Friday, November 19, 2010

Esparza Atkins decision – Or How the Fifth Circuit Showed a Lack of Understanding of ID Issues - Guest post by Kevin Foley

ICDP recently posted the Esparaza v Thaler (TX, 2010) Atkins decision.  As a result, Kevin Foley, a regular guest blogger here at ICDP, sent the following guest post regarding the decision.  As per all guest posts, the opinions rendered by the guest blogger are theirs, and do not necessarily represent the opinions of the blogmaster.  Thank you Kevin Foley for yet again contributing to ICDP.

Gaudalupe Esparza sought a certificate of appealability with regard to an Atkins claim, as well as other claims.  The Fifth Circuit’s opinion – which denied the certificate - is, well, somewhat embarrassing.  This is not to say that Esparza is intellectually disabled; however, one thing is clear – the Fifth Circuit added little value to the jurisprudence of determining ID claims in death row inmates.

 Bizarre Comments Surrounding the Vineland Scales.  The court stated that a prosecution expert,
“concluded that Esparza’s motivation to do well on the I.Q. tests ‘was very low’ and that the test results were invalid or inaccurate. Esparza’s test score on the Vineland adaptive behavior scale, which had been previously administered by Tussay, indicated that he was profoundly retarded.” [1]

Again – in an apparent effort to show that Esparza was malingering – the court observed,
“In stark contrast to his previous I.Q. scores in the low average range in his penitentiary packets, Esparza (sic) scores fell within the range of mental retardation when he knew that he was being tested to determine whether he was eligible for the death penalty. Indeed, one test score placed him in the range of profoundly retarded.” [2]
The inference the court wants the reader to draw is that Esparza purposely did poorly – in fact, so poorly that he scored in the profoundly mentally retarded range - on the Vineland “test.”  This is nothing short of bizarre. First, the Vineland is not a test. It is a measure that is used to determine a person’s level of adaptive functioning.  The Vineland is a structured interview. There are no right or wrong answers as seen on “tests.” Most importantly, the Vineland is typically given, not to the individual being assessed, but to a person who is familiar with the assessed person’s functioning in everyday life. In fact, early on in the decision the Fifth Circuit stated that the Vineland was given to “Esparza’s older sister, Esther Moncado, who was Esparza’s primary caregiver when he was a child.” [3] 

So what the court ended up doing was using the results obtained by someone else, in this case Esparza’s sister, and imputing those results to Esparza himself for purposes of showing that Esparza supposedly malingered on testing.  This is akin to being charged with cheating on a test just because someone you know was caught cheating. 

Intellectual Functioning.   A person’s IQ scores are a crucial area of focus in determining the level of general intellectual functioning.  Incredibly, the court never once mentioned the name of any of the first line tests of intellectual functioning  - the Weschler tests, the Stanford-Binet, the Woodcock Johnson, or the Kaufman Adolescent and Adult Intelligence Test. This, of course, should be a red flag, since it may be an indication that the court was either uninformed about the nature of IQ tests, or that it simply did not care about which specific tests were given.  In a paragraph that was intended to address the testimony of  a defense expert (a licensed counselor with a master’s degree, not a psychologist with a Ph.D.) the court mentioned that Esparza “scored a71” on the Raven’s Standard Progressive Matrices Test; a 73 on the Revised Minnesota Paper Formboard Test; between grades 4.7 and 6.3 on tests of  achievement;  a score better than the 58th percentile on the Comprehensive Trail-Making Test; and a 28.82 on the Controlled Oral Word Association Test – a score nearly 4 standard deviations below the mean.  However, the court made no mention of the fact that none of these tests are considered appropriate measures of a person’s level of general intellectual functioning for purposes of diagnosing intellectual disability.[4]

Considering that one of the claims facing the appeals court was whether Esparza did not get effective representation from his trial counsel, the first thing the court should have asked was, what were Esparza’s lawyers thinking when they employed a master’s degree counselor  (and not a Ph.D psychologist who is an expert in the diagnosis of ID)5, and why they allowed the so-called expert to employ the tests that she did and not one of the full-form, well-validated IQ tests that  are supposed  to be used when determining if an individual is mentally retarded.

    The next comment from the Fifth Circuit regarding mental testing involved two “penitentiary packets,” one from 1985 which indicated that Esparza had “an I.Q. score of 86.  The second packet provided that in 1993 Esparza had an I.Q. Score of 88.”6  The court did not care one iota that the “packets” –whatever a packet is -  ostensibly only mentioned a score; were bereft of any information about what tests were used and if they might have been obsolete when given; and provided no information about whether the persons who administered the tests were actually competent to do so.  And it is not like the court gave these tests scores little weight. The court actually used these barebones scores to impeach the later, lower scores obtained by Esparza. Worse, when the court noted that the defense expert raised questions about the use of the naked scores, the court, in a demeaning fashion, stated, “Tellingly, [the expert] admitted that this case was the first time she had evaluated an incarcerated individual for mental retardation.”7 The word “tellingly” feels like a wink followed by nod to indicate this lady doesn’t know what she’s talking about – when in fact what she said – that the scores were discounted “because the packets did not provide what test was used” is the better way of dealing with the scores than what the court did. Since other Atkins cases have shown that the Texas corrections personnel often used Beta IQ tests and short form tests, discounting may have been too weak of a word. Perhaps the scores should have been excluded from the mix entirely.

 According to the decision, the state’s experts administered two IQ tests and an achievement test. However, what specific tests were given is anyone’s guess – the court neglected to provide the names of the tests or what scores were obtained. Instead, the court reported that the state’s experts submitted a written report which argued that Esparza did not do his best and that “‘a clinical estimate of his intelligence based on both his general presentation and the available historical information would place it somewhere within the Low Average range.’”8

Non-Test Evidence of Intelligence.  Psychologists and judges alike should be concerned with non-test evidence that bears on the issue of a person’s level of intellectual functioning.  However, a disservice is done when experts and courts point to evidence which is not inconsistent with intellectual disability, or to evidence that is ambiguous, to try to show that the person is not intellectually disabled.   In Esparza, the court recited the following “facts” as evidence that Esparza is not intellectually disabled:

  1. Esparza was able to read and understand his rights. However, many cases have found that intellectually disabled persons and individuals with IQ scores of less than 70 have been able to knowingly and intelligently waive their Miranda rights.9 Thus, this fact is ambiguous at best.
  2. Esparza didn’t sound like he was intellectually disabled. Specifically, a defense expert “found that Esparza communicated very well.  Although Esparza does not write well, he ‘understands language better than a retarded person can.’”  Too, Esparza supposedly provided “coherent, even combative testimony that was responsive to both” lawyers’ questions.  This is a dangerous, ambiguous area of evidence. Just what is an intellectually disabled person supposed to sound like?  What are the cut-offs, or lines of demarcation, separating the language used by intellectually disabled persons as compared to those in the next two levels of intellectual functioning– those with borderline and low average intelligence? It does not appear that anyone has really provided accurate answers to these questions. 
  3. Esparza “informed one person that he could only have visitors on Mondays and Wednesdays.” That type of statement is beyond the ken of an intellectually disabled person? I doubt it.
  4. “Esparza retrieved his attorney’s business card from his cell and successfully contacted his attorney.” Again, who says that that type of conduct is beyond the capability of a person with mild mental retardation?  No one who knows, I would suggest.  The guy probably had the card taped to his cell wall, and it was probably the only card on the wall.
  5. Esparza “had long term gainful employment and knew how to drive and passed the driver’s test.”  Okay.  But the mildly intellectually disabled often drive (which also means they have passed the driver’s test). It is interesting that the report cited by the court for these facts was silent on how many tries it took before Esparza passed the driving test.  And the mildly retarded often work, albeit at unskilled jobs that do not require the processing of complex information.10  None of the jobs mentioned in the decision would seem to be beyond the capability of a person with mild intellectual disability.

There were facts referenced by the court that actually seem inconsistent with intellectual disability. The court should have left it to those facts, instead of including the above facts that are not necessarily inconsistent with intellectual disability. 

1 Esparza v. Thaler, No. 10-70009 (5th Cir., Nov. 9, 2010), at page 9.
2  Id. at 13.
3  Id. at 6. 
4  While the Raven’s matrices are considered highly g-loaded, they are a non-verbal measure, not a full –form IQ test.
5  This is not to say that the licensed counselor was not competent to administer and interpret the results of the tests that she gave to Esparza.  However, judges must be persuaded in these cases, and one would expect that judges would be more impressed with Ph.D. psychologists, particularly ones who are experts in the field.
6  Esparza v. Thaler, No. 10-70009 (5th Cir., Nov. 9, 2010) at page 6.
7  Id. at 13 (emphasis noted).
8  Id. at 8-9.
9  The court in Bone v. Polk, 2010 U.S. Dist. LEXIS 69223 (W.D. N.C., July 9, 2010), which concluded that the state court did not err under federal habeas corpus standards in finding that Bone (who was held to be mentally retarded) validly waived his rights, noted that, “Although Petitioner had an IQ of 69, that IQ is higher than that of other defendants in the cases cited at length above who have been found to have intelligently and knowingly waived their Miranda rights.”
10 See Wiley v. Epps, 09-70037 (5th Cir., Oct. 27,  2010) and Thomas v. Allen, 607 F. 3d 749 (11th Cir. 2010). See also, Karen L. Salekin, et al, Offenders With Intellectual Disability: Characteristics, Prevalence, andIssues in Forensic Assessment, 3 J. Mental Health Res. Intell. Disab. 97, 100 (2010)  (“[I]ndividuals with IQs at the high end of the mild ID range often blend into the general population; they have friends, marry, have children, and only need assistance during periods of personal or economic stress”).

1 comment:

  1. Kevin Foley writes:

    "Considering that one of the claims facing the appeals court was whether Esparza did not get effective representation from his trial counsel, the first thing the court should have asked was, what were Esparza’s lawyers thinking when they employed a master’s degree counselor (and not a Ph.D psychologist who is an expert in the diagnosis of ID)5, and why they allowed the so-called expert to employ the tests that she did and not one of the full-form, well-validated IQ tests that are supposed to be used when determining if an individual is mentally retarded. "

    You make a valid point that the attorneys chose oddly when they chose Ms. Tussay, for their evaluation. But whether this was an issue of ineffective counsel was not up to the Fifth Circuit. Esparza raised the issue of MR/ID in his state habeas Hearings. His claim fo ineffective counsel was for the sentencing hearing. "He also contends that his counsel
    rendered ineffective assistance by failing to investigate his mental retardation
    and present evidence of his mental retardation at sentencing." [Esparza v. Thaler, No. 10-70009 (5th Cir., Nov. 9, 2010), at page 2).

    Unless I am missing something there is no indication that Esparza raised the issue about ineffective counsel at his habeas hearings, and therefore it was not an issue that Fifth Cicuit could rule on.