr. Thomas Sr. becoming disabled secondary to a gunshot wound. In late 1971, Mr. Thomas was convicted of arson after having purposefully set fire to his family’s home and as a result, served two years in prison. Following his release Mr. Thomas Sr. once again behaved irresponsibly as evidenced by excessive drinking, “impulsive acts”, and he spent the majority of the family money on paying fines and court costs.

Doc. no. 110-2 (Report of Karen Salekin, Ph.D.) at 19-20 (footnote omitted).

Petitioner’s father, William Thomas, emphatically was a negative influence on his son’s life. Thomas did not recognize that fact, however. Instead, he perceived a “special relationship,” as Dr. Marson recorded:

His father apparently took a special interest in Mr. Thomas, and referred to his son as his “pet.” Mr. Thomas said he looked up to his father. Mr. Thomas reportedly often accompanied his father to the neighborhood bar where his father drank heavily, and also witnessed his father commit many criminal acts. For example, Mr. Thomas recalled an early childhood memory of watching his father break into a house, steal the contents of the home, and then set the house on fire. When Mr. Thomas got older, his father reportedly taught him how to strip cars and rob houses. Of note, when Mr. Thomas was 12 years old, he was arrested for starting a fire at the Capshaw Baptist Church in Athens. On February 22, 1974, at age 14, Mr. Thomas was reported arrested for stealing $5 from one of his teachers.

Ms. [Connie] Allen said that her brother learned everything bad from their father. According to Ms. Allen, Mr. Thomas was eager to please his father and did almost anything his father asked him. Ms. Allen stated that she did not think that Mr. Thomas ever learned to distinguish between right and wrong because his father used to tell him it was okay to do bad things.

Doc. no. 111-2 (Report of Dr. Daniel Marson & Dr. Kristen Triebel), at 4-5.

Adolescence and foster care

— ages

12 through 18

Thomas resided with his family from birth until the age of twelve, when he was removed from the home and placed in DPS protective custody as a result of an arson. DPS records indicate that Thomas entered the Capshaw Baptist Church on a dare from two “older friends” and set fire to a

*1306

bulletin board and door.

156

He was arrested the following morning, after riding back to the church on his bicycle, and asking feigned questions about what had happened. Although the exact path of subsequent proceedings is not clear, it appears that Thomas was diverted from the juvenile court system into DPS-supervised foster care. He spent most of the following six years in three foster homes.

Thomas first resided for approximately one year (1971-72) with Mrs. Edith Austin and her family in Athens, Alabama, after which he returned to his family home for a short time, to live with his mother. Thomas reportedly was not happy living with his mother, however, because his father was in prison, and it was “not the same without him.”

Thomas then was placed in a second foster home, with Mr. and Mrs. Thomas Stevenson, for approximately a year and a half between the ages of thirteen and fourteen (1972 to 1974).

After repeatedly running away from the Stevensons’ home, Thomas was moved to a third foster placement, in the home of Mr. and Mrs. Wayne Ridgeway, who owned and operated a farm near Goodsprings, Alabama. Thomas described that placement as “the happiest home I knew.” No pleasure goes unpunished, however, and sadly, in September of 1977, Thomas was told that he no longer was eligible for foster-care or other DPS protective services as a result of becoming “an adult” on March 7, 1977 — his eighteenth birthday. Having no other options or resources, Thomas returned home to live with his mother.

Dr. Salekin summarized the circumstances of Thomas’s three foster-home placements in her written report as follows:

Mr. Thomas resided in foster care from the age of 12 years until he aged out of the system at 18 years of age. His first placement was with the Austin family ( — 08/23/1971) which lasted for a period of eight months after which time Mr. Thomas was removed from this placement and placed back in the family home. According to records, the change in placement was due to DPS’s observation that the placement was not longer of benefit to Mr. Thomas, but was instead hindering positive growth and development. In a progress note it was stated that DPS believed that, if possible, it would be much better for him to reside at home. After approximately one year, Mr. Thomas was again placed in foster care, but this time secondary to his mother being unable to manage and control his behavior.

On August 11, 1972, Mr. Thomas moved into the Stevenson Boarding home for a period of two years with termination of this placement occurring secondary to Mr. Thomas’s refusal to return to the home. This request was reportedly due to his growing dissatisfaction with the rules of the home, the reported alienation from his birth family, and the purported negative influence of a male foster child on Mr. Thomas. Mr. Thomas’s third and final placement was at the Ridgeway home (start date appears to be August, 1974). According to Ms. Carole Russell, Mr. Thomas was placed at this home because she believed that he would be able to function well in this environment. She further explained that there were few expectations

*1307

at the home and that Mr. Thomas would be able to carry out the simple tasks required of him. Ms. Russell indicated that the other children that were placed at the home were special needs children of low cognitive ability, a statement supported by Mr. Mitchell Rose, grandson of Ms. Ridgeway, and Mr. David Seibert, special education teacher.

According to Mr. Thomas, he was happiest when living at the Ridgeway home and he particularly enjoyed the outside chores that he and all of the children were required to do. He noted that during his time with the Ridgeways he did not get into trouble at school, did not use illegal drugs, played community baseball, and frequently attended church (these statements are supported by information available via record review and multiple collateral contacts). It is important to note that near the end of his residency at the Ridgeway home there were discussions between the Ridgeway family and DPS about continuing Mr. Thomas in foster care and assisting with his continued [vocational] education. It appears that at the time Mr. Thomas was about to “age out” of the system, DPS had either not made a firm commitment to providing further education or had not developed an appropriate transition plan. This lack of foresight and threatened abrupt discontinuation of services angered Mr. Wayne Ridgeway (as noted in DPS records and during personal communications with this examiner). It is noted that during discussion with Ms. Carole Russell he “became very upset, stating that he could not see how we could throw a child who could not take care of himself into the street.” The Ridgeways were clear that they could not keep Mr. Thomas unless the DPS payments continued.

In response to the above described situation, DPS looked into the vocational program that was offered by “the Junior College” (name unknown to this evaluator) at the time. Upon evaluation it was determined that “due to the fact that Kenneth is mildly mentally retarded, there was some concern as to whether or not he would be able to perform in the regular trade school program.” Apparently there was a relatively large amount of knowledge that would have been transmitted via text books and this was deemed to be unsuitable for the abilities of Mr. Thomas. Instead, DPS chose to look into the possibility of a good fit between Mr. Thomas’s abilities and the vocational program offered by “VPS” (exact name of the program unknown to this examiner). Although meetings with a VPS counselor were established, Mr. Thomas chose not to follow through with this recommendation. He reported that he no longer wanted to attend school, and he wanted to “be on his own.” Mr. Thomas’s contact with DPS was terminated on 09/19/1977.

Doc. no. 110-2 (Report of Karen Salekin, Ph.D.) at 20-21 (footnote omitted).

Schooling

Thomas failed the first grade. During his second enrollment in that primary grade (1968), he was placed in the special education program.

157

Except for a brief (and mistaken) placement in a regular classroom setting during a portion of his

*1308

fifth grade year,

158

Thomas remained in special education classes for the remainder of his time in public schools. His grades within that curriculum were observed by Dr. Salekin to be good to excellent, and there was no indication that he was a behavioral problem in the classroom. Even so, Dr. Salekin’s written report stresses that “it is important to note” that Thomas’s academic successes arose “solely in relation to his placement in special education and these grades in no way reflect a comparison to functioning in mainstream programming.”

159

According to [David] Seibert, Mr. Thomas’s special education teacher [from the 9th through the 12th grades], graduating from the 12th grade in special education means little more than you attended the program. Mr. Seibert stated that he remembers Mr. Thomas as meeting criteria for mental retardation and estimated his IQ to “be in the low 70’s” ... “maybe a little less.” He further noted that [Thomas] was able to function well in special education classes, but “would not have functioned in a regular classroom. He would be a discipline problem because he wouldn’t be able to follow along.” Mr. Thomas was noted to have been well behaved and able to handle the simple tasks required of the students (e.g., going to the library, riding the bus, reading at rudimentary level and completing simple math problems). Mr. Seibert recalled that he was always respectful and that he had no problems controlling him in the classroom environment.

Doc. no. 110-2 (Report of Karen Salekin, Ph.D.) at 22.

Dr. Salekin testified that special education was “very different from regular programming,” and she quoted David Seibert’s description of the curriculum as

a learning environment that assists people with very fundamental skills. Basic reading skills are within the spectrum, basic math skills, communication skills. But it’s not comparable to the regular programming.

And in fact, he mentioned to me that there was no way that Kenny would have survived in the regular programming; that he didn’t have the mental capacities to do so; he didn’t have the social skills to do so; that he was less mature.

So his functioning in the educational realm really strongly supports a finding of mild mental retardation.

And I think this is important, too. When I went to speak with Mr. Seibert and introduced myself and I asked an open-ended question such as: Tell me about Kenny, the quote I got from him

*1309

was, he was definitely mentally retarded.

And we went and talked about this further. And he estimated his IQ — for him, he was thinking in the kind of high 60s, low 70s. And he described Kenny and his abilities and said he was not different from the group of kids in special ed. He fit in there very, very well. He had no behavioral problems with him at all.

So it was kind of — from David Seibert’s perspective, his description to me of Kenny really suggested that special education was the right placement for him. And his success shouldn’t be considered an anomaly; in fact, it should be expected. That was in that realm.

Salekin, Tr. Vol. I at 70-72.

Assessments by third-party informants

Three persons who had extensive contact with Thomas prior to age eighteen testified at the hearing. The first was Carole Russell, a retired social worker who was employed by the Limestone County Department of Pensions and Security for nearly thirty years, from 1969 through 1998. She worked in “child protective services” and was assigned to Thomas’s case in September 1971, when he was twelve years old.

160

Ms. Russell was responsible for Thomas’s care until he turned eighteen, and was no longer eligible for DPS child protective services.

161

Wayne Ridgeway, Jr., the son of petitioner’s last foster parents, Wayne Senior and Annie Ridgeway, also testified.

162

Mr. Ridgeway has lived on and farmed the Ridgeway land all of his life, and stated that a total of 46 children had lived in the family home during the years his mother and father served as DPS foster parents.

163

The junior Ridgeway was in his late 20s or early 30s when Thomas arrived,

164

and he saw the boy every day.

165

David Seibert was Thomas’s special education teacher during the tenth, eleventh, and twelfth grades at West Limestone County High School in the late 1970s.

166

He spent the entire school day with Thomas, except for short periods devoted to P.E., vocational training (“AG”), or driver’s education.

167

The testimony from these witnesses uniformly revealed gross deficits in adaptive skills. For example, Thomas was described as being: less mature than persons

*1310

his own

age

168

— e.g., he not only behaved like, but also looked like someone several years younger than his chronological age;

169

gullible, and easily influenced by others to engage in disruptive, age-inappropriate behavior;

170

incapable of functioning in mainstream classes;

171

and, incapable of remembering or following even simple instructions,

172

thereby limiting his employment opportunities to labor positions that did not require much skill, planning, or forethought.

Many of these deficits were observed in an undated note found in petitioner’s DPS files, assessing his participation in a counseling program during his second foster-home placement. The assessment, therefore, was most likely made in or about 1972.

173

It was written by James Waller, Coordinator of the Children and Youth Services program at the North Central Alabama Mental Health Center, and provides contemporaneous corroboration of petitioner’s absence of age-appropriate adaptive skills prior to age eighteen:

Ken Thomas was a participant in an eight week adolescent group meeting which began on September 12 and ended on November 7. I do not feel that the group was of any important consequence for Kenneth.

Kenneth does not have the social skills which are necessary for participation in a discussion group. He was unable to listen or relate to the various problems discussed by other

*1311

group members. When he did enter into the discussion it was at inappropriate times and with inappropriate topics.

Kenneth was extremely active physically and the one hour of time necessary for discussion was difficult for him to attend to. In addition,

Kenneth had difficulty understanding behavioral work assignments for home and was unable to follow through with the simple part of the assignment which involved bringing a piece of paper back to the meeting

174

Dr. Daniel Marson testified that, based upon his review of

(i)

information gathered from clinical interviews with petitioner and his sister, Connie Allen, (ii) available records, and (Hi) the results of Dr. Salekin’s administration of the SIB-R to persons who knew Thomas prior to his eighteenth birthday, he concluded that Thomas possessed limited adaptive functioning skills during adolescence and early adulthood.

He reportedly never lived independently, but lived with his parents, then foster parents, then his mother, and transiently as a young adult in the home of acquaintances in Alabama and Texas. He has never leased an apartment in his name, or owned a home. Similarly, he has never managed a checkbook or bank account independently. Mr. Thomas reported opening a checking account when he was 18 years-old, but said he never learned how to use his account. He did not know how to fill out checks, so he said he asked other people (sometimes strangers) to fill out his checks for him, and then he would sign the checks. Although Mr. Thomas was able to obtain his driver’s license, he said it took him three times to pass the driving examination. In the home setting, Ms. Alien said Mr. Thomas was able to do very simple household chores, such as folding clothes. However, per Mr. Wayne Ridgeway’s report on the SIB-R, Mr. Thomas as an adolescent was unable to carry out many basic household tasks, such as preparing and cooking a recipe with different ingredients, preparing a shopping list, using a vacuum cleaner to clean a carpet, washing and drying dishes, make a bed, changing sheets on a bed, or using a washing machine. These areas of impairment in adaptive living skills were also corroborated by Ms. Carole Russell (formerly Heery) during her validated SIB-R report.

175

Findings

Thomas contends that the foregoing evidence establishes that his adaptive behavioral skills during the developmental period were substantially below average in the areas of “functional academics, work, social and interpersonal skills, home living, and self-direction.”

176

Respondent’s arguments in opposition to that contention are not persuasive in light of the evidence of record.

For example, respondent asserts that petitioner’s placement in special education classes during grades K-12 does not, standing alone, “prove he had significant or substantial limitations in his functional academics.” However, respondent offered

*1312

no evidence to substantiate his implication that petitioner might be “learning disabled,” as opposed to mentally retarded. Thus, respondent’s argument on this point is reduced to mere speculation.

177

Respondent notes that Thomas was able to obtain a driver’s license (but, only on the third attempt), and that he purchased a high school class ring, and then argues that those facts demonstrate “good” adaptive functioning in the areas of “goals and perseverance.”

178

Respondent declares that Thomas showed the ability to utilize “community resources” when he asked Carole Russell (the DPS caseworker who managed his protective services) to help him obtain a copy of his birth certificate in connection with his application for a driver’s license, and to assist him in acquiring a pair of glasses.

179

Other facts that respondent believes to have demonstrated “good” adaptive functioning skills were these: Thomas drove tractors, picked strawberries and peppers, exhibited respect for his foster mother, and played baseball while living with the Ridgeways; he understood the worth of small amounts of money; he possessed an interest in mechanics; he attempted to enlist in the Navy; and, he was manipulative.

180

This court rejects those contentions; the foregoing facts do not establish that Thomas’s adaptive skills during the developmental period were “good.” As Dr. Salekin observed, none “of these abilities are ... inconsistent with the diagnosis of mental retardation and in fact typify the skill set that is commonly seen for individuals that fall within this diagnostic category.” Doc. 110-2 (Report of Karen Salekin, Ph.D.), at 41.

This court finds that petitioner has shown, by a preponderance of the credible evidence of record, that he had significant deficits in adaptive functioning prior to the age of eighteen years in the following, five adaptive skills: functional academics; work; social and interpersonal skills; home living; and, self-direction.

See Atkins,

536 U.S. at 309 n. 3, 122 S.Ct. 2242 .

B. Petitioner’s Deficiencies at the Time of the Offense

The Eleventh Circuit recently held that Alabama’s legal standard for proof of a claim of mental retardation in the context of the

Atkins

decision implicitly requires a habeas petitioner to establish that he suffered from significantly subaverage intellectual functioning abilities, accpmpanied by substantial limitations in his adaptive functioning skills, on the date of the capital offense.

See Holladay v. Allen,

555 F.3d 1346, 1353 (11th Cir.2009) (citing

Smith v. State,

No. 1060427, 2007 WL 1519869 , at *7-*8 (Ala. May 25, 2007)). Evaluation of that issue is complicated by the following facts. Petitioner committed the offense of conviction in 1984, when he was twenty-five years of age. In March of the following year and January of 1986, he was administered the intelligence assessment instruments discussed in Parts IV(C)(1) and (2)

swpra.

There is, however, no evidence that either of the psychologists who conducted those intellectual assessments evaluated petitioner’s adaptive functioning skills. Further, there is no evidence of any formal assessment of petitioner be

*1313

tween that time and 1993, when, at age thirty-three, he was administered a battery of standardized tests by Dr. Terry Goldberg, a neuropsychologist, as part of an assessment conducted during state post-conviction proceedings.

181

Petitioner also was examined in that same year by Dr. Daniel Weinberger, a neuropsychiatrist.

182

The 1993 examinations — performed nine years after the date of the crime for which Thomas was convicted— are too remote in time from the date of the offense to provide dispositive evidence of Thomas’s adaptive functioning ability on the date of the capital offense.

Because of the absence of any formal adaptive behavior examinations performed on or about the date of the offense of conviction, this court finds that an evaluation of Thomas’s adaptive functioning skills during that timeframe must focus upon such evidence as was preserved by DPS social workers, schools, courts, and prisons during the sixteen-year-period between 1977 (ie., seven years before the offense, when Thomas was eighteen years of age) and 1993 (ie., nine years after the offense, when he was thirty-three years of age), together with Thomas’s self-report, and the recollections of third-party informants who were acquainted with Thomas during the relevant time period (as prompted by questions included in standardized, adaptive-functioning assessment instruments).

Thomas contends, based upon such sources, that he has shown significant deficits in five out of the ten adaptive functioning skill sets described in the Ninth (1992) edition of AAMR’s manual on

Mental Retardation

— ie., functional academics, home living, work, social/interpersonal skills, and self-direction — as well as all three adaptive behavior skill sets specified in the Tenth (2002) edition of that same manual.

183

The experts who testified before this court spoke of Thomas’s adaptive functioning skills, or the lack thereof, in terminology that fluctuated between the descriptions contained in both editions of the AAMR manual. The following table compares the diagnostic criteria contained in the Ninth (1992) edition of AAMR’s manual — the manual referenced in the

Atkins

opinion— to the diagnostic criteria included in the

*1314

Tenth (2002) edition, adopted shortly after the

Atkins

decision was handed down.

Descriptions of Adaptive Behavioral Skills Contained in the Ninth and Tenth _Editions of AAMR’s Manual on Mental Retardation_

Ninth (1992) Edition_Tenth (2002) Edition

Adaptive skills refer to an array of competencies that reflect both the ability to fit into a given niche as well as the ability to change one’s behavior to suit the demands of a situation. Ten adaptive skill areas were specified with the requirement that an individual evidence sufficiently comprehensive limitations, interpreted as being limitations] in 2 or more skills areas applicable to his or her age. The ten areas [are]: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work[.]

Adaptive behavior is the collection of conceptual, social, and practical skills that have been learned by people in order to function in their everyday lives. Limitations in adaptive behavior affect both daily life and the ability to respond to life changes and environmental demands, and should be considered in light of four other dimensions: Intellectual Abilities; Participation, Interactions, and Social Roles; Health; and Context. Significant limitations in adaptive behavior can be established only through the use of standardized measures normed on the general population including people with disabilities and people without disabilities, and are defined as performance that is at least two SDs [standard deviations] below the M [mean] of (a) one of the following three types of adaptive behavior: conceptual, social, or practical, or (b) an overall score on a standardized measure of conceptual, social, and practical skills._

The AAMR warned readers of its current manual that “[t]he field of mental retardation is currently in a state of flux regarding not just a fuller understanding of the condition of mental retardation, but also the language and process used in naming, defining, and classifying” the condition.

Mental Retardation

at xiii. For example, the definition of “mental retardation” was revised nine times between 1908 and 2002.

184

As the AAMR observed in a classic understatement, this “state of flux is both frustrating and challenging.”

Mental Retardation

at xiii. It is

especially

“frustrating” in cases like this one, where so many important social and legal policy considerations collide. In any event, the skill sets described in both edi

*1315

tions of the AAMR’s manual share a common conceptual linkage; further, the APA’s DSM-IV-TR still utilizes the same terminology found in the Ninth (1992) edition of AAMR’s manual as its adaptive functioning diagnostic criteria. Taking all of the foregoing considerations into account, this court will organize its discussion of petitioner’s adaptive functioning skills at the time of the offense around the diagnostic criteria specified in the Ninth (1992) edition of the AAMR manual on

Mental Retardation

referenced in the

Atkins

opinion.

Dr. Salekin reported that, between the ages of 18 and 25, petitioner’s “abilities in relation to work were limited to unskilled labor that did not require much skill, planning or forethought.”

185

Dr. Marson confirmed that observation in the report he tendered to this court, stating that petitioner’s

first job was working for Mr. Wayne Ridgeway, the son of Mrs. Annie Ridge-way (foster parent) from age 15 to 18. He reportedly worked in the garden picking fruits and vegetables, and operated a tractor on the farm. He reported earning $120 per week at this job. It should be noted that this was a structured and supervised setting and did not represent a competitive work environment. At age 19, Mr. Thomas stated that he worked for three or four months as a truck driver for Common Industrial in Muscle Shoals, Alabama

[186]

Mr. Thomas said that he quit this job, though he did not recall why he quit. Mr. Thomas was also reportedly employed with an apartment complex in Houston, Texas doing custodial work (i.e. mowing lawns) for about 3 or 4 months.

[187]

When Mr. Thomas was about 25 years old, he reported working as a painter’s assistant, which paid $5.50 per hour. He stated that he was responsible for filling paint in a paint machine.

[188]

Doc. no. 111-2 (Report of Dr. Daniel Marson and Dr. Kristen Triebel) at 7.

On March 28, 1979, Thomas reported to DPS social workers that he had attempted to join the Navy, but he was rejected

*1316

because of a “heart condition.”

189

In addition to legitimate employment, Thomas’s episodic use of controlled substances may have led him to sell illegal drugs. Dr. Salekin testified that information available in records reviewed by her— which she described as “only a little bit”— suggests that Thomas sold drugs with (or for) an individual identified as Lou Ann Haggerty

190

from an apartment he shared with her. In any event, Thomas “did not function as a major drug dealer.”

191

He described his activities for Dr. Salekin as

assisting with putting the marijuana in bags, rolling it up, selling it. I talked to him about ... how much money [exchanged hands].... He said, oh, it wasn’t a lot. It was, you know, $10, $20. They weren’t selling volumes of drugs. It was very low level.

[192]

He also described working for another individual. This was farther along in his drug career when he got involved in intravenous drug use.... Kenny would go to this person ... [who] would give him an amount of drugs to sell to a known person. And then Kenny would come back with the money, hand it over to the drug dealer.

The drug dealer, in exchange would allow Kenny to use the drugs. Little tiny bits of money would be exchanged, but the transaction wasn’t for money. It was for drugs.... He [Thomas] thought this was a very good deal.

And again, this gets to cost-benefit ratio ... It wasn’t clear to me in my discussions with Kenny that he understood that ... he might be being used at this point. A gullable [sic] individual who would be exchanging drugs for much less value than the money.

Salekin, Tr. Vol. I at 103-05.

Petitioner’s adult work history was frequently interrupted by periods of incarceration in county jails and in the Alabama prison system. Those circumstances relieved him of the necessity to earn a living, and lend credence to the observations of Dr. Salekin, who reported that petitioner never lived independently,

193

but instead relied on other people to meet the essential needs of daily existence.

*1317

For example, shortly after Mr. Thomas left the Ridgeway home he moved into a camper (the type that fits on to the bed of a pick-up truck) at the home of Gyndell Rose. During a telephone conversation with Mr. Rose it was clear that Mr. Thomas had the basic abilities to reside in the camper (e.g., was able to keep it relatively tidy), but did not engage in any independent living skills. He stated that Mr. Thomas would eat with the Rose family and that he did not attend to any of the tasks typical of independent living. Specifically, Mr. Rose stated that they provided him with food and shelter (free of charge) and even washed his clothes for him. When asked if he believed that Mr. Thomas could have resided on his own he stated that he did not believe that he could have. Mr. Rose articulated that independent living would likely have been hard for him because “everything that I know him to do he he needed help with — couldn’t really do stuff on his own.” During our telephone conversation, Mr. Rose stated that Mr. Thomas could be taught to do simple tasks but that he would not have trusted him to complete a complex task because “he didn’t seem like he had the education or whatever to do the stuff— his mind didn’t think quick or good.” According to Gyndell Rose, Mr. Thomas was not always in need of assistance and provided examples such as maintaining his car, being on time for work, and maintaining a relatively neat and clean living environment as evidence of some of the functional abilities of Mr. Thomas. He further noted that he was able to drive, but added that this was easy because it was typically to the store and back home.

Similar statements were made by multiple respondents and are set out in the list that follows:

1. Mrs. Carolyn Rose (daughter of Ms. Ridgeway, Mr. Thomas’s foster mother): described him to be of low intellectual ability and of limited functioning. For example, when asked if she believed that Mr. Thomas had the ability to live on his own Mrs. Rose stated that “he could barely [have] got by — I don’t think that it would be a productive lifestyle because I don’t think he was capable of doing stuff like that. I don’t think that he had the ability to take care of all the things needed to live independently.”

2. Ms. Ann Ashworth-Speegle (the wife of the minister that mentored Mr. Thomas): described Mr. Thomas to be “simple-minded” and stated that he had “an inability to understand life the way other people do.” She noted that she had been a teacher and was familiar with people of low intellectual functioning and on the basis of her experience believes that Mr. Thomas would have been someone that would have needed placement in special education class.

3. Mr. Billy Thomas (older brother of Mr. Thomas): stated that he did not believe that Mr. Thomas could have managed his money or maintained a household: “In other words, he didn’t have the ability to manage his funds — he couldn’t have managed a home, a mobile home or an apartment like I could and keep the bills paid.”; “I believe he’d be like a lot of children and go waste their money on things he didn’t need instead of taking care of business”; “He never did this [referring to lived independently], when he lived with Momma and me.”

4. Ms. Carole Russell (DPS casework [sic] for the Thomas family): Ms.

*1318

Russell did not think that Mr. Thomas could live independently because she did not perceive him to be mature enough to manage his finances, take care of a home on a longterm basis, and would only have the ability to purchase food on a daily basis but would not have the ability to plan ahead for future needs. Ms. Russell further noted that he would likely need some assistance in renting an apartment and probably in establishing telephone service. He was not so disabled that he could not make a phone call.

5. Mr. Wayne Ridgeway (employer and son of foster mother): Mr. Ridgeway unequivocally stated that he did not believe that Mr. Thomas had the ability to function independently. He stated that “he couldn’t live on his own because he wouldn’t know what to do. Wouldn’t clean his clothes or know what to buy. He’d find someone to keep him going.” Mr. Ridgeway further articulated that Mr. Thomas was unable to manage his finances — “you could hand him $20, after $20, after $20 and he would spend it all.”

6. Mr. David Seibert (special education teacher): Mr. Seibert believed that Mr. Thomas would have a difficult time functioning independently in a community setting. He stated that “he could have survived by finding his way through each day — he could have worked and held a job, but probably not independent living. It would be hard for him to keep up with budgeting money and paying bills and stuff like that. Would need help.”

Mr. Mitchell Rose was also asked this question and stated that he was not sure but noted that Mr. Thomas did not have problems functioning within the home environment of the Ridgeway home.

Doc. 110-2 (Report of Karen Salekin, Ph. D), at 25-26 (emphasis in original).

Thomas twice hitchhiked to-and-from Texas (he never owned an automobile).

194

While in that State, he did not live independently, but “with Jimmy [and] Lou Haggert.”

195

He knew Lou because “she used to live in foster home over there with Ms. Stevenson.”

196

As reported by Dr. Marson, petitioner also had only limited skills in dealing with finances and money. For example, even though he reported having a checking account, he did not know how to use it.

He reportedly asked other people, sometimes strangers, to write his checks for him and he would sign the check. He said that he did not know how to keep an accurate record of funds in his checking account, which reportedly resulted in him overdrawing his account and getting overdraft fines. Mr. Thomas said he never learned how to use a money order, and never had any bills to pay. In the interview, Mr. Thomas demonstrated significant difficulty calculating simple math computations. For example, when asked how many pennies were in $1.30, he began wrote [sic] the number “1” 30 times on a piece of paper and counted each one. He then figured out that there were 100 pennies in each dollar and added 100 to 30. After about two minutes, he correctly responded stating

*1319

that there were 130 pennies in $1.30, but it took him much longer than the average person to arrive at this answer.

Doc. 111-2 (Report of Dr. Daniel Marson and Dr. Karen Triebel) at 12.

Evidence of petitioner’s social and interpersonal skills shows “developmental arrest and impairment.”

Id.

That is particularly true of his sexual and intimate relationships, which appear to have been

very stunted. Mr. Thomas reported having a heterosexual orientation. However, he indicated that he never had a romantic relationship with a woman prior to the age of 18, outside of a sexual encounter he had with an older foster sister at age 12. Mr. Thomas had a few brief sexual relationships with women when he was in his twenties, but has never been married and he has no children.

Id.

197

Additionally, the records are replete with evidence of petitioner’s history of serious mental illness. Dr. Salekin reported that:

Available information indicated that Mr. Thomas has undergone numerous mental health evaluations and received treatment for mental health related concerns as a young child. There is information in his records indicating that during one or more incarcerations Mr. Thomas had reported experiencing hallucinations and has been treated with a variety of medications including, but not limited to, antipsychotics, antidepressants, anxiolytics. Review of records indicates that the treatment for psychosis may have been initiated based on self-report data in the absence of any external corroboration (e.g. There was no observation consistent with the presence of psychosis or prior treatment for a psychotic disorder; there is evidence that he was observed to racing thoughts and appeared to be restless and agitated).

In addition to receiving the diagnosis of and treatment for schizophrenia, Mr. Thomas has received numerous psychiatric diagnoses over the course of his life.

In addition to the aforementioned clinical diagnoses, Mr. Thomas also has a history of self-mutilatory behavior dating back to 1979. Available information suggests that he swallowed a razor blade (see records related to medical treatment while at Holman Correctional Facility), and has lacerated his arms in response to self-reported feelings of anxiety and/or a desire to initial himself (see records from Athens-Limestone Hospital). There are also numerous notations in records provided from the Alabama Department of Corrections that Mr. Thomas has a history of medication seeking behavior.

*1320

Doc. 110-2 (Report of Karen Salekin, Ph. D.), at 29 (footnote omitted).

Respondent argues, in essence, that the evidence shows that Thomas was not significantly limited in adaptive functioning at the time of the offense because he has managed to survive, both before and since his incarceration. Respondent’s contention seems to rest on the unfounded premise that a mentally retarded individual cannot survive on his own, in any environment. In other words, it is respondent’s position that, because Thomas was able to function — at even the most basic of levels — in the years before and shortly after the date he committed the capital offense at issue, he cannot be said to have been significantly limited in adaptive functioning skills. Respondent bases this contention primarily upon the testimony of Dr. McClaren that petitioner was not, at the time of the crime, substantially limited in his adaptive behavior skills because of his ability to interact socially within the prison population and to “bargain” with other inmates for personal items or favors.

Dr. McClaren administered a SIB-R assessment instrument to a female Corrections Officer named Myers,

198

who remembered Thomas from his incarceration at Donaldson Correctional Facility in 1998. During Dr. McClaren’s assessment, Myers rated Thomas as being able to perform the following tasks “very well”: “Completes written application forms for credit, bank accounts, or contract services”; “Excluding school assignments, makes oral reports to groups, for example, club, scouts, community meetings, sales presentations”; and “Explains the terms of a written contract, such as an installment purchase agreement.”

199

She also recalled that Thomas worked well with radios and puzzles.

200

Dr. McClaren admitted that Officer Myers’s assessments were obviously, grossly inconsistent with the descriptions provided by all other third-party informants, and that her assessments were “wildly inconsistent” with what even he knew about Thomas.

201

The conclusion that Officer Myers was exaggerating for purposes of a private agenda is underscored by the fact that, when Dr. McClaren scored her responses to the questions on the SIB-R assessment instrument, he “came out with a standard score of, like, 119,

which would be almost superior intelligence.”

202

Nonetheless, Dr. McClaren testified that, in his “conversations with the correctional officers [who] knew Mr. Thomas at Donaldson, he was described as the kind of person that had almost nothing^] but would bargain with other inmates[,] that he would do things, like, fix broken radios as a way to get extra tobacco or food.”

203

A Corrections Officer named Michael Pitman told Dr. McClaren that Thomas “would repay other inmates by washing their clothes.”

204

Dr. McClaren also noted that Thomas was described throughout the Department of Corrections’ files as being manipulative. Examples given by Dr. McClaren of Thomas’s manipulative abilities included his act of “cutting himself because he felt like he was going through drug withdrawal and he wanted to get a drug to feel bet

*1321

ter,”

205

and the fact that, over time, Thomas “told different stories about [his] memory of the offense[,] and didn’t mention his invisible dog.”

206

Respondent’s arguments are not persuasive. They are directly refuted by Dr. Salekin’s report, finding that Thomas’s history of functioning poorly in the skill areas of home living, work, social/interpersonal skills, and self-direction is not “inconsistent with the diagnosis of mental retardation and in fact typif[ies] the skill set that is commonly seen in individuals that fall within this diagnostic category.”

207

Even if respondent’s contentions were correct, he could only hope to show that Thomas is not presently limited in the areas of communication, social skills, and, possibly, community use. Because this court finds that petitioner was, at the time of the crime, substantially limited in more than two adaptive behavior skills (other than communication, social skills, and community use), petitioner falls within the

Atkins

definition of an individual who had significant limitations in adaptive functioning at the time he committed the offense for which he has been sentenced to death.

See Atkins,

536 U.S. at 309 n. 3, 122 S.Ct. 2242 . Those deficiencies satisfy the diagnostic criteria of the DSM-TV-TR, as well as the Ninth (1992) edition of the AAMR manual on

Mental Retardation

referenced in the

Atkins

opinion.

C. Petitioner’s Present Adaptive Functioning Abilities

Respondent does not substantively dispute petitioner’s assertion that he has proven by a preponderance of the evidence that he presently has significant deficits in adaptive functioning with regard to five skills: functional academics, work, social and interpersonal skills, home living, and self-direction.

208

Because respondent has chosen to ignore petitioner’s assertion on this point, the court will not address it. Issues and contentions not raised by an opposing party are deemed abandoned. As the Supreme Court stated in

Greenlaw v. United States,

— U.S. -, 128 S.Ct. 2559, 2564 , 171 L.Ed.2d 399 (2008):

In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.

In other words, by failing to frame the question of whether Thomas’s present adaptive functioning ability meets the definition for mental retardation for decision by this court, respondent has tacitly conceded the point. Nevertheless, the court has considered the evidence of record in light of the legal and diagnostic standards discussed above.

*1322

Even though it is extremely difficult to assess Thomas’s present adaptive functioning skills in the highly-restrictive, maximum-security environment in which he has been incarcerated for many years — an environment in which virtually all of his daily needs are satisfied by others — two prison wardens who have known Thomas for more than twenty years described him to Dr. Salekin “as being cognitively limited and were clear in stating that he would have trouble functioning in the community setting.” Salekin, Tr. Vol. I at 41 (attributing observation to Corrections Officers “Shufford and Ethridge”). Officer Ethridge further described petitioner as

the kind of person ... who would do things to get what he needed but lacked the judgment and talked about his [Officer Ethridge’s] concerns about him [Thomas] being exploited by other people, one of which was for some sexual favors, which is, again, not uncommon for people with mental retardation to be exploited sexually. But he’s noticing it in the facility.

He was then talking about [Thomas being placed in the prison’s] general population and what that might be like around — you know, without having the structure of death row. And he thought that his signs, this sort of exploitation and gullibility would be a real danger to Mr. Thomas, specifically. That was volunteered. It wasn’t something that I was asking about.

Salekin, Tr. Vol. I at 109-110. Of particular note to Dr. Salekin was the fact that the foregoing descriptions of petitioner’s present deficits “were commensurate with those made by individuals who were familiar with his abilities outside of the [maximum-security penal] institution.”

Id.

at 41.

This court once again finds Dr. Salekin’s testimony to be persuasive, and concludes that petitioner has shown, by a preponderance of the evidence, that he currently suffers substantial limitations in at least two adaptive behavioral skill areas: social and interpersonal skills, and self-direction.

VI. CONCLUSIONS

Upon consideration of all of the evidence, this court accepts the well-supported, well-reasoned, and inherently-consistent analysis presented in the written reports and testimony of petitioner’s experts, and finds that petitioner has carried his burden of proving, by a preponderance of the credible evidence, that he suffers from significant limitations in intellectual functioning that: (i) originated before the age of eighteen years;

(ii)

were present on the date of the offense of conviction; and (m) have persisted into the present. In reaching those conclusions, this court rejects Dr. McClaren’s opinion about the significance of the raw IQ score obtained on April 11,1977, one month after petitioner’s eighteenth birthday, when a 22 year-old WAIS intelligence assessment instrument was administered to petitioner by West Limestone School counselor Joyce Raley, and credits Dr. Salekin’s opinion that, with the exception of that one aberrational score, all other intelligence assessment instruments administered to petitioner over the course of his life have produced full-scale IQ scores that are consistent over

time

— ie., reveal a “trend of functioning between 65 and 70”

209

— and, therefore, are indicative of mild mental retardation. Stated differently, petitioner has consistently tested within the mild mental retardation range of intellectual functioning, and he has done so during the developmental period, at the time of the offense, and currently. This court further finds

*1323

that a preponderance of the evidence establishes that petitioner’s adaptive functioning abilities have been substantially impaired throughout his life, including the so-called developmental period, the time period surrounding the offense of conviction, and at present. In sum, this court finds that petitioner is mentally retarded as defined by

Atkins ,

and decisions of the Supreme Court of Alabama. As such, he is not eligible for execution, because the imposition of the death penalty would violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Therefore, petitioner must be resentenced by the Circuit Court of Limestone County, Alabama, to a term of life imprisonment without the possibility of parole.

A separate order, consistent with the findings and conclusions of this memorandum opinion, will be entered contemporaneously herewith.

ORDER

In accordance with the memorandum opinion entered contemporaneously herewith, it is ORDERED that the sentence of death imposed upon peti

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.