Saturday, April 30, 2011

Court Fails To Bite on Defense Chicanery (Guest post): Atkins MR/ID decsions--Meyers v AL (2011)




A recent Atkins MR/ID decision re: Myers v Allen (AL; 2011, 2009, 2007) has been posted to the ICDP Court Decision blogroll. In addition, regular ICDP contributor, Kevin Foley, has provided the following guest blog commentary.


Court Fails To Bite on Defense Chicanery - Guest post by Kevin Foley.



Alabama inmate Robin Myers’ federal habeas attorneys claimed that Myers was mentally retarded (intellectually disabled). Myers had a big problem – his most current IQ testing on the WAIS-III, administered in 2006 - a year or so before his hearing when he was about 45 years old - showed a valid full scale IQ score of 84. Under most current definitions of intellectual disability, such a score sounds the death knell for an Atkins claim, since a person must prove that he currently intellectually disabled, and that he has scores which satisfy the first prong of the diagnosis. If the Flynn Effect was applied to his score, the most Myers could gain would be about 3 points, meaning his level of intellectual functioning would still be an 81, outside the range for a diagnosis of intellectual disability.

​Since Myers had some full scale IQ scores when he was a child that were in the intellectual disability range (75, 74, 71, and 64), his attorneys argued that what was relevant to the claim was whether Myers was intellectually disabled before age 18. The defense expert, “testified . . . that he was asked only to form and express an opinion about petitioner’s mental capacity before the age of 18, not his current capacity or his capacity at the time of the murder.” The court rejected the ploy, concluding that, “it is clear that Alabama courts would find that evidence of an IQ below 70 as a child, absent additional evidence of similar current scores and current deficits in adaptive skills, is not sufficient to render a defendant exempt from the death penalty. The Alabama Supreme Court specifically noted that ‘focus on [the defendant’s] functioning before the age of 18 is misplaced’ when that defendant’s ‘intellectual functioning and behavior as an adult places him above the mentally [retarded] range.’”

​The court was also unimpressed with the defense expert’s attempt to explain the 20 point increase in IQ score from childhood to adult (the expert contended that the childhood IQ score of 64 to be “the most accurate and complete’). According to the magistrate judge’s opinion, the defense expert “further explained the improvement in Mr. Myers’ IQ scores as a result of brain injury”. Of course, one typically associates a brain injury with a potential decline in intellectual functioning, not a gain. But the expert’s proffered explanation was of no consequence to the court, which pointed out that notwithstanding this explanation, the expert, “does not consider [Myers] to be mentally retarded at the present time.”


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