Friday, December 30, 2011

Atkins MR/ID Death Penalty Court Decisions: Ortiz v US (2011) and Blue v Thaler (TX, 201)





Thanks to Kevin Foley for sending me two recent Atkins decisions.

The first is Ortiz v US (2011). A prior decisions regarding this case are here. I will not comment on this case as I provided an expert deposition and was also part of the amicus brief by Concerned Experts in Mental Retardation/Intellectual Disability.

The second is Blue v Thaler (TX, 2011), with a prior 2010 decision also being available. Of interest was the courts treatment (or lack thereof) of the Flynn Effect.

"The Court of Criminal Appeals refuses to apply the Flynn Effect in Atkins cases. Blue, 230 S.W.3d at 166 (“This Court has never specifically addressed the scientific validity of the Flynn Effect. Nor will we attempt to do so now. Rather than try to extrapolate an accurate IQ by applying an unexamined scientific concept to an incomplete test score, we will simply regard the record as it comes to us as devoid of any reliable IQ score.”). This comports with the federal jurisprudence stating that the Flynn Effect “has not been accepted in [the Fifth] Circuit as scientifically valid[.]” Mathis, 443 F.3d at 433 n.1 (citing In re Salazar, 443 F.3d 430, 433 n.1 (5th Cir. 2006)). The Court will not apply the Flynn Effect to lower the results of Blue’s IQ scores."

So what we have is a federal appeals court which won't address the Flynn Effect or even mention it by name - all based on a false assumption made in the Texas Court of Criminal Appeals - that the FE is an unexamined scientific concept.  I disagree with this assessment as considerable evidence has been presented regarding the scientific acceptance of the Flynn Effect by intelligence scholars.

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Tuesday, December 27, 2011

USA TODAY: 'Speeding train' interrogations can fuel false confessions

Check out this article that I saw in USA TODAY's iPad application.

'Speeding train' interrogations can fuel false confessions
http://usat.ly/us6YLk

To view the story, click the link or paste it into your browser.

To learn more about USA TODAY for iPad and download, visit: http://usatoday.com/ipad/


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IQs Corner Intelligent Insights e-paper now more comprehensive


IQs Corner e-paper is now greatly expanded in coverage.



Go to www.iqscorner.com to subscribe.





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Monday, December 26, 2011

Top-Ten Recent SSRN Downloads

CrimProf Blog
in criminal law and procedure ejournals are here. The usual disclaimers apply. Rank Downloads Paper Title 1 304 Racial Critiques of Mass Incarceration: Beyond the New Jim Crow James Forman, Yale University - Law School, Date posted to database: November...
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Research briefs 12-26-11

Murphy, P. (2011). The Psychiatrist as Expert Witness, 2nd edition, by T.G. Gutheil. Criminal Behaviour and Mental Health, 21(5), 365-366.

Robst, J., Constantine, R., Andel, R., Boaz, T., & Howe, A. (2011). Factors related to criminal justice expenditure trajectories for adults with serious mental illness. Criminal Behaviour and Mental Health, 21(5), 350-362.

Vinkers, D. J., DeBeurs, E., Barendregt, M., Rinne, T., & Hoek, H. W. (2011). The relationship between mental disorders and different types of crime. Criminal Behaviour and Mental Health, 21(5), 307-320

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Saturday, December 24, 2011

NeruroLaw@TheNeuroScience, 12/24/11 7:26 AM

Neuro Science (@TheNeuroScience)
12/24/11 7:26 AM
NeuroLaw: Do we have a responsibility to use neuroscience to inform law? sns.mx/qvi8y4


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Friday, December 23, 2011

The Flynn Effect – A Summary

Visit Cog-Iq link for info




NEW RESOURCES: Bureau of Justice Statistics Releases Capital Punishment, 2010

The Bureau of Justice Statistics released its annual report on capital punishment in the United States in December 2011, containing tables and information on the death penalty for the previous year (2010). Information drawn from the report includes:

  • Those executed in 2010 spent the longest time on death row, on average, than inmates executed in any previous year. The average time between sentencing and execution for all those executed in 2010 was 14.8 years.
  • During 2010, 119 inmates were removed from under sentence of death: 53 were removed as a result of sentences or convictions overturned or commutations of sentences, and 20 died by means other than execution. Of the 119 inmates, only 46 (38%) were executed.
  • By the end of 2010, 388 individuals of Hispanic origin were under the sentence of death, accounting for 12% of the nation's death row populations.
  • Four states (California, Florida, Texas and Pennsylvania) accounted for more than 50% of all inmates on death row.
  • Of the 7,879 inmates under sentence of death between 1977 and 2010, only 16% had been executed. Six percent (6%) died by causes other than execution, and 39% received other dispositions.

(Bureau of Justice Statistics, Capital Punishment, 2010 - Statistical Tables, December 2011). For information on the death penalty in 2011, see also DPIC's Year End Report. See Death Row and Sentencing.






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Tuesday, December 20, 2011

Jochnowitz on Capital Jurors and Mitigating Evidence

Leona Deborah Jochnowitz has posted How Capital Jurors Respond to Mitigating Evidence of Defendant's Mental Illness, Retardation, and Situational Impairments: An Analysis of the Legal and Social Science Literature (Criminal Law Bulletin, Vol. 47, No. 5, p. 839, 2011) on...





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Sunday, December 18, 2011

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply. Rank Downloads Paper Title 1 281 Racial Critiques of Mass Incarceration: Beyond the New Jim Crow James Forman, Yale University - Law School, Date posted to database: November...





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Cautions on neuroscience in courtroom@PsychNews, 12/17/11 9:01 PM

Psychology News (@PsychNews)
12/17/11 9:01 PM
Royal Society Warns Against Legal Uses of Neuroscience bit.ly/ucrj4b


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Thursday, December 15, 2011

Levy & Sinnott-Armstrong on Insanity Defenses

Ken Levy and Walter Sinnott-Armstrong (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center and affiliation not provided to SSRN) have posted Insanity Defenses (OXFORD HANDBOOK ON THE PHILOSOPHY OF THE CRIMINAL LAW, p. 299, John Deigh &...





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Research Briefs: Medical Law Review special issue on mental health and the law

GloverThomas, N. (2011). THE AGE OF RISK: RISK PERCEPTION AND DETERMINATION FOLLOWING THE MENTAL HEALTH ACT 2007. Medical Law Review, 19(4), 581-605.

GloverThomas, N. (2011). Special issue: Mental Health Law in Motion - Confronting New Challenges in the Modern Psychiatric Landscape. Medical Law Review, 19(4), 507-513.

McHale, J. V. (2011). MENTAL HEALTH LAW AND THE EU: THE NEXT NEW REGULATORY FRONTIER? Medical Law Review, 19(4), 606-635.

Mcsherry, B., & Wilson, K. (2011). DETENTION AND TREATMENT DOWN UNDER: HUMAN RIGHTS AND MENTAL HEALTH LAWS IN AUSTRALIA AND NEW ZEALAND. Medical Law Review, 19(4), 548-580.

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Wednesday, December 14, 2011

National Science Foundation New Funding Solicitation - Arlington, VA

The Law & Social Sciences (LSS) Program at the National Science Foundation is pleased to announce the release of a new funding solicitation.  There are full proposal target dates of Jan. 24, 2012, July 16, 2012, and July 15 annually thereafter.

The LSS program supports social scientific studies of law and law-like systems of rules. Successful proposals describe research that advances scientific theory and understanding of the connections between law or legal processes and human behavior. The program funds the best proposals submitted within the field broadly defined, regardless of specific subfield, and strives to support an interdisciplinary community of scholars studying relevant topics.

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Neuroscience and the law@TheBrainScience, 12/14/11 5:34 PM

Brain Science (@TheBrainScience)
12/14/11 5:34 PM
Will Neuroscience Revolutionize the Legal System? Not Any Time Soon. sns.mx/Ymfdy4


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Roberts and Lipnevich in "General to Multiple Intelligences": CHC model and WJ III, WISC-IV Integrated, SB5, KABC-III





This chapter is part of the above refernced book available at the following link:

http://www.apa.org/pubs/books/4311503.aspx










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Research bytes: Various thoughts on definition of MR/ID










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Research byte: Greenspan et al on ID/MR and a theory of common sense












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Tuesday, December 13, 2011

Neuroscience and the Law (News and Features)

Researchers can describe differences in the brains of psychopaths, addicts, and developing humans (a k a teenagers), compared with normally behaving adults. But no one is ready to predict a person's behavior based on a brain scan, warned panelists during a public symposium at the recent Society for Neuroscience annual meeting.






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Deep thoughts about thoughts and punishment

Via SSRN, I just saw this interesting new article titled "Neuroscience, Normativity, and Retributivism" by Michael Pardon and Dennis Patterson, which comes with this abstract:

From sentencing and law blog





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Death Penalty and LWOP Conference at the University of Miami

Symposium Announcement: The 2012 University of Miami Law Review Symposium will focus on the death penalty and life without parole, and will feature Jordan Steiker of the University of Texas Law School as keynote speaker. The symposium is scheduled for...





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Saturday, December 10, 2011

Atkins MR/ID Death Penalty Decision: "When in doubt...give 'em a hearing." Guest post by Kevin Foley re Branch v Epps (2011)


This is a quest post by Kevin Foley.


        Anyone familiar with the Atkins cases knows that there are cases where, despite a colorable claim of intellectual disability, the courts have refused to give the defendant an opportunity to fully develop the claim with appropriate expert assistance and/or an evidenciary hearing.  Lawrence Branch’s case is one of those cases. 
            Several months before Atkins was decided, Branch was assessed by a psychologist whofound Petitioner’s full-scale IQ score to be 84, his reading ability to be at a high school level, and his mathematic skills to be at a sixth grade level.” Branch v. Epps, 4:07-cv-138 (N.D. Miss. Dec. 2, 2011).  Despite the fact that Branch had been labeled as mentally retarded when a child, the Mississippi Supreme Court refused to grant Branch a hearing, finding his mental retardation claim to be without merit.  Branch v. State, 882 So.2d 36 (Miss. 2004).
            Branch moved for rehearing from the rejection of his appeal and attached to it the affidavit of psychologist Dr. Daniel H. Grant, who stated that all the documents submitted to him for review “support a diagnosis of mental retardation.”  The court granted the State’s motion to strike the affidavit, and denied the motion for rehearing.  Branch later moved for post-conviction relief, which was denied, and in his 2007 appeal to the Mississippi Supreme Court from this denial,  he argued that he had “not been afforded an opportunity to present a mental retardation claim.”  The Mississippi high court, relying on its earlier “paper review” of Branch’s ID claim, labeled Branch’s assertion “false” and denied relief.  Branch v. State, 961 So.2d 659 (Miss. 2007).
            As is typically seen in the Atkins cases, Branch’s next move was to seek habeas corpus relief in a federal district court.  Here, the court agreed “to hold an evidentiary hearing and to
review Petitioner’s claim without the deference ordinarily afforded under the AEDPA[federal habeas law].”  Interestingly, the court did not need an evidenciary hearing because, after a more complete assessment and analysis of the evidence, the State “filed a notice confessing that Petitioner suffers from mental retardation.” Branch v. Epps, slip op. at 10.  In other words, after fighting for years to keep Branch from getting a full hearing on his ID claim, the state was forced to concede the issue, once an appropriate assessment had been done.
            As for the earlier full scale IQ score of 84 from 2002, an examination of the raw data “reveals that a student administered the intelligence testing and made several errors in scoring and administration that make the report invalid.  . .  Discounting the invalid 2002 score, the remainder of Petitioner’s obtained scores fall within the range of mild mental retardation.” Id. at 11.  Unfortunately, the psychological report that discussed the raw data has been sealed by the federal court and is not available for review. Ostensibly, however, the state had ample opportunity to dispute the conclusions related to the 2002 testing, and it must have agreed that the 2002 testing was infirm.
            Branch’s case illustrates the need for appropriate assessments, proper hearings, and caution when using earlier IQ scores that have not been examined for accuracy.   While every Atkins claimant is obviously not ID, whenever there is a colorable claim of ID, due process demands the individual have his day in court.
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Atkins MR/ID Death Penalty Court Decisions: Anderson v Arkansas (2004, 22011)


Thanks (again) to Kevin Foley for sending me the recent Anderson v Arkansas (2011) Atkins decision.  The prior 2004 decision is also available here.

In 2004 Anderson was granted a new sentencing hearing.  He was sentenced to death and file a petition for post-conviction relief.  The petition was denined and that 2011 decison affirms the denial of the petition.

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Friday, December 9, 2011

Book nook: "Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United S

The fourth edition of Robert Bohm's "Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States," is now available through Anderson Publishing.  

(R. Bohm, "Deathquest: An Introduction to the Theory and Practice of Capital Punishment in the United States," Forthcoming in 2012).  

<snip>. Rest of post can be read at link below







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'Thank God for the Lawyers': Some Thoughts on the (Mis)Regulation of Scientific Misconduct@SSRN, 12/9/11 12:07 PM

SSRN (@SSRN)
12/9/11 12:07 PM
This Week's Top 5 Papers: bit.ly/rWm0L8 #SSRN


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The brain on trial@Neurotechnology, 12/9/11 2:01 PM

Brain Technology (@Neurotechnology)
12/9/11 2:01 PM
The brain on trial, several experts discuss the rising influence of neuroscience in the courtroom kavlifoundation.org/science-spotli…


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Wednesday, December 7, 2011

American Bar Association Releases Assessement of Kentucky's Death Penalty

On December 7, the American Bar Association released a report assessing Kentucky's system of captial punishment and calling for a halt to executions in the state.  

(Press Release, "Two Year Assessment of Death Penalty Procedures Prompts Call for Suspension of Executions in Kentucky," American Bar Association, December 7, 2011).  Read full report here.  See Representation and Studies.






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Monday, December 5, 2011

Atkins MR/ID Court Decision: Hill v Humphrey (GA; 2011; 11th Circuit Court) 2011)

Thanks to Kevin Foley for sending me the interesting Warren Lee Hill, Jr. V Carl Humphrey Atkins decision by the 11th Circuit Court of Appeals .  Of interest is the length of the opinion (110 pages).  Next, this was en banc decision decided by 11 judges (not the usual 3).  Finally, there was only one major issue---whether Georgia's proof beyond a reasonable doubt standard is unconstitutional.  The majority said no.   Judge Rosemary Barkett's dissent was recommended reading to me (begins on page 66). She contends that the standard is so hard to meet, that those with mild ID/MR are sure to lose, even though they are ID.  "The state court’s decision, however, endorses the use of a standard of proof so high that it effectively limits the constitutional right protected in Atkins to only those who are severely or profoundly mentally retarded."  pg 70 The prior 2010 appeals decision can be found here. The current decision can be found here.  

Saturday, December 3, 2011

Humor break. Some stat humor

Primus on Federal Habeas Law

Eve Brensike Primus (University of Michigan Law School) has posted A Crisis in Federal Habeas Law (Michigan Law Review, Vol. 110, April 2012) on SSRN. Here is the abstract: Everyone recognizes that federal habeas doctrine is a mess. Broad change...





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Thursday, December 1, 2011

J Am Acad Psychiatry Law Table of Contents for 1 December 1975; Vol. 3, No. 4


Subject: J Am Acad Psychiatry Law Table of Contents for 1 December 1975; Vol. 3, No. 4

JAAPL Online Table of Contents Alert
Journal of the American Academy of Psychiatry and the Law Online
Home Current Issue Archives Contact Subscribe Alerts Help
 

JAAPL Online Table of Contents Alert

A new issue of Journal of the American Academy of Psychiatry and the Law Online is available online:
1 December 1975; Vol. 3, No. 4

The below Table of Contents is available online at: http://www.jaapl.org/content/vol3/issue4/index.dtl?etoc


ARTICLES
Editorial
Henry H. Foster, ESQ.
J Am Acad Psychiatry Law 1975;3 iv
http://www.jaapl.org/cgi/reprint/3/4/iv

The Tort Liability of the Psychiatrist
Sue Ellen Fishalow
J Am Acad Psychiatry Law 1975;3 191-230
http://www.jaapl.org/cgi/reprint/3/4/191

Aphasia and the Expert Medical Witness
Richard T. Rada, Bruce E. Porch, and Robert Kellner
J Am Acad Psychiatry Law 1975;3 231-237
http://www.jaapl.org/cgi/reprint/3/4/231

The Right of the Defendant to Refuse an Insanity Plea
Olga M. Bruning
J Am Acad Psychiatry Law 1975;3 238-244
http://www.jaapl.org/cgi/reprint/3/4/238

The Influence on Judges' Sentencing Practices of a Mental Evaluation
Gerald Cooke and Eric Pogany
J Am Acad Psychiatry Law 1975;3 245-251
http://www.jaapl.org/cgi/reprint/3/4/245

Cross-Cultural Forensic Psychiatry in Alaska
Joseph D. Bloom
J Am Acad Psychiatry Law 1975;3 252-256
http://www.jaapl.org/cgi/reprint/3/4/252

Causative Factors in Violence
Warren S. Wille
J Am Acad Psychiatry Law 1975;3 257-261
http://www.jaapl.org/cgi/reprint/3/4/257

The Devil's Advocate
Henry H. Foster, ESQ.
J Am Acad Psychiatry Law 1975;3 263-264
http://www.jaapl.org/cgi/reprint/3/4/263


BOOK REVIEWS
Malpractice Made Easy—Can You Believe That?
Alan R. Rosenberg and Jonas R. Rappeport
J Am Acad Psychiatry Law 1975;3 262
http://www.jaapl.org/cgi/reprint/3/4/262


The 5th Annual ABA Journal Blawg 100



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