Full opinion text
MEMORANDUM OPINION ROGER W. TITUS, District Judge. Part 1: Introduction The defendant, Earl Whittley Davis, has been indicted for a number of federal crimes relating to the robbery and murder of Jason Schwindler on August 4, 2004. The charge of murder by use of a firearm in furtherance of a Hobbs Act robbery in violation of 18 U.S.C. § 924(j) is a death-eligible offense. On April 8, 2008, the government filed formal notice of its intent to seek the death penalty. The Federal Death Penalty Act, enacted in 1988, provides that a “sentence of death shall not be carried out upon a person who is mentally retarded.” 18 U.S.C. § 3596(c). Fourteen years later, the federal policy embodied in the Act became a constitutional imperative when, in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that execution of a mentally retarded defendant would constitute a “cruel and unusual punishment” prohibited by the Eighth Amendment. Mental retardation is not a defense, nor is the lack of mental retardation an element of a crime that the government must prove beyond a reasonable doubt in order to impose the death penalty. See Walker v. True, 399 F.3d 315, 326 (4th Cir.2005). Rather, it is a condition, the existence of which disqualifies a person from capital punishment, but certainly not all punishment, including life in prison. See Atkins, 536 U.S. at 306, 122 S.Ct. 2242 (“Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes.”). In December 2008, the defendant filed a motion requesting a pretrial hearing on the question of whether imposition of the death penalty in this case should be barred because he is mentally retarded. The defense argued that it is both efficient and practical for a trial judge to determine whether a capital defendant is mentally retarded prior to trial, due to the significant amounts of time, money, and effort that could be saved by eliminating an unnecessary penalty-phase proceeding. The government disagreed, and urged the Court to address the mental retardation issue during the sentencing proceeding in order to avoid duplicative presentation of evidence relevant to both mental retardation and mitigation, and so that there would be only one appeal and no delay in the start of trial. The Court concluded that the defendant’s arguments were more sound, and consistent with every other federal court that had addressed the issue. Consequently, because mental retardation is a disqualifying condition, the Court granted the defendant’s motion and assigned to him the burden of establishing, by a preponderance of the evidence, that he is mentally retarded. See United States v. Hardy, 2008 WL 1743490 (E.D.La. Apr. 10, 2008) (finding that question of mental retardation should be resolved by the judge at a pretrial hearing, and burden should be on defendant by preponderance of the evidence); United States v. Nelson, 419 F.Supp.2d 891 (E.D.La.2006) (same); United States v. Sabían, 461 F.Supp.2d 1239 (D.Colo.2006) (same). After the experts retained by each party had an opportunity to evaluate the defendant and prepare reports for the Court, the hearing on the issue of mental retardation began on March 24, 2009. The hearing lasted six days, during which the Court heard extensive expert and fact testimony that is summarized and discussed below. For the reasons explained in this opinion, the Court concludes that the defendant has abundantly satisfied his burden of proving his mental retardation by a preponderance of the evidence and, accordingly, the government will not be permitted to seek a sentence of death. I. Mental Retardation — A Primer For Capital Cases In Atkins, the Supreme Court noted that “to the extent there is a serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.... Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” 536 U.S. at 317, 122 S.Ct. 2242. The Court then left to the states the task of developing standards and appropriate ways to enforce the constitutional prohibition. Id. The Atkins court cited two professional organizations for their definitions of mental retardation — the American Association On Mental Retardation (AAMR), and the American Psychiatric Association — and noted that their definitions were “similar.” Id. at 308 n. 3, 122 S.Ct. 2242. Since At kins, other federal courts have applied these same definitions, noting that the two definitions are essentially identical. The definition of mental retardation is effectively three-pronged. An individual must have (1) significantly below average intellectual functioning, (2) significant deficits in adaptive behavioral skills, and (3) onset of the condition before age eighteen. A. Definitions of Mental Retardation The AAMR is an organization of professionals and citizens concerned about intellectual and developmental disabilities. Its mission is to “promote[] progressive policies, sound research, effective practices and universal human rights for people with intellectual and developmental disabilities.” American Association On Intellectual and Developmental Disabilities, Mission Statement, http://www.aamr.org/content_443. cfm?navID=129 (last visited April 14, 2009). The AAMR defined mental retardation in its 2002 manual as follows: Mental retardation is a disability characterized by significant limitations in both intellectual functioning and in adaptive behavior, as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18. AAMR, Mental Retardation: Definition. Classification, and Systems of Support 8 (10th ed.2002) (hereinafter, “AAMR 2002” or “AAMR manual”). A “significant” limitation in intellectual functioning is best represented by an IQ score that is approximately two standard deviations below the mean as measured by appropriate instruments, and in consideration of the standard error of measurement (SEM). Id. at 14, 37. Most standardized IQ assessment tests are normalized so that the average score is 100 with a standard deviation of 15. Therefore, an IQ score two standard deviations below the mean — the benchmark for mental retardation — is approximately 70. However, the SEM in IQ assessments is approximately 5 points, therefore raising the operational definition of mental retardation to 75. AAMR 2002 at 58-59; American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41-42 (4th ed., text rev.2000) (hereinafter, DSM-IV-TR) (“it is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive behavior”). The operational definition of a “significant” limitation in adaptive behavior requires performance of at least two standard deviations below the mean of either (a) one of the following three types of adaptive skills: conceptual, social, and practical, or (b) an overall score on a standardized measure of conceptual, social, and practical skills. AAMR 2002 at 76. The AAMR manual also specified five additional assumptions that should be included as part of the application of the definition of mental retardation. One of these assumptions is particularly salient in the context of this case: Assumption 3: “Within an individual, limitations often coexist with strengths. ” This means that people with mental retardation are complex human beings who likely have certain gifts as well as limitations. Like all people, they often do some things better than other things. Individuals may have capabilities and strengths that are independent of their mental retardation. These may include strengths in social or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation. AAMR 2002 at 8. The American Psychiatric Association’s definition of mental retardation is similar: The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, heath and safety (Criterion B). The onset must occur before age 18 (Criterion C). DSM-IV-TR at 41. All experts who testified in this case agreed that the two definitions are essentially the same, and both are recognized as authoritative. The DSM-IV-TR states that four approximate levels of severity of mental retardation can be specified, reflecting the level of intellectual impairment. Individuals with mild mental retardation (MMR) have IQs in the range of 50-55 to approximately 70, and represent about 85% of all individuals with the disability. Individuals with IQs of 35-40 to 50-55 are considered to have moderate mental retardation; IQs of 20-25 to 35-40 are indicative of severe mental retardation; and IQs below 20-25 are indicative of profound mental retardation. See DSM-IV-TR at 42-43. C. Developmental Nature of Mental Retardation Mental retardation (MR) is characterized as a developmental disability because persons with mental retardation do not acquire skills during the developmental period (i.e., birth to age 18) at the same rate as those without it. This is why onset before age 18 is one of the diagnostic criteria. One expert explained that someone who exhibited subaverage intellectual functioning and adaptive deficits that would otherwise be associated with mental retardation, but in fact were caused by an event or trauma suffered during his or her adult life, would not be classified as mentally retarded, but rather as “demented,” because that type of disability is not developmental in nature. D. Difficulties Inherent In the Assessment of Capital Defendants In most non-forensic circumstances, evaluations to determine whether an individual is mentally retarded focus on the individual’s present level of functioning. However, in the case of a capital defendant who is being assessed as part of a sentencing eligibility determination, a retrospective diagnosis is often required because the defendant usually did not receive a diagnosis of mental retardation during the developmental period. In addition, a number of criminal defendants fall at the upper end of the MR severity continuum (i.e., have a higher IQ than many others with mental retardation), and frequently present a mixed competence profile. AAMR, User’s Guide: Mental Retardation: Definition, Classification, and Systems of Support 18 (10th ed.2002) (2007) (hereinafter, User’s Guide). The User’s Guide presents a series of guidelines for clinicians charged with making these retrospective diagnoses, in which the ability to conduct a standard assessment is “less than optimal,” such as when a defendant has been incarcerated for a number of years prior to his or her evaluation. These guidelines advise clinicians to: (1) conduct a thorough social history; (2) conduct a thorough review of school records; (3) assess adaptive behavior using multiple informants and multiple contexts; (4) recognize the “Flynn effect”; (5) recognize the impact of practice effect; (6) recognize that self-ratings have a high risk of error in determining significant deficits in adaptive behavior, but can be used cautiously in conjunction with multiple informants; (7) conduct a longitudinal evaluation of adaptive behavior; and (8) not use past criminal behavior or verbal behavior to infer level of adaptive behavior or about the presence of mental retardation. Id. at 18-22. II. Background of the Defendant, Earl Whittley Davis The defendant grew up in Washington, D.C., and lived with his parents, Shirley and Earl Davis, Sr. The elder Mr. Davis had multiple children by multiple mothers, many of whom lived with him and Mrs. Davis over the last forty years. The defendant’s home environment has been described by a number of reporters as chaotic and violent. Don Davis, the defendant’s older half-brother, alleged that in the Davis home, children were used as chattels to bring in money. Don Davis and another older brother moved out of the home when they were about 15. There is a documented history of learning difficulties in the family. The defendant’s mother, older half-brother, and niece all acknowledged that they attended special education classes when in school. Davis, now thirty-eight, has a lifelong history of seizures that began when he was approximately ten months old. At age two, he had symptomatic lead poisoning with markedly high blood-lead levels. At age three, he had seizures and vomiting, and tests revealed he still had an elevated blood-lead level. When he was nine, he was diagnosed with partial complex seizure disorder, and that diagnosis was changed to generalized seizure disorder when he was thirteen. His seizures manifest as staring or loss of awareness. As a teenager, he reportedly had at least two bike accidents in which he was struck by vehicles, one of which resulted in a blow to the head and loss of consciousness. When the defendant was eight and in the third grade, concerns were expressed about his subpar academic performance, and he was given the Peabody Individual Achievement Test (PIAT). The results showed that his proficiency in math, reading, and spelling were at early first grade levels. Subsequently, he received tutoring in reading and writing at the Children’s Hospital in Washington, D.C. twice weekly for approximately two years, but made little progress. In 1982, when the defendant was twelve, he was given a number of neuropsychological tests, some administered at his school, and some at Children’s National Medical Center. Gov. Ex. 1, Report of Dr. Ida Baron (hereinafter, Baron Rep.) On the Wechsler Intelligence Scale for Children (WISC), his full scale IQ was 75, which placed him in the borderline range of intellectual functioning. On other neuropsychological measures, he was found to have difficulty with cognitive flexibility, psycho-motor problem solving, ability to perceive speech sounds, and immediate auditory recall. These test results were interpreted as indicative of a chronic, long-standing, diffuse impairment of cognitive functioning. The defendant was retained in the fifth grade, and at the end of his second fifth grade year, he was found eligible for special education services. He remained in special education from sixth through twelfth grade. In 1987, he attended the Duke Ellington School of the Arts, where one of his goals was to bring his academic abilities up to the second and third grade level. Specific objectives included: “answer multiple choice questions concerning specific facts and the main idea,” “follow oral and written direction,” “make change for $20.00 using a variety of bills and coins,” “solve money word problems including check writing and balancing a check book,” and “read a clock, set a clock, and add and subtract given times on a clock.” Def. Ex. 3, Report of Dr. George Woods, 8 (hereinafter, Woods Rep.) While at Duke Ellington, when the defendant was nearly 17, his academic achievement levels were tested again, and on the PIAT he scored a grade-level equivalent of 2.8 in spelling, 2.7 in reading comprehension, and 2.3 for reading word recognition. He left high school when he was 19 or 20 and in the eleventh or twelfth grade, but did not graduate. When he was evaluated for job placement by the Rehabilitation Services Administration, he was found to be disabled and functionally illiterate at age 22. The defendant has admitted to use of alcohol, PCP, marijuana, and cocaine. III. Record of the Defendant’s Intellectual Functioning The defendant has been administered IQ tests four times, at ages 12, 22, 36, and 38. These full-scale IQ scores, before adjustment for the Flynn effect, are 75, 76, 65, and 70, respectively. The Flynn-adjusted scores are 66, 73, 62, and 70, all of which place him well within the range associated with mental retardation. These results are summarized in the following chart: Date of Davis’ Full Scale Date of Test Flynn_Test_Admin. Aye_IQ_Publication Adjusted IQ Wechsler Intelligence Scale for Children 1982 12 75 1949 66 (WISC) Wechsler Adult Intelligence Seale— 1992 22 76 1981 73 Revised (WAIS-R) Wechsler Adult Intelligence Scale-Ill 2006 36 65 1997 62 (WAIS-III) Wechsler Adult Intelligence Scale-IV 2009 38 70 2008 70 (WAIS-IV)_ IV. Expert Witnesses During the hearing, the Court heard opinion testimony from seven experts, the first five for the defense, and the final two for the government. Their qualifications are summarized below. A. Dr. Joette James, PhD. Dr. James is a licensed psychologist and pediatric neuropsychologist. She received her Ph.D. in clinical psychology from Northwestern University Medical School in 2003. Since 2006, Dr. James has held a faculty position within the Pediatric Neuropsychology Program at Children’s National Medical Center in Washington, D.C. She is a member of the American Psychological Association (APA) Division 40-Clin-ical Neuropsychology, the International Neuorpsychological Society, and the National Academy for Neuropsychology. In her report, Dr. James noted that the review of the defendant’s records that she performed was the sort of assessment that she routinely conducts as part of her duties as a clinician at Children’s National Medical Center. B. Dr. Drew Nagele, Psy.D. Dr. Nagele received his doctor of psychology (Psy.D.) from Central Michigan University in 1982. Currently, he is Director of Rehabilitation at the Children’s Hospital of Philadelphia and President of the Board of Directors of the Brain Injury Association of Pennsylvania. He holds a number of teaching positions, including adjunct clinical assistant professorships at LaSalle University and Drexel University, both in Philadelphia. He is also a clinical instructor for the American Academy for the Certification of Brain Injury Specialists, an affiliate of the Brain Injury Association, USA. Among other professional affiliations, Dr. Nagele is a member of APA Division 40-Clinical Neuropsychology. C.Dr. John Gregory Olley, PhD. Dr. Olley received a Master’s degree in General-Experimental Psychology from Wake Forest University in 1968, and earned his Ph.D. in Clinical Psychology with a related area in Special Education from the George Peabody College for Teachers (now the George Peabody College of Vanderbilt University) in 1973. He is currently a psychologist and clinical scientist at the Center for Development and Learning, and a clinical professor at the Division of Rehabilitation Psychology and Counseling, both at the School of Medicine at the University of North Carolina at Chapel Hill. He is a prolific author with an impressive number of publications to his name. Of particular relevance to this hearing, Dr. Olley has authored a three-part series of articles entitled “The Assessment of Adaptive Behavior In Adult Forensic Cases.” He has also published articles on Atkins — related issues in the Journal of Forensic Psychology Practice, and has contributed a book chapter concerning the use of the ABAS-II in assessment of adaptive behavior in adult forensic cases. Dr. Olley is a member of a number of professional organizations, among them APA Division 25 — Behavior Analysis, APA Division 33 — Intellectual and Developmental Disabilities (of which he is the President-Elect), and APA Division 41 — The American Psychology-Law Society. He is also a Fellow and Life Member of the American Association on Intellectual and Developmental Disabilities (formerly AAMR). D. Dr. Bruce K. Shapiro, M.D. Dr. Shapiro received his M.D. from Boston University in 1972. Subsequently, he completed a three-year residency in pediatrics at Children’s National Medical Center, and then a two-year fellowship in developmental pediatrics at the John F. Kennedy Institute/Johns Hopkins University School of Medicine. He is currently a professor of pediatrics at the Johns Hopkins University School of Medicine, the director of training programs at the Kennedy Krieger Institute, and a member of the active medical staff at the Kennedy Institute, the Johns Hopkins Hospital, and St. Agnes Hospital. He has published extensively in the fields of developmental pediatrics and child neurology. E. Dr. George Woods, Jr., M.D. Dr. Woods received his M.D. from the University of Utah in 1977. He then completed an internship at Highland Hospital in Oakland, CA, and a residency in psychiatry at Pacific Medical Center in San Francisco. His professional affiliations include the American College of Forensic Psychiatry, the American Academy of Psychiatry and Law, the American College of Forensic Examiners, and the International Academy of Law and Mental Health, of which he is the Secretary-General elect. He is currently an adjunct professor at California State University, Sacramento in the department of educational leadership and public policy, and the Morehouse College School of Medicine. F. Dr. Sue Ellen Antell, Ph.D. Dr. Antell received her Ph.D. in psychology from the University of Maryland, Baltimore County, in 1983. She completed a post-doctoral fellowship in the department of psychiatry and behavioral science at Johns Hopkins University and in the department of cognitive neuropsychology at the Kennedy Institute for Handicapped Children in 1984. Since 1999, she has been in private practice in both clinical and forensic neuropsychology. She holds a number of specialty board certifications, including diplómate status in the American Board of Professional Neuropsychology and the American Board of Professional Psychology in Clinical Child and Adolescent Psychology. She is a member of APA Division 40 — Neuropsychology, APA Division 41 — Psychology and Law, APA Division 6 — Behavioral Neuroscience, and APA Division 33 — Intellectual and Developmental Disabilities. She has published peer-reviewed articles and delivered professional papers, but most were in or before 1996. G. Dr. Jack Spector, Ph.D. Dr. Spector received a master’s degree and a Ph.D. in clinical psychology from the University of Louisville in 1981 and 1984, respectively. He has previously been affiliated with the University of Maryland School of Medicine and Georgetown University School of Medicine as an assistant clinical professor in psychiatry and neurology. Dr. Spector is a member of APA Division 40 — Clinical Neuropsychology, and is board certified by the American Board of Professional Psychology in clinical neuropsychology. He is currently a consulting training director for the pediatric neuropsychology fellowship training program at Children’s National Medical Center. He has authored a number of publications and presentations on neuropsychological assessment, with a particular focus on traumatic brain injury. He is not a member of APA Division 33 — Intellectual and Developmental Disabilities, and he testified that his ongoing professional interest in issues related to mental retardation is “primarily limited to the cross diagnoses of Alzheimer’s disease and Down’s syndrome.” Spector Test. 109, March 26, 2009 (hereinafter, Spector Test. Vol. 1). Part 2: Analysis The defendant contended that he has a long-term, well-documented and consistent history of intellectual and adaptive functioning deficits that preceded the age of eighteen, continue at present, and place him well within recognized norms for a diagnosis of mental retardation, thus disqualifying him from eligibility for imposition of the death penalty. The government disagreed and advanced a number of arguments in support of its contention that despite the defendant’s cognitive limitations, he was not mentally retarded. The government experts postulated that (1) the defendant was not giving his full effort on a number of tests in order to artificially deflate his scores; (2) the Flynn effect should not be applied; (3) the difference between the defendant’s performance on verbal and non-verbal subtests make the full-scale IQ scores misleading; and (4) the defendant suffered from a cognitive learning disability rather than mental retardation. In addition, the government argued that the defendant does not have any significant deficits in adaptive functioning. The contentions of the parties are discussed below. I. Intellectual Functioning A. Davis’ Academic Deficits Are Not Solely Attributable To A Learning Disability The government’s overarching contention with regard to the intellectual functioning prong of the mental retardation definition is that the defendant suffers from a cognitive disorder and/or learning disability that accounts for his academic deficits and some of his adaptive deficits, but that he is not mentally retarded. Dr. Spector based this conclusion on the defendant’s past academic scores, his own testing, “previous evaluations of more trustworthy validity than the one done by Drs. Donner and Nagele,” and because “that appears to be how he was treated when he was in school.” Spector Test. Vol. 1, 54-55. Dr. Antell took the position that “in order to make a diagnosis of mental retardation, one must first exclude other factors which might impact on IQ test or adaptive performance including (but not limited to) psychiatrics [sic] illness, social or cultural factors which might bias testing, disorders of learning or communication, or sensory impairments.” Gov. Ex. 22, Report of Dr. Antell, 2-3 (bold in original, italics added) (hereinafter, Antell Rep.) Dr. Antell opined that any deficits in Davis’ adaptive behavior are traceable to a learning disability, the existence of which, in her opinion, would preclude a diagnosis of mental retardation. For the reasons below, the Court finds these arguments unconvincing, and concludes that the defendant’s significantly subaverage intellectual functioning satisfies the first prong of the AAMR and DSM-IV-TR definitions of mental retardation. 1. Distinguishing Mild Mental Retardation (MMR) From Learning Disability (LD) The AAMR User’s Guide recognizes that it may be difficult to differentiate between persons with mild mental retardation with a higher IQ (i.e., close to 70), and persons with learning disabilities: [I]t is important to consider the similarities between individuals with MR/ID [mental retardation or intellectual disabilities] with a higher IQ and individuals who are diagnosed as having a learning disability (LD). Both this group and those diagnosed as LD exhibit major problems in adaption related to academic performance and social competence. They differ, however, in that LD is defined on the basis of discrepancy between aptitude (as measured by a normal IQ) and academic achievement or by the assessment model of Response to Intervention; whereas those with MR/ID with a higher IQ are defined in terms of relative consistency between their subaverage IQ and achievement, as indicated by low performance on average across academic areas. User’s Guide at 16-17 (citations omitted) (emphases added). In response to a question by the Court, Dr. Shapiro testified that he was familiar with the above quote from the User’s Guide. He agreed with the statement, adding that persons with LD do not exhibit adaptive deficits to the same degree as those with MMR. Furthermore, some individuals whose IQ falls in the range associated with mental retardation do not achieve academically even to the level that would be expected for that IQ. For example, some persons with MMR can read at up to a sixth grade level; thus, if an individual with MMR is only displaying reading skills at a second grade level, there is a possibility that the person has MMR and a simultaneous learning disability. The two are not mutually exclusive. See DSM-IV-TR at 47 (“A Learning Disorder or Communication Disorder can be diagnosed in an individual with Mental Retardation if the specific deficit is out of proportion to the severity of the Mental Retardation.”). Dr. James concurred with the AAMR’s formulation of the MMR/LD distinction. She testified that LD is a specific deficit in one or more academic areas in the absence of intellectual deficit, or what she referred to as “unexpected underachievement.” When the individual’s IQ score is low, the academic underachievement is not surprising, and mild mental retardation is most likely the correct diagnosis: [Significant global impairments in conceptual and abstract thinking ability are generally not seen in learning disabilities, in which the primary problem is typically a focused deficit in one or more aspects of academic functioning (e.g. reading, math, written expression). This distinction holds true even when an individual has academic deficits which are severe (i.e. an individual is functionally illiterate). Def. Ex. 3, Report of Dr. Joette James, 5 (hereinafter, James Rep.). In other words, an individual with MMR will have generalized deficits, whereas a person with LD will exhibit underachievement limited to specific areas. 2. Davis’ Pervasive Deficits Preclude A LD Diagnosis When Dr. James reviewed the voluminous records of the defendant’s childhood testing, she concluded that MMR could not be ruled out in favor of a learning or communication disorder. In her opinion, the testing demonstrated that he had deficits that were pervasive across neuropsychological domains, which included aspects of visual processing and nonverbal reasoning. She determined that the defendant did not have a learning disability because of the global nature of his deficits and his inability to think abstractly. She did not find it particularly important that he had not been classified as MMR during his school years, because she opined that schools have a strong bias against classifying a student as mentally retarded. She pointed out that parents do not like or want that label because of the stigma associated with it, so schools often categorize children as LD or “slow learners” instead. See AAMR 2002 at 31-32 (citing professional literature demonstrating that schools are hesitant to diagnose students with low IQs as having mental retardation, and more often classify them as having learning disabilities). Other defense experts also identified the defendant as having broad deficiencies that extended beyond learning, reading, and writing skills. Dr. Nagele found that he was deficient in his memory functioning and his executive functioning. Dr. Woods also agreed that he had poor executive functioning, and opined that he communicates at approximately the level of an eleven-year old child. The defendant is able to express concrete thoughts, but cannot extrapolate to the general or conceptual level. In short, the Court finds that the defendant does not exhibit the type of “unexpected” underachievement that is indicative of a learning disability. Rather, his academic and adaptive difficulties were to be expected, based on his consistently low scores on IQ tests and other measures of verbal and non-verbal functioning. Even if the Court were to conclude that the defendant had a language-based learning disability, that disability is clearly superimposed upon other, existing intellectual deficiencies. In any event, the Court concludes that the defendant’s intellectual deficits are pervasive and not limited to a specific aspect of academic performance, as would be the case if he were learning disabled only. 3. Full Scale IQ Is Best Indicator of Overall Cognitive Ability The government’s experts attempted to minimize the importance of the defendant’s full scale IQ score of 70 on the WAIS-IV administered by Dr. Spector in early 2009. Typical comprehensive IQ tests produce at least three scores, which include a verbal IQ (VIQ) and performance IQ (PIQ), or the equivalent, that measure different aspects of intelligence, and a full scale IQ (FSIQ) that is the statistical, or weighted, average of the VIQ and PIQ. The FSIQ is the product of a statistical procedure called “factor analysis,” and is not a simple numerical average. Antell Test. 16, March 27, 2009 (hereinafter, Antell Test:). The FSIQ is intended to summarize roughly how the individual performs on the test relative to others. Antell Rep. 2. Dr. Spector attempted to downplay the significance of the defendant’s FSIQ because of his belief that Davis was not putting forth sufficient effort on tests of non-verbal ability. Dr. Spector administered three tests to the defendant that are designed to assess test-taking effort. Two of the three, the Victoria Symptom Validity Test and the Word Memory Test, indicated that he was putting forth adequate effort. On the third test, the Validity Indicator Profile (VIP), Dr. Spector said the results were “a little more ambiguous.” Spector Test. Vol. 1, 83. He concluded that the defendant was giving satisfactory effort on the verbal section, but not on the non-verbal section. Based on this finding — on one-half of one out of three tests — Dr. Spector concluded that the defendant’s performance on the WAIS-IV accurately reflects his verbal ability but underestimates his non-verbal ability, and therefore his intellectual functioning is probably higher than the FSIQ of 70 would indicate. However, on cross examination, when presented with a passage from the WAIS-IV manual, Dr. Spector admitted that it states, “in general, the full scale IQ is considered the most valid measure of overall cognitive ability.” Spector Test. 66, March 27, 2009 (hereinafter, Spector Test. Vol. 2) (emphasis added). The Court finds Dr. Spector’s opinion regarding the defendant’s test-taking effort conclusory, at best, and inconsistent with the fact that his scores have been remarkably consistent over a period of more than 25 years, including a number of times when no incentive to malinger or exaggerate deficits would have been present. Moreover, his disregard of the FSIQ is at odds with the significance attributed to it by the publisher of the assessment measure. Dr. Antell’s criticism appears to extrapolate from a caveat in the DSM-IV-TR that states: When there is a significant scatter in the subtest scores, the profile of strengths and weaknesses, rather than the mathematically derived full-scale IQ, will more accurately reflect the person’s learning abilities. When there is a marked discrepancy across verbal and performance scores, averaging to obtain a full-scale IQ can be misleading. DSM-TV-TR at 42. Dr. Antell stated in her report that “some authors” advocate not reporting FSIQ when the difference between verbal and performance scores is statistically significant, or about 12 points. Because Davis scored a 66 on the Verbal Comprehension Index (VCI) and an 81 on the Perceptual Reasoning Index (PRI), Dr. Antell argued that the defendant’s FSIQ was “misleading,” (i.e., not indicative of his actual abilities), the implication being that Davis could not be found mentally retarded based on that FSIQ. In her opinion, the defendant’s 15-point discrepancy between verbal and non-verbal performance was inconsistent with a diagnosis of MR. She believes that “[w]hile there is no explicit statement that a diagnosis of MR requires both scores to be below 70/75, this notion is clearly implicit in virtually every discussion regarding how IQ tests are to be interpreted.” Antell Rep. 3 (bold in original). The Court does not find these arguments credible or persuasive. First, Dr. Antell cited to no cases or authorities to support her contention that a MR diagnosis should not be made unless both verbal and performance scores are below 75, and the Court is not aware of any. This requirement was not mentioned by any of the other experts, and the Court has found other federal cases in which defendants were found to be mentally retarded, despite having one or more sub-test scores above 75. See, e.g., Holladay v. Allen, 555 F.3d 1346, 1354-55 (11th Cir.2009) (crediting FSIQ from two administrations of the WAIS, in one of which the defendant received a verbal score of 64 and a performance score of 81, for a FSIQ of 69, and another with a verbal score of 69 and performance score of 80, with a FSIQ of 72). Next, while the DSM-IV-TR states that the FSIQ may be “misleading” in certain circumstances, it does not specify an alternative method for numerically representing a defendant’s intellectual capabilities in the forensic context. Furthermore, there was no evidence of a “marked” discrepancy between the defendant’s verbal and nonverbal scores on previous IQ tests. James Rep. at 3 (“when one examines Mr. Davis’ 1992, 2006, and 2009 subtest scores, there is notable consistency in his performance”). If the defendant’s FSIQ on the WAIS-IV was truly “misleading,” one would expect it to be out of proportion with the previous test scores, but it is not. Finally, Dr. Antell’s premise that “in order to make a diagnosis of mental retardation, one must first exclude other factors which might impact on IQ test or adaptive performance” is simply incorrect. Antell Rep. 2-3 (bold in original). The DSM-IV-TR states clearly that “[f]he diagnostic criteria for Mental Retardation do not include an exclusion criterion; therefore, the diagnosis should be made whenever the diagnostic criteria are met, regardless of and in addition to the presence of another disorder.” DSM-IV-TR at 47. In conclusion, the Court finds that the defendant’s intellectual deficits are not attributable to a learning disability, and are sufficiently significant as to satisfy the first prong of a mental retardation diagnosis. Although FSIQ scores may be misleading in some extreme circumstances, the Court does not find that the discrepancies between the defendant’s verbal and non-verbal scores in this case warrant deviation from the general rule that FSIQ is the best approximation of an individual’s overall cognitive functioning. The Court therefore will consider the defendant’s FSIQ scores when evaluating his intellectual abilities. B. The Flynn Effect The so-called Flynn effect is a phenomenon identified and discussed in a series of widely-cited papers by James R. Flynn, a professor emeritus of political studies at the University of Otago in New Zealand. It refers to the fact that virtually all nations in the developed world show an upward trend in performance on IQ tests from and after the date they are developed or “normed.” Thus, the Flynn effect means simply that the population generally will achieve higher scores on IQ tests proportional to the amount of time between when the test was normed and when it was taken. The amount of the increase varies with the instrument, but is approximately 3 points per decade, or 0.33 points per year. Standardized measures of IQ are normalized (“normed”) on a given population such that the average, or mean, score is 100. The standard deviation, or the amount by which the typical person who does not score 100 varies from 100, is about 15. Therefore, a score of two standard deviations below the mean, which is the approximate cutoff for mental retardation, is 70 (plus or minus the standard error of measurement (SEM) of five points). What the Flynn effect means is that over time, the test norms become outdated, such that the average score is no longer 100, but something higher. Consequently, a score two standard deviations below the mean would be higher than 70, but still indicative of mental retardation. Corrections for the Flynn effect adjust scores to account for the amount of time between when the test was originally normed and when it was administered to an individual. This allows for fair comparisons between scores obtained at different times: Def. Ex. 13, James R. Flynn, Tethering the Elephant: Capital Cases, IQ, and the Flynn Effect, 12 Psych. Pub. Policy and Law 170, 176 (2006). The general rule is to deduct 0.3 IQ points per year from the scores of defendants for every year between the time when the test was normed and when it was taken. Def. Ex. 13, Flynn, Tethering the Elephant, at 179. No matter whether the criterion is set at an IQ of 55 or 70 or 85, the defendant must be assessed against current norms and not obsolete norms that inflate his or her score. Otherwise, one person will meet the criterion of mental retardation, and another person will be judged not to have done so, purely because one took a test with current norms and the other took a test with obsolete norms. No matter what the criterion, who meets it must not be a matter of chance. While support for the use of the Flynn effect to adjust IQ scores in the forensic context may not be universal, it is widespread. All of the defense experts in this case agreed that application of the Flynn effect is appropriate in forensic scenarios such as this one, and accounted for it in conducting their evaluations and rendering their opinions. Flynn himself expressed the potentially deadly consequences of not adjusting scores: “Failure to adjust IQ scores in the light of IQ gains over time turns eligibility for execution into a lottery — a matter of luck about what test a school psychologist happened to administer.” Def. Ex. 13, Flynn, Tethering the Elephant, at 174-75. Another well-known psychologist, Stephen Greenspan, has agreed, calling consideration of the Flynn effect “appropriate” and “essential.” Greenspan stressed the incredibly high stakes involved in forensic evaluations in capital cases, stating: Given that mild MR is a somewhat inadequately-defined category, it is important to err in very close cases on the side of being overly inclusive, especially given the potentially fatal consequences of a false negative diagnostic conclusion. Use of 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. Def. Ex. 18, Stephen Greenspan, Issues in the Use of the “Flynn Effect” To Adjust IQ Scores When Diagnosing MR, Psychology In Mental Retardation and Developmental Disabilities (American Psychological Association/ Division 38, Washington, D.C.), Spring 2006, at 3, 7. Federal courts have also acknowledged the appropriateness of considering Flynn-adjusted scores. See Holladay, 555 F.3d at 1358 (acknowledging possibility that WAIS scores may have been elevated because of the Flynn effect); Walker v. True, 399 F.3d 315, 322-23 (4th Cir.2005) (criticizing district court for refusing to consider “relevant evidence, namely the Flynn Effect evidence” and directing the district court to consider its persuasiveness on remand). Importantly, the Court notes that the AAMR User’s Guide, which the experts in this case all found to be authoritative on ■the subject of diagnosing mental retardation, unambiguously advises clinicians conducting .retrospective diagnoses to “Recognize the ‘Flynn effect.’ ” User’s Guide at ■ 20-21 (“In cases where a test with aging norms is used, a correction for the age of the norms is warranted.”). The adjustment recommended in the User’s Guide is a reduction of 0.33 IQ points per year between the date the test was normed and when it was administered. The Court .finds very persuasive this endorsement by the AAMR, in a section of the text specifically addressing the type of retrospective diagnoses necessitated by “sentencing eligibility questions such as those related to the récent Atkins ... case.” Id. at 17. The government experts attempted to discredit the validity of the Flynn effect. Dr. Spector was unusually critical of the defense experts’ calculations in his report: It (sic) what is at best an act of revisionist history and at worst a. deliberate effort to distort the record, Defense’s experts have attempted to invoke the work of Flynn and colleagues to deflate Mr. Davis’s IQ scores as a function of time passed between the time a given IQ test was published and the time it was administered to Mr. Davis. To the best of my knowledge, there is no evidence that such efforts improve the reliability or validity of IQ scores in the individual case .... There is simply no clinical setting where Flynn corrections are routinely invoked, and the prevailing standard of professional care does not require such correlations when interpreting IQ scores in individual patients, claimants, subjects, or defendants. Gov. Ex. 36, Report of Dr. Spector, 15 (hereinafter, Spector Rep.) (emphases added). For several reasons, the Court completely discredits Dr. Spector’s opinion on this point. First, Dr. Spector seemed to believe that the Flynn effect is appropriate only for the evaluation of population, as opposed to individual, data. He testified that he “chafes at the use of theoretical population-driven data to deflate an individual’s IQ score for a particular purpose.” Spector Test. Vol. 2, 43. This would seem to suggest that while Dr. Spector acknowledges the trend of IQ scores to increase over time, he believes that an individual capital defendant should not benefit from a downward adjustment of his score when his IQ is being assessed for the purpose of determining whether he may be sentenced to death. The Court rejects this logic, as does Flynn himself: I wish to call attention to another argument put forward by prosecutors, namely, that the Flynn effect is a “group phenomenon” and cannot be applied to individuals. As the reader now knows, this is just a senseless mantra. When the group making the IQ gains is composed of Americans, those gains render test norms obsolete and inflate the IQ of every individual being scored against the obsolete norms. Def. Ex. 13, Flynn, Tethering the Elephant, at 186. Next, Dr. Spector states that the Flynn effect is not routinely applied in clinical settings as a matter of professional practice. Dr. Antell echoes this complaint, writing in her report that “[t]he making of such adjustments is virtually never seen outside of forensic contexts, and the use of any formula to do so has never been subject to the peer review and testing which would be required for it to become an accepted part of psychological and neuropsychological methodology.” Antell Rep. 7. While this may be true, the Court finds this to be completely irrelevant. This is a forensic context, and an important one in which a man’s life hangs in the balance. 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 recently-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. Gov. Ex. 21, Roger B. Moore, Jr., Letter to the Editor, Modification of Individual’s IQ Scores is Not Accepted Professional Practice, Psychology In Mental Retardation and Developmental Disabilities (American Psychological Association/ Division 33, Washington, D.C.), Fall 2006, at 11, 12 (“If there are factors that lead the psychologist to believe that the scores do not represent an accurate or reliable measure of the individual’s functioning, such issues are delineated in the discussion and interpretation of the scores; the scores themselves are not changed. Modification of individual scores is not accepted professional practice, for good reason, and should not be introduced into court as such.”). However, where a life-or-death categorization depends on a strict numerical cutoff, failure to adjust individual scores in light of changed norms would be unwise — if not reckless — -and certainly would not, as Dr. Spector suggested, be a “deliberate effort to distort the record.” 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. C. Conclusion As To Intellectual Functioning Having concluded that the defendant’s intellectual deficits cannot be explained away by a learning disability, and that the Court should evaluate his Flynn-adjusted FSIQ scores rather than his raw scores, all that remains is to determine whether his scores place him at léast two standard deviations below the mean. Taking into account the standard error of measurement, this would require an IQ score at or below 75. In 1982, the defendant’s Flynn-adjusted score on the WISC was 66; in 1992, his Flynn-adjusted score on the WAIS-R was 73; in 2006 on the WAIS-III, his Flynn-adjusted score was 62; and in 2009, his score on the WAIS-IV was 70 (no adjustment was needed because the test was published in 2008). See supra, Part l.III. These scores each place Davis within the range associated with mental retardation individually, and the mean is 67.7. Even if the Court were to conclude, as Dr. Spector did, that the defendant was not expending his full effort during Dr. Donner’s testing in 2006, and excluded that score, the mean of the other three scores is 69.6, which still leaves the defendant in the range associated with mild mental retardation. This information alone would be enough to support the Court’s conclusion that the defendant has significantly subaverage intellectual functioning. Further test results in the record, however, give the Court added confidence that his deficits are real, not malingered or exaggerated, and have been documented consistently and repeatedly over the course of his lifetime, beginning in childhood. For example, in 1982, at age 12, the defendant was administered the Peabody Picture Vocabulary Test (PPVT) by D.C. public schools. He scored 64, placing him in the first percentile, or the lowest 1% of children taking the test. Decades later, in 2009, he was administered the PPVT by the government’s expert, Dr. Spector. His score of 66 indicated that he remains in the first percentile, even after many years of failed interventions and attempts to improve his reading and language skills. The defendant’s history on academic achievement tests are also remarkably consistent over time, and indicative of severe and pervasive intellectual and aeademic deficits. These scores are summarized below: WORD SPELLING ARITHMETIC ADMINISTRATOR/ RECOGNITION GRADE GRADE _TEST_DATE AGE GRADE LEVEL LEVEL LEVEL D.C. schools— 1982 12 2.5 2.1 3.0 WRAT___ Rehabilitation Serv’s 1992 21 2.0 1.0 5.0 Admin (RSA) — WRAT_ Dr. Nagele — WIAT-II 2008 38_21_L9_3.5 Dr. Spector — WRAT-4 2009 38_2J_A0_3.8 In sum, the Court finds it abundantly clear that the defendant has a significant limitation in intellectual functioning that is at least two standard deviations below the mean. Therefore, the Court will now proceed to evaluate the defendant’s level of adaptive functioning in order to determine whether Davis is mentally retarded. II. Adaptive Functioning Adaptive behavior refers to the skills that are required for people to function in their everyday lives. In one sense, adaptive behavior addresses how persons apply their cognitive potential. Dr. Olley described mental retardation as “the failure to carry out everyday activities at the level expected of adults.” Def. Ex. 17, J. Gregory Olley, The Assessment of Adaptive Behavior in Adult Forensic Cases: Part 1, Psychology in Mental Retardation and Developmental Disabilities (American Psychological Association/. Division 33, Washington, D.C.), Summer 2006, at 2, 2 (hereinafter, Olley I). In other words, one may conceive of significant impairment in adaptive behavior as “the extent to which the individual has required assistance to carry out age-appropriate activities.” Def. Ex. 17, J. Gregory Olley, The Assessment of Adaptive Behavior in Adult Forensic Cases: Part 3, Psychology In Mental Retardation and Developmental Disabilities (American Psychological Association/ Division 33, Washington, D.C.), Summer 2007, at 3, 4 (hereinafter, Olley III). Adaptive behavior may be assessed by two different constructs — the classification in AAMR 2002 and the classification in DSM-PV-TR. which essentially measure the same skills. The DSM-TV-TR classification of adaptive behavior addresses ten domains: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, and heath/safety. A diagnosis of mental retardation requires a significant limitation in at least two of the ten domains. See DSM-TV-TR at 41. The AAMR classification divides adaptive behavior into three broader categories: conceptual, practical, and social. Diagnosis of mental retardation requires a significant limitation in one of the three categories. Conceptual skills include language, reading and writing, money concepts, and self-direction. Social skills include interpersonal skills, personal responsibility, self-esteem, gullibility, following rules, obeying laws, and avoiding victimization. The practical category includes the activities of daily living, including personal hygiene and grooming as well as home and financial management, occupational skills, and maintenance of a safe environment. See AAMR 2002 at 82. A. How Adaptive Behavior Should Be Assessed Determining whether an individual’s adaptive functioning is more than two standard deviations below the mean in any given domain or category is inherently more difficult than determining whether that subject’s intellectual functioning is below that level. Adaptive behavior is a broader category, and more amorphous, than intellectual functioning. Therefore, the Court believes it is important to have an understanding of what are considered the best professional practices for the assessment of adaptive functioning, as it bears on the relative credibility of the experts in this case. The assessment of adaptive behavior is more difficult to quantify when a subject is presently incarcerated. The DSM-IV-TR advises that “[i]t is useful to gather evidence for deficits in adaptive functioning from one or more reliable independent sources (e.g., teacher evaluation and educational, developmental, and medical history).” DSM-IV-TR at 42; see also User’s Guide at 18-22. Several scales have also been designed to measure adaptive functioning or behavior, including the Vineland Adaptive Behavior Scales and the American Association on Mental Retardation Adaptive Behavior Scale. DSM-IV-TR at 42. Though the DSM-IV-TR does not require the use of a standardized adaptive behavior scale, doing so appears to be highly advisable. The AAMR 2002 manual states unequivocally that “[ojbservations, interviews, or other methods of assessment to gather information about adaptive behavior may complement, but ordinarily should not replace, standardized measures.” AAMR 2002 at 84 (emphasis added). The AAMR User’s Guide specifically addresses how one should assess adaptive behavior when one is forced to conduct a retrospective diagnosis: In reference to the assessment of adaptive behavior: (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 behavioral skills, 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; and (f) realize that adaptive behavior refers to typical functioning and not to capacity or maximum functioning. User’s Guide at 20. The User’s Guide goes on to advise clinicians to “recognize that self-ratings have a high risk of error in determining ‘significant limitations in adaptive behavior,’ ” but that they can be used with caution in conjunction with multiple informants or respondents. Id. at 21. It also instructs evaluators not to rely upon past criminal or verbal behavior to make inferences about adaptive functioning or the presence of mental retardation. Id. at 22. In 2006 and 2007, Dr. Olley published a three-part series in the official publication of the APA Division 33 titled “The Assessment of Adaptive Behavior in Adult Forensic Cases.” Def. Ex. 17. In it, he discussed the efforts of Division 33’s Ad Hoc Committee on Mental Retardation and the Death Penalty to work toward the establishment of practice standards that would allow courts to judge more objectively whether an evaluation or testimony bearing on the question of mental retardation followed the best practices of the psychology profession. In his first piece, Dr. Olley notes that when a court requires an assessment of a defendant’s current adaptive functioning, standard approaches are not effective, because “prison life offers no opportunity to demonstrate most areas of adaptive functioning.” Def. Ex. 17, Olley I at 2. He later continued, “Our typical procedures for assessing adaptive functioning are compromised when we investigate functioning retrospectively to the time of the crime or to childhood. The typical approach is to seek adaptive behavior information from several sources and to look for convergence of findings.” Def. Ex. 17, Olley III at 4. Dr. Olley stressed at the outset of his discussion that the process of assessing adaptive behavior, particularly in a retroactive sense, “is a matter of drawing information from many sources, all of which are imperfect. ” Def. Ex. 17, J. Gregory Olley, The Assessment of Adaptive Behavior in Adult Forensic Cases: Part 2, Psychology In Mental Retardation and Developmental Disabilities (American Psychological Association/ Division 33, Washington, D.C.), Fall 2006 (hereinafter, Olley II) (emphasis added). Dr. Olley identified a number of potential ways for clinicians to gather information about a defendant’s adaptive functioning: (1) interview the defendant; (2) test the defendant’s knowledge; (3) test the defendant’s performance; (4) interview family members, neighbors, friends, and former employers; (5) administer an adaptive behavior scale to third-party reporters; (6) administer an adaptive behavior scale to the defendant; (7) examine objective archival information (e.g., school records, eligibility tests for Social Security benefits, etc.); (8) review subjective archival information (comments by teachers, coaches, counselors, etc.); and (9) apply clinical judgment. Def. Ex. 17, Olley III at 4-5. The Court believes that the AAMR 2002 manual, the User’s Guide, and Dr. Olley’s series of articles reflect a relative consensus that the best way to retroactively assess a defendant’s adaptive functioning is to review the broadest set of data possible, and to look for consistency and convergence over time. It is with this in mind that the Court has evaluated the testimony and evidence presented on this issue in the present case. 1. ABAS