# United States v. Hardy

> District Court, E.D. Louisiana · November 24, 2010 · 762 F. Supp. 2d 849

URL: https://www.frixlaw.com/law-library/cases/2475685

## Case

- **Full name:** UNITED STATES of America v. Paul HARDY
- **Court:** District Court, E.D. Louisiana
- **Decided:** November 24, 2010
- **Citations:** 762 F. Supp. 2d 849; 2010 WL 4909550
- **Precedential status:** Published
- **Opinion:** Opinion by Berrigan
- **Judges:** Helen G. Berrigan
- **Cited by:** 24 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/2475685

## How later opinions describe it (automated extraction)

- stating that “[t]he evaluation of a person’s adaptive functioning involves significantly more subjective clinical judgment. That judgment is still constrained to some extent by the criteria spelled out by the APA and AAMR/AAIDD, as well as the use of standardized tests”
- noting that "use of standardized instruments is preferable when assessing a person's level of adaptive behavior"; the AAIDD standard "repeatedly emphasizes that a diagnosis of significant limitations should be made whenever a person has performance at least two standard deviat…
- noting that the defendant was a “reasonably successful street level crack cocaine distributer within the projects” but concluding that “a person with mild [intellectual disability] is capable of running such an operation,” and that such a person also is capable of shooting som…
- noting that it may not be particularly important that a defendant was not classified as intellectually disabled during his youth “because schools have a strong bias against classifying a student as retarded and parents do not want the label or the stigma associated with it”
- describing use of "[o]ther sources of information” such as school records and family data in assessing subaverage intelligence as "both instructive and necessary” because such information may be "consistent with” another expert’s testimony and "testimony on these other sources…

## Opinion text

HELEN G. BERRIGAN, District Judge.
OPINION
I. BACKGROUND...........................................................852
a. The AAMR & DSM-IV-TR Definitions of Mental Retardation...............852
b. The Expert Witnesses..................................................855
II. ANALYSIS...............................................................856
a. Factor One: Significantly Subaverage Intellectual Functioning...........856
L The Cutoff IQ Score................................................856
2. Hardy’s IQ Score...................................................857
i The Flynn Effect in
General....................................857
ii. The Flynn Effect as Applied to
Hardy............................863
3. The Adequacy of Hardy’s Effort......................................867
i. Practice
Effects................................................867
ii. Personality
Testing............................................870
in. Other Discrepancies
...........................................871
iv. Malingering/Response
Bias.....................................873
4. Other Evidence of Hardy’s IQ,........................................875
5. The 1996 Testimony................................................876
b. Factor Two: Significant Limitations in Adaptive Functioning............879
L The Definition and Assessment of Adaptive Functioning/Behavior.........879
2. Retrospective Diagnosis.............................................881
3. Hardy’s Level of Adaptive Functioning................................882
i. Dr. Swanson’s
Assessment......................................885
*851
A. Dr. Swanson’s VABS-II Assessment of Hardy Based on Tony Van Burén ........................................886
B. Dr. Hayes’ Interview with Toni Van Burén...................887
C. Dr. Swanson’s Other Interviews.............................890
D. Dr. Swanson’s Interviews and Testing of Hardy...............891
ii. Dr.
Hayes’Assessment.........................................891
A. Dr. Hayes’ VABS-II Assessment of Hardy Based on Javetta Cooper..........................................892
B. Criticism of Dr. Swanson’s Evaluation........................893
C. Other Evidence of Hardy’s Level of Adaptive Functioning.....894
a. Additional Interviews
.................................894
b. Direct
Observation....................................895
c.
Records and Other
Sources.............................896
Hi. The Court’s Findings of
Fact....................................896
c. Factor Three: Onset Before Age 18.....................................903
III. CONCLUSION............................................................904
APPENDIX A..................................................................905
Remaining Reasons Cited by Dr. Hayes for Discrediting Dr. Tetlow’s IQ Test
APPENDIX B..................................................................910
Dr. Hayes’ Alternative Sources for Estimating Hardy’s IQ
a. School
Records........................................................910
b. Family
Data..........................................................911
c.
Lay
Opinions.........................................................912
d. Demographic
Imputation...............................................912
APPENDIX C..................................................................913
Defense Diagnoses in 1996 and Their Similarities to Mild Mental Retardation
APPENDIX D..................................................................917
Interviews and Other Information Relevant to Adaptive Behavior
a. Dr. Hayes’ Interview with Theresa
Minor.................................917
b. Dr. Hayes’ Interview with Vance
Ceaser..................................917
c.
Dr. Hayes’ Interview with Greg
Williams.................................918
d. Daim Dedeaux
Videos..................................................920
e. Hardy’s Telephone Calls from
Jail.......................................920
APPENDIX E..................................................................923
Dr. Hayes’ List of Additional Facts Relevant to Hardy’s Adaptive Behavior
a.
Communication.......................................................923
b. Self
Care..............................................................923
c.
Home
Living..........................................................923
d. Social/Interpersonal
Skills..............................................924
e. Use of Community Resources
...........................................924
f. Self
Direction.........................................................924
g. Functional Academic
Skills.............................................925
h.
Work.................................................................925
i.
Leisure...............................................................925
j. Health & Safety
.......................................................925
This matter comes before the Court on a motion for pre-trial determination of mental retardation filed by Paul Hardy ( Hardy”), the defendant in this capital case. An evidentiary hearing was held on September 14-18, 2009, and September 21-23, 2009, and the matter was taken under advisement. Having thoroughly considered the record¡ the eyidence and testimo„
*852
ny adduced at trial, and the law, the Court now issues its opinion.
I. BACKGROUND
Hardy stands convicted of two crimes for which the government seeks the death penalty: (1) conspiracy to injure, oppress, threaten and intimidate Kim Groves (“Groves”) and another person in the right to be free from the use of unreasonable force by one acting under color of law and in the right to provide information to law enforcement authorities about a federal crime, resulting in the death of Groves, in violation of 18 U.S.C. § 241 ; and (2) deprivation of Groves’ civil rights in violation of 18 U.S.C. § 242 and 2. Hardy claims that he is mentally retarded and is therefore ineligible for the death penalty under
Atkins v. Virginia,
536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002), and the Federal Death Penalty Act, 18 U.S.C. § 3596 (c).
1
The propriety of determining the issue before the Court without a jury and pre-trial is uncontested, as is Hardy’s burden of proof by a preponderance of the evidence.
a. The AAMR & DSM-IY-TR Definitions of Mental Retardation
Mental retardation is a developmental disability, the definition of which the Court derives from the two sources recognized by the Supreme Court in
Atkins :
The American Association on Mental Retardation (“AAMR”), now known as the American Association on Intellectual and Developmental Disabilities (“AAIDD”), and the American Psychiatric Association (“APA”).
The AAMR/AAIDD defines mental retardation in the 10th edition of its standard reference work as follows:
Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.
Mental Retardation Definition, Classification, and Systems of Supports 1 (2002) (“AAMR 10th Edition”).
2
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 follow
*853
ing areas: communication, self-care, home living, soeial/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety-
C. The onset is before age 18 years of age.
DSM-IV-TR at 49.
The DSM-IV-TR categorizes mental retardation as mild, moderate, severe, and profound, with a residual category of “mental retardation, severity unspecified.”
Id.
at 42-44. Mild mental retardation is associated with an IQ of 50-55 to 70-75,
3
and the DSM-IV-TR further describes it as follows:
Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of “educable.” This group constitutes the largest segment (about 85%) of those with the disorder. As a group, people with this level of Mental Retardation typically develop social and communication skills during the preschool years (ages 0-5 years), have minimal impairment in sensorimotor areas, and often are not distinguishable from children without Mental Retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth-grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings.
DSM-IV-TR at 43.
The American Psychological Association’s Division of Mental Retardation and Developmental Disabilities (“Division 33”) echoes this point and further elaborates:
People classified with mild MR evidence small delays in the preschool years but often are not identified until after school entry, when assessment is undertaken following academic failure or emergence of behavior problems. Modest expressive language delays are evident during early primary school years, with the use of 2- to 3-word sentences common. During the later primary school years, these children develop considerable expressive speaking skills, engage with peers in spontaneous interactive play, and can be guided into play with larger groups. During middle school, they develop complex sentence structure, and their speech is clearly intelligible. The ability to use simple number concepts is also present, but practical understanding of the use of money may be limited. By adolescence, normal language fluency may be evident. Reading and number skills will range from 1st- to 6th-grade level, and social interests, community activities, and self-direction will be typical of peers, albeit as affected by pragmatic academic skill attainment. Baroff (1986) ascribed a mental age range of 8 to 11 years to adults in this group. This designation implies variation in academic skills, and
*854
for a large proportion of these adults, persistent low academic skill attainment limits their vocational opportunities. However, these people are generally able to fulfill all expected adult roles. Consequently, their involvement in adult services and participation in therapeutic activities following completion of educational preparation is relatively uncommon, is often time-limited or periodic, and may be associated with issues of adjustment or disability conditions not closely related to MR.
Am. Psychol. Ass’n, Manual of Diagnosis and Professional Practice in Mental Retardation 17-18 (John W. Jacobson & James A. Mulick eds., 1996).
The Supreme Court in
Atkins
recognized that the two “official” definitions of mental retardation are similar, but left to states the “task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”
Atkins,
536 U.S. at 317 , 122 S.Ct. 2242 . In doing so, it noted that:
[C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.
Atkins,
536 U.S. at 318 , 122 S.Ct. 2242 .
The AAIDD recognizes that, with regard to persons with mental retardation or intellectual disabilities (“MR/ID”) in the criminal justice system,
some criminal defendants fall at the upper end of the MR/ID severity continuum (i.e. people with mental retardation who have a higher IQ) and [they] frequently present a mixed competence profile!
4
] They typically have a history of academic failure and marginal social and vocational skills. Their previous and current situations frequently allowed formal assessment to be avoided or led to assessment that was less than optimal.
Robert L. Schalock, Et Al., User’s Guide: Mental Retardation Definition, Classification And Systems of Supports — 10th Edition 18 (AAIDD 2007) (“User’s Guide”) (citations omitted). According to the most recent manual from the AAIDD, Intellectual Disability Definition, Classification, and Systems of Support, 51-52 (2010)(“AAIDD 11th Edition”),
5
the higher
*855
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.”
6
b. The Expert Witnesses
Three expert psychologists testified at the hearing. All had the necessary education and credentials to testify as experts in psychology and all had published extensively in their respective areas of interest. They have each received recognition for their work as psychologists, but their professional experience with the mentally retarded varies.
The first psychologist, Mark D. Cunningham, Ph.D., was called by the defendant and accepted by the Court as an expert in forensic and clinical psychology. Dr. Cunningham received his bachelor degree with a major in psychology from Abilene Christian College in 1973. He received his masters and Ph.D. in clinical psychology from Oklahoma State University in 1976 and 1977, respectively. He had an clinical internship at the National Naval Medical Center in 1977-1978, and participated in part-time post doctoral training at Yale University School of Medicine between 1979 and 1981. He is licensed in sixteen states including Louisiana, and he is board certified in clinical psychology and forensic psychology by the American Board of Professional Psychology.
Dr. Cunningham testified that he has performed many mental retardation assessments in a forensic context, including determinations of competency to stand trial, social security eligibility and for
Atkins
purposes. He has co-authored a paper on
Atkins
determinations and has testified extensively in federal capital cases.
The second expert, Victoria Swanson, Ph.D., was also called by the defendant. Dr. Swanson is a licensed psychologist who was accepted by the Court without objection as an expert in mental retardation. She has specialized in the field of mental retardation and developmental disabilities throughout her 35 year career. She received her bachelors degree in psychology from the University of Southwestern Louisiana in 1973 and then began working with the intellectually disabled in rural Louisiana. Dr. Swanson received her masters degree from Northwestern State University in 1991, writing her thesis on the Vine-land test, a test of adaptive behavior. She has continued her work in the area of mental retardation and received a Ph.D. in psychology in 1999 from Louisiana State University. She is licensed in Louisiana.
Dr. Swanson testified that she has either performed or supervised approximately 6,000 assessments for mental retardation, and has administered approximately 300 IQ tests a year along with over 10,000 Vineland tests of adaptive behavior. She estimated that less than one percent of those assessments related to litigation in court, and less than that related to an
Atkins
determination. Numerous awards and distinctions from the AAMR and AAIDD are included on her curriculum vitae, and she has served as the President of the National Psychology Division of the AAMR.
*856
The third psychologist who testified at the hearing, Jill S. Hayes, Ph.D., was called by the government. She received a bachelors degree in psychology from Armstrong State College in 1990, a masters in applied psychology from Augusta State College in 1992, a masters degree in clinical psychology from Louisiana State University in 1995 and a doctorate in clinical psychology with a specialty in neuropsychology and a minor in behavioral neurology from Louisiana State University in 1998. She did a one-year internship at the Medical University of South Carolina in 1997-1998, followed by a one-year fellowship at Louisiana State University Health Sciences Center in 1998-1999. She is licensed in Louisiana as a neuropsychologist and clinical psychologist, and is licensed as a clinical psychologist in Arizona.
Dr. Hayes testified that she has performed about 20 mental retardation assessments and 10 Vineland tests since receiving her license in 1998. She identified at least five articles authored by her that involved some aspect of mental retardation, three of which concerned malingering. Over the defendant’s objection, the Court accepted Dr. Hayes as an expert in the area of mental retardation based on her publications, education, teaching and court experience. It considered the defense objection as relevant to the weight to be given her testimony regarding mental retardation, not its admissibility.
II. ANALYSIS
The diagnostic criteria for mental retardation developed by the APA and AAMR contain three essential factors: significantly subaverage intellectual functioning, significant limitations in adaptive behavior, and onset prior to age 18. The Court will discuss Hardy’s showing as to each.
a. Factor One: Significantly Subaverage Intellectual Functioning
The first criterion for a diagnosis of mental retardation requires “significant limitations ... in intellectual functioning,”
7
or put another way, “significantly subaverage intellectual functioning.”
8
The APA and AAMR define this to mean an IQ score approximately two standards deviations below the mean of 100, taking into consideration the standard error of measurement for the IQ test used.
9
L The Cutoff IQ, Score
Two standard deviations below the mean of the test relevant here would be a score of 70. That is not, however, the cutoff score typically used, because the APA and AAMR direct that the test’s measurement error must be taken into account when interpreting its result.
10
The AAMR has noted that the standard error of measurement
(“SEM”)
has been estimated to be three to five points for well-standardized measures of general intellectual functioning. This means that if an individual is retested with the same instrument, the second obtained score would be within one
SEM
(i.e., ± 3 to 4 IQ points) of the first estimate about two thirds of the time.... Therefore, an IQ of 70 is most accurately understood not as a precise score, but as a range of confidence with parameters of at least one
SEM
(i.e., scores of about 66 to 74; 66% probabili
*857
ty), or parameters of two
SEMs
(i.e., scores of 62 to 78; 95% probability).... This is a critical consideration that must be part of any decision concerning a diagnosis of mental retardation.
11
As can be gathered from the above, the range typically given for IQ scores is plus or minus four to eight points. All the experts in this case agree that a score of 75 should be used as the upper bound of the IQ range describing mild mental retardation.
12
Indeed, there is almost universal agreement on this point.
13
The Court therefore finds as a factual matter that a diagnosis of mental retardation requires an IQ score of 75 or less on one of the standard IQ tests.
2. Hardy’s IQ Score
Hardy was not given an IQ test until 1996, when — in about a one month period- — he was twice tested using the same standard measure of intelligence (the WAIS-R).
14
Dr. L. Mulry Tetlow administered the first test in February 1996, which yielded a Full Scale IQ score of 73. The second WAIS-R test was given by Dr. Daniel Martell in March 1996 and yielded a Full Scale IQ score of 76. The government and defense psychologists agree that the first February 1996 test is the most reliable estimate of Hardy’s IQ, assuming adequate effort, because “practice effects” could have artificially enhanced Hardy’s score on the second test.
15
So, assuming adequate effort was made, Hardy’s score on the most reliable of the two tests of his IQ falls within the range of scores diagnostic of mild mental retardation. “The
Atkins
Court recognized that IQ scores from 70 to 75 are generally considered to be the cutoff for the intellectual functioning prong of the test for mental retardation.”
Wiley v. Epps,
625 F.3d 199, 214 (5th Cir.2010) (citing
Atkins,
536 U.S. at 309 , 122 S.Ct. 2242 ). While that score would be sufficient to satisfy the first criterion for a diagnosis of mental retardation, the Court is not persuaded that Hardy’s score of 73 is the best estimate of his true IQ. Rather, for the reasons that follow, the Court finds that Hardy’s score must be corrected for a phenomenon referred to as the Flynn Effect.
i The Flynn Effect in General
When a new IQ test is developed, but before it is released for general use, it is given to a large group of people (ideally reflective of the demographics of the population at large) in order to create a standardized norm. Once those test results are collected, the average or mean score of the group is declared as 100, with a bell shaped curve sloping off on either side reflecting higher and lower intelligence from the average. In order to further categorize the shape of that curve, called a normal distribution, a concept called the standard deviation is used, which here has a numerical value of 15.
16
As noted above, scores below approximately two standard
*858
deviations, i.e., 30 points, of the mean of 100 fall into the range associated with mental retardation.
17
After an IQ test is standardized according to this process it is released for use in the population at large. The scores of those persons subsequently taking the test are determined by comparing their results to the standardized norms. Hence the continuing accuracy of those norms is crucial in assessing the validity of individual test scores.
In a series of studies beginning in the early 1980’s, Dr. James R. Flynn determined that IQ test scores have steadily increased over the years. He found this to be true across almost all developed countries and across many versions of the test for IQ.
18
The cause of this increase is largely unknown, although some speculate that improved socioeconomics, education and even better nutrition have increased the scores, that the test themselves have become more sophisticated, or that perhaps people are simply getting “smarter.”
See, e.g., Thomas v. Allen,
614 F.Supp.2d 1257, 1277-78 (N.D.Ala.2009). Dr. Flynn was able to consistently document this phenomenon through comparative studies encompassing many years of data. The amount of the average increase in IQ is approximately three points per decade, or 0.33 points per year.
When a new IQ test is developed, it is standardized through a
current
population sample, creating a “new” average of 100. Since this new test is normed with a population that has steadily done better (“is smarter”) than the prior generation, the “new” average of 100 is actually “higher” than the old 100. For example, if the old test — normed as it was before the population “got smarter” — were given today, the average score would not be 100, but something closer to perhaps 103. But when the new test is standardized, that “old 103” must be redefined as the “new 100,” because the average score of the test is defined to be 100. What this means in practical terms is that someone who receives a score of 80 on a test that was normed a decade ago could be expected, on average, to score a 77 on a newly normed test — without any actual change in his intelligence.
Respected psychologists have reviewed and accepted Dr. Flynn’s findings. Dr. Stephen Greenspan is a member of the Ad Hoc Committee on Mental Retardation and the Death Penalty, created by Division 33 of the American Psychological Association, which focuses on mental retardation and developmental disabilities. He admits to being “initially skeptical” of the Flynn Effect, but, after study, he has become “firmly convinced that the use of the Flynn Effect to adjust individual IQ scores is an appropriate, indeed essential, practice.”
19
*859
Echoing Dr. Flynn, he suggests that correction for “the Flynn Effect is a useful, and valid, method for increasing the likelihood that a psychologist will correctly diagnose MR in someone deserving of that label.”
20
He noted that this is particularly helpful in the case of mild mental retardation, because “mild MR is still a somewhat inadequately defined category.”
21
In a later article, Dr. Greenspan explained that the purpose of correcting for the Flynn Effect in IQ testing
is not to correct for possible changes in actual intelligence in an individual or subgroup but rather to ensure that all individuals (regardless of their demographics) are measured by the same yardstick when being compared to an arbitrary (70 or 75) general population diagnostic criterion.
22
Another psychologist, Dr. J. Gregory Olley, also a member of Division 33 and chairman of the Ad Hoc Committee on Mental Retardation and the Death Penalty, has concluded that the Flynn Effect is a real phenomenon that must be accounted for. “It is important,” he wrote, “to understand this ‘Flynn Effect’ because a person’s IQ score may be artificially raised if an out of date test is given. A study by Kanaya, et al., indicated that persons with mental retardation may be particularly susceptible to this effect.”
23
The Kanaya Study referenced by Dr. Olley was published in 2003 and dealt with children being evaluated for special education services.
24
It was an exhaustive survey, spanning 36 years of data and drawing information from thousands of scores on IQ tests across various geographical regions, neighborhoods and socioeconomic statuses. For those children in the borderline intelligence range, their scores dropped on average from a 78.4 on the older test to a 73.9 on the newer test, or a drop of 4.5 points. For those in the mild mental retardation range, their scores dropped even more — from, on average, a score of 64.2 to one of 58.9, or a drop of 5.3 points.
Professional organizations in the field of psychology have taken note of the Flynn Effect as well. The AAIDD,
25
the successor to one of the two organizations whose definition of mental retardation the Supreme Court favorably referenced in
Atkins ,
26
provides this recommendation to clinicians:
4. Recognize the “Flynn Effect.” In his study of IQ tests across populations, Flynn discovered that IQ scores have been increasing from one generation to
*860
the next in all 14 nations for which IQ data existed. This increase in IQ scores has been dubbed the Flynn Effect.... The main recommendation resulting from this work is that all intellectual assessments must use a reliable and appropriate individually administered intelligence test. In cases of tests with multiple versions, the most recent version with the most current norms should be used at all times. In cases where a test with aging norms is used, a correction for the age of the norms is warranted. For example, if the Wechsler Adult Intelligence Scale (WAIS-III; 1997) was used to assess an individual’s IQ in July 2005, the population mean on the WAIS-II was set at 100 when it was originally normed in 1995 (published in 1997). However, based on Flynn’s data, the population mean on the Full-Scale IQ raises roughly 0.33 points per year; thus the population mean on the WAISIII Full-Scale IQ corrected for the Flynn Effect would be 103 in 2005. Hence, using the AAMR 2002 System, significant deficits in intellectual functioning of “at least two standard deviations below the mean” the approximate Full-Scale IQ cutoff would be approximately 73 (plus or minus the standard error of measurement). Thus the clinician needs to use the most current version of an individually administered test of intelligence and take into consideration the Flynn Effect as well as the standard error of measurement when estimating an individual’s true IQ score.
27
According to Dr. Cunningham, the WAIS-III Technical Manual also notes the reality of IQ score inflation because of the Flynn Effect. It gives an inflation rate of about 0.3 points per year after the test is normed, consistent with the rate reported by Dr. Flynn. Deft. Exh. 19 at 3-4. The
Handbook of Assessment in Persons with Intellectual
Disability
28
acknowledges the significance of the Flynn Effect as well, and the substantial support for its applicability — including in the Borderline and Mentally Retarded range. It specifically recommends that evaluators “seriously consider the Flynn effect” in making a diagnosis.
29
Finally, and most recently, defense psychologist Dr. Cunningham conducted an extensive literature review, which he later published in a peer-reviewed journal, that found the Flynn Effect is “well-established” and recommends that IQ scores be “Flynn corrected.”
30
The Fifth Circuit has not yet ruled on the validity of the Flynn Effect. In
In re Salazar,
a Texas habeas case on federal review, the Fifth Circuit “expressed] no opinion” on the scientific validity of the Flynn Effect or its applicability to individual test scores, because it noted that even if the correction were applied in that case, Salazar’s IQ score would still be above 70, the cut-off used by Texas for
Atkins
purposes. 443 F.3d 430 , 433
&
n. 1 (5th Cir.2006). Similarly, in
In re Mathis,
another Texas habeas case, the Fifth Circuit again declined to pass on the validity of the Flynn Effect, finding that Mathis’ IQ score of 64 (without a Flynn correction),
*861
along with other evidence, made out a prima facie case that he was mentally retarded and therefore able to proceed with a successive habeas petition. 483 F.3d 395 (5th Cir.2007). In an unpublished opinion,
Thomas v. Quarterman,
the Fifth Circuit dealt with yet another Texas habeas case that involved the Flynn Effect, but not in a context where it could independently determine the validity of the phenomenon. 335 Fed.Appx. 386 (5th Cir.2009). Rather, the case presented the complex AEDPA question of whether “reasonable jurists would not debate that the state court decision” to reject the Flynn Effect “was reasonably based on the evidence before it.”
Id.
at 392 .
31
In other instances, the Fifth Circuit has granted certificates of appealability to state habeas petitioners claiming that the state courts erred by not finding them mentally retarded for reasons including the failure of the state’s expert to inform the state courts of the Flynn Effect.
Pierce v. Thaler,
355 Fed.Appx. 784, 794-795 (5th Cir.2009) (per curiam) (unpublished);
see also Maldonado v. Thaler,
389 Fed.Appx. 399, 403-04 (5th Cir.2010) (per curiam) (unpublished).
Several district courts within the Fifth Circuit have dealt more directly with the application of the Flynn Effect. In
Butler v. Quarterman,
a state capital habeas case, the district court first acknowledged that
Salazar
and
Mathis
“neither accepted nor rejected the validity of the Flynn Effect.” 576 F.Supp.2d 805, 814 (S.D.Texas, 2008). It then noted that in the state court proceeding, the state and defense experts agreed that the Flynn Effect is generally accepted in the psychological community and disagreed only as to how much correction is necessary to account for its effect. The defense expert argued for a correction of .3 points per year, in line with Dr. Flynn’s conclusions. The state’s expert, Dr. George Denkowski, contended that a correction of only .13 points per year should be applied. As in
Thomas ,
the state court credited the state’s expert and found that Butler was not intellectually deficient. Significantly, the federal district court found that the state court, while correctly identifying the governing legal rule, arguably “unreasonably” applied the rule to the facts of the case. The court specifically found that Dr. Denkowski’s view that only a .13 point per year correction was appropriate for the Flynn Effect was “not supported by other, credible, evidence.”
Id.
at 816. While the district court did not grant habeas relief, it did issue a certificate of appealability on the basis that the state court’s ruling on intellectual deficiency “was based almost entirely on ... Dr. Denkowski’s heavily disputed opinions.”
In
Wiley v. Epps,
the district court confronted a situation where the state court had refused to hold an evidentiary hearing on mental retardation at all. 668 F.Supp.2d 848 (N.D.Miss.2009). The district court granted an evidentiary hearing, and all the experts in that case agreed that the Flynn Effect was accepted by the relevant professional community and “must be
*862
taken into consideration in evaluating Petitioner’s scores.”
Id.
at 894 . The district court therefore did take it into consideration and calculated Wiley’s scores both with and without correction for the Flynn Effect. Without correction for the Flynn Effect, three of Wiley’s five prior IQ scores were below the Mississippi cutoff score of 75; with the Flynn adjustment, four of the five fell below.
Id.
at 895-97 . The district court then concluded that “once all of Petitioner’s IQ scores ... are adjusted for test obsolescence (the Flynn Effect), the confidence interval for each of those tests results overlaps at 68 to 70.”
Id.
at 898 . It then added that, “[e]ven if test obsolescence is not considered,” Wiley had established by a preponderance of the evidence that he suffers from significantly subaverage intellectual functioning.
Id.
The court went on to find that Wiley was in fact mentally retarded and exempt from the death penalty.
The Fifth Circuit Court of Appeals recently affirmed this decision.
Wiley,
625 F.3d 199 (5th Cir.2010). However, it once again declined to pass on the validity of the Flynn Effect, upholding the district court finding that, even without correction for the Flynn Effect, Wiley had significant subaverage intellectual functioning
While the Fifth Circuit has not definitively passed on the Flynn Effect, cases from the Fourth and the Eleventh Circuits expressly endorse use of the Flynn Effect, sometimes even requiring it to be considered.
32
E.g., Thomas v. Allen,
607 F.3d 749, 753 (11th Cir.2010) (“An evaluator may also consider the ‘Flynn effect,’ a method that recognizes the fact that IQ test scores have been increasing over time.... Therefore, the IQ test scores must be recalibrated to keep all test subjects on a level playing field.”);
Holladay v. Allen,
555 F.3d 1346 , 1350 n. 4, 1358 (11th Cir.2009) (crediting the psychologist that concluded the IQ scores needed to be adjusted for the Flynn Effect);
Walker v. True,
399 F.3d 315, 322-23 (4th Cir.2005) (remanding for an evidentiary hearing in part because the district court “refused to consider relevant evidence, name the Flynn Effect evidence.”);
Davis,
611 F.Supp.2d at 488 (“In conclusion, the Court finds the defendant’s Flynn effect evidence both relevant and persuasive, and will, as it should, consider the Flynn-adjusted scores in its evaluation of the defendant’s intellectual functioning.”);
Thomas v. Allen,
614 F.Supp.2d 1257, 1278 (N.D.Ala.2009) (“It also is undisputed that Professor Flynn’s recommendation — i.e., ‘deduct 0.3 IQ points per year [three points per decade] to cover the period between the year the test was normed and the year in which the subject took the test — is a generally accepted adjustment.”);
Green v. Johnson,
2006 WL 3746138 , at *45 (E.D.Va.2006) (“Considering all of the case law and evidence, this Court concludes that the Flynn Effect should be considered when determining whether Green’s scores fall at least two standard deviations below the mean. There is sufficient evidence in the record to show the Flynn Effect is recognized throughout the profession.”);
see also United States v. Parker,
65 M.J. 626 (NM.Ct.Crim.App.2007).
As already noted, Hardy’s score of 73 places him in the range of mild mental retardation after considering the standard error of measurement, and without correcting for the Flynn Effect. Nevertheless, the Court’s obligation is to ascertain the best estimate of Hardy’s IQ. In light of the substantial evidence supporting the existence of the Flynn Effect, the Court
*863
concludes that Hardy’s score of 73 should be corrected to take it into account.
ii The Flynn Effect as Applied to Hardy
Paul Hardy was given the WAIS-R IQ test in 1996 and obtained a Verbal IQ score of 74, a Performance IQ score of 76, and a Full Scale IQ score of 73. The defense expert, Dr. Cunningham, opined in his report that this score was inflated due to the Flynn Effect. He noted that the WAIS-R was originally normed in 1978, but Hardy took the test eighteen years later. Applying the inflation rate of .3 points per year, Hardy’s Full Scale score should, according to Dr. Cunningham’s report, be corrected by 5.4 points, to below 68.
33
Dr. Cunningham testified to the same effect at the hearing, reaffirming his belief in the validity of the Flynn Effect, the appropriateness of reducing Hardy’s score to 67.5 or 68 to account for it,
34
and the Flynn Effect’s wide acceptance in scientific circles based on substantial research published in peer-reviewed journals.
35
Dr. Swanson affirmed that the Flynn Effect “is a well-established statistical phenomenon” and testified that it should be recognized and applied in a retrospective diagnosis, regardless of any lingering controversy in the larger community of psychologists. Deft. Exh. 1 at 5; Rec. Doc. 2125 at 698-699.
The government’s expert, Dr. Hayes, agreed that the Flynn Effect exists with respect to those persons of normal intelligence. However, she was skeptical that it applies to persons with IQ scores below 75, like Hardy. Part of her reasoning was that almost all of the studies that have been done on the Flynn Effect dealt with people in the normal range of intelligence.
36
She did acknowledge that one “really good study” was done with those in the borderline and mentally retarded ranges (the Kanaya Study cited by Dr. Cunningham
37
and discussed earlier in this opinion). The authors of the study concluded that, on the basis of the means, medians, and regression estimates:
[T]he size of the Flynn effect in these groups is very close to Flynn’s (1998) estimate of a 5.3-point difference between the average scores of the older WISC-R and the average scores of the newer WISC-III norms. So, our best estimate is that the Flynn effect falls between 5 and 6 IQ points in the mild MR and borderline ranges, almost exactly the same magnitude that Flynn found in the middle of the IQ distribution.
38
Dr. Hayes was nonetheless skeptical that these results were transferable to adults because IQ tests geared for children were used. Defense counsel probed this objection at the hearing, first pointing out that those tests are used up to the age of 17 and then asking, “What happens
*864
when somebody turns 17 years and one day?” Dr. Hayes denied that she was saying the Flynn Effect would then simply disappear and suggested instead only that more research is needed.
39
That is, after declaring that the Flynn Effect is “100 percent”
40
applicable to adults within the normal range of intelligence, and is applicable to those 17 years of age and younger who are mentally deficient, Dr. Hayes claimed that the “jury is still out”
41
on whether it is applicable to mentally deficient adults.
On rebuttal, Dr. Cunningham relayed a discussion he had with Dr. Flynn regarding Dr. Hayes’ view. Dr. Flynn “could identify no logical reason why this phenomenon (the Flynn Effect) would exist at age 17 and then suddenly cease to exist simply because someone had moved out of the zone of eligibility for the WISC and into adulthood, where they would be given some rendition of the WAIS.”
42
Moreover, Dr. Hayes candidly acknowledged that “the best researchers in this area all say that, yes, the Flynn Effect holds water in people with mental retardation.”
43
When asked if she was aware that her view on the Flynn Effect is an “outlier position in the profession,” she agreed.
44
And finally, she testified that “I think my opinion related to the Flynn Effect is not consistent with what the research says in the field.”
45
These candid concessions would be reasons enough for the Court to disregard Dr. Hayes’ opinion on the applicability of the Flynn Effect to Hardy’s score. They are not, however, the only reasons the Court does. Dr. Cunningham noted that research from the first version of the WAIS forward, which includes the WAIS-R, indicates that the Flynn Effect is operative in adults with IQs in the 70 to 75 range.
46
So, there is in fact published, peer-reviewed research supporting the existence of the Flynn Effect for the test Hardy took and the IQ range in which his score fell.
For example, Dr. Cunningham referenced a study by Jean Spuill and Brett L. Beck, which compared performance on the WAIS and the WAIS-R.
47
They gave both tests to 108 people applying for special education services, the average age of whom was 25.5 years. Those in the borderline range of intelligence, which was identified as those having a Full Scale IQ of 70-84, averaged 4.75 points lower on the new test.
48
Dr. Cunningham also testified about a meta-analysis of 13 studies, involving participants with an average age of 29.5, conducted by Dr. Herman Spitz. While Spitz found that at an IQ level in the lower 60s, the Flynn Effect on the WAIS to the WAIS-R flattened out or even reversed,
49
*865
Spitz also found a clear Flynn Effect in the IQ range of 70 to 75.
50
Hardy scored a 73, which puts him well within the range of people who exhibit the Flynn Effect according to Dr. Spitz’s meta-analysis.
Dr. Cunningham also cited a 2007 study by Suzanne Fitzgerald, Nicola S. Gray and Robert J. Snowden. It compared the scores on the WAIS-R and the newer WAIS-III in the lower ranges of IQ.
51
This is significant as Paul Hardy was given the WAIS-R test, the older test. The researchers gave both tests to 45 individuals with diagnosed learning difficulties. Their scores were on average 4.1 points lower on the new test, which is in line with the predicted Flynn Effect.
52
Dr. Hayes cited some of the same studies, but claimed that her literature review revealed that “the majority of researchers have found that the Flynn Effect is either smaller in adults with Lower IQ’s or that the Flynn Effect can ‘reverse’ itself in individuals with IQ’s in the mentally retarded range.”
53
To the extent the studies already discussed also support a “reverse” Flynn Effect, they only do so for persons with an IQ too low to be relevant (under approximately 65), while they in fact prove the Flynn Effect exists in the relevant IQ range — Hardy’s range. Several other studies cited by Dr. Hayes were also performed on people more severely mentally retarded than Hardy,
54
and so are likewise not helpful since Hardy’s score does not fall in those ranges. Of course, if it had, presumably there would have been no dispute at all that he is mentally retarded. To the extent Dr. Hayes claims that Hardy is not mentally retarded, she cannot claim that studies based on people far more mentally retarded than him prove the Flynn Effect does not apply to him.
Dr. Hayes’ last two criticisms of the Flynn Effect will be dealt with only briefly. In the first, she opines that some researchers believe adjusting for the Flynn Effect is unscientific and not supported by the data, citing a 2007 article by George C. Denkowski and Kathryn M. Denkowski.
55
However, the main thrust of that article is to criticize Dr. Flynn for claiming that the WAIS-III results should not only be adjusted for 0.3 points per year in general, but also adjusted downward an additional 2.34 points because the scores were already inflated as of the time the test was normed. Fortunately, it is not necessary for the Court to enter into
*866
that thicket as Hardy did not take the WAIS-III test, but rather the WAIS-R.
Dr. Hayes next cited a survey showing that a majority of psychologists did not, at the time of the study, correct IQ scores for the Flynn Effect as part of their regular practice. The survey, by Leigh D. Hagan, Eric Y. Drogin and Thomas J. Guilmette
56
does in fact make that finding, but the Court does not find it particularly relevant. Regardless of what most psychologists do, the evidence before the Court indicates that correcting for the Flynn Effect is a “best practice” in the field and therefore should be done. In any event, Dr. Swanson testified that the profession recognizes that correction for the Flynn Effect in a retrospective assessment is distinctly appropriate. Rec. Doc. 2124 at 698-99. In response to a point similar to Dr. Hayes’ that was advanced by the government in
Davis,
that court responded as follows:
The goals of an IQ assessment are dramatically different in the clinical versus the forensic setting. In the clinical context, the purpose of such an assessment is typically to get an accurate picture of the individual’s current functioning so that appropriate systems of support may be devised to assist that individual in everyday living. In most cases, a recentiy-normed instrument will be used for the IQ assessment, rendering unnecessary any Flynn adjustments. In the forensic context, however, where an individual’s eligibility for a death sentence depends on a somewhat arbitrary numerical cutoff, precision and accuracy in determining that individual’s IQ score, both at present and in the past, become critically important. Eligibility for the death penalty is not a lottery, and a greater effort to achieve accurate results is both necessary and appropriate.
Apart from eligibility for certain entitlement programs, in the clinical setting, the precise value given to an individual’s IQ has very little consequence, so there would be very little gained by adjusting the numerical score to account for changed norms when the clinician could simply take the phenomenon into account when interpreting the scores.
611 F.Supp.2d at 488.
The Court finds that the Flynn Effect is well established scientifically and that Dr. Hayes’ skepticism is unpersuasive. Hence, the Court will correct for the Flynn Effect in determining Hardy’s IQ. The WAIS-R was normed in 1978 and Hardy took the test in 1996, eighteen years later. Applying Dr. Flynn’s formula, Hardy’s score of 73 is in fact a score of 67.06.
57
Applying the same standard error of measurement used above, Hardy’s Full Scale IQ must be said to fall somewhere between 62.06 and 72.06.
As already noted, even without the Flynn Effect, and assuming adequate effort, Hardy’s performance on the 1996 IQ test by Dr. Tetlow demonstrates that he has significantly subaverage intelligence and therefore meets the first criterion of the definition of mental retardation. As Dr. Hayes did not administer her own IQ test to Hardy,
58
the Court must credit Dr.
*867
Tetlow’s results unless they cannot be treated as reliable evidence of Hardy’s IQ. Dr. Hayes claims these results are not in fact reliable, citing a number of alleged inconsistencies in Hardy’s performance. The Court now turns to those objections.
3. The Adequacy of Hardy’s Effort
Dr. Hayes gives a number of reasons in her report for dismissing the IQ score obtained by Dr. Tetlow. They can be grouped into three broad categories: (1) the claim that Hardy failed to demonstrate expected practice effects on some tests, indicating a lack of effort; (2) personality testing of Hardy suggests a tendency to malinger; and (3) other miscellaneous discrepancies in the data. The Court discusses each in turn.
i. Practice Effects
Dr. Hayes noted that Hardy took the WAIS-R test twice within one month, first with Dr. Tetlow and then with Dr. Martell, the government’s psychologist at the time. She testified that Hardy should therefore have obtained a higher IQ score with Dr. Martell because of the concept of “practice effects.” That is, having already taken the identical test with Dr. Tetlow, Hardy should have done better when he later took it with Dr. Martell. The Court is inclined to agree as a matter of common sense. And, in fact, Hardy did do better with Dr. Martell than with Dr. Tetlow— Hardy’s Full Scale IQ rose, as did his score on seven of the WAIS-R’s subtests.
Dr. Hayes contended this was not sufficient evidence of the expected practice effect, however, as Hardy’s scores decreased on two of the WAIS-R’s subtests — the Picture Arrangement and the Object Assembly subtests — that are the most sensitive to practice effects.
59
The Court first notes that, regardless of how Hardy performed on those two subtests, he clearly demonstrated overall improvement during the testing by the government. That improvement is inconsistent with any malingering strategy and is indicative of adequate effort. Furthermore, as Dr. Cunningham explained, the two subtests at issue, of Picture Arrangement and Object Assembly, have the lowest reliability rating — or, put another way, the highest standard error of measurement.
60
So, while Hardy’s scores may have declined on those two subtests, they are the most unreliable ones.
61
Meanwhile, his scores improved on the seven more reliable subtests.
Moreover, Dr. Cunningham noted that Hardy’s two subtest score declines were still “well within the standard error of measurement” for those subtests. In fact,
*868
similar or greater score declines occurred within the normative sample.
62
Dr. Cunningham explained that expected variations within the normative sample are often set at a 90 percent range, meaning that 90 percent of the standardization sample had variations within that range.
63
He reported that only one of Hardy’s scores was outside the 90 percent variation range of the normative sample,
64
and that one was in a positive direction, consistent with the expected practice effects.
65
Dr. Cunningham also noted in his report that to the extent that Hardy’s improvement was more modest than that of many others, this is “unsurprising ... given that persons with deficient intelligence may profit less from learning opportunities.”
66
Hence, any reduced practice effect is supportive of a finding of mild retardation.
Dr. Hayes mentioned neither the 90 percent range nor the standard error of measurement in her report or in her direct testimony, apparently considering them irrelevant. When questioned about these two particular subtests on cross-examination, she opined that Hardy’s two score declines were “statistically significant” because his scores were outside one standard deviation of the norming group that took the test.
67
But when pressed on whether one standard deviation was in fact “statistically significant,” she could not bring herself to answer one way or the other and instead stated that “the fact that he is doing worse when he should be doing better is what you should be focusing on.”
68
The Court finds this reasoning perplexingly circular, because consideration of the standard error of measurement and assessment of whether a change in score is statistically significant is essential in determining whether Hardy did in fact do “worse” in the first place.
Dr. Hayes makes substantially the same kind of argument concerning Hardy’s performance on the neuropsychological testing by Dr. Martell in late March of 1996 and that by Dr. Kevin Bianchini in early April of that year. Dr. Hayes pointed out that, on the Wechsler Memory Scale-Revised, Hardy received an Attention/Concentration Index Score of 80 during Dr. Martell’s evaluation, but scored only 70 two weeks later when assessed by Dr. Bianchini. From this she concluded that “the reliability and validity of the psychological and neuropsychological assessment data is questionable and is likely an underestimate of [Hardy’s] true abilities.”
69
Yet, exactly as with the two IQ tests, Dr. Hayes again bypassed that test’s standard error of measurement when drawing her conclusions. Dr. Cunningham testified that the variation in Hardy’s score was still within the 90 percent reliability range of the standardization sample.
70
With respect to Hardy’s drop from 80 to 70 on the Attention/Concentration Index of the Wechsler Memory Scale, Dr. Cunningham had several additional relevant observations.
*869
First, the standardization sample for that test was less than 400 people and did not include those in Hardy’s age range, with some scholars recommending the test not be used with individuals in the excluded age ranges.
71
Second, Dr. Cunningham testified that few of the subtests meet “even minimal standards for reliability.”
72
He asserted that, moreover, all of Hardy’s scores were within the applicable standard error measurement.
73
With respect to the Attention/Concentration Index in particular, he testified it is the most reliable of the various tests, but still subject to a broad standard error of measurement.
In fact, according to Dr. Cunningham, Hardy’s Attention/Concentration score of 80 with Dr. Martell had a range of 73 to 90. His score of 70 with Dr. Bianchini fell within a range of 64-81. As the ranges of the two scores substantially overlap,
74
Dr. Cunningham testified that the score of 70 is not “meaningfully less than an 80.”
75
Put more technically, the “score discrepancy of nine to ten points is well within the 14-point discrepancy at a 95 percent confidence interval,” ergo the difference is “not statistically significant.”
76
The rest of Dr. Hayes’ alleged inconsistencies in Hardy’s neuropsychological testing fall prey to the same problems: There is no evidence of inconsistency, at least using the standard quantitative methods of her field.
77
Dr. Cunningham is hardly an outlier in his use of such methods. When asked at the first trial about Hardy’s drop in scores on the neuropsychological testing, Dr. Bianchini answered that “there is a normal sort of variability that goes along with these tests. There’s a range within people tend to perform. Someone could, you know, vary within that range and it not be especially significant. So say, for example, if the standard variability on a test is ten points, if somebody is two to three points lower, that’s just statistical fluctuation.”
78
Perhaps Hardy did not benefit from
as great
a practice effect as others might have. This may indicate, as suggested by Dr. Cunningham earlier, a “deficient intelligence” in that Hardy may have a lesser capacity to benefit from learning opportunities.
79
Whatever it indicates, the Court has seen no evidence that it indicates Hardy failed to make an adequate effort on the IQ test with Dr. Tetlow. First, other than the two WAIS-R subtests (and Hardy
did
show overall improvement the second time he took the WAIS-R) none of the tests Dr. Hayes discusses are tests of intelligence. Moreover, Hardy’s scattershot pattern of improvement and decline on these other tests is not consistent with a rational ma
*870
lingering strategy.
80
The Court sees no reason to assume Hardy failed to make an adequate effort with Dr. Tetlow on the IQ test when no evidence indicates malingering in the other testing data.
Second, Dr. Bianchini himself gave Hardy high marks for effort, noting in his report that Hardy was “reluctant to give up when he could not remember all the correct responses,” as, for example, when Hardy “did not want to move on to the next trial on the RAVLT until he had thought of every possible correct response to the previous trial.” He also concluded that Hardy “appeared to put forth much effort in an attempt to solve each task” and that his scores were a “valid measure of his current level of functioning.”
81
Lastly, as discussed before, each of the inconsistencies Dr. Hayes claims exist here could, according to the standard understanding in the profession, be due to chance. Dr. Hayes’ overall argument appears to be that test score discrepancies, if enough are present, raise red flags, regardless of whether the differences in scores are statistically meaningful.
82
The Court frankly finds this testimony unsettling, as it evidences a casual attitude towards the science that undergirds IQ testing, and more specifically, the proper statistical interpretation of the various tests at issue. Based on the evidence in the record on this point, the Court must credit Dr. Cunningham’s succinct criticism: “eyeballing test scores” for discrepancies, as Dr. Hayes did, is not appropriate.
83
ii Personality Testing
The next indicator of malingering/response bias identified by Dr. Hayes was Hardy’s results on the Minnesota Multiphasic Personality Inventory-2 (“MMPI2”). Quoting from Dr. Martell’s report, she stated that Hardy “was inconsistent in answering questions and over-reported his level of psychopathology in an effort to appear more disturbed than he really is.”
84
Unfortunately, the details of Hardy’s MMPI administered by Dr. Martell are no longer available and Dr. Martell did not describe the specific test results that led him to his conclusion.
85
Nevertheless, Dr. Cunningham candidly noted that Dr. Tet-low also administered the MMPI to Hardy and likewise came up with a very elevated score on the same issue. He also agreed that one interpretation of that elevated score is that Hardy was deliberately exaggerating his pathology. Other explanations include test resistance, situational stress or marginal reading ability.
86
*871
As it turns out, the Court need not delve too deeply into these issues. Dr. Cunningham testified that the standardization group for the MMPI did not include borderline or mentally retarded people. In fact, nearly 75 percent of the group had some college education. For that reason, Dr. Cunningham and a co-author, Dr. Macvaugh, recently wrote that “[t]he MMPI is not an appropriate instrument for any purpose in the assessment of persons who may be suspected to have mental retardation.”
87
Dr. Hayes agreed that an MMPI is not an appropriate test to give to someone who is mentally retarded.
88
Obviously, the issue is whether in fact Paul Hardy is mentally retarded. If he is, then both Dr. Cunningham and Dr. Hayes agree that the MMPI results are meaningless. Consequently, the assessment of whether Hardy is or not retarded must be made without considering his MMPI.
Dr. Hayes next highlighted Hardy’s results on the The Millón Clinical Multiaxial Inventory-II, administered by Dr. Tetlow in February 1996. According to him, its results “may indicate a broad tendency to magnify the level of experienced illness or a characterological inclination to complain and to be self-pitying ... or may convey feelings of extreme vulnerability, which are associated with a current episode of acute turmoil.”
89
Dr. Hayes included it because it indicated Hardy possibly had a tendency to magnify his psychological problems.
90
The Court notes that, at the time he took the test, Hardy was incarcerated for the instant capital crimes. Dr. Bianchini noted in his evaluation that Hardy’s brother Wayne had recently been murdered, and that Hardy saw a psychiatrist in prison and was on medication as a result.
91
These circumstances might very well qualify as an “episode of acute turmoil” that may very well have induced “feelings of extreme vulnerability.” But whether or not they do or did, this test, like the MMPI, also requires an 8th grade reading level to comprehend its questions.
92
And, again as with the MMPI, both Dr. Hayes and Dr. Cunningham agree that this test is not appropriate for people who are mentally retarded.
93
So, the Court finds this test score irrelevant for the same reasons it found the MMPI score to be irrelevant.
iii Other Discrepancies
Only two of Dr. Hayes’ additional discrepancies deserve much serious discussion. They involve Hardy’s performance on two clinical tests, the Weehsler Adult Intelligence Scale-Revised (WAIS-R) Digit Span Subtest and the “Serial 7’s” test.
*872
Dr. Hayes noted that Hardy could recite a four digit number backwards when tested by Dr. Tetlow using the Digit Span Subtest in February 1996, but when he was asked to do the same task some weeks later for Dr. Bianchini on the Wechsler Memory Scale-Revised, he could only successfully recite two numbers backwards.
94
The Court’s initial reaction to this “discrepancy” is to regard it as
de
minimis— hardly the kind of evidence needed for the Court to throw out Dr. Tetlow’s IQ test.
Dr. Hayes is correct that Hardy was able to correctly recite a four digit number backwards when Dr. Tetlow tested him, however he was only able to do that one time successfully. A second attempt failed. He was also able to recite backwards two sets of three digits and two sets of two digits.
95
When Dr. Bianchini tested him, Hardy was only able to recite two digits backwards, failing twice at trying to recite three.
96
Worth noting, however, is that even though he failed at reciting three digits backward for Dr. Bianchini, he actually got all the numbers correct, but in a forward sequence instead of backwards (4-9-3 he recited as 9-3-4 instead of 3-9-4 and 5-2-6 he recited as 2-6-5 instead of 6-2-5).
So, for both Dr. Tetlow and Dr. Bianchini, Hardy was able to recite two digits backwards; for Dr. Tetlow he was able to recite three and four digits backwards, and with Dr. Bianchini, he got the three digits correct, but went forward instead of backward. Noteworthy also is that for the
forward
digit span test, Hardy’s performance was consistent between the two test sessions as the differences are not statistically significant.
97
In addition, Dr. Cunningham testified that the digit span sub-test is “remarkably sensitive to distraction or preoccupation.”
98
Considering Hardy’s overall performance on this digit span sub-test, the Court finds that Hardy’s mix-up on the three digit backward sequence to be
de minimis.
Dr. Hayes was also concerned that Dr. Swanson stated that Hardy was unable to count backwards from 100 by sevens, yet he was able to do so with Dr. Hayes, using his fingers.
99
When Dr. Swanson testified at the
Atkins
hearing, she elaborated that Hardy first requested to use paper and pencil for the task and she told him no. Dr. Swanson also told Hardy that he could not use his fingers; he had to count in his head. She said that he went six backwards from one hundred, instead of seven, and then said he could not do it.
100
In her hearing testimony, Dr. Hayes testified Hardy was able to complete the task in a minute and fifteen seconds, and that Dr. Cunningham, in his 1996 report, likewise stated Hardy did not have difficulty with the task.
101
However, as is apparent from
*873
the video, Dr. Hayes allowed Hardy to use his fingers in doing the counting. Dr. Cunningham testified that the proper way to do the test is for the person to hold the numbers in their head and subtract, without external props, like counting fingers as Hardy did. In Dr. Cunningham’s opinion, Hardy actually performed “serial ones” for Dr. Hayes because he counted down, one by one, on his fingers through each seven digit sequence.
102
He did point out that it had diagnostic value in that Hardy needed to use the manual aid to help him, which illustrated his concreteness of thought and is consistent with mental retardation.
103
With respect to his own testing of Hardy in 1996, Dr. Cunningham recorded that Hardy completed the task without error but did so slowly and by calculating out loud, similarly to what he did with Dr. Hayes.
104
Dr. Bianchini also asked Hardy to do the Serial 7’s test and he reported Hardy finished it in 36 seconds. This is significantly shorter than the time that Dr. Hayes reported, when Hardy used his fingers, and it appears likely that Dr. Bianchini did not have Hardy count below 65,
105
which would account for that discrepancy. His report is silent as to whether Hardy used his fingers or counted aloud.
106
With respect to Serial 7’s, the Court concludes that Hardy is apparently able to complete the task, but only by either counting out loud or using his fingers, and taking considerable time. His performance is consistent.
The Court finds the remaining alleged discrepancies cited by Dr. Hayes to be in essence insignificant. The Court nevertheless feels an obligation to address them given the gravity of the issue before it. Therefore, a discussion of them is incorporated into “Appendix A,” attached to this opinion.
iv. Malingering/Response Bias
The Court has serious concerns with Dr. Hayes’ treatment of the first substantive issue addressed in her report, “Malingering/Response Bias,”
107
which relates to the adequacy of Hardy’s effort. Dr. Hayes began by citing the DSM-IV-TR’s criteria regarding when malingering should be suspected, which include a medicolegal context and the presence of antisocial personality disorder.
108
After noting that Hardy was obviously being tested in a medicolegal context, Dr. Hayes spent considerable time in her report and testimony discussing why Hardy could be diagnosed with antisocial personality disorder, even going so far as to present a PowerPoint presentation on the topic.
109
And, Dr. Hayes affirmatively stated in her report that “Markers indicative of malingering were evident in Mr. Hardy’s psychological assessment measures and available records” and then lists as “examples” four pages of these alleged discrepancies in his assessment.
110
This particular issue caused a significant excursion down an
Alice in Wonderland
*874
rabbit hole that turned out to be largely unnecessary. Despite clearly indicating by the above that Hardy’s IQ assessment evidenced malingering, Dr. Hayes ultimately stated repeatedly on the witness stand, but unfortunately not until cross-examination, that she did not believe Hardy malingered at all.
111
Dr. Hayes would have been considerably more helpful to the Court had she been similarly forthcoming in her report, and at the outset of her direct testimony. As it was, the defense spent a considerable amount of time eliciting repetitive evidence, ultimately unnecessary, that the discrepancies cited by Dr. Hayes were not indicative of “malingering” because they charted no logical course of “malingering strategy.”
112
Likewise her testimony regarding whether Hardy met the characteristics of anti-social personality disorder was irrelevant.
With respect to the issue of malingering, Dr. Bianehini tested Hardy for it in 1996 with the Portland Digit Recognition Test.
113
He testified at the first sentencing hearing that Hardy “did fine ... with no indication of malingering.”
114
The government’s psychologist, Dr. Martell, tested Hardy with the Dot Counting Test and the Memory for Fifteen Items Test.
115
He described Hardy as “cooperative and friendly throughout most of two days of examination and testing” and that on “tests specifically designed to detect efforts to malinger brain damage, his performance was within acceptable limits.”
116
Dr. Hayes acknowledged that these malingering tests in 1996 were all within normal limits, but she then suggested that the specific tests used are either ineffective in a mentally retarded population or have yet to be evaluated in that population.
117
This was a puzzling position for her to take, since she maintained that Hardy is not mentally retarded. Nevertheless, she opined that the tests used by government psychologist Dr. Martell, the Dot Counting
*875
Test and the Memory for Fifteen Items Test, “fare poorly in distinguishing individuals with mental retardation from those feigning this level of functioning.”
118
But that is only true if the person does poorly on the test, not well, as Hardy did. As Dr. Cunningham testified, these tests are designed to look difficult, but are in fact easy. Consequently, if someone who is mentally retarded scores poorly,
then
the examiner might be concerned whether the low score was due to deliberate lack of effort. But if a person scores well on it, even a mentally retarded person, then it indicates he is making good effort despite the disability. Only poor scores create the issue raised by Dr. Hayes, not good scores like Hardy’s, as indicated in the testimony of Dr. Cunningham.
119
So the issue raised by Dr. Hayes, aside from being contrary to her own assessment of Hardy’s intellectual functioning, is in fact no issue at all.
The Court concludes, as did Dr. Hayes ultimately, that Hardy did not malinger during any of his testing in 1996. The Court also concludes that Dr. Hayes alternative claim — that Hardy’s IQ test results were “inconsistent” and that perhaps it was not his “best effort,” due to any number of reasons, such as being hungry, or the room being at an uncomfortable temperature, or having an upset stomach or not feeling well, or having attentional difficulties
120
— are not supported by any evidence either.
Dr. Hayes concluded based on all of the above that, “to a reasonable degree of psychological certainty, Mr. Hardy’s amount of effort expended on the 1996 and 2008 assessment measures were inconsistent” and therefore the results indicated no more than Hardy’s “minimum” level of functioning.
121
Yet Dr. Hayes conceded that none of the several psychologists who testified indicated any problems with Hardy’s level of effort during the testing.
122
And, as described above, a number of the alleged inconsistencies were not, in fact, inconsistencies at all. Others were largely insignificant, merely minor variations to be expected within any repetitive testing procedures. And others were actually consistent with someone who is mildly mentally retarded.
The Court concludes that Dr. Hayes inappropriately discounted data supportive of the accuracy of the IQ testing, and disregarded essential scientific principles, such as the standard error of measurement in reaching her opinions. The Court finds that Dr. Hayes’ rationale for rejecting the reliability of Hardy’s 1996 IQ test results is unpersuasive.
4. Other Evidence of Hardy’s IQ
Both the APA and AAMR/AAIDD indicate that a diagnosis of mental retardation should be made based on IQ test results where it is possible to perform such a test.
123
As the Court has concluded that Hardy made an adequate effort on the most accurate IQ test in evidence, it need not look to other sources to measure his intelligence. But because Dr. Hayes discounted Hardy’s score as unreliable, she sought to determine his intelligence using other methods. Her sources fall into several categories: (1) school records; (2) data about his family; (3) the opinions of
*876
lay persons; and (4) demographic variables.
The Court, in keeping with the views of the APA and AAMR/AAIDD, has and will rely on Hardy’s IQ test score to determine whether he meets the first criterion of the definition of mental retardation. A discussion of Dr. Hayes’ testimony concerning these other sources of information is nevertheless both instructive and necessary. It is instructive, as the relevant evidence is consistent with the conclusion that Hardy has significantly subaverage intelligence functioning. It is necessary, as Dr. Hayes’ testimony on these other sources informs the Court’s assessment of her overall credibility. The Court provides a discussion of the problems with her testimony in “Appendix B,” attached to this opinion.
5. The 1996 Testimony
The Court now must now address the “elephant in the room” from the 1996 IQ testing. While the Court has been critical of segments of Dr. Hayes’ evaluation for failing to adhere to the scientific methodology of her field, the Court is equally concerned, and for the same reason, with the questionable conclusions of two of the defense psychologists from 1996. Both of these psychologists opined that the tests of Hardy’s IQ
underestimated
his cognitive abilities, which they claimed to be in the normal range — despite his scores to the contrary.
The first, Dr. Tetlow, administered the WAIS-R test to Hardy and scored his Full Scale IQ as 73, which could have led to a diagnosis of mild mental retardation.
124
Nonetheless, Dr. Tetlow did not diagnose Hardy as mentally retarded because he was of the opinion that, based on Hardy’s
educational and socioeconomic background, I estimate that his actual functioning and cognitive functioning is not an adult in the low average but actually about 10 points higher, so he would just be an adult normal.
125
At the same time Dr. Tetlow testified to this, he stated that Hardy “does give the impression of being more intelligent than he really is.”
126
He also noted that Hardy’s lowest score was in “comprehension,” which is the “measure of how much one has picked up from one’s environment, the do’s and don’t’s and should and shouldn’t from the environment.”
127
There Hardy “scored a three, which is very, very low, which a very small percentage of people score any lower than that.”
128
Yet Dr. Tetlow ignored the results of his scientifically based testing and surmised that Hardy’s IQ was in fact significantly higher.
The second defense psychologist, Dr. Cunningham, accepted Dr. Tetlow’s findings as to Hardy’s IQ score and also thought it underestimated Hardy’s cognitive abilities. He testified that Hardy’s scores “are probably about 15 points lower than his true intellectual horsepower,”
129
and he therefore did not diagnose Hardy with mental retardation. Instead, Dr. Cunningham diagnosed him with “post-traumatic personality disorder” on Axis II
*877
of the DSM-IV (Personality Disorder Not Otherwise Specified, # 301.9). When asked in 1996 to explain why, he testified:
There is some research, Matarozo is one of the guys that has written in this area, that indicates that when you give standardized intelligence tests like this, that blacks score about 15 points lower nationally than you would statistically expect, so for — you know, this number is only relevant as you compare it to other people, and so when you compare this number to a black population, it really is more like — when you’re looking at the distribution, it’s more like an I.Q. of 90, so ....
130
Dr. Cunningham further suggested that language problems and “cultural components ... suppress performance on these tests.”
131
In his 2009 expert report and testimony at the
Atkins
hearing, Dr. Cunningham repudiated his earlier conclusion that Hardy’s IQ test results in 1996 underestimated his cognitive skills. He did, however, maintain that his earlier testimony was consistent with research data available in 1996, which suggested socio-economic factors were at play and so Hardy’s score should be compared to others of his race, rather than the population in general.
132
In his own words, he “was making a race based adjustment ... as compared to other black Americans,” which led him to testify that Hardy has “an IQ of 88 rather than 73.”
133
Like Dr. Tetlow, Dr. Cunningham ignored the actual, scientific test results used to diagnose mental retardation in his field to come to this conclusion.
At the
Atkins
hearing, Dr. Cunningham stated he no longer believed that race-specific scoring was appropriate, explaining:
It is now my view that whatever the etiologies of an observed IQ score (e.g. genetic, neurological insult, deprivation), this score is most meaningfully understood in comparison to all Americans rather than in comparison to a specific racial or ethnic group.
134
In recognizing the validity of the use of national norms at the
Atkins
hearing, Dr. Cunningham admitted his 1996 IQ enhancement was “an attempt to be more culturally sensitive,” that it was not a
“sound diagnostic procedure
” and it was “regretful.”
135
It is true that Dr. Cunningham did not administer an IQ test to Hardy in 1996, and was not engaged to provide an IQ assessment.
136
That does not excuse his use of unsound diagnostic procedures to the extent he ventured an opinion on IQ.
In addition to Dr. Cunningham’s disregard of the actual test results back in 1996, the Court is also disturbed by the complete reversal of Dr. Cunningham’s position now. The Court must question whether it is a reversal of convenience simply to accommodate a finding of mental retardation. Furthermore, even in 1996 (prior to Atkins), a federal statute prohibited the execution of the mentally retarded, and so the possibility of mental retardation
should
have been explored. It was Dr. Cunningham’s — and defense counsel’s — duty to consider this issue, which they apparently neglected to do.
137
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Nevertheless, all the experts in this case now agree that it was error to provide a race-based enhancement to Hardy’s IQ score in 1996. Dr. Hayes agrees that Hardy’s scores should not be compared only to African-Americans but to all Americans.
138
She pointed out that the publishers of the WAIS-R tried to make the normative sample as demographieally similar to the American population as possible, so that comparing any individual’s score to it would be appropriate.
139
Dr. Hayes also opined that Hardy’s IQ score of 73 in 1996 should have triggered a further inquiry into mental retardation,
140
a view currently shared by Drs. Swanson and Cunningham. Indeed, even in 1996, Dr. Cunningham concluded that Hardy has “impaired intellectual development.”
141
For these reasons, the Court concludes that Dr. Cunningham’s reversal of opinion on this one issue is an honest one and not result-driven. Indeed, it took some degree of professional courage for him to re-appear in this case and admit his own mistake, one apparently shared by at least some others at that time. The Court also appreciates Dr. Cunningham’s contrition, which it will take into account going forward.
To recapitulate, all the experts in this case agree that Hardy’s IQ of 73 puts him in the range where a diagnosis of mild mental retardation must be considered. Moreover, as detailed in Appendix C, the actual findings made by Dr. Cunningham in his earlier assessment of Hardy, including a possible diagnosis of attention deficit disorder
142
and mild brain injury from multiple head traumas during the developmental years
143
(facts confirmed by Dr. Bianchini
144
), along with the diagnosis of an unspecified Personality Disorder,
145
share characteristics in common with mild mental retardation. Furthermore, the results of the Rorschach test administered by Dr. Tetlow uncovered a similar pattern,
146
as further discussed in Appendix C.
In effect, the various defense experts in 1996 circled around a diagnosis of mild mental retardation, but because both Dr. Tetlow and Dr. Cunningham believed the IQ scores were an underestimate of Hardy’s intellectual functioning, neither one drilled down into that possibility. The
*879
Court finds that, notwithstanding the differences between the testimony at the 1996 hearing and this one, Hardy has established by a preponderance of the evidence that his intellectual functioning is approximately two standard deviations below the mean. He therefore possesses significantly subaverage intellectual functioning as that term is used to diagnose mental retardation. The Court now turns to the other criteria relevant to this diagnosis.
b. Factor Two: Significant Limitations in Adaptive Functioning
Hardy has established that he has significantly subaverage intellectual functioning, which is the first prong of the mental retardation test. The Court must now consider whether he exhibits
[c]oncurrent deficits or impairments in present adaptive functioning (i.e., the person’s effectiveness in meeting the standards expected for his or her age by his or 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.
DSM-IV-TR at 49. Or, in the words of the AAMR, whether he has “significant limitations ... in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.” AAMR 10th Edition at 8;
see also
AAIDD 11th Edition at 6.
Those two standards define what is referred to as the “adaptive behavior” prong of the diagnosis of mental retardation developed by APA and AAMR/AAIDD. It concerns “ ‘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,
625 F.3d at 216 (quoting DSM-IV-TR at 42).
1. The Definition and Assessment of Adaptive Functioning/Behavior
The definition of this prong is less settled than that for intellectual functioning. 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.
See
DSM-IV-TR at 49. 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.
See
AAMR 10th Edition at 13; AAIDD 11th Edition at 6. 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. AAMR 10th Edition at 73; Deft. Exh. 1 at 2; Govt. Exh. 1 at 60-61. The 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.” AAMR 10th Edition at 73, 78.
While these differences in definition deserve note, they are ultimately of no consequence to the Court’s task. Just as in
Wiley ,
where the Fifth Circuit noted that the AAMR’s definition has diverged from that of the APA, 625 F.3d at 216 n. 13, the
*880
Court need not decide which is preferable or correct, because the differences between them are mostly theoretical. Both the APA and the AAMR direct clinicians to the same standardized measures of adaptive behavior, such as the Vineland Adaptive Behavior Scales-II (VABS-II) and the AAMR’s Adaptive Behavior Scale (ABS).
147
See
DSM-IV-TR at 42; AAMR 10th Edition at 76-78. Still, as evidenced by the DSM-IV-TR’s referral of clinicians to the AAMR’s instruments,
see
DSM-IV-TR at 42, the AAMR/AAIDD has taken the lead in developing the guidelines for interpreting the results of those tests. So the Court finds it appropriate to rely on the AAMR/AAIDD’s procedures for evaluating a subject’s level of adaptive functioning.
148
The AAMR uses the following criteria for determining whether someone has significant limitations in adaptive functioning:
[PJerformance [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.
AAMR 10th Edition at 14. The AAMR repeatedly emphasizes that a diagnosis of significant limitations should be made whenever a person has performance at least two standard deviations below the mean in any of the three domains (or in the total score).
See id.
at 74, 76, 78.
A person is assessed to determine whether he meets the AAMR’s operational definition by using one or more of five standardized tests: the VABS-II and ABS-II mentioned above, as well as the Scales of Independent Behavior — Revised (SIB-R), the Comprehensive Test of Adaptive Behavior — Revised (CTB-R), and the Adaptive Behavior Assessment System (ABAS). AAMR 10TH EDITION at 77, 87-90. 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.
Id.
at 79; User’s Manual at 12-13. “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 should be reassessed with another measure.” AAMR 10th Edition at 79.
None of the generally accepted scales of adaptive behavior rely on direct observation or self report of typical behaviors by the individual being evaluated.
Id.
at 85. Instead, they direct clinicians to gather information about the person’s level of adaptive functioning from third parties. In selecting the informant, 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.”
Id.
“Observations made outside of the context of community environments typical of the individual’s age peers and culture warrant severely reduced weight.”
Id.
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.
Id.
at
*881
74-75; AAIDD 11th Edition at 45, 47; Deft. Exh. 1 at 7.
2.
Retrospective Diagnosis
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 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,
543 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 must therefore be diagnosed, if it is to be diagnosed at all, retrospectively in every sense of the word.
So, while the APA speaks of “concurrent deficits or limitations in present adaptive functioning,”
149
and while some courts appear to have interpreted this language as directing consideration of how a person functions today rather than how he did at the time of the crime,
150
it is clear that the assessment of mental retardation for purposes of
Atkins
looks backwards — past even the time of the crime and back into the developmental period.
151
Certainly a person’s level of adaptive functioning in the present might provide some information about his abilities during the developmental period as, all things being equal, 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,” DSM-IV-TR at 43, 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.
See, e.g.,
AAIDD 11th Edition at 95-96 (relegating contemporary assessment to a possible additional tool);
id.
at 46 (noting retrospective diagnosis requires evaluation of subject’s “previous functioning”).
With IQ, which is a relatively stable, immutable trait,
152
the problems associated
*882
with retrospective diagnosis mostly disappear. A person’s IQ tested after the developmental period is, absent intervening trauma or injury, likely to be quite close to the IQ that would have been obtained had the person been tested prior to age 18.
153
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.
154
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 38, 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
(8) Not use past criminal or verbal behavior in assessing adaptive behavior. User’s Guide at 18-22; Deft. Exh. 7. The third recommendation states in full that 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 developmentally 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.
User’s Guide at 20.
Dr. Swanson opined that the literature also recommends having the informants focus on adaptive behavior closest to the developmental period that the informant is confident about discussing.
155
When the informant has a clear memory of that period, 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.
156
Dr. Hayes cited this portion of Dr. Swanson’s report and noted her agreement.
157
3. Hardy’s Level of Adaptive Functioning
Turning to the experts’ evaluations of Hardy’s level of adaptive functioning, the
*883
Court was struck at how different the assessments were, as compared to the intellectual functioning prong. The Court’s earlier task was, at bottom, a question of whether Hardy achieved a particular score on one of the standard measures of intelligence. Moreover, the examples of acceptable IQ tests given by the AAMR/AAIDD and APA, and tests actually administered to Hardy, are themselves objective. Their questions have right or wrong answers, their task-based challenges can either be completed or not within specified periods of time, et cetera. The APA and AAMR/ AAIDD elected to make the first prong of their definitions of mental retardation an essentially objective exercise in comparing two numbers — a score and a cutoff — and replaced individual clinicians’ judgment with the consensus judgment of the profession.
158
The evaluation of a person’s adaptive functioning involves significantly more subjective clinical judgment. That judgment is still constrained to some extent by the criteria spelled out by the APA and AAMR/AAIDD, as well as the use of standardized tests. Yet the selection of the tests used to assess adaptive behavior, the persons selected as informants, the conduct of the interviews, and the ultimate interpretation of the tests’ results are a good deal more dependent on subjective clinical judgment than the assessment of IQ. The AAMR/AAIDD implicitly acknowledges this subjectivity in the very structure of its reference work. In addition to the chapter devoted entirely to the topic of clinical judgment, the chapter on adaptive behavior has a lengthy section on the role and importance of it in assessment, AAMR 10th Edition at 85-87, one noticeably lacking from the chapter on intelligence.
See also Wiley,
625 F.3d at 217 (“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.’ ” (internal quotation marks 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 before it to resolve disputes between them.
Second, as the need for clinical judgment increases, so does the opportunity for disputes between clinicians. This case is a perfect example. On the objective prong of the test — significant limitations in intellectual functioning — it is worth repeating that the government and defense experts, despite the reams of paper that seemed to separate them, were not all that far apart. The government’s expert, Dr. Hayes, agreed that Hardy’s IQ score of 73 was within the zone of possible mild mental retardation and should have provoked further inquiry.
159
It was only her skepticism about the reliability of the 1996 test results that caused her to conclude that Hardy had not established to her satisfaction that he has a sufficiently low IQ to be diagnosed as mentally retarded.
160
*884
On the other hand, with regard to adaptive behavior, the defense and government experts are diametrically opposed. Dr. Swanson found that Hardy’s level of adaptive functioning during the developmental period fell at least two standard deviations below the mean in seven of the DSM-IV-TR’s eleven sub-domains of adaptive functioning (only two are required for a diagnosis of mental retardation). Dr. Hayes found no deficiencies at all, in any of the sub-domains, based on her analysis.
This dramatic discrepancy may reflect the difficulty of diagnosing mild mental retardation in persons with higher IQs, as pointed out in the IQ section of this opinion, or the looseness and subjectivity of the adaptive behavior prong as compared to the relative preciseness of an IQ score range. A layperson, for example, might not even notice the deficiencies of a mildly mentally retarded person, unless required to work with that person on a close basis.
161
Many, if not most, mildly retarded people fit into their communities fairly well.
162
Finally, the differing assessment of the experts in this case regarding adaptive behavior may also result from their varying experience and competence. The Court concludes that all three factors were at play, as will be seen below.
The experts in this case each prepared a report on Hardy’s level of adaptive functioning. The first, by Dr. Swanson, was prepared based on her review of Hardy’s academic, medical, psychiatric, work, and prison records, along with interviews of: (1) Toni Van Burén, the mother of three of Hardy’s children; (2) Theresa Minor, the first cousin of Hardy’s mother and the mother of Tony Minor; (3) Tony Minor, one of Hardy’s close childhood friends; (4) Vance Ceaser, another of Hardy’s childhood friends; and (5) Greg Williams, one of Hardy’s friends from young adulthood. Dr. Swanson also interviewed Hardy on several occasions from April through November of 2008, when she performed academic assessments and adaptive and academic probes in addition to her diagnostic interview.
The second report, by Dr. Hayes, was prepared based on a similar data set. In addition to the people interviewed by Dr. Swanson (excepting Tony Minor), Dr. Hayes also interviewed: . (1) Lieutenant Shannon Desroche, Corporal Ryan Laylle, and Deputy Gary Adams, law enforcement officers familiar with Hardy from his incarceration at the St. Bernard Parish Jail; (2) Terry Hardy, Hardy’s brother; (3) Faith Price, the mother of one of Hardy’s sons; (4) Javetta Cooper, the mother of one of Hardy’s daughters; (5) Sammie Williams, who met Hardy a few times through Len Davis, Williams’ former partner at the New Orleans Police Department; and (6) various New Orleans Parish School Board employees.
Both Dr. Swanson and Dr. Hayes noted that their evaluations had to be made retrospectively. In a part of Dr. Swanson’s report with which Dr. Hayes was in agreement,
163
she provided an overview of the problems associated with retrospective diagnosis and the ways that clinicians grapple with them. “To overcome this obstacle, experts in the field of mental retardation recommend that the examiner seek adaptive behavior information from several sources and to look for the convergence of findings.”
164
Those sources typically include school, medical, psychiatric, work, military, Social Security, and prison records, as well as interviews with “[ijndivid
*885
uals who have had the opportunity to observe the offender as he interacted in his home, neighborhood, and community during the developmental period (i.e., prior to or as near the age of 18 as possible).”
165
In another section of Dr. Swanson’s report with which Dr. Hayes agreed,
166
she reviewed several of the tests used to search for convergence in these sources of data, namely the VABS-II, the SIB-R, and the second edition of the Adaptive Behavior Assessment System (ABAS-II). These instruments, which Dr. Swanson wrote are the “three preferred standardized instruments currently used in assessing adaptive behavior[,] with the VABS-II and ABAS-II being the ‘gold standard’ in these types of assessments,” provide the structure for a clinician’s evaluation of a person’s level of adaptive functioning.
167
They also provide a method of standardizing the evaluation of a person’s level of adaptive functioning relative to the general population, and that allows clinicians to apply the recommendation of the AAMR/ AAIDD that a finding of significant limitations in a person’s adaptive behavior should be made only when the level of adaptation falls below approximately two standard deviations from the mean level of adaptive functioning in the population.
168
An evaluation using the VABS-II, which is the instrument both Dr. Swanson and Dr. Hayes elected to use, 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).
169
Dr. Swanson used Toni Van Burén as the informant for her VABS-II assessment, while Dr. Hayes used Javetta Cooper. The Court will discuss each expert’s assessment in turn.
i. Dr. Swanson’s Assessment
As mentioned above, the relative experience and competence of the competing experts is an important factor to consider in evaluating their opinions. Dr. Swanson has essentially devoted her entire professional career to the assessment and treatment of the mentally retarded. She testified that in her 35-year career, she has conducted over 10,000 assessments using the VABS-II and its forerunner.
170
At APA and AAMR/AAIDD conferences, she seeks out the programs on the VABS-II to attend. As newer versions of the test were promulgated, she regularly participates in the workshops presented by the publishers to explain any change in the procedures.
171
Prior to her administration of the VABS-II to Toni Van Burén, the most current manual was not yet published. Nevertheless, Dr. Swanson attended an in-service program on the new manual, and discussed it with one of the authors, prior to meeting with Toni Van Burén. Once the expanded version came out, she compared her administration of the VABS-II to Toni Van Burén and was satisfied it was in compliance.
172
Dr. Swanson also elaborated on what the clinician should be looking for in assessing an individual in their community. As a person grew up, when did the person learn a certain skill, what did it take to teach him that skill, how many supports were necessary, did others step in to do the task
*886
for him, and finally, even within that community, did people recognize he was slower than others?
173
A. Dr. Swanson’s VABS-II Assessment of Hardy Based on Toni Van Burén
Dr. Swanson used the results of a semi-structured interview with Toni Van Burén to complete a VABS-II assessment of Hardy’s level of adaptive functioning. As is recommended, her interview of Van Burén was limited to Van Buren’s recollection of Hardy’s “habitual or typical performance” in “day-to-day activities” during only the developmental period, i.e., prior to age 18.
174
Based on that interview, Dr. Swanson calculated Hardy’s VABS-II scores for his level of adaptive functioning at age 18 as follows:
Standardized Score > tile Rank Level
Communication 66 1% tile MILD
Daily Living 68 2% tile MILD
Socialization 67 1% tile MILD
*
Motor Skills 100 50% tile ADEQUATE
ABC 65 1% tile MILD
On the various sub-domains of those four main domains, Dr. Swanson reported that Hardy scored:
Domains/ Subdomains Standardized Score Standard Deviation < Mean Age-Equivalent Score
Communication 66 -2.27
Receptive Language -2.00 6:6
Expressive Language -2.00 6:7
Written Language -2.33 8:1
Daily Living 68 -2.13
Personal -2.00 8:6
Domestic -2.00 10:0
Community 10 -1.67 11:9
Socialization 67 -2.20
Interpersonal Relations -2.00 6:7
Play & Leisure Time -2.00 7:7
Coping Skills -2,00 7:1
Motor Skills 100 at Mean
Gross Motor Skills 16 + 0.S 22 +
Fine Motor Skills 14 -.033 6:6
ABC 65 -2.33
Based on these scores, Dr. Swanson concluded that, during the developmental period, Hardy’s level of adaptive functioning fell at least two standard deviations below the mean in seven of the eleven sub-domains of adaptive functioning listed in the DSM-IV-TR definition of mental retardation.
175
That is, Hardy exhibited
*887
significant limitations in communication, functional academic skills, self-care, home living, social/interpersonal skills, leisure, and self-direction.
176
As noted in Part 1, a DSM-TV-TR diagnosis of mental retardation requires significant limitations in only two of the eleven areas.
Moreover, Hardy’s scores on three of the four major domains of adaptive functioning fell at least two standard deviations below the mean, and did so in the three domains that correspond to the areas of adaptive functioning listed by the AAMR/ AAIDD in its definition of mental retardation.
177
His composite or overall score, the ABC score, was also at least two standard deviations below the mean level of adaptive functioning in the population. Based on these results, Dr. Swanson concluded that Hardy exhibited significant limitations in his level of adaptive functioning during the developmental period.
178
Dr. Swanson’s report did not, however, rely solely on Hardy’s scores on the VABS-II to reach the conclusion that he satisfies the second criterion for a diagnosis of mental retardation. Dr. Swanson also discussed at length Van Buren’s specific responses to the VABS-II questions. For example, Van Burén reported that, when Hardy was 17.5 years old, he could not listen to a 30-minute story or a 15- to 30-minute informational talk because of his poor attention span.
179
While Hardy could carry on a conversation, he had difficulty giving directions to others, such as directions to a street address. While his money and math skills were better than his reading skills, he still relied on Van Burén to make all of his personal purchases. She also had to manage his medications as well as his choices of clothing. Van Burén reported that Hardy lacked basic domestic skills, so she had to assume a number of those responsibilities for him. Thus, while Hardy had strengths, such as a basic ability to interact with others, the portrait painted by Van Burén was of a person with significant limitations.
B. Dr. Hayes’ Interview with Toni Van Burén
180
Dr. Hayes also interviewed Toni Van Burén. The interview lasted for two hours and 45 minutes and was videotaped.
181
This was particularly helpful to the Court because it allowed the Court to directly observe Van Burén, hear her narrative directly and make an independent assessment of her credibility, rather than having it filtered through Dr. Swanson’s evaluation. It also provided additional substantive information.
*888
Hardy was Van Buren’s first boyfriend,
182
and while she had a long term relationship with him, and they had three children together, Van Burén is still apparently bitter about his rampant infidelity. In the 16 years since his incarceration, she has had only minimal conversation with him when he calls to speak to his children.
183
This largely offsets any favoritism towards him she might have otherwise been suspected of having. Nevertheless, she clearly has love for him as the father of their children
184
and this potential bias has been considered by this Court. All in all, the Court found Van Burén to be remarkably forthcoming with Dr. Hayes
185
and credible.
186
While Van Burén did not know Hardy well prior to the age of 18, she did know him very well in the immediate years that followed. They dated for three years prior to the birth of their first child, Paula,
187
in 1989, and lived together through the birth of two more children over the next five years until his arrest.
188
She described how, from when she first met him, Hardy had a difficult time getting his point across and how he would get frustrated when people did not understand him.
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Even now, when she tries to talk to him, “he just really just don’t understand” and the more she explains, the more he does not understand, and “then he gets frustrated and then he get me frustrated.”
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She pointed out in particular that Hardy’s interpretation of Bible passages, which he conveys to their children, is contrary to what she believes the passages mean.
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Van Burén related how in every facet of his life, Hardy relied on others to do things for him. Hardy’s mother, Marie, did all the cooking, cleaning and washing of clothes in the Hardy household as Paul was growing up.
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When she first began dating Hardy, he “always had someone to drive him over.”
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Once they were involved, Hardy would ask her to buy his clothes.
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She never knew him to do any shopping by himself.
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He gave her money to buy things for their children.
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He would join the children in parties, but did not do any of the planning.
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He never went to the store for her, nor helped around the house with cooking or washing clothes or dishes or mopping the floor.
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He could make a sandwich or fix cereal, but nothing more elaborate.
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She recalled one time when he attempted to change their daughter’s diaper, he spread newspaper over the floor, “had wipes everywhere” and a shirt tied around his face, before he abandoned the effort.
200
Hardy would give Van Burén the money to pay their bills. She never knew him to make any payments himself.
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If something broke in the house, he would call someone to fix it, “[h]e is not a handy guy at all.”
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He had no concept of time and as a result was chronically late.
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They sometimes took the bus together but she did not recall him ever taking a bus on his own.
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When they were first dating, he encouraged her to stay in school but he would not try to help her with any of her studies, nor did she ask him to.
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He did not know how to use a thermometer.
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When they eventually decided to get an apartment of their own, Hardy asked his sister, Linda, to find a place for them, which she did.
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After that, Hardy’s brother, Terry, bought a house and Hardy and Van Burén stayed there.
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Hardy learned to drive after he and Van Burén had dated awhile, and would drive very very slowly at first and did not improve for a long time.
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He never fixed his own car.
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He also would not drive anywhere he was not familiar with
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and if he traveled outside the state, someone else would always go with him.
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At one point, he learned of a job with Meals on Wheels, delivering meals. Van Burén went with him for the interview and filled out the paperwork for him.
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When he got the job, she rode with him to tell him which streets to go to.
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In terms of leisure activities, she described his only hobby as “females” and that he did not like fishing, playing sports, reading the newspaper or magazines, nor games, nor did they talk about current events.
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Van Burén also described Hardy as too kindhearted, always trying to please the next person, and that many people “used him, took a lot of his kindness and ... just walked over him.”
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When asked if Hardy’s brother, Wayne, was “slower” than Paul, she said “Paul was slower because Wayne knew a lot of ways to manipulate Paul. He knew what to say to Paul to get Paul moving and doing whatever it was he wanted Paul to do.”
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She also described how a friend of Hardy’s told him he could
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get a credit card to rent ears if he opened a bank account, so he did. As she put it, “a lot of stuff Paul did, it was because people told him to.”
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He sought advice from people he thought knew more than him.
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Hardy was generous with money, and “a lot of people clung to him a lot because they could get him to give and to do whatever they asked him to do.”
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She felt he was taken advantage of by people he considered to be friends and that he was too trusting.
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In retrospect, Van Burén thinks Hardy might have been slow. “[A] lot of things ... he just didn’t do on his own. Always had somebody to do things for him ... He just didn’t do ... things on his own.”
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C. Dr. Swanson’s Other Interviews
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This portrait was corroborated by others who knew Hardy at a much younger age, such as Theresa Minor.
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She recalled that Hardy was slow academically and a quiet child who had a speech impediment when he was younger. Despite the fact that her son, Tony, and Hardy were about the same age, she thought that Hardy performed at a much lower level. At ages four or five, Hardy’s inability to express himself was so frustrating to him that he would give up or cry. She recalled that Hardy was often teased by other children for being the slowest among them, and she thought that Hardy was the slowest of all his siblings.
Tony Minor reported many of the same observations as his mother, based on his longstanding friendship with Hardy during childhood.
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Hardy struggled in school, to the point that reading was difficult for him well into middle school, and he functioned at a much lower level than his siblings, relying on them to cover for his deficits. Vance Ceaser, another childhood friend of Hardy’s, corroborated the reports from the Minors.
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For example, when Hardy and Ceaser were in high school, Ceaser attempted to tutor Hardy to help him pass. He reported that it was impossible to do so. That was hardly the first of Hardy’s academic troubles however. Ceaser recalled that, when they were in the 9th grade together, Hardy’s reading, writing, and math skills were at an elementary school level.
Greg Williams, who met Hardy when he was about 20 years old, provided additional support for Dr. Swanson’s conclusion that Hardy did not develop the usual adaptive behaviors.
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For example, Hardy relied on Williams to drive him when he needed to leave town. Williams noted that Hardy relied on him during these trips, and at other times, for basic skills such as interpreting his bank and credit card statements. Hardy was unable to care for possessions such as his car and made irrational choices, like continuing to make expensive repairs to his car long after it was economically sensible to do so.
The Court has had the benefit of reviewing videotaped interviews conducted by Dr. Hayes with Toni Van Burén, Theresa Minor, Vance Ceaser, and Greg Williams.
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The Court finds that, based
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on its review of these videotapes, each informant is credible and the information they provided is consistent with that in Dr. Swanson’s report. A full review of each tape appears in Appendix D, along with the Court’s review of several other video and audiotapes submitted by the government as evidence about Hardy’s level of adaptive functioning.
D. Dr. Swanson’s Interviews and Testing of Hardy
In addition to the descriptive and narrative evidence discussed above, which supports the conclusion Dr. Swanson reached after applying the VABS-II, she also reviewed Hardy’s medical and school records. They were inconclusive on the issues of mental retardation but tended to demonstrate that Hardy had limited functional academic skills.
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So, Dr. Swanson conducted academic and adaptive probes on Hardy.
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She discovered that his reading fluency, assessed at 88 easy words (“sight” and “Doleh words”) per minute, and accuracy, determined to be 97%, were average for a third-grader, but significantly below that of an average adult. His reading comprehension was only 50%. While his comprehension score increased to 60% when Hardy was asked to read slightly more complicated materials such as a newspaper, his fluency and accuracy scores declined.
Hardy’s math skills were slightly better than his reading skills, but still limited. His measurement and time-telling skills were limited in word problems, although he was able to use a calendar better. He exhibited significant deficits in domestic skills, such as reading oven and stove-top dials and using a washing machine, dryer, measuring cups, and a thermometer. His money skills were basic. For example, he could count money and make change with some effort, but he could not budget or manage money.
In a number of other areas, such as phone skills, health and safety matters, transportation, the use of reference materials and the like, Hardy performed at only a basic level, if that. He acknowledged that he has difficulty learning new tasks, including vocational ones, which likely accounts for his being employed only once (and briefly).
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The assessments of his level of academic attainment, discussed above in the IQ section, put him between the 6th and 7th grade in reading skills, in the 6th grade in math skills, and the 3rd grade in writing skills.
Based on this substantial additional corroboration of Hardy’s scores on the VABS-II found during her interviews, observations, and direct assessments of Hardy, Dr. Swanson concluded that he should be diagnosed with mild mental retardation.
ii. Dr. Hayes’ Assessment
Dr. Hayes has considerably less experience with the assessment of mental retardation as compared to Dr. Swanson. In her entire career, she has done about 80 supervised and unsupervised assessments relating to mental retardation.
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Of those, she has performed approximately 20 mental retardation assessments and only ten VABS-II assessments since receiving her license in 1998
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as compared to Dr.
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Swanson’s over 10,000. She also has had no training in administering the VABS-II since receiving her license.
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Unlike Dr. Swanson, Dr. Hayes did not attempt to obtain any formal training or advice from the authors of the latest manual, which was used in connection with this case.
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She testified that she felt it was unnecessary, given her experience in administering ten VABS-II in the past.
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A. Dr. Hayes’ VABS-II Assessment of Hardy Based on Javetta Cooper
Dr. Hayes used the results of an interview with Javetta Cooper to complete a VABS-II assessment of Hardy’s level of adaptive functioning, using Cooper’s cumulative knowledge of Hardy.
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Based on that interview, Dr. Hayes calculated Hardy’s VABS-II scores for his level of adaptive functioning as follows:
Domains/ Standardized Percentile Age-Equivalent Subdomains_Score_Rank_Score_
*
Communication_ — _—_
Receptive Language_15_50th_18_
Expressive Language_11_10th_8U_
Written Language_ — _—_—_
**
“Daily Living_ — _—_
_Personal_12_16 th_17:3_
_Domestic_11_10 th_13:9_
Community_ — -_—_—_
‘^Socialization_ — _=_
Interpersonal 14 36th 16:0 _Relations_
Play & Leisure Time_12_16th_14:0_
Coping Skills_ — _—_—_
Motor Skills_N/A_N/A_
Gross Motor Skills_N/A_N/A_N/A
Fine Motor Skills_N/A_N/A_N/A
ABC_ — _=_—
As can be see from the above, Dr. Hayes did not score Hardy on any of the three general domains of adaptive functioning, she did not administer the motor skills domain portion of the test, and she did not compute an overall score. She explained that she was unable to tabulate the scores marked in the table as “ — ” because Cooper was unable to provide sufficient information. In fact, she indicated that one of the scores she did report, that listed for the “Personal” sub-domain under “Daily Living,” could not be relied on as “Ms. Cooper did not have enough information to rate Mr. Hardy on three items,” so the score could be used only “for informational purposes.”
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Dr. Hayes nevertheless conducted a comparison of the scores she obtained for Hardy against the scores Dr. Swanson obtained through her application of the VABS-II to her interview with Van Burén. Her comparison reveals that, for questions that both Cooper and Van Burén answered, Cooper scored Hardy higher than Van Burén 38 times, lower than Van Burén twice, and gave the same score 6 times.
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No comparison was possible for the remaining 28 questions that Dr. Hayes selected for comparison. Of note, many of the discrepancies were of only one response level, such as between a score from Van Burén that Hardy was “sometimes” able to perform the task without help or reminders and a score from Cooper indicating that he “usually” did.
The remainder of this portion of Dr. Hayes’ report on adaptive behavior briefly discusses the shortcomings of the VABSII.
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It does not reflect that Dr. Hayes reached a definitive conclusion concerning Hardy’s level of adaptive functioning based on the VABS-II or any other test. Instead, the rest of her report indicates that she turned to other sources of information, some of which Dr. Swanson used as well.
After consulting these other sources, Dr. Hayes concluded that “[t]here is little evidence to suggest that Mr. Hardy had any substantial limitations or problems performing the activities of daily living required for personal and social sufficiency.”
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She also noted several ways in which she believes Dr. Swanson erred, making the point that, in her opinion, Dr. Swanson did not have “comprehensive information about Mr. Hardy’s adaptive strengths and weaknesses during t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2475685. Public record. Not legal advice.