# United States v. Smith

> District Court, E.D. Louisiana · June 23, 2011 · 790 F. Supp. 2d 482

URL: https://www.frixlaw.com/law-library/cases/2184536

## Case

- **Full name:** UNITED STATES of America v. Joseph SMITH
- **Court:** District Court, E.D. Louisiana
- **Decided:** June 23, 2011
- **Citations:** 790 F. Supp. 2d 482; 2011 WL 2532437
- **Precedential status:** Published
- **Opinion:** Opinion by Berrigan
- **Judges:** Helen G. Berrigan
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2184536

## How later opinions describe it (automated extraction)

- describing typical malingering tactics-saying “I don’t know” or “I can’t” after answering only a few questions

## Opinion text

HELEN G. BERRIGAN, District Judge.
OPINION
I. BACKGROUND...........................................................484
a. The AAMR/AAIDD & DSM-IY-TR Definitions of Mental Retardation.....484
b. The Expert Witnesses.................................... 487
II. ANALYSIS ...............................................................489
a. Factor One: Significantly Subaverage Intellectual Functioning...........489
1. Smith’s IQ
Scores...................................................490
2. Criticism of IQ Scores by Dr.
Hayes...................................492
i. Malingering and
Bias..........................................496
ii Other
Testimony...............................................499
S. The Court’s Finding re: Smith’s Intellectual
Functioning................501
b. Factor Two: Significant Limitations in Adaptive Functioning.............501
1. Retrospective Diagnosis
.............................................508
2. Clinical Judgment in Adaptive Functioning
Assessment.................505
S. Dr. Swanson’s Adaptive Functioning
Assessment.......................506
i. Adaptive
Probes................................................506
ii. VABS-II and ABAS-II
Scores...................................506
Hi. Questions re: Dora Smith’s Credibility
...........................509
iv. Criticism of Dr. Swanson’s VABS-II and ABAS-II
Scores..........510
A.
Norming..................................................510
B. Bias and Inconsistent
Answers..............................513
A
Dr Hayes’s Adaptive Functioning
Assessment.........................513
i. Discipline Issues Unrelated to Mental
Deficits.....................514
ii. Clinical
Interview..............................................514
Hi. Use of Correctional Officers as
Respondents.......................517
iv. Drug Use and Brain
Injury/Truancy.............................519
5. School, Job Corps, U.S. Navy and Employment
Records.................520
i. Elementary and High
School....................................520
ii. Job
Corps.....................................................524
Hi. U.S.
Navy.....................................................526
iv. Employment
History...........................................531
6. The Court’s Finding re: Smith’s Adaptive
Functioning..................534
c. Factor Three: Age of Onset ............................................535
III. CONCLUSION............................................................535
APPENDIX A
Additional Findings re: Dr. Swanson’s Adaptive Behavior Assessment
APPENDIX B
Additional Examples re: Dr. Hayes’ Interview
APPENDIX C
Additional Findings re: Dr. Hayes’ Adaptive Behavior Assessment
This matter comes before the Court on pre-trial determination whether the defendant, Joseph Smith (“Smith”) is mentally retarded for purposes of
Atkins v. Virginia,
536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002) and the Federal Death
*484
Penalty Act, 18 U.S.C. § 3596 (c).
1
An evidentiary hearing was held on June 7-10, 2010, and the matter was taken under advisement. Having thoroughly considered the record, the evidence and testimony adduced at trial, and the law, the Court now issues its opinion.
I. BACKGROUND
Smith faces four counts contained in the Second Superseding Indictment pertaining to his role in a 2004 attempted bank robbery and death of a bank security officer.
2
Two of those counts are capital.
3
Smith asserts that he is mentally retarded and is therefore ineligible for the death penalty under
Atkins
and § 3596(c). This issue will be determined before trial by the Court without a jury. Smith has the burden of proof by a preponderance of the evidence.
a. The AAMR/AAIDD & DSM-IV-TR Definitions of Mental Retardation
Mental retardation is a developmental disability, the definition of which the Court derives from the two sources recognized by the Supreme Court in
Atkins :
The American Association on Mental Retardation (“AAMR”), now known as the American Association on Intellectual and Developmental Disabilities (“AAIDD”), as of January 1, 2007, and the American Psychiatric Association (“APA”). At the time of the hearing, Smith was 59 years old.
Because the timing of the various expert evaluations, opinions and the hearing involving this defendant spanned the transition between two versions of the relevant AAMR/AAIDD definitions from two sequential manuals, the Court’s analysis will involves both. The AAMR defines mental retardation in the 10th edition of its standard reference work as follows:
Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.
Mental Retardation Definition, Classification, and Systems of Supports 1 (2002) (“AAMR 10TH Edition”).
4
In 2007, Robert L. SCHALOCK, ET AL, USER’S GUIDE: MENTAL Retardation Definition, Classification and Systems of Supports — 10th Edition 18 (AAIDD 2007) (“User’s Guide”) was published for use in conjunction with the AAMR 10TH Edition, pertaining to “the condition currently referred to as mental retardation (MR) or intellectual disabilities (ID)” and with the advice that “throughout the User’s Guide, both mental retardation
*485
(MR) and intellectual disabilities (ID) will be used to reflect the national and international use of these terms.” As of the time of the hearing in June 2010, the AAIDD had published the most recent manual, Intellectual Disability Definition, Classification, and Systems of Support, 51-52 (2010)(“AAIDD 11th Edition”). For purposes of completion, that definition provides:
Intellectual disability is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.
5
Because the Supreme Court issued its decision in
Atkins
prior to the most recent publication and change of terminology by the AAIDD, the Court will use the term “mental retardation” throughout this opinion when referring to the term intellectual disability as used in the AAIDD 11th Edition.
The definition and diagnostic criteria for mental retardation of the APA is contained in its standard reference work, the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (2000) (“DSM-IV-TR”). It provides in relevant part that a diagnosis of mental retardation requires:
A. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning).
B. Concurrent deficits or impairments in present adaptive functioning (i.e., the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living. Social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety-
C. The onset is before age 18 years.
6
The DSM-IV-TR categorizes mental retardation as mild, moderate, severe, and profound, with a residual category of “mental retardation, severity unspecified.”
7
Mild Mental Retardation is associated with an IQ of 50-55 to 70-75,
8
and the DSM-IV-TR further describes it as follows:
Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of “educable.” This group constitutes the largest segment (about 85%) of those with the disorder. As a group, people with this level of Mental Retardation typically develop social and communication skills during the preschool years (ages 0-5 years), have minimal impairment in sensorimotor areas, and often are not dis
*486
tinguishable from children without Mental Retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth-grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings.
DSM-IV-TR at 43.
The American Psychological Association’s Division of Mental Retardation and Developmental Disabilities (“Division 33”) echoes this point and further elaborates:
People classified with mild MR evidence small delays in the preschool years but often are not identified until after school entry, when assessment is undertaken following academic failure or emergence of behavior problems. Modest expressive language delays are evident during early primary school years, with the use of 2- to 3-word sentences common. During the later primary school years, these children develop considerable expressive speaking skills, engage with peers in spontaneous interactive play, and can be guided into play with larger groups. During middle school, they develop complex sentence structure, and their speech is clearly intelligible. The ability to use simple number concepts is also present, but practical understanding of the use of money may be limited. By adolescence, normal language fluency may be evident. Reading and number skills will range from 1st- to 6th- grade level, and social interests, community activities, and self-direction will be typical of peers, albeit as affected by pragmatic academic skill attainment. Baroff (1986) ascribed a mental age range of 8 to 11 years to adults in this group. This designation implies variation in academic skills, and for a large proportion of these adults, persistent low academic skill attainment limits them vocational opportunities. However, these people are generally able to fulfill all expected adult roles. Consequently, their involvement in adult services and participation in therapeutic activities following completion of educational preparation is relatively uncommon, is often time-limited or periodic, and may be associated with issues of adjustment or disability conditions not closely related to MR.
Am. Psychol. Ass’n, Manual of Diagnosis and Professional Practice in Mental Retardation 17-18 (John W. Jacobson & James A. Mulick eds., 1996)[hereinafter APA Manual].
The Supreme Court in
Atkins
recognized that the two “official” definitions of mental retardation are similar, but left to states the “task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”
Atkins,
536 U.S. at 317 , 122 S.Ct. 2242 . In doing so, it noted that:
[C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reason
*487
ing, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.
Atkins,
536 U.S. at 318 , 122 S.Ct. 2242 .
The AAIDD recognizes that, with regard to persons with mental retardation or intellectual disabilities in the criminal justice system,
some criminal defendants fall at the upper end of the MR/ID severity continuum (i.e. people with mental retardation who have a higher IQ) and [they] frequently present a mixed competence profile. [
9
] 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.
10
According to the AAIDD 11th Edition,
11
the higher IQ mentally retarded are also “more likely to mask their deficits and attempt to look more able and typical than they actually are.” Moreover, “persons with ID typically have a strong acquiescence bias or a bias to please that might lead to erroneous patterns of responding.”
12
b. The Expert Witnesses
This is the Court’s second
Atkins
determination. The first case involved expert testimony from three of the four psychologists who testified at the hearing in this matter.
13
Hardy,
762 F.Supp.2d at 855-56.
The only expert not to testify at the
Hardy
hearing, Marc L. Zimmerman, Ph. D., was the first to testify at this hearing and was accepted by the Court as an expert in the field of psychology without objection from the government.
14
According to his curriculum vitae, he received his bachelor’s degree in psychology from North Texas State University, a master’s degree in education from Out Lady of the Lake University, master’s and doctorate degrees in psychology from Texas A & M University — Commerce, and a masters degree in clinical psychopharmacology from the California School of Professional Psy
*488
chology.
15
He received his Texas license in 1978 and his Louisiana license in 1979.
16
According to his testimony, he has administered “[h]undreds, if not thousands” of WAIS IQ tests during his career.
17
The other three experts were recognized by the Court in
Hardy
as experts in psychology, although their varied professional experience with the mentally retarded was also discussed. The second expert, Victoria Swanson, Ph.D., was called by the defendants at both hearings. According to stipulated testimony, Dr. Swanson is a licensed psychologist who was accepted by the Court without objection as an expert in mental retardation. She has specialized in the field of mental retardation and developmental disabilities throughout her 35 year career. She received her bachelor’s degree in psychology from the University of Southwestern Louisiana in 1973 and then began working with the intellectually disabled in rural Louisiana. Dr. Swanson received her master’s degree from Northwestern State University in 1991, writing her thesis on the Vineland test, a test of adaptive behavior. She has continued her work in the area of mental retardation and received a doctorate degree in psychology in 1999 from Louisiana State University. She is licensed in Louisiana.
According to stipulated testimony, Dr. Swanson has either performed or supervised approximately 6,000 assessments for mental retardation, and has administered approximately 300 IQ tests a year, and estimated her career total number of Vine-land tests of adaptive behavior “in the 10,000s.”
18
She estimated that less than one percent of those assessments related to litigation in court, less than that related to an
Atkins
determination and that she estimated that she has given opinions with regard to approximately 18
Atkins
hearings.
19
Numerous awards and distinctions from the AAMR and AAIDD are included on her curriculum vitae, and she has served as the President of the National Psychology Division of the AAMR.
20
As an expert in mental retardation, she does not work primarily in the forensic field.
21
The third psychologist who testified, Jill S. Hayes, Ph.D., was called by the government at both hearings.
22
She was accepted without objection at this hearing as an expert in forensic psychology as well as mental retardation.
23
According to stipulated testimony, Dr. Hayes received a bachelor’s degree in psychology from Armstrong State College in 1990, a master’s degree in applied psychology from Augusta State College in 1992, a master’s degree
*489
in clinical psychology from Louisiana State University in 1995 and a doctorate degree in clinical psychology with a specialty in neuropsychology and a minor in behavioral neurology from Louisiana State University in 1998. She did a one-year internship at the Medical University of South Carolina in 1997-1998, followed by a one-year fellowship at Louisiana State University Health Sciences Center in 1998-1999. She is licensed in Louisiana as a neuropsychologist and clinical psychologist, and is licensed as a clinical psychologist in Arizona.
Dr. Hayes’s stipulated testimony indicates that she has performed about 20 mental retardation assessments and ten Vineland tests since receiving her license in 1998. She identified at least five articles authored by her that involved some aspect of mental retardation, three of which concerned malingering, at the
Hardy
hearing.
24
The last psychologist, Mark D. Cunningham, Ph.D., was called by the defendant and accepted by the Court as an expert in forensic and clinical psychology at the
Hardy
hearing and as an expert in forensic psychology and mental retardation evaluation at this hearing without objection.
25
According to stipulated testimony, Dr. Cunningham received his bachelor’s degree in psychology from Abilene Christian College in 1973. He received his master’s and doctorate degrees in clinical psychology from Oklahoma State University in 1976 and 1977, respectively. He had a clinical internship at the National Naval Medical Center in 1977-1978, and participated in part-time post doctoral training at Yale University School of Medicine between 1979 and 1981. He is licensed in sixteen states including Louisiana, and he is board certified in clinical psychology and forensic psychology by the American Board of Professional Psychology.
Dr. Cunningham testified that he has performed many mental retardation assessments in a forensic context, including determinations of competency to stand trial, social security eligibility and for
Atkins
purposes, including testifying in
Atkins
hearings once or twice.
26
He has co-authored papers on mental retardation issues in capital cases and has testified in federal capital cases.
27
II. ANALYSIS
As previously indicated, the Court is guided by the diagnostic criteria for mental retardation developed by the APA and AAMR/AAIDD. Those criteria contain three essential factors: significantly sub-average intellectual functioning, significant limitations in adaptive behavior, and onset prior to age 18. Each will be separately discussed.
a. Factor One: Significantly Subaverage Intellectual Functioning
Intelligence is defined as “a general mental ability.”
28
“It includes reasoning, planning, solving problems, thinking abstractly, comprehending complex ideas, learning quickly, and learning from experience.”
29
The determination of intellectual functioning and significant limitations is assessed by standardized instruments.
30
*490
In general, the first criterion for a diagnosis of mental retardation requires “significant limitations ... in intellectual functioning,” or put another way, “significantly subaverage intellectual functioning.”
31
The APA and AAMR/AAIDD define this to mean an IQ score approximately two standards deviations below the mean of 100, talcing into consideration the standard error of measurement for the IQ test used.
32
Two standard deviations below the mean of the test relevant here would be a score of 70. That is not, however, the cutoff score typically used, because the APA and AAMR/AAIDD direct that the test’s measurement error must be taken into account when interpreting its result.
33
The AAMR/AAIDD has noted that the standard error of measurement “which has been estimated to be three to five points on well-standardized measures of general intellectual functioning” should be considered, resulting in a range of scores with an attendant range of confidence.
34
“Thus an IQ standard score is best seen as bounded by a range that would be approximately three to four above and below the obtained score.”
35
There is also general agreement among the APA, AAMR and the testifying experts in
Hardy
that a score of 75 should be used as the upper bound of the IQ range describing mild mental retardation.
36
The Court therefore again finds as a factual matter that a diagnosis of mental retardation requires an IQ score of 75 or less on one of the standard IQ tests.
■1. Smith’s IQ Scores
Both Dr. Zimmerman and Dr. Swanson administered the WAIS-III to Smith, on October 28, 2004 and April 19, 2006, respectively.
37
The WAIS-III was the cur
*491
rent version of the test at the time of each assessment, and consisted of two general components or scales.
38
The verbal scale in turn consisted of six subscales or sub-tests, and the performance component consists of five subscales.
39
Psychologists use IQ testing to measure intelligence and the WAIS-III is a gold standard for this testing.
40
Both psychologists found Smith to have a Full Scale IQ of 67. In addition, Dr. Zimmerman found Smith to have a Verbal IQ of 68, and a Performance IQ of 74.
41
Dr. Swanson assessed Smith’s Verbal IQ at 67, and his Performance IQ at 73.
42
The results were nearly identical as to the Verbal and Performance IQs and were identical as to the Full Scale IQ. This alone supports the reliability of the results.
Assuming these scores are correct, they satisfy the first criteria for mental retardation without correction for the Flynn Effect. The Court however finds the Flynn Effect should be applied to the WAIS-III scores.
43
This produces a corrected IQ score of 64-65.
44
The WAIS-III is made up of a number of different subtests. A chart was introduced by the defense comparing Smith’s raw scores and standard scores on eleven of the subtests from Dr. Zimmerman and Dr. Swanson’s administration.
45
The raw scores are the actual scores achieved on each subtest; these are then converted into standard scores which represent a range. For example, a raw score of 7 or 8 on Picture Arrangement yields the same standard score of 7. A raw score of 11 or 12 on Block Design yields the same standard score of 4.
The raw scores Smith achieved on the two administrations of the tests were remarkably consistent. For two of the sub-tests, the score was identical under Dr. Zimmerman and Dr. Swanson, and six others have only a one digit difference. This clustering of scores was even more pronounced when converted to standard scores. With that conversion, Smith’s scores were identical for Dr. Zimmerman and Dr. Swanson on five of the eleven subtests, with only a one digit difference on five others. The only subtests where a greater disparity occurred was Vocabulary, where Dr. Zimmerman’s standard score was a 6 and Dr. Swanson’s was a 4. But even with that disparity, the difference was still within the standard error of measurement, and therefore statistically insignificant.
46
In addition, Dr. Cunningham testified that the Vocabulary section
*492
of the test constituted only 9% of the IQ score, with the other 91% of the results substantial similar, if not identical.
47
Dr. Zimmerman testified that this consistency between test results indicates they are an accurate measure Smith’s actual functioning.
48
Dr. Swanson also testified that this consistency indicated “inter-rater reliability between testers” which means consistent effort on both tests.
49
Finally, Dr. Cunningham likewise testified that the consistency of the results, all the way down to the subtest standard scores, indicate good effort and reliability.
50
2. Criticism of IQ Scores by Dr. Hayes
Dr. Hayes, nonetheless, found several aspects of the comparative IQ testing to criticize which she asserted undermined their reliability. First, she pointed out that Smith was unable to consistently repeat three digits backwards from memory on one subtest, while he was able to reorder four and five digit letter combinations into a sequential order on another sub-test.
51
To put this in context, the Digit Span recitation is part of the IQ test. A series of numbers are read to the individual and they are to recite them back from memory, either in the same forward sequence, or backwards, depending on the instructions. With Dr. Zimmerman, Smith was able to recite up to five digits forward correctly, and just up to two digits backwards correctly.
52
With Dr. Swanson, Smith likewise was able to remember up to five digits forward and again only two digits backwards.
53
Since these are identical results, the Court finds they indicate reliability. Dr. Hayes, however, chose to compare these
consistent
scores on the Digit Span to 'results from a
different
test, Letter-Numbering Sequencing, arguing inconsistency
between them.
As a threshold, the Court questions the appropriateness of comparing the results of one subtest with a different subtest and then arguing they are somehow inconsistent. It is akin to the proverbial comparing of apples with oranges. Dr. Cunningham testified persuasively that it is not accepted practice in the professional community to compare answers to even the
same
question from one administration to another since natural variations occur within the same person from test to test.
54
In any event, in the Letter-Numbering Sequencing subtest, the person is read several numbers and letters and told to recite them back in the proper numbering order followed by the proper letter order. With Dr. Zimmerman, Dr. Hayes stated that Smith was able to get three trials of four digit sequencing correct and one out of three attempts at five digit sequencing.
55
Dr. Hayes also testified that Dr. William Gouvier administered the same test to Smith and Smith successfully sequenced two of the four digit combinations and two of the five digit combinations.
56
The Court finds the comparison between Dr. Zimmer
*493
man and Dr. Gouvier noteworthy because again Smith performed roughly the same between the same two tests. The Court finds that Dr. Hayes’ comparison of
different
tests highly questionable, and concludes that the consistency between the
same
test administrations — Dr. Zimmerman and Dr. Swanson as to Digit Span and Dr. Zimmerman and Dr. Gouvier as to the Letter-Number Sequencing — supports the reliability of the testing.
The next challenge Dr. Hayes had to the WAIS-III administrations dealt with vocabulary. According to Dr. Zimmerman’s testing, when he asked Smith what a ship was, Smith said it moves cargo and people from place to place on water.
57
With Dr. Swanson, the response was “metal” followed by a pause, then something inaudible and then an “I don’t know.”
58
Since Smith had been in the Navy, Dr. Hayes thought his response completely illogical.
59
She testified when she asked Smith the same question during their lengthy interview, more specifically what another name for a ship was, he correctly answered vessel.
60
Dr. Hayes’ recitation of what happened during the interview, however, is significantly truncated. During that interview, when she first asked Smith what a ship was, he paused and said “What is a ship? A ship ... how can I put this?” shaking his head, followed by a long pause. The interview was interrupted by someone knocking on the door. After the interruption, Smith suggested to Dr. Hayes that she ask him another question.
61
So she asked him a different question, but then returned a short while later to the definition of a ship, specifically saying, “Now what is a ship? What’s a ship mean? Or what’s another word for a ship?” Dr. Hayes herself admitted that her prompting him for an alternative word for a ship is not allowed on the WAIS-III.
62
Smith nonetheless continued to struggle: ‘What’s the other word for a ship?” And then finally said, “I don’t know. A vessel.”
63
The Court does not doubt that Smith knows what a ship is, but the whole purpose of this hearing was to determine his level of intelligence and cognition. The fact that a person who served in the Navy would still have difficulty defining a ship and needed prompts to finally come up with even a hesitant answer is a significant indicator of cognitive deficits. Dr. Hayes completely glossed over this in her account, which calls into question both her qualifications and her credibility. Additionally, the fact that Smith likewise struggled in defining a ship to Dr. Swanson, who presumably administered the test correctly, without prompts, reinforces this conclusion. And with regard to Dr. Zimmerman’s account, while Smith gave a correct definition, it is unknown how long it took him to do so.
Dr. Hayes also focused on two other “vocabulary” discrepancies between Dr. Zimmerman’s testing and Dr. Swanson’s.
64
*494
The vocabulary subtest consisted of some 25 items to define, of which Dr. Hayes picked out three to challenge. However, the vast majority of the answers were consistent between the two tests, again supporting reliability.
65
Dr. Hayes also highlighted one discrepancy in Smith’s responses in the subtest regarding “similarities.”
66
When asked by Dr. Zimmerman how a table and chair are alike, he correctly said that both were furniture, but when asked by Dr. Swanson, he said they are both used for a purpose, then said he did not know.
67
Regardless of how they might have been scored, both initial answers correctly described how they were in fact similar. And, again, the remaining answers were largely consistent on that subtest as well.
68
Under the Information subtest, Dr. Hayes found a discrepancy in the response to who Martin Luther King was. With Dr. Zimmerman, Smith said he was a black man while with Dr. Swanson, he said he was a freedom fighter.
69
Dr. Hayes, as did Dr. Zimmerman, considered the answer of a “black man” to be unacceptable.
70
Nonetheless, it was not an incorrect answer.
Citing these individual examples, Dr. Hayes claimed it showed that Smith was not responding consistently, even though she conceded that the discrepancies were not of statistical significance.
71
The Court concludes to the contrary. The overwhelming evidence is that Smith’s responses on both tests were entirely consistent at every meaningful level. As Dr. Zimmerman testified, one should look to the overall response pattern, which is reflected in the raw scores and the scale scores, to assess consistency and reliability.
72
Dr. Hayes’ idiosyncratic picking apart of a few isolated responses to challenge the overall results was overreaching and simply not credible.
As further support for the reliability of the Dr. Zimmerman-Dr. Swanson testing, their results are consistent with other IQ-related assessments of Smith’s cognitive capacity. Unquestionably, as already noted, the WAIS-III is recognized as a gold standard for IQ testing.
73
Smith’s Full Scale Score of 67 was identical on both Dr. Swanson’s and Dr. Zimmerman’s test and falls within the range of mild mental retardation. In earlier years, while a student,
*495
Smith had taken two Otis IQ tests, which are group administered, hence less reliable than individual testing but nonetheless useful as corroboration.
74
When Smith was in the 7th grade, at the age of 13, he took an Otis Beta test which resulted in an IQ score of either 69 or 65 (the IQ score is obscured).
75
Either score falls into the mild mental retardation range. This is also significant as supporting the third requirement for a diagnosis of mental retardation — onset before the age of 18.
76
In 1964, when Smith was 16 years old and in the 10th grade he took an Otis Gamma Test, scoring a numeric IQ of 75 which was classified by the document as “borderline” (sic).
77
With consideration of the typical standard error of measurement for IQ tests, a score of 75 is the outer edge of mild mental retardation. While both of these tests were group administered, they were done so in a school setting, which required certain prior training and the following of proper protocols for administration.
78
Prior to entering the military, Smith took the Navy General Classification Test which measures verbal intelligence.
79
Smith scored a 34 of that test, which Dr. Hayes indicated was at the 5th percentile, meaning 95% of the prospective enlistees who took the test scored higher.
80
Dr. Swanson testified that the GCT is not an IQ test but it does highly correlate with IQ scores.
81
She explained that the mean of the test is 50 (as compared to 100 for an IQ test), with a standard deviation ranging from 7.5 to 10, depending on which the military was using at the time, which unfortunately could not be determined. This would place Smith’s score at least one “and probably two” standard deviations below the mean.
82
Two standard deviations below the mean on an IQ test is in the mild mental retardation range. Dr. Cunningham testified similarly, estimated the GCT score to be analogous to either a 70 or a 76, depending again on the standard deviation in use at the time.
83
As Dr. Cunningham testified, all of these scores cluster within a range of 69 (possibly 65 on the Otis Beta) to perhaps a 76, dating back to when Smith was 13 years up through his 50’s. All but the 76 are within the range of mild mental retardation, which cuts off at 75.
One more test must be considered. In 1977, after Smith was convicted of robbery and sentenced to prison, his tested IQ was 93, which would be in the average range, well distant from mild mental retardation.
84
According to Dr. Hayes, this was a Revised Beta Examination, which is a nonverbal test, akin to the performance items of the WAIS, and used to quickly estimate IQ. She acknowledged it was less reliable than a WAIS test.
85
Dr. Swanson testified that while the Beta is not a gold standard for IQ testing, it is usually good corroborative information. Her concern about the validity of this particular test was the institutional prison setting and whether the
*496
testing was actually properly supervised so the results could be considered reliable.
86
Since the results of that test were so different from the cluster of the five other scores, she found it suspicious, an “outlier.”
87
Dr. Cunningham concluded likewise.
88
The Court agrees. The five other scores ranged from 65 or 67 to a possible high of 76 and essentially bookended Smith’s life, beginning with three tests as a youth and culminating in two gold standard tests in his 50’s. They are all in the mild mental retardation range, with the Navy GCT possibly on the cusp, depending on what the standard deviation actually was. The 93 from the Department of Corrections stands in stark contrast, indicating to this Court that the test was not administered with adequate supervision to assure the integrity of the results. The Court therefore disregards it.
89
i. Malingering and Bias
Concurrent with Dr. Hayes’ claims of inconsistency between isolated items on the two WAIS test administrations, she also contended that neither Dr. Zimmerman nor Dr. Swanson adequately considered malingering or biased responding by Smith.
90
According to the DSM-IV, malingering should be strongly suspected if any combination of the following are observed:
1. Medicolegal context of presentation;
2. Marked discrepancy between the person’s claimed stress of disability and the objective findings;
3. Lack of cooperation during the diagnostic evaluation and in complying with prescribed treatment regimen;
4. Presence of Antisocial Personality Disorder.
91
Obviously, in an
Atkins
situation, the context is medicolegal with potentially a life or death consequence hinging on the outcome. Also, Dr. Hayes testified that Smith showed traits of antisocial personality disorder.
92
On the other hand, Dr. Swanson in her report stated that Smith was “cooperative during the testing and demonstrated good effort throughout the throughout the assessment.”
93
Further on, she elaborated that “Mr. Smith put forth good effort. He worked to the time limit on timed subtests and gave maximum time to untimed items. He often self-corrected in an effort to get a higher score. The WAIS-III results appear to be a valid estimate of current cognitive functioning ...”
94
D.r. Zimmerman and Dr. Swanson both testified at the
Atkins
hearing and made clear they
did
consider the possibility of malingering or biased responding and found no evidence of it. Dr. Zimmerman was qualified as an expert in psychology, with over thirty years experience, and testified that he has administered “hundreds, if not thousands” of WAIS version IQ tests
*497
in his career.
95
Specifically, with respect to malingering or response bias, Dr. Zimmerman testified that he administers these tests frequently, including for the Office of Disability Determinations where people
do
attempt to malinger, and he considers himself “pretty adept” at picking such people out. Having given so many such tests, he has the “normative data” in his brain on how people typically respond when they are misrepresenting themselves.
96
For example, Dr. Zimmerman testified that malingerers will frequently answer “I don’t know” to the questions, or “I can’t do it” on the performance items, or will stop after several questions and claim they can not do anymore.
97
He did not see those patterns with Smith. As an example of Smith’s effort, Dr. Zimmerman testified concerning a particular performance sub-test of the WAIS in which the person is asked to look at a series of pictures and identify what is missing in the picture. The pictures become progressively more complex, and the person has just 20 seconds to study and identify what is missing in each successive one. In Smith’s case, he correctly answered several simpler ones, then made mistakes on several more difficult ones, but then answered correctly, but too late on even more difficult ones. Dr. Zimmerman testified that this shows good effort, as Smith “doesn’t quit, he keeps trying and trying” and “tries hard enough to get the correct answer” even though he has run out of time.
98
This parallels Dr. Swanson’s similar comment in her expert report, already noted, that Smith worked to the time limit on the timed subtests and gave maximum time to the untimed items.
Dr. Zimmerman further testified that had he detected that Smith was not putting forth his best effort, he would have called him on it. And if Smith had continued to answer with “suboptimal effort,” Dr. Zimmerman would have given him a malingering test and also noted his suspicions in his report.
99
He did not give any malingering test to Smith because he believed Smith put forth his best performance. Dr. Zimmerman had “no question” that the WAIS-III results were a valid and accurate measure of Smith’s IQ.
100
Dr. Swanson likewise testified that when she administered the WAIS-III to Smith a year and a half later, she perceived him “giving a hundred percent” and trying very hard to do well on the test.
101
She pointed out that malingerers will frequently give up early in a timed test, saying they do not know the answer, while Smith would persist, asking for more time, even if the ultimate answer was incorrect, or, if correct, came too late for her to give him credit for it.
102
She saw no indication that Smith was deliberately trying to dial down his answers.
103
She also pointed out that someoné trying to deliberately feign lesser ability on the first test, not knowing a second test was coming over a year later, would have great difficulty in trying to
*498
remember to feign in the same manner, considering all the subtests involved.
104
On the other hand, both Dr. Swanson and Dr. Zimmerman acknowledged that in Mississippi, the law requires that a malingering test be given in all instances.
105
Dr. Zimmerman testified that giving a specific malingering test would have taken less than a minute to administer.
106
In light of the seriousness of this issue, and the brevity that such a test would take, the Court is disappointed that neither Dr. Zimmerman nor Dr. Swanson choose to administer such a test in connection with the WAIS-III.
One of the defense psychologists, Dr. William Gouvier, did in fact administer malingering tests to Smith. Dr. Gouvier was retained to assess Smith for possible brain damage and did not administer an IQ test. However, he did administer two malingering tests and the result indicated that Smith put forth good effort and was not malingering.
107
The Court concludes that Smith did not in fact malinger or evidence response bias during the administration of Dr. Zimmerman’s or Dr. Swanson’s tests. The Court comes to this conclusion in part out of deference to both Dr. Zimmerman’s and Dr. Swanson’s vast experience in administering the test and their clinical ability to spot subpar performance. They both testified emphatically that in their judgment Smith gave full effort during the testing. More importantly, the test results themselves, although a year and a half apart, were entirely consistent with each other, not just in the final IQ assessment but in the scoring of the subtests as well. Dr. Hayes attempted to discredit the results by picking out isolated inconsistent responses, but her limited criticisms only underscored the remarkable consistency between the two administrations.
The Court must also point out one other concern it has with regard to Dr. Hayes’ testimony. As discussed earlier, the Digit Span test is part of the WAIS-III test. It is also significant as a so-called embedded measure to assess whether a person is putting forth good effort.
108
Dr. Cunningham testified that the Digit Span test is where feigners frequently try to suppress their performance.
109
Smith’s total score for the digit span on both tests was at the higher end, indicating he was likely responding honestly.
110
Dr. Cunningham further confirmed this by comparing Smith’s Digit Span score to the Vocabulary Score, as feigners will usually have a higher Vocabulary Score than Digit Span. In Smith’s case, the score was the same on Dr. Zimmerman’s administration and for Dr. Swanson, the Digit Span score was the higher one, a finding also contrary to feigning.
111
The Court finds disturbing that Dr. Hayes glossed over consideration of this
*499
embedded measure, which indicated Smith put forth good effort. She did not mention it on direct examination and when questioned on cross-examination, she acknowledged the Digit Span test as an embedded measure used to assess effort, she said she looked at his results on the two administrations, but acknowledged she did not report on his level of effort.
112
Her explanation for not reporting on it was that for persons who may be in the mentally retarded range, the results are not reliable.
113
This, however, is a questionable explanation. Dr. Hayes is correct that if a mentally retarded person does
poorly
on the Digit Span test, it may be a result of deficient intelligence rather than feigning, hence the test results would be inconclusive.
114
But since she did clearly look at Smith’s Digit Span performance, as she used it to compare with his Letter-Number Sequencing, she had to have seen that his score was at the higher end, indicating
good
effort. This failure, at a minimum, reflects on her qualifications but also indicates a resistance, similar to the “ship” episode already cited, to recognize evidence of cognitive deficits, which undermines her credibility.
Lastly, the Court is not persuaded that malingering tests are particularly effective in populations suspected of possible mental retardation. The reason should be obvious. If a person is genuinely mentally retarded, his responses may be similar to a person of normal intelligence who is trying to feign mental retardation. Dr. Cunningham testified that formal effort assessments have not been standardized against a mentally retarded population, and Dr. Swanson testified that formal malingering tests are not very reliable with persons in the lower cognitive functioning range.
115
Therefore, using those formal assessments to determine malingering prior to first determining whether Smith is mentally retarded in the first place in effect puts the cart before the horse.
ii. Other Testimony
Dr. Hayes did not herself administer an IQ test.
116
She stated that the Court’s requirement that the testing be videotaped caused her ethical problems. She explained that the possibility that the questions would become public would undermine the validity of future testing. She contended that even if the testing'was sealed and available only to the attorneys that was not good enough to assure confidentiality.
117
While the Court presumes Dr. Hayes’ ethical concerns are genuine, the Court is not persuaded that her conclusion is a reasonable one. The Official Position Statement of the National Academy of Neuropsychology, which she referenced, counsels against “uncontrolled” test release, but goes on to suggest as “potential resolutions .... protective arrangements or protective orders from the court.”
118
Furthermore, in the summer of 2008, the next generation of WAIS IQ
*500
testing became available — the WAIS-IV.
119
The
Atkins
hearing was not until almost a year later, in 2009. Dr. Hayes could have administered the older WAIS-III during that interim period, the same test administered by Dr. Zimmerman and Dr. Swanson, since it had in effect become obsolete for future testing purposes.
Two other points raised by Dr. Hayes need brief attention. In her report, she included an analysis of Smith’s IQ based on demographic characteristics,
120
coming up with an IQ in the Average range.
121
Dr. Cunningham testified that the lowest possible score a 59 year old black man could receive — “(e)ven if he’s been hospitalized and is in a coma his whole life”— was a 73.9.
122
When asked if this figure was correct, Dr. Hayes resisted conceding it, but ultimately could not deny it since it is an objectively calculable finding.
123
She did acknowledge that the Barona formulas are less accurate in the lower ranges of intelligence and that the formula has a “pretty large standard of error.”
124
That is an understatement as Dr. Cunningham estimated the standard of error to be plus or minus 20 points. In Smith’s case, that would mean that there was a 95% likelihood of his IQ being between 50 and 95, which is essentially meaningless as a calculation. The Court has rejected this imputation based on the Barona Study from Dr. Hayes before, and does so again.
125
In addition, Dr. Hayes testified at the hearing to an extrapolation of IQ based on data from an unscored neuropsychological test, the Wechsler Memory Scale (“WMS-III”), which had been administered by Dr. Gouvier.
126
She testified that the manual allows for an extrapolation from IQ scores to predicted WMS scores, and she testified that she simply did the reverse, producing from the WMS score an implied predicted IQ of 91.
127
When asked if this was a standard practice of psychologists to do the reverse extrapolation, she thought that many would but she did not know in fact if any actually did.
128
Dr. Cunningham, on the other hand, was able to shed light on the problem with Dr. Hayes’ reverse extrapolation.
129
He explained that the purpose of using an established IQ score to extrapolate to an estimated score on the WMS is to determine if a person has an impaired memory relative to his overall intelligence. An IQ score represents a broad range of cognition. Memory is only one aspect of intelligence, and the WMS only covers about one-third of what goes into an IQ score. The remaining two-thirds are not memory related. So while it may well be appropriate to take a known IQ score to predict whether that single factor of memory is impaired, it is not appropriate to use that one single factor of memory capacity and backtrack to a full scale IQ. For that reason, Dr. Cunningham
*501
stated emphatically that her reverse extrapolation was not acceptable in the professional and scientific community.
130
The Court agrees.
3. The Court’s Finding re: Smith’s Intellectual Functioning
The issue of IQ should have been a non-issue in this case based on the clear guidelines of the APA and AAMR/AAIDD and the evidence. The Court finds that all of the credible evidence lends full support to the WAIS-III scores, and that the defendant has established well beyond a preponderance of the evidence that his intellectual functioning is more than two standard deviations below the mean, with or without correction for the Flynn Effect. The Court finds that Smith therefore possesses significantly subaverage intellectual functioning as that term is used to diagnose mental retardation. The Court now turns to the other criteria relevant to this diagnosis.
b. Factor Two: Significant Limitations in Adaptive Functioning
The Court next considers whether Smith has proven that he exhibits the significant limitations in adaptive functioning required for a finding of mental retardation. That factor is defined as follows:
Concurrent deficits or impairments in present adaptive functioning (i.e., the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.
131
The AAMR/AAIDD echoes this requirement: “significant limitations ... in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.”
132
Those two standards underpin what is referred to as the “adaptive behavior” prong of the diagnosis of mental retardation developed by APA and AAMR/ AAIDD. The focus is on “ ‘how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting.’ ”
Wiley v. Epps,
625 F.3d 199, 216 (5th Cir.2010) (quoting DSM-IV-TR at 42).
The definition of this prong is less settled than that for intellectual functioning.
133
For IQ, the APA and AAMR/ AAIDD are in substantial agreement on the standard to be used: a score of 75 or below on one of the generally accepted tests of intelligence. For adaptive behavior, the current version of the APA’s guidance requires concurrent deficits in at least two of eleven relatively specific areas of adaptive functioning.
134
The AAMR/ AAIDD takes a more holistic approach and treats adaptive behavior as a global characteristic that finds expression in three relatively abstract areas of functioning— conceptual, social, and practical — and requires deficits in just one of these three general domains to reach a finding of men
*502
tal retardation.
135
That is, “the three broad domains of adaptive behavior in [the AAMR’s] definition represent a shift from the requirement ... that a person have limitations in at least 2 of the 10 specific skill areas listed in [the AAMR’s] 1992 definition,” which was the model for the approach still used by the APA.
136
The AAMR/AAIDD moved away from that model because “[t]he three broader domains of conceptual, social, and practical skills ... are more consistent with the structure of existing measures and with the body of research on adaptive behavior.”
137
While these differences in definition are noteworthy, they encompass the same range of behaviors. See
Wiley,
625 F.3d at 216 . Both the APA and the AAMR/ AAIDD direct clinicians to the same standardized measures of adaptive behavior, such as the Vineland Adaptive Behavior Scales-II (VABS-II) and the Adaptive Behavior Assessment Scale-Second Edition (ABAS-II).
138
Still, as evidenced by the DSM-IV-TR’s referral of clinicians to the AAMR’s instruments, the AAMR/AAIDD has taken the lead in developing the guidelines for interpreting the results of those tests. The Court finds it appropriate therefore to primarily rely on the AAMR/ AAIDD’s procedures for evaluating the defendant’s level of adaptive functioning.
139
The AAMR/AAIDD uses the following criteria for determining whether someone has significant limitations in adaptive functioning:
[P]erformance [must be] at least two standard deviations below the mean of either (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.
140
The AAMR/AAIDD repeatedly emphasizes that a diagnosis of significant limitations should be made whenever a person has performed at least two standard deviations below the mean in any of the three domains or in the total score.
141
A person is evaluated by using a standardized test, including the VABS-II and ABAS-II.
142
As with the tests of IQ, the scores on these tests for each domain, as well as the overall score, must be evaluated in light of the standard errors of measurement for the test.
143
“If a person has a score that does not meet the cutoff but is within one standard deviation of the cut-score, it is advised that the score be reevaluated for reliability or the individual
*503
should be reassessed with another measure.”
144
“The assessment of adaptive behavior focuses on the individual’s typical performance and not their best or assumed ability or maximum performance.... This is a critical difference between the assessment of adaptive behavior and the assessment of intellectual functioning, where best or maximal performance is assessed.”
145
None of the generally accepted scales of adaptive behavior rely on direct observation of the person nor upon his own self-report of what he is capable of doing. Rather, the clinician is to gather adaptive behavior information from third parties.
146
In selecting the informants, it is “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.”
147
“Very often, these respondents are parents, older siblings, other family members, teachers, employers, and friends.”
148
“Observations made outside of the context of community environments typical of the individual’s age peers and culture warrant severely reduced weight.”
149
The informants should also be asked to provide information about the person’s day-to-day level of functioning, as well as data on the amount of support the person needs in order to carry out any of the relevant functions.
150
1. Retrospective
Diagnosis
151
Unlike in a medical, educational, or social services context, the law is concerned with what was rather than what is. The point of an
Atkins
hearing is to determine whether a person was mentally retarded at the time of the crime and therefore ineligible for the death penalty, not whether a person is currently mentally retarded and therefore in need of special services. Because of this, the diagnosis of mental retardation in the
Atkins
context will always be complicated by the problems associated with retrospective diagnosis.
These problems are only compounded by the fact that both the APA and AAMR/ AAIDD define mental retardation as a developmental disability and limit the diagnosis to those persons who exhibited the required characteristics prior to age 18. As those under the age of 18 are already constitutionally ineligible for the death penalty,
Roper v. Simmons,
548 U.S. 551 , 125 S.Ct. 1183 , 161 L.Ed.2d 1 (2005), no clinician evaluating a person for purposes of an
Atkins
hearing will ever be evaluating the person prior to age 18. Mental retardation in the
Atkins
context, if it is to be diagnosed at all, must therefore be diagnosed retrospectively.
So, while the APA speaks of “Moncurrent deficits or limitations in present adaptive functioning,”
152
it is clear that the assessment of mental retardation for purposes of
Atkins
looks backwards — beyond even the time of the crime and back into
*504
the developmental period.
153
Certainly a person’s level of adaptive functioning in the present might provide some information about his abilities during the developmental period as a person without limitations in the present is less likely to have had limitations before, and a person with limitations today is more likely to have had them during the developmental period. But particularly with the mildly mentally retarded, who tellingly used to be labeled the “educable,”
154
the AAMR/AAIDD has been clear that a person’s current strengths and weaknesses are not the best evidence of the relevant facts in an
Atkins
hearing.
155
With IQ, which is a relatively stable, immutable trait,
156
the problems associated with retrospective diagnosis mostly disappear. Absent intervening trauma or injury, a person’s IQ tested after the developmental period is likely to be quite close to the IQ that would have been obtained had the person been tested prior to age eighteen.
157
The closest that retrospectivity comes to influencing the IQ prong of the test is the Flynn Effect. But that phenomenon is an artifact of the instruments used to assess intelligence, not a consequence of retrospective diagnosis
per se.
Evaluating someone’s adaptive behavior, on the other hand, is less stable even in theory, and difficult to assess in practice, and all the more so when done retrospectively.
The committee of the APA responsible for mental retardation, Division 33, as well as the AAMR/AAIDD have developed guidelines to help clinicians navigate the difficulties associated with retrospective diagnosis. The guidelines in the AAIDD’s User’s Guide are the most detailed. Relevant to adaptive behavior, they direct clinicians to:
(1) Conduct a thorough social history;
(2) Conduct a thorough review of school records;
(6) Recognize that self-ratings have a high risk of error with regard to adaptive behavior;
(7) Conduct a longitudinal evaluation of adaptive behavior; and
*505
(8) Not use past criminal or verbal behavior in assessing adaptive behavior.
158
In addition, the assessment of adaptive behavior should:
(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 behaviors, 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 developmental^ and socially relevant; (e) understand that adaptive behavior and problem behavior are independent constructs and not opposite poles of a continuum; (f) realize that adaptive behavior refers to typical and actual functioning and not to capacity or maximum functioning.
159
Finally, the third-party respondents should focus on the defendant’s adaptive behavior closest to the developmental period about which the informant is confident discussing, and, whatever age it is, the examiner should log that age as the date of the defendant’s functioning for purposes of scoring and comparison with age-normed tables.
160
2. Clinical Judgment in Adaptive Functioning Assessment
The Court has previously noted how objective the first prong of the APA and AAMR/AAIDDD assessments is — an IQ measured on a recognized standardized test — as compared to the second prong, which relates to adaptive behavior. The second prong involves significantly more subjective clinical judgment.
Hardy,
762 F.Supp.2d at 883. As noted by the Fifth Circuit, “The assessment of adaptive functioning deficits is no easy task. Because its conceptualization ‘has proven elusive,’ adaptive functioning ‘historically has been assessed on the inherently subjective bases of interviews, observations, and professional judgment.’ ”
Wiley,
625 F.3d at 218 (internal citation omitted).
This greater degree of subjectivity has two consequences. First, as the degree to which a matter is left to an individual clinician’s judgment increases, so does the degree to which the Court must rely on its assessment of the relative competence and credibility of the individual experts to resolve disputes between them. Second, as the need for clinical judgment increases, so does the opportunity for disputes between clinicians.
The defense and government experts are diametrically opposed with regard to adaptive behavior, echoing the Court’s previous experience with Dr. Swanson and Dr. Hayes in
Hardy. Hardy,
762 F.Supp.2d at 884. Dr. Swanson found that “Mr. Smith has substantial limitations in the areas of self-care, understanding and use of language, learning, self-direction, capacity for independent living, and economic self-sufficiency with evidence of onset prior to the age of 18 that meet the criteria for a diagnosis of Mental Retardation in DSM-IV-TR, the AAMR 10TH Edition and La. C.Cr.P. art. 905.5.1(H)(1),” and that Smith’s conceptual, social and practical
*506
adaptive skills scores, as well as his overall score, were similarly low.
161
On the other hand, Dr. Hayes found “no significant adaptive functioning deficits ... [w]hen heroin use and legal difficulties are factored out of Mr. Smith’s day-to-day functioning.”
162
As in
Hardy,
the Court finds that such a drastic disagreement from two experts in the same field can be attributed, in part, to the relative subjectivity involved in the assessment of adaptive behavior, the fact that the deficits of a mildly mentally retarded person are not extreme, and the varying experience and competence of the experts called to testify.
Hardy,
762 F.Supp.2d at 884.
S. Dr. Swanson’s Adaptive Functioning Assessment
i. Adaptive Probes
Dr. Swanson testified that she did some adaptive probes with Smith during her interview with him on April 19, 2006.
163
The probes were practical testing to see what Smith could do and how long it takes him.
164
She administered an abbreviated version of the Kaufman Test of Educational Achievement-II (“KTEA-II”), a gold standard in achievement testing, to assess and screen Smith’s functioning with certain mathematics, reading and spelling skills.
165
Dr. Swanson found that his deficits outweighed his strengths, and that his current functioning was the same as reflected in school and Job Corps records that indicate a 4th grade mathematics level, meaning he had not improved in the ensuing years and continued to qualify as mentally retarded in Functional Academics.
166
She testified that he was able to identify approximately 214 out of 220 sight or “Dolch” words, which are words that children learn quickly by the 3rd grade. Children will, however, commonly mix up the letters — saying “but” instead of “put,” but will grow out of that tendency. She saw such reversals with Smith, unusual for his. age, some of which he self-corrected, some of which he did not. In addition, she found that he reads so slowly that he forgets information, indicating reading comprehension problems consistent with earlier records indicating a 3rd grade reading level.
167
ii. VABS-II and ABAS-II Scores
Dr. Swanson’s choice of respondents for her assessment of Smith’s adaptive functioning was appropriate,
168
albeit in a retrospective context. On May 15, 2006, she performed VABS-II assessments using Smith’s mother, Doris Smith, his older sister, Nell Murray, and his younger sister, Patricia Smith, as respondents.
169
Because Dr. Swanson determined that Smith’s mother did not have the 4th or 6th grade reading ability required for the
*507
ABAS-II, that assessment was given to the sisters only.
170
Dr. Swanson testified that she does between twenty-five and forty retrospective assessments per month and that approximately twelve per year involve persons who previously had not been diagnosed as mentally retarded.
171
Dr. Swanson also testified that she did consider malingering, the possibility that the family members would try to portray Smith as more impaired than he really was. She interviewed the three separately
172
and used two different measures for two of them, in order to check for inter-relater as well as cross-relater reliability.
173
She acknowledged that the use of the ABAS-II and VABS-II in retrospective assessments is controversial, and agreed with other experts in the field that the results should be interpreted with caution.
174
She also testified that she had asked the defense team to find other reporters, such as teachers, coaches, employers, but that effort was unsuccessful because Smith was over fifty years old at the time of the offense.
175
An evaluation using the VABS-II involves an interview format and provides standardized scores in four areas or domains of adaptive functioning, communication, daily living, socialization, and motor skills, as well as an overall standardized score, called the Adaptive Behavior Composite (ABC). Based on family members’ responses, Dr. Swanson calculated the VABS-II scores for Smith at age 17 as follows:
176
Mother Patricia Nell
Age. 17-0-0 17-0-0 17-0-0
Domains/Subdomains Level SS Level Level
Communication 64 Mild 63 Mild 67 Severe
Receptive Language Low Low Low
Expressive Language Low Low Moderately Low
Written Language Low Low Low
Daily Living 69 Mild 68 Mild 69 Mild
Personal Low Low Low
Domestic Low Moderately Low Low
Community Adequate Moderately Low Adequate
Socialization 63 Mild 60 Mild 64 Mild
Interpersonal Relations Low Low Moderately Low
Play & Leisure Time Low Low Low
Coping Skills Low Low Low
Motor Skills 100 Adequate 100 Adequate 100 Adequate
Gross Motor Skills Adequate Adequate Adequate
Fine Motor Skills Adequate Adequate Adequate
ABC Mild 62 Mild 64 Mild
*508
The ABAS-II provides standardized scores in three adaptive domains, Conceptual, Social and Practical Skills, that correspond to the AAMR/AAIDD and DSM-IV-TR specifications, and also provides an overall estimate of adaptive functioning with a Generalized Adaptive Composite (“GAC”) standard score, with a mean of 100 and standard deviation of 15. Dr. Swanson calculated Smith’s ABAS-II Composite Scores for his level of adaptive behavior at age 17 as follows:
177
_Patricia_Nell_
ABAS-II Composite Scores Standard Score Level Standard Score Level_
Conceptual_63_Mild 69_ Mild_
Social_66_Mild 68_MM_
Practical_63_Mild 75_Moderately Low
GAC_58_Mild 63_MM_
Smith’s adaptive functioning at age 17 in the ABAS-II skill areas indicate the following with a mean of 10 and standard deviation of 3, according to Dr. Swanson:
_Patricia_Nell_
ABAS-II Scaled Level Range Scaled Level Range Skill Areas_Scores in SDs_Scores in SDs_
Communica- 3 -2.33 Low 4 -2.00 Low tion__
Community 4 -2.00 Low 6 -1.33 Moderately Low Use _
Functional Ac- 3 -2.33 Low 6 -1.33 Moderately Low ademics_ _
Home Living_4_-2.00_Low_5_-1.67 Moderately Low
Health & Safe- 4 -2.00 Low 5 -1.67 Moderately Low ty_
Leisure_3_-2,33_Low_4_-2,00_Low
Self-Care_2_-2,67_Low_5_-1.67 Moderately Low
Seif-Direction_4_-2.00_Low_3_-2.33_Low_
Social_4_-2.00_Low_4 -2.00 Low
Based on the scores, Dr. Swanson found cognitive impairment prior to the age of 18, that constituted Mild Mental Retardation.
178
More specifically, she found “substantial limitations in the areas of self-care, understanding and use of language, learning, self-direction, capacity for independent living, and economic self-suffieiency with evidence of onset prior to the age of 18.”
179
Dr. Swanson testified that she found the final test scores reliable for a number of reasons. The scores from the respondents did not vary beyond one standard deviation or 15 points, as required for statistical purposes and inter-relator reliability.
180
*509
In fact, the VABS-II scores deviated no more than
four
points between the respondents,
181
and in several instances the scores were identical or varied by only one point.
Because of Dr. Hayes’ criticism, the Court undertook an independent examination the VABS-II responses to evaluate consistency on individual questions. For each question, four responses were possible: (2) usually performs the behavior independently; (1) sometimes performs the behavior independently; (0) never performs the behavior independently and (4) don’t know. Of the nearly one hundred fifty (150) questions that all three respondents answered, 72% of their answers were the same. Of the remainder, usually two scores were identical with a one level difference for the third. Dora and Nell’s scores were identical for 88% of their answers; Dora and Patricia’s scores were identical for 77% of their answers and Nell and Patricia were likewise identical for 77% of their answers. Again, where a discrepancy occurred, it was usually no more than one ranking. A two point discrepancy between the three scorers occurred only about a dozen times, or about 8% of the total, and even in those instances, two of the respondents usually concurred on a score, with the third being the outlier. This consistency strongly supports the reliability of the tests and the conclusion that the respondents were not deliberately exaggerating his deficits. Since none of the three women had ever been asked these specific questions before, they had no opportunity to conspire in advance to answer in the same way, yet their answers were in fact strikingly consistent. Furthermore, a significant majority of the scores for all three was category “2,” which indicated the person could perform the function independently most of the time. Were they attempting to exaggerate his deficits, the results would likely have not been so positive on so many questions. Indeed, the adaptive behavior scores on the three VABS-II, which ranged from 63 to 69, mirrored Smith’s IQ assessment of 67, without correction for the Flynn Effect.
182
Dr. Swanson testified that the ABAS-II data was also fairly consistent within the respondent, across the domains and between respondents.
183
The Court likewise found that on the ABAS-II, approximately 54% of the answers Patricia and Nell gave were identical, approximately 43% were a one level difference and only 3% more than one level.
As already noted, Dr. Swanson’s “conclusion, based on these adaptive instruments, was that there was strong evidence to indicate that prior to the age of 18 there were adaptive deficits.”
184
in. Questions re: Dora Smith’s Credibility
The government raised a serious challenge to the credibility of Smith’s mother, Dora, based on a taped prison telephone conversation between Smith and his mother on February 24, 2008. In this conversation, Dora Smith indicated her willingness to lie on the stand at an upcoming hearing, on the advice of Smith’s lawyer, Steven Lemoine, who she believed wanted to argue that Smith was “cuckoo.”
185
Dora Smith stated that Lemoine told her several
*510
times he was “for Joseph,” not wanting to lose the case by lethal injection, which Dora Smith construed as “[tjhat’s as good as to tell us we got to lie on the thing, you know.” She said that “whatever he tells that whats me to say, I’m saying it you know.” The disclosure of this recording caused the first
Atkins
hearing in this matter to be canceled on March 6, 2008, in open court.
186
The telephone call began with a recorded caution that “[t]his call is subject to monitoring and recording.”
187
Dr. Swanson administered the VABS-II to Dora Smith in May 2006, almost two years
before
the “advice” from Lemoine to lie at the upcoming hearing, which diminishes some of the impact the conversation with Lemoine may have had with respect to Dora Smith’s previous answers on the VABS-II, despite the disturbing references to toilet training issues both in those answers and during the recorded conversation. Dr. Swanson testified that she reevaluated everything after hearing the taped telephone conversation and concluded her original opinion was still valid.
188
As already discussed, Dora Smith’s VABSII scores were very consistent with the two other respondents. Nevertheless, the Court remains troubled by this conversation and, in an abundance of caution, will set aside the VABS-III administered to Dora Smith and assess whether the evidence was sufficient without it to find Smith to have sufficient deficits to warrant a finding of Mild Mental Retardation.
The Court begins that process by observing that Dr. Swanson testified that she had adequate data to give the same opinion even if the VABS-II of Smith’s mother was totally disregarded.
189
With respect to the remaining scores, specifically Patricia and Nell’s VABS-II scores and both of their ABAS-II scores, the Court finds them to be valid, consistent and reliable.
iv. Criticism of Dr. Swanson’s VABSII and ABAS-II Scores
A. Norming
The government argues that Dr. Swanson did not norm the tests for Smith at age 17. Both the VABS-II and ABAS-II can be normed back to that age.
190
Dr. Swanson testified that she normed the scores for Smith at age 17 years. Identifying the age is important as the same data yields a different adaptive behavior score at different chronological ages.
191
These differences are logical since adaptive behavior is learned over a period of time. A person who cannot consistently do certain things at age 17, that his same aged peers can do, such as make a bed, or cook a simple meal, or follow basic instructions, might have a score in the mildly mentally retarded range, but if he still had not learned to do those things by age 45, his score would be even lower.
Dr. Swanson testified that she sent Dr. Gouvier, at his request, the full raw scores on the VABS-II and that the data was normed at 55 years, Smith’s true age at the time.
192
Dr. Gouvier was the neuropsychologist assessing Smith for possible
*511
brain damage.
193
Dr. Swanson repeatedly explained that the data was provided to Dr. Gouvier for that different purpose and that she simply gave him what he requested.
194
The Court is satisfied with this explanation.
The government also challenged certain erasure marks by Dr. Swanson on the original VABS-II and ABAS-II forms, claiming they indicated that the respondents were answering the questions at Smith’s current chronological age. Dr. Swanson had originally written in pencil Smith’s then-current age of 55 on the forms. She readily agreed that she later erased that number and put in 17-0-0.
195
Dr. Swanson explained that at the time she gave the assessments, she logged in his chronological age, as she had routinely done in the past. Subsequently, she attended a number of conferences on how to handle
Atkins
issues, and learned that she needed to make clear on the face of the protocol what
norms
were being used. That information caused her to change the age on the forms to reflect that they were
normed
at 17-0-0.
196
Most importantly, Dr. Swanson testified several times that she clearly instructed each of the respondents to answer the questions as if Smith were 17 years old.
197
This is supported by the testimony of Tanzanika Ruffin, who was the defense paralegal assigned to talk with the family members regarding mitigation, who testified that she told the family members they would be meeting with Dr. Swanson who wanted to “talk to them about Joseph’s past.”
198
The Court is likewise satisfied that each respondent was properly instructed.
Dr. Swanson also acknowledged that she initially entered the scores into the computer to be calculated at Smith’s chronological age of 55, and when the computer generated the figures, she realized the mistake and corrected it by changing the norm to age 17.
199
The Court finds that this explanation likewise satisfactory and credible, rendering the initial mistake a non-issue.
Dr. Hayes testified as to four reasons why it did not appear to her that the ABAS-II and VABS-II assessments were normed at age 17 years and that they should have been re-done.
200
First, she noted that Dr. Swanson herself admitted she initially entered his scores based on age 55, which placed Smith in the severe range of mental retardation and apparently alerted Dr. Swanson to correct her obvious error in entering the wrong age.
201
Dr. Hayes’ second reason for concluding the respondents were not answering the questions as if Smith were 17 years old was because they answered questions regarding checking accounts, and signing
*512
business forms and leases.
202
However, Dr. Swanson instructed each respondent that even if the person had not had the opportunity yet to perform the behavior, they were still to estimate, based on his abilities, whether they thought he had the capacity to do it.
203
Both Patricia and Nell answered “never” on Smith’s capacity to handle a checking account responsibly or manage his own money through checks or money orders.
204
On the ABAS-II, which is self-administered, Nell answered “sometimes” to Smith’s ability to complete a form for business, such as a lease, and Patricia answered “never.”
205
In addition to Dr. Swanson’s verbal instructions, the protocol of the ABAS-II itself states in bold letters: “Please read and answer ALL items.”
206
Patricia and Nell were doing what they were instructed to do by both Dr. Swanson and the protocol in providing answers to all the questions. However, their skepticism about their brother’s capacity to complete a business form, such as a lease, was evident. Dr. Hayes’ third basis for her conclusion that Patricia and Nell assessed their brother at his current age was because Patricia and Nell completed the work section of the ABAS-II which they should not have, as he had not worked full-time.
207
Again, the Court notes that this is a self-administered test and the protocol instructs the respondent to answer “ALL” questions, and the particular protocol on work mentions full
or
part-time employment.
208
Dr. Hayes was aware that Smith had odd jobs as a teenager.
209
As the final reason why Dr. Hayes testified that she believed the data was normed at age 55 was because Dr. Swanson sent to Dr. Gouvier the raw data and the scores, normed at 55, which has already been discussed.
The Court finds Dr. Hayes’ criticisms to be largely speculative and non-expert in nature. The Court agrees the erasures and initial norming errors raised legitimate concerns about the validity of the scores, but Dr. Swanson’s explanation put those concerns to rest. In fact, Dr. Hayes acknowledged that the tests, if normed at 55, would indicate that Smith was either profoundly or severely retarded.
210
No one asserts that. On the other hand, she also agreed that if the respondents did answer honestly regarding Smith’s capacities at the age of 17, that the results correctly showed he was in the mild mental retardation range.
211
The Court concludes that Dr. Swanson properly instructed all three respondents to answer the questions from the perspective of Smith at the age of 17, as she repeatedly testified. The results themselves are the proof in the pudding since they placed Smith in a range consistent with his IQ scores. The Court finds it inconceivable that Dr. Swanson, with her
*513
extensive history of administering thousands of these tests, would suddenly “forget” that the third criteria is onset prior to the age of 18, particularly in such a high-stakes capital case.
B. Bias and Inconsistent Ansivers
In her report, Dr. Hayes challenges the choice of family members as respondents, because of their vested interest in the outcome.
212
Dr. Swanson readily acknowledged that all three family members had an interest in the outcome.
213
She testified that she took steps to address this by separately interviewing the respondents and administering two separate instruments to assess inter-respondent reliability.
214
The Court has already set forth its own findings of the remarkable consistency in answers across all three respondents on the VABS-II and the two respondents on the ABAS-II. Since none of the women had any advance notice of what questions they were to be asked, their identical responses to the vast majority of the questions supports their honesty and reliability. Also, as already pointed out, had any of the three wished to deliberately downplay Smith’s capacities, they would not have given him the highest score on the majority of the questions, as they did. Likewise, had even one of them deliberately exaggerated his disabilities, it would have shown in a marked deviation from the other two.
Most of Dr. Hayes’ and the government’s criticism was focused on the minority of answers where some discrepancy existed between the respondents. Since hundreds of questions are involved in the VAJBS-II and ABAS-II,' a significant amount of time at the hearing was spent on isolated questions where answers varied. The Court finds such variances to be insignificant except to indicate that each of the respondents had their own unique perspective on Smith as he was growing up. The Court has already highlighted the remarkable similarity in answers between all respondents, despite their different perspectives, and agrees with Dr. Swanson in this regard. Moreover, with so. many questions being asked, the issue is whether the outcome is statistically consistent, not whether an answer varied on a particular question.
215
However, because.of the extended attention spent on these alleged discrepancies, they are addressed in “Appendix A,” attached to this opinion.
k. Dr. Hayes’ Adaptive Functioning Assessment
Dr. Hayes’ opinion as to adaptive functioning was based on a similar documentary data set as Dr. Swanson’s opinion along with Dr. Hayes’ semi-structured interview of Smith.
216
Dr. Hayes testified she asked to interview the same family members that Dr. Swanson interviewed and was told that would not be possible, although it was unclear who told her that.
217
She did not speak to any of Smith’s prior employers nor any of his friends. She said she tried to locate school personnel from the 1970’s but was told no one from that period was available.
218
Again, this is not surprising, considering Smith’s age at the time of the offense.
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i Discipline Issues Unrelated to Mental Deficits
Dr. Hayes testified that much of Smith’s difficulties were the result of behavioral misconduct rather than indicative of mental deficits. For example, she cited his truancy from school as likely to be a behavioral deficit rather • than an academic deficit.
219
She noted that Smith’s work records included references to failing to follow instructions, being tardy or not showing up at all, and insubordination, which she said could be lack of self-direction but also simply antisocial behavior.
220
Dr. Hayes likewise attributed Smith’s failure to complete the Job Corps program as a “discipline” issue rather than inability to do the work.
221
Finally, she asserted that Smith’s failures in the U.S. Navy were unrelated to mental retardation, but instead were again discipline issues.
222
AN will be discussed later in this opinion, the Court finds that all of these so-called behavior problems are equally consistent with a person with Mild Mental Retardation.
ii Clinical Interview
Dr. Hayes testified that Smith did not “present himself as a person with mental retardation” during the February 22, 2008, interview.
223
She acknowledged some mildly retarded people can hide their deficits, but said she is trained to be alert to that circumstance. She claimed to have looked for evidence of mental retardation during the lengthy interview, however, the only stated “deficit” she discerned was that Smith was not up to date on current events.
224
Citing other sources, she concluded he was not good with grammar, spelling, or math.
225
Her report catalogued a series of Smith’s alleged strengths rather than any deficits.
226
She testified, for example, that Smith “absolutely” had a “sophisticated vocabulary.”
227
The Court agrees • that one ■ of Smith’s strengths is that he has learned several specific sophisticated words, such as “colleague,” “counteracting,” “ultimatum,” “speculating,” and “forfeited.”
The first noticeable aspect of the lengthy video is how slowly Smith answered questions, and how often he had to pause before answering.
228
The Court discovered that his responses were so slow that the recording could actually be accelerated to a higher speed during the second viewing, with his responses then resembling what this Court considers a more normal conversational pace.
Dr. Cunningham testified that Dr. Hayes went into the interview with an assumption that Smith had intact intellect, and she did not adjust when his responses indicated otherwise.
229
Dr. Cunningham based this opinion on a number of her interview techniques. First, while he noted she took an extensive history from Smith, obtaining a great deal of objective factual data, she did not explore issues that would show whether he had cognitive deficits. The Court agrees. For example,
*515
Dr. Hayes asked Smith to name the places where he had lived over the years, what jobs he had, and the names of his various siblings, but she did not question him about how he arranged for his lodgings, or how he found jobs, or how he managed his finances, or how he perceived various relationships, both familial and otherwise, other than to elicit the response that he was close to his mother.
230
Another reason Dr. Cunningham opined that Dr. Hayes assumed Smith’s intellect to be normal was her use of multi-part compound questions.
231
The Court again agrees that many of the questions would be difficult for a person with normal intelligence to answer. Dr. Cunningham illustrated this observation with reference to a portion of the video interview in which Dr. Hayes told Smith that, with reference to everyone in his family, she wanted to know their names, how old they are, when they were born, what their relationship was to him, what they did for a living, whether they had any mental health problems, or medical problems or substance abuse problems, and whether they had ever been jailed.
232
She then said, “Let’s ... start off with ... your mama and daddy, tell me about them.”
233
He responded, “[wjhat do you want to know?”
234
The compound question had clearly gone over his head.
235
Eventually Dr. Hayes provided Smith with a “cheat-sheet” to remind him of the different data she wanted.
236
In her report, Dr. Hayes made no mention of Smith’s difficulties with responding to these questions.
237
Instead, she testified that he was a “good conversationalist.”
238
Dr. Swanson, on the other hand, testified persuasively that when she asked Smith something, she would break it down into simple steps, using simple language, and would ask it in more ways than one, to make sure he understood.
239
Dr. Hayes did not employ those precautions.
A further shortcoming of the interview, according to Dr. Cunningham and with which the Court agrees, was Dr. Hayes’ failure to acknowledge Smith’s lack of conciseness and clarity in some of his explanations, indicating disorganized thought.
240
At one point, Smith said that he liked to play marbles when he was a child.
241
Dr. Hayes appropriately asked him to explain how the game is played. What followed was a convoluted description by Smith, with Dr. Hayes repeatedly asking him additional questions because the explanation was so unclear.
242
At the
Atkins
hearing, however, Dr. Hayes testified simply that Smith “gave her a fairly good description
*516
of how to play marbles.”
243
This was similar to Dr. Hayes’ truncated rendition of whether Smith was able to define a “ship” already discussed under the IQ section of this opinion.
244
A similarly jumbled explanation came when Smith was asked to explain welding and welding tools, which finally ended when Dr. Thompson stepped in to explain what Smith could not.
245
The Court agrees with Dr. Cunningham that Smith’s description of the one job he had intermittently for about eight years was “surprisingly disorganized.”
246
This is not mentioned in Dr. Hayes’ accounting. On the other hand, Dr. Hayes did make a point of noting the things Smith was able to explain well, such as crawfishing, cleaning a bathtub, cooking smothered chicken and making a roux.
247
A significant criticism of Dr. Hayes’ interview technique according to Dr. Cunningham, with which the Court also agrees, is that she failed to explore deficits that Smith himself clearly acknowledged.
248
For example, Smith volunteered he had difficulty with English, spelling and math when he was in the Job Corps and as a result did not complete the program.
249
Instead of probing to find out what specifically he was struggling with, which would be relevant to the Functional Academics prong of an adaptive behavior assessment, Dr. Hayes only asked if he nonetheless received a certificate for welding, which he did not.
250
Similarly, Smith relayed to Dr. Hayes a litany of problems he had in boot camp in the U.S. Navy with academic testing and “cloth folding,” relevant to Functional Academics and Daily Living Skills, respectively, but she only asked him how long it took him it took him to complete boot camp.
251
She also failed to investigate his determination to stay in the Navy despite all these difficulties.
252
The Court finds some of Dr. Cunningham’s criticisms were not well-founded. Dr. Cunningham criticized Dr. Hayes for using words that Smith did not appear to understand, but the Court found that Smith’s answers were reasonably responsive to the questions, indicating he did understand.
253
Likewise, Dr. Cunningham claimed that Dr. Hayes ignored deficits in Smith’s specific knowledge, such as not knowing the name of a pill he was taking, when his father died or his father’s age at his death, how far his parents went in school, and the year of the birth of his numerous siblings, among other gaps in his memory.
254
The Court, on the other hand, finds these gaps in specific knowl
*517
edge to be normal and unremarkable, and not indicative of any relevant deficit.
Overall, the Court finds most of Dr. Cunningham’s criticisms to be well-taken. In addition, the Court found other examples that even in the Court’s admittedly lay opinion indicated cognitive problems that were unmentioned in Dr. Hayes’ report and her testimony. A discussion of them is incorporated into “Appendix B,” attached to this opinion.
The Court concludes that Dr. Hayes, whether consciously or unconsciously, participated in the interview with a predisposition to find Smith not cognitively impaired. She overlooked significant indicators of deficits, while highlighting only his strengths. As a result, her report and testimony drawn from the interview did not give a full, accurate picture of Smith’s mental abilities. This may reflect her relative inexperience in the mental retardation field, having only performed about 10 formal adaptive behavior evaluations in her career. As Dr. Swanson testified, Mild Mental Retardation is “one of the most difficult areas to diagnose.”
255
Hi. Use of Correctional Officers as Respondents
Dr. Hayes had various correctional officers, at the jail where Smith was housed, fill out the ABAS-II with respect to Smith’s adaptive functioning. She acknowledged that their contact with Smith was limited, but nonetheless provided extensive examples of specific behavior of Smith purportedly observed by the officers.
256
Two correctional employees, Dr. Arthur Mauterer and Deputy Bobby Ma-gee, both of the Tangipahoa Parish Jail, also testified at the
Atkins
hearing.
Dr. Swanson testified that the authors of the ABAS-II strongly recommend against using correctional officers as respondents. According to her, the primary reason is that adaptive behavior is supposed to be assessed in a “real community” where the person has to make his own choices, as opposed to a structured prison setting, where much of the inmate’s daily life is scheduled by the institutional staff.
257
As stated in
Hardy,
“An institutional environment of any kind necessarily provides ‘hidden supports’ whereby the inmates are told when to get up, when to eat, when to bathe, and their movements are highly restricted.”
Hardy,
762 F.Supp.2d at 900. Dr. Swanson cited as an example the various prison forms provided to inmates, including forms for commissary items and forms to request medical attention. Included in the exhibits, for example, is a request by Smith for medical attention.
258
It asks for the inmate’s name, location, various identifying data, date and time of the request and then provides two lines for “Nature of Complaint.” Once filled out and turned in, the complaint is assessed by the medical personnel and action is taken, such as providing medicine to the inmate. As Dr. Swanson testified, this procedure is far different than someone sitting at home with a medical problem and trying to figure out what to do about it.
259
Yet it is the latter environment that is relevant to an evaluation of adaptive behavior. “Some
*518
experts have argued in court that the structure and routine of prison life are well suited to many people with mental retardation and that they can become model prisoners and indistinguishable from the average inmate.”
260
Dr. Hayes in her own listing of Smith’s observed behaviors noted a number of examples of his ready acquiescence to the prison structure.
261
Dr. Swanson also testified that correctional officers do not have the type of continuous contact with the offender that a caregiver would have, getting to know him well over a long period of time. They are there to enforce incarceration.
262
They are also not trained to make assessments of adaptive behavior.
263
This is particularly relevant since Smith is a person who is not alleged to even be moderately mentally retarded, but only mildly mentally retarded, and persons with Mild Mental Retardation “are generally able to fulfill all expected adult roles,”
264
and “[w]ith appropriate supports ... can usually live successfully in the community, either independently or in supervised settings.”
265
These individuals often “pass” in the community, meaning neither their appearance or demeanor immediately cause others to be aware of their deficits.
Hardy,
762 F.Supp.2d at 902. For example, Dr. Mauterer of the Tangipahoa Parish Jail testified about what jail officials did with “severely impaired” inmates, and he did not recall Smith being “tagged as anything other than normal.”
266
In this case, the several psychologists, who
are
trained in making such assessments, disagree on what Smith’s adaptive capabilities are. Prison guards can hardly be expected to be able to make that determination. Furthermore, as was noted in
Hardy,
“prison officers’ observations are limited to an extremely unusual set of circumstances, and are likely to be filtered through their experience with other prisoners, many of whom may also suffer from intellectual limitations.”
Hardy,
762 F.Supp.2d at 900. A further shortcoming relating to the use of prison personnel as respondents is the bias they might have, as law enforcement officers, against a criminal, a bias which Dr. Hayes acknowledged was “certainly possible.”
267
A final difficulty with the use of correctional officers as respondents is the fact that they are observing Smith in his 50’s and not at age 17, which is the age focused upon by Smith’s family members with Dr. Swanson and is the age relevant to an assessment of mental retardation. The important issue of
when
a skill is learned is ignored by the use of these correctional officers as respondents. The mildly mentally retarded tellingly used to be labeled “educable,”
268
meaning skills could in fact be learned, eventually. Dr. Swanson testified that seeing a strength in a person as an adult is insufficient without answers as to when he learned it, whether it was
*519
contemporaneous with same-age peers, how long it took to learn it and how much support had to be provided. “Not seeing a deficit at 26 doesn’t mean maybe there wasn’t a deficit earlier developmentally ...”
269
Likewise, seeing strengths at 55 or older, does not mean that relevant deficits were not present during the developmental period.
Dr. Hayes agreed with Dr. Swanson that the authors of the ABAS-II indicate that it should not be used in a correctional setting, but testified that she still “used it as a guide for an interview and to make summary statements.”
270
Dr. Hayes provided a long list of observed behaviors by the correctional officers as support for the finding that Smith is not mentally retarded.
271
Persons with Mild Mental Retardation clearly have strengths as well as weaknesses, allowing most of them to live in society.
272
As Dr. Swanson persuasively testified, many of the behaviors Dr. Hayes listed are well within the capabilities of a person with Mild Mental Retardation, particularly someone with Smith’s verbal ability.
273
In
Wiley ,
the state argued that the defendant could not be found to be mentally retarded because he “often provided money to help pay household bills, possessed skill repairing vehicles and frequently helped friends and neighbors with auto repairs, provided transportation for others, volunteered for military service, and was a reliable worker who quit school to go to work to provide for his family.”
Wiley,
625 F.3d at 217 . The Fifth Circuit rejected that argument, noting that several of the expert witnesses testified that mentally retarded people can in fact perform all of those functions.
The vast majority of Dr. Hayes’ findings regarding the correctional officers’ observations of Smith’s behavior fall into the category of behaviors that a mildly mentally retarded person can readily perform, and therefore are irrelevant to the ultimate determination here. A significant portion of the remaining behaviors are those which the penal institution itself provides substantial structure and support, hence, are not indicative of how Smith would have functioned in the community at large, which is the only relevant environment. Those observations are likewise irrelevant to the issue presented. Finally, the correctional officers are simply not qualified to assess an additional number of reported observed behaviors as being either within or outside the range of mental retardation. Those observations must also be disregarded. Those specific behaviors and which of the three categories the Court concludes they fall are listed in “Appendix C,” attached to this opinion.
iv. Drug Use and Brain Injury/Truaney
Dr. Hayes also suggested that Smith’s poor adaptive behavior and intellectual functioning throughout his life was caused or affected by his drug use.
274
Smith admitted to abusing drugs since the approximate age of 10, when he began sniffing glue.
275
Dr. Hayes candidly admits that “[t]he literature is emerging in the area, and it appears that neuropsychological
*520
functioning appears to be impaired when individuals are intoxicated and/or are regularly using heroin,” but that “[w]hat is unclear is the long-term impact of heroin dependence on intellectual functioning following a significant period of sobriety (i.e., years vs. months).”
276
Again, Dr. Gouvier examined Smith for neuropsychological problems relative to drug abuse and brain injury, and did not testify. According to Dr. Swanson, however, Dr. Gouvier did not find brain injury in relation to substance abuse by Smith.
277
Smith indicated to Dr. Hayes that it was not until after his service in the Navy that he became involved with drugs heavier than marijuana, and more specifically, heroin.
278
By his own admission, Smith went through periods of heroin addiction and sobriety.
279
On at least one occasion, he lost potential employment at a shipyard because he failed the drug test.
280
Smith also said that when he was off the drugs, his mind would return to normal.
281
By virtue of the evaluation by Dr. Gouvier, the possibility of brain injury from drug use was considered, yet no evidence of its existence was actually presented at the hearing either by the defense or the government. As a result, the suggestion that Smith’s adaptive deficits, or intellectual functioning, were caused or diminished by drugs and were not developmental in nature is entirely speculative.
5. School, Job Corps, U.S. Navy, Employment Records
The next task relevant to the assessment of adaptive behavior involves a review of school, work and other records for data that can corroborate or refute a finding of Mild Mental Retardation.
282
i. Elementary and High School
Smith attended Murray Henderson Elementary School in New Orleans.
283
No records were introduced from that particular school, so the only available information comes from Smith’s self-report to Dr. Hayes contained in the videoed interview lasting over five hours.
284
The Court has viewed the interview on several occasions and finds Smith to have been forthcoming and credible. Dr. Hayes also testified that she found him cooperative and consistent in what he told her.
285
Smith stated that he entered Henderson at six years old, failed 1st grade and was held back a year.
286
He told Dr. Hayes that he regularly attended “special classes” for students who were “slower” and that he needed the extra help.
287
He attended these special classes throughout most of elementary school.
288
He specified
*521
problems with reading and spelling.
289
After 6th grade at Henderson, Smith attended L.B. Landry, which was a combined junior and senior high school.
290
He testified that Landry did not have special classes. When asked by Dr. Hayes how he performed at Landry, he said:
I had trouble in school, I ... I was always ... it was hard for me ... to learn ... I was slow. I needed ... I needed extra help ... the teachers would, I mean, the classes were so big and, you know, the teachers would give you instructions and it was one time instruction, if you didn’t get it you was on your own, if you needed somebody to help you ... or ... test time come.
291
I always had difficulties with ... school period, you know, from, you know, I was always ... I was always slow about comprehending, ... you know, I would have to, in order for me to be able to ... to pass certain tests I would need extra time or help or ... yes.
292
Smith stated that while he did not fail any other full grades, he did fail specific courses, like English and math. He was able to pass in “hands-on” type classes, like wood making and the metal shop.
293
Smith did nevertheless graduate from Landry High School in 1971 at the age of 20.
294
To pass a class at Landry, the student had to achieve a minimum score of 70.
295
Smith’s overall average was 70.89, which was barely passing and placing him 159th out of a class of 174, 15th from the bottom of the class.
296
While Smith did not officially fail any other grade besides 1st grade, he did technically fail the 7th grade but was nonetheless promoted to the 8th grade. His 7th grade report card shows that he failed by scoring less than 70 in math, two reading classes and music. He had a barely passing grade of 70 in English and a 71 for physical education. His final overall average for that year was a below passing 67.
297
School records also show that Smith was heading to failure in 12th grade before he dropped out of Landry in late March, 1970. His overall average when he withdrew was a 63.
298
Smith eventually did graduate from Landry. The fact that he did so despite a significant number of days being absent or tardy,
299
was “remarkable” according to Dr. Swanson’s testimony.
300
His scores were barely passing, raising the question naturally whether a student with Mild Mental Retardation could have achieved these grades. Dr. Hayes testified that it was “possible” but not “probable.”
301
Smith’s younger sister, Patricia, told Dr. Swanson that she helped Smith with his homework when he was in high school.
302
Even though Patricia was still in elementary school, and Smith was in high school at the time, Dr. Swanson surmised that Smith was functioning at a grade school level, comparable to Patricia.
303
Smith
*522
likewise told Dr. Swanson that his siblings helped him with schoolwork and that friends would let him cheat off of their exams.
304
Even assuming he had such assistance, his scores were not good.
Other evidence indicates that Landry was not a school that challenged its students. After Smith dropped out of the 12th grade, at the age of 19, he joined Job Corps. As part of their admission process, he was academically tested. He scored at the 3.1 grade level in reading and 4.3 grade level in math.
305
He ultimately left the Job Corps and returned to Landry in 1970 to repeat the 12th grade, this time successfully.
306
Dr. Cunningham noted that for someone with a 3rd grade reading level to then graduate from the 12th grade of a high school, all while missing many classes, “speaks volumes about the nature of what a high school graduation means from that high school.”
307
Dr. Hayes likewise conceded that his having graduated despite all his absences could indicate “how bad the school was.”
308
Dr. Hayes cited a number of studies involving just African-American adults that showed they scored very poorly on various literacy type tests,
309
the point being presumably that not all these poor performers were in fact mentally retarded.
310
That is undoubtedly true, of course, but more significantly, the various studies cited by Dr. Hayes are illustrative of the poor quality of education that these African-Americans received from the public school system. The Court agrees with Dr. Cunningham that the studies illustrate a pattern of social promotion or a watered-down curriculum which allowed those with 3rd or 4th grade literacy to continue to advance.
311
In fact, when asked specifically if she found it anomalous that someone could graduate high school when his actual achievement level is at the 3rd grade level, Dr. Hayes said it would be “unusual but it’s not that unusual.” She cited police officers that she has screened who read at the 3rd grade level, and even some students in junior college who read at that level.
312
At a minimum, Dr. Hayes had to concede, in light of what she was saying, that one interpretation of Smith’s successful graduation is that he was simply socially promoted, without really earning the degree.
313
When Smith was in the 7th grade, he took the Metropolitan Achievement Test.
314
*523
Unfortunately, it is not known whether his comparative scores were national, statewide or citywide. Dr. Swanson speculated that they were citywide, as his scores were higher than she would have expected,
315
considering that he had actually failed 7th grade although promoted, and considering also his Otis Beta IQ scores the same year, which placed him in the mildly mentally retarded range.
316
Nevertheless, she. testified that his score at the 1st percentile in spelling and the 2nd percentile in language are consistent with Mild Mental Retardation, and that the three scores in the 3rd percentile (word knowledge, reading and language study skills) were also quite low. At the same time, Smith did better in arithmetic, scoring in the 21st and 24th percentiles respectively in those categories. Dr. Swanson stated that these records, including standardized scores and grades, supported a finding that his Functional Academic skills were low.
317
Dr. Hayes likewise cited the Metropolitan Achievement Test scores. She again made a questionable conversion of those scores to an IQ score. Smith’s highest score was in the 5th percentile, which she analogized to an IQ of 75.
318
The Court does not consider it appropriate to compare a MAT score with an IQ score, but were the Court to use Dr. Hayes’ analogy, then Smith would be in the Mild Mental Retardation range, considering the standard error of measurement. It is also noteworthy that Smith scored in the 5th percentile in only two of the seven Metropolitan Achievement tests — in the other five his scores were lower which would clearly place him in the mildly retarded range, again using her own analysis.
An arguably more accurate assessment of Smith’s knowledge was Dr. Gouvier’s administration of the Test of Adolescent and Adult Language (“TOAL-3”) to Smith in May 2007. Smith’s scores were below the 1st percentile in three categories: speaking, reading and writing grammar, at the 1st percentile in listening and writing vocabulary, at the 2nd percentile in speaking vocabulary, at the 9th percentile in listening grammar and at the 25th percentile in reading vocabulary, providing the only relatively positive score.
319
The Court concludes that Smith’s school records, plus Dr. Gouvier’s TOAL-3 testing, are consistent with a diagnosis of Mild Mental Retardation. The DSM-IV-TR states that mildly mentally retarded individuals can acquire academic skills up to about the 6th grade level
320
and the APA’s Division 33 similarly states that for the mildly mentally retarded, “(r)eading and numbers skills will range from 1st to 6th grade level.”
321
Smith appears to have peaked at around the 5th grade level.
322
The Court also finds that Smith’s gradua
*524
tion from Landry High School failed to establish that he achieved, in fact, a 12th grade education. Rather, the evidence instead supports the finding that Landry had an anemic curriculum and a practice of social promotion, which masked the deficits and academic shortcomings of its students.
Other factors support the finding of Mild Mental Retardation. Smith showed determination to complete his schooling, despite his marginal grades and periodic setbacks. Even after dropping out of Landry, and then dropping out of the Job Corps program, he nonetheless returned to Landry in the fall of 1970 and graduated as the age of 20 in 1971.
323
The Court concludes that Smith’s struggles were not through lack of effort. He persisted in trying to achieve, but consistently fell short. The most plausible explanation is simple lack of ability to compete at the levels he sought. He would repeat this pattern later in the Job Corps, in the U.S. Navy and in his work history.
In addition, despite his difficulties with school, Smith indicated he got along with the other students and teachers,
324
and other than absences and tardiness, his school records do not indicate otherwise. While he did not get the academic help he truly needed, school was an environment that provided at least some structure that aided his progress. As the DSM-IV-TR advises, persons with Mild Mental Retardation can succeed “(w)ith appropriate supports.”
325
Smith also recounted to Dr. Hayes an experience of allowing himself to be sexually molested by a homosexual algebra teacher, Mr. Richardson, in the 11th grade, in exchange for a better grade.
326
While Dr. Hayes expressed some skepticism over whether this occurred,
327
it is difficult to imagine Smith making up such an event. Smith would have been 18 years old at the time. According to the AAIDD 11TH Edition, persons with intellectual disabilities “typically have a strong acquiescence bias or a bias to please that might lead to erroneous patterns of responding.”
328
His report card for that algebra class shows he was failing until the 6th grading period, which showed a spike to a startling score of 90, lending further support to his recollection of molestation.
329
The score of 90 allowed him to pass the class for the semester.
Finally, Smith did not participate in any extracurricular activities, was not involved in athletics or clubs, and received no honors or awards.
330
As the Supreme Court noted in
Atkins ,
mentally retarded people “in group settings ... are followers rather than leaders.”
Atkins,
536 U.S. at 318 , 122 S.Ct. 2242 .
All things considered, the Court finds, by a preponderance of the evidence, that all the data from Smith’s elementary, middle and high school career support a finding of Mild Mental Retardation.
ii. Job Corps
In March 1970, when he was 19 years
*525
old, Smith enrolled in the Job Corps.
331
As already noted, he was academically tested and scored at the 3.1 grade level in reading, and at the 4.3 grade level in math. His records indicated he could add, subtract, multiply and divide whole numbers and that “[h]is progress, attendance, and attitude are good, except in math where his progress and attendance are poor.”
332
Dr. Swanson’s math probes with Smith yielded results consistent with a math capability at the 4th grade level, indicating Smith had not advanced in the ensuing decades.
333
Smith studied welding while in the Job Corps. His progress was slow at best. The Job Corps evaluated corpsmen by a three code system. “Level L” was “Limited Skill,” which was described as able to do simple tasks but needing instruction or supervision for more complex tasks. “Level M” was “Moderate Skill,” which was described as able to competently perform with limited supervision but still may need help on more complicated tasks. “Level S” is “Skilled,” which is defined as able to work independently and meet the demands of speed and accuracy on the job.
334
In the 33 welding categories in which Smith was rated, after 114 hours of training, Smith scored an “S” in none. Most of his scores were at the “L” or lowest level, the remainder at “M.”
335
Dr. Swanson found that this record supported her conclusion as to poor adaptive functioning regarding Work Skills.
336
Smith told Dr. Swanson that he dropped out of the Job Corps because he could not meet the academic requirements.
337
Apparently part of the program, since he had not graduated high school, was to attend G.E.D. classes. Smith told Dr. Hayes that he could not pass math, English and spelling, so he did not finish the program.
338
Smith also had attendance and attention problems. He was assessed demerits on several occasions for sleeping in class, or not showing up for class at all, including one absence because he was in jail.
339
Dr. Swanson testified that this sort of irresponsible behavior is consistent with Mild Mental Retardation: “there are certain things we may not do well when we’re 13 or 14, but it’s expected in our culture that by the time we enter adulthood, we understand the importance of these things and we start doing them. And he had not understood — he was not doing them at that point ...”
340
The Court concludes that Smith’s Job Corps experience is consistent with a person with Mild Mental Retardation. He entered the program at 19 years of age, performing only at a 3rd and 4th grade level. He began with a good attitude and effort, but was slow to master even the basics of welding, needing additional instruction and supervision. He also struggled with the academic requirements of the G.E.D. program. Eventually, he stopped regularly attending class and was administratively discharged.
*526
This was a pattern that repeated itself again when, after high school graduation, Smith entered the U.S. Navy.
iii U.S. Navy
Joseph Smith enlisted in the Navy in July, 1971. As part of the qualification process he took a number of tests. Smith told Dr. Hayes that the recruiter gave him a multiple choice test, which he thought he failed three times before finally passing.
341
Perhaps this was the initial test, the Armed Forces Qualification Test. According to Dr. Hayes, that test is a measure of general ability and covers verbal ability, arithmetic reasoning, spatial relations and tool functions.
342
When Smith finally passed, he scored in the 17th percentile on that test, indicating that 83% of the people taking the test scored better than he did.
343
Dr. Swanson testified that the military divided potential inductees into five categories, with the fifth being those who score in the 1st to 9th percentile and are not admitted.
344
Dr. Hayes concurred.
345
Dr. Cunningham testified that Smith fell into the fourth category which would be consistent with an intellect at least in the borderline range, with intellectual abilities significantly deficient as compared to the other servicemen.
346
The Navy Applicant Qualification Test, according to Dr. Hayes, measures vocabulary, arithmetic and spatial relations.
347
Smith’s score was in the 28th percentile on that test, indicating that 72% of the Navy applicants did better than him.
The General Classification Test, according to Dr. Hayes, consists of verbal analogies and sentence completion items.
348
As already noted in the earlier section on IQ, Dr. Swanson testified that the GCT is not an IQ test but it does highly correlate with IQ scores.
349
Dr. Swanson testified that the mean of the test is 50 (as compared to 100 for an IQ test), with a standard deviation ranging from 7.5 to 10, depending on which the military was using at the time. This would place Smith’s score at least one “and probably two” standard deviations below the mean.
350
Two standard deviations below the mean on an IQ test is in the Mild Mental Retardation range. Dr. Swanson also noted that Smith’s score on a separate arithmetic test was a 39, which was also low.
351
The military records themselves rank the scores on the GCT and the arithmetic score from 1-5, with 1 being high, 3 being average and 5 being low. Smith’s GCT score of 5 was at the bottom rung or “low,” and his arithmetic score of 4 was “below average.”
352
In Dr. Hayes’ expert report, she declared that none of Smith’s military test scores were in “the mentally retarded
*527
range,” as if
all
the tests purported to measure IQ, which even she had to concede they did not.
353
While the GOT result appears to be the only one arguably analogous to an IQ score, Dr. Hayes not only converted that score to an IQ score of 75, but took the highly questionable step of analogizing
all
of Smith’s military test scores to IQ tests.
354
She testified that Smith’s 17% percentile rank on the Armed Forces Qualification Test “equated ... on the same metric as an IQ of 100” as comparable to an IQ of 85 or 86, and that his score on the Navy Applicant Qualification Test was similarly analogous to an IQ of 91 or 92.
355
She even converted his score on a Sonar Pitch Memory Test into an IQ of 91 and a Radio Code Aptitude Test into an IQ of 94.
356
No testimony was presented at all as to how any of these particular tests in fact correlate with IQ, if any do at all. Indeed, it is difficult to fathom how a sonar pitch memory test can be a measure of innate intelligence, other than peripherally on the quality of one’s memory. On cross-examination, Dr. Hayes backtracked from saying she “inferred” an IQ result from the sonar test, claimed that she was not declaring his IQ was 91, but she was simply reporting “data” and a “standard score.”
357
She also conceded that she had not actually seen any of these military tests, hence did not know their content, and did not know what the mean or standard deviation or margin of error was on any of the tests.
358
Noteworthy too is that those enlisting in the military may not be representative of the entire population and the range of intellectual ability. The Court finds Dr. Hayes’ casual comparisons of these various military tests to an “IQ” to be highly inappropriate, misleading and unscientifically based, hence, unworthy of any credence.
Once in the military, Smith immediately began to have difficulties. He related to Dr. Swanson that he failed the first boot camp in part because he did not master bed-making, failed the second boot camp in part because he did not store his clothes correctly or appear properly in uniform and failed the third boot camp because of academics.
359
He relayed likewise to Dr. Hayes that he failed basic training three times.
360
One of the tests he failed was clothes folding and the Navy eventually put him in a clothes folding company “so I was able to get that down.”
361
He still struggled with the “school part.”
362
Smith and another sailor were having difficulty with the written tests, so another sailor helped them with a study guide and finally Smith was able to pass the academic test and graduate from boot camp.
363
Smith estimated it took him as lon

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2184536. Public record. Not legal advice.