Full opinion text
HELEN G. BERRIGAN, District Judge. OPINION I. BACKGROUND...........................................................484 a. The AAMR/AAIDD & DSM-IY-TR Definitions of Mental Retardation.....484 b. The Expert Witnesses.................................... 487 II. ANALYSIS ...............................................................489 a. Factor One: Significantly Subaverage Intellectual Functioning...........489 1. Smith’s IQ Scores...................................................490 2. Criticism of IQ Scores by Dr. Hayes...................................492 i. Malingering and Bias..........................................496 ii Other Testimony...............................................499 S. The Court’s Finding re: Smith’s Intellectual Functioning................501 b. Factor Two: Significant Limitations in Adaptive Functioning.............501 1. Retrospective Diagnosis .............................................508 2. Clinical Judgment in Adaptive Functioning Assessment.................505 S. Dr. Swanson’s Adaptive Functioning Assessment.......................506 i. Adaptive Probes................................................506 ii. VABS-II and ABAS-II Scores...................................506 Hi. Questions re: Dora Smith’s Credibility ...........................509 iv. Criticism of Dr. Swanson’s VABS-II and ABAS-II Scores..........510 A. Norming..................................................510 B. Bias and Inconsistent Answers..............................513 A Dr Hayes’s Adaptive Functioning Assessment.........................513 i. Discipline Issues Unrelated to Mental Deficits.....................514 ii. Clinical Interview..............................................514 Hi. Use of Correctional Officers as Respondents.......................517 iv. Drug Use and Brain Injury/Truancy.............................519 5. School, Job Corps, U.S. Navy and Employment Records.................520 i. Elementary and High School....................................520 ii. Job Corps.....................................................524 Hi. U.S. Navy.....................................................526 iv. Employment History...........................................531 6. The Court’s Finding re: Smith’s Adaptive Functioning..................534 c. Factor Three: Age of Onset ............................................535 III. CONCLUSION............................................................535 APPENDIX A Additional Findings re: Dr. Swanson’s Adaptive Behavior Assessment APPENDIX B Additional Examples re: Dr. Hayes’ Interview APPENDIX C Additional Findings re: Dr. Hayes’ Adaptive Behavior Assessment This matter comes before the Court on pre-trial determination whether the defendant, Joseph Smith (“Smith”) is mentally retarded for purposes of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and the Federal Death Penalty Act, 18 U.S.C. § 3596(c). An evidentiary hearing was held on June 7-10, 2010, and the matter was taken under advisement. Having thoroughly considered the record, the evidence and testimony adduced at trial, and the law, the Court now issues its opinion. I. BACKGROUND Smith faces four counts contained in the Second Superseding Indictment pertaining to his role in a 2004 attempted bank robbery and death of a bank security officer. Two of those counts are capital. Smith asserts that he is mentally retarded and is therefore ineligible for the death penalty under Atkins and § 3596(c). This issue will be determined before trial by the Court without a jury. Smith has the burden of proof by a preponderance of the evidence. a. The AAMR/AAIDD & DSM-IV-TR Definitions of Mental Retardation Mental retardation is a developmental disability, the definition of which the Court derives from the two sources recognized by the Supreme Court in Atkins: The American Association on Mental Retardation (“AAMR”), now known as the American Association on Intellectual and Developmental Disabilities (“AAIDD”), as of January 1, 2007, and the American Psychiatric Association (“APA”). At the time of the hearing, Smith was 59 years old. Because the timing of the various expert evaluations, opinions and the hearing involving this defendant spanned the transition between two versions of the relevant AAMR/AAIDD definitions from two sequential manuals, the Court’s analysis will involves both. The AAMR defines mental retardation in the 10th edition of its standard reference work as follows: Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18. Mental Retardation Definition, Classification, and Systems of Supports 1 (2002) (“AAMR 10TH Edition”). In 2007, Robert L. SCHALOCK, ET AL, USER’S GUIDE: MENTAL Retardation Definition, Classification and Systems of Supports — 10th Edition 18 (AAIDD 2007) (“User’s Guide”) was published for use in conjunction with the AAMR 10TH Edition, pertaining to “the condition currently referred to as mental retardation (MR) or intellectual disabilities (ID)” and with the advice that “throughout the User’s Guide, both mental retardation (MR) and intellectual disabilities (ID) will be used to reflect the national and international use of these terms.” As of the time of the hearing in June 2010, the AAIDD had published the most recent manual, Intellectual Disability Definition, Classification, and Systems of Support, 51-52 (2010)(“AAIDD 11th Edition”). For purposes of completion, that definition provides: Intellectual disability is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18. Because the Supreme Court issued its decision in Atkins prior to the most recent publication and change of terminology by the AAIDD, the Court will use the term “mental retardation” throughout this opinion when referring to the term intellectual disability as used in the AAIDD 11th Edition. The definition and diagnostic criteria for mental retardation of the APA is contained in its standard reference work, the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (2000) (“DSM-IV-TR”). It provides in relevant part that a diagnosis of mental retardation requires: A. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning). B. Concurrent deficits or impairments in present adaptive functioning (i.e., the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living. Social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety- C. The onset is before age 18 years. The DSM-IV-TR categorizes mental retardation as mild, moderate, severe, and profound, with a residual category of “mental retardation, severity unspecified.” Mild Mental Retardation is associated with an IQ of 50-55 to 70-75, and the DSM-IV-TR further describes it as follows: Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of “educable.” This group constitutes the largest segment (about 85%) of those with the disorder. As a group, people with this level of Mental Retardation typically develop social and communication skills during the preschool years (ages 0-5 years), have minimal impairment in sensorimotor areas, and often are not distinguishable from children without Mental Retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth-grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings. DSM-IV-TR at 43. The American Psychological Association’s Division of Mental Retardation and Developmental Disabilities (“Division 33”) echoes this point and further elaborates: People classified with mild MR evidence small delays in the preschool years but often are not identified until after school entry, when assessment is undertaken following academic failure or emergence of behavior problems. Modest expressive language delays are evident during early primary school years, with the use of 2- to 3-word sentences common. During the later primary school years, these children develop considerable expressive speaking skills, engage with peers in spontaneous interactive play, and can be guided into play with larger groups. During middle school, they develop complex sentence structure, and their speech is clearly intelligible. The ability to use simple number concepts is also present, but practical understanding of the use of money may be limited. By adolescence, normal language fluency may be evident. Reading and number skills will range from 1st- to 6th- grade level, and social interests, community activities, and self-direction will be typical of peers, albeit as affected by pragmatic academic skill attainment. Baroff (1986) ascribed a mental age range of 8 to 11 years to adults in this group. This designation implies variation in academic skills, and for a large proportion of these adults, persistent low academic skill attainment limits them vocational opportunities. However, these people are generally able to fulfill all expected adult roles. Consequently, their involvement in adult services and participation in therapeutic activities following completion of educational preparation is relatively uncommon, is often time-limited or periodic, and may be associated with issues of adjustment or disability conditions not closely related to MR. Am. Psychol. Ass’n, Manual of Diagnosis and Professional Practice in Mental Retardation 17-18 (John W. Jacobson & James A. Mulick eds., 1996)[hereinafter APA Manual]. The Supreme Court in Atkins recognized that the two “official” definitions of mental retardation are similar, but left to states the “task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Atkins, 536 U.S. at 317, 122 S.Ct. 2242. In doing so, it noted that: [C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. Atkins, 536 U.S. at 318, 122 S.Ct. 2242. The AAIDD recognizes that, with regard to persons with mental retardation or intellectual disabilities in the criminal justice system, some criminal defendants fall at the upper end of the MR/ID severity continuum (i.e. people with mental retardation who have a higher IQ) and [they] frequently present a mixed competence profile. [] They typically have a history of academic failure and marginal social and vocational skills. Their previous and current situations frequently allowed formal assessment to be avoided or led to assessment that was less than optimal. According to the AAIDD 11th Edition, the higher IQ mentally retarded are also “more likely to mask their deficits and attempt to look more able and typical than they actually are.” Moreover, “persons with ID typically have a strong acquiescence bias or a bias to please that might lead to erroneous patterns of responding.” b. The Expert Witnesses This is the Court’s second Atkins determination. The first case involved expert testimony from three of the four psychologists who testified at the hearing in this matter. Hardy, 762 F.Supp.2d at 855-56. The only expert not to testify at the Hardy hearing, Marc L. Zimmerman, Ph. D., was the first to testify at this hearing and was accepted by the Court as an expert in the field of psychology without objection from the government. According to his curriculum vitae, he received his bachelor’s degree in psychology from North Texas State University, a master’s degree in education from Out Lady of the Lake University, master’s and doctorate degrees in psychology from Texas A & M University — Commerce, and a masters degree in clinical psychopharmacology from the California School of Professional Psychology. He received his Texas license in 1978 and his Louisiana license in 1979. According to his testimony, he has administered “[h]undreds, if not thousands” of WAIS IQ tests during his career. The other three experts were recognized by the Court in Hardy as experts in psychology, although their varied professional experience with the mentally retarded was also discussed. The second expert, Victoria Swanson, Ph.D., was called by the defendants at both hearings. According to stipulated testimony, Dr. Swanson is a licensed psychologist who was accepted by the Court without objection as an expert in mental retardation. She has specialized in the field of mental retardation and developmental disabilities throughout her 35 year career. She received her bachelor’s degree in psychology from the University of Southwestern Louisiana in 1973 and then began working with the intellectually disabled in rural Louisiana. Dr. Swanson received her master’s degree from Northwestern State University in 1991, writing her thesis on the Vineland test, a test of adaptive behavior. She has continued her work in the area of mental retardation and received a doctorate degree in psychology in 1999 from Louisiana State University. She is licensed in Louisiana. According to stipulated testimony, Dr. Swanson has either performed or supervised approximately 6,000 assessments for mental retardation, and has administered approximately 300 IQ tests a year, and estimated her career total number of Vine-land tests of adaptive behavior “in the 10,000s.” She estimated that less than one percent of those assessments related to litigation in court, less than that related to an Atkins determination and that she estimated that she has given opinions with regard to approximately 18 Atkins hearings. Numerous awards and distinctions from the AAMR and AAIDD are included on her curriculum vitae, and she has served as the President of the National Psychology Division of the AAMR. As an expert in mental retardation, she does not work primarily in the forensic field. The third psychologist who testified, Jill S. Hayes, Ph.D., was called by the government at both hearings. She was accepted without objection at this hearing as an expert in forensic psychology as well as mental retardation. According to stipulated testimony, Dr. Hayes received a bachelor’s degree in psychology from Armstrong State College in 1990, a master’s degree in applied psychology from Augusta State College in 1992, a master’s degree in clinical psychology from Louisiana State University in 1995 and a doctorate degree in clinical psychology with a specialty in neuropsychology and a minor in behavioral neurology from Louisiana State University in 1998. She did a one-year internship at the Medical University of South Carolina in 1997-1998, followed by a one-year fellowship at Louisiana State University Health Sciences Center in 1998-1999. She is licensed in Louisiana as a neuropsychologist and clinical psychologist, and is licensed as a clinical psychologist in Arizona. Dr. Hayes’s stipulated testimony indicates that she has performed about 20 mental retardation assessments and ten Vineland tests since receiving her license in 1998. She identified at least five articles authored by her that involved some aspect of mental retardation, three of which concerned malingering, at the Hardy hearing. The last psychologist, Mark D. Cunningham, Ph.D., was called by the defendant and accepted by the Court as an expert in forensic and clinical psychology at the Hardy hearing and as an expert in forensic psychology and mental retardation evaluation at this hearing without objection. According to stipulated testimony, Dr. Cunningham received his bachelor’s degree in psychology from Abilene Christian College in 1973. He received his master’s and doctorate degrees in clinical psychology from Oklahoma State University in 1976 and 1977, respectively. He had a clinical internship at the National Naval Medical Center in 1977-1978, and participated in part-time post doctoral training at Yale University School of Medicine between 1979 and 1981. He is licensed in sixteen states including Louisiana, and he is board certified in clinical psychology and forensic psychology by the American Board of Professional Psychology. Dr. Cunningham testified that he has performed many mental retardation assessments in a forensic context, including determinations of competency to stand trial, social security eligibility and for Atkins purposes, including testifying in Atkins hearings once or twice. He has co-authored papers on mental retardation issues in capital cases and has testified in federal capital cases. II. ANALYSIS As previously indicated, the Court is guided by the diagnostic criteria for mental retardation developed by the APA and AAMR/AAIDD. Those criteria contain three essential factors: significantly sub-average intellectual functioning, significant limitations in adaptive behavior, and onset prior to age 18. Each will be separately discussed. a. Factor One: Significantly Subaverage Intellectual Functioning Intelligence is defined as “a general mental ability.” “It includes reasoning, planning, solving problems, thinking abstractly, comprehending complex ideas, learning quickly, and learning from experience.” The determination of intellectual functioning and significant limitations is assessed by standardized instruments. In general, the first criterion for a diagnosis of mental retardation requires “significant limitations ... in intellectual functioning,” or put another way, “significantly subaverage intellectual functioning.” The APA and AAMR/AAIDD define this to mean an IQ score approximately two standards deviations below the mean of 100, talcing into consideration the standard error of measurement for the IQ test used. Two standard deviations below the mean of the test relevant here would be a score of 70. That is not, however, the cutoff score typically used, because the APA and AAMR/AAIDD direct that the test’s measurement error must be taken into account when interpreting its result. The AAMR/AAIDD has noted that the standard error of measurement “which has been estimated to be three to five points on well-standardized measures of general intellectual functioning” should be considered, resulting in a range of scores with an attendant range of confidence. “Thus an IQ standard score is best seen as bounded by a range that would be approximately three to four above and below the obtained score.” There is also general agreement among the APA, AAMR and the testifying experts in Hardy that a score of 75 should be used as the upper bound of the IQ range describing mild mental retardation. The Court therefore again finds as a factual matter that a diagnosis of mental retardation requires an IQ score of 75 or less on one of the standard IQ tests. ■1. Smith’s IQ Scores Both Dr. Zimmerman and Dr. Swanson administered the WAIS-III to Smith, on October 28, 2004 and April 19, 2006, respectively. The WAIS-III was the current version of the test at the time of each assessment, and consisted of two general components or scales. The verbal scale in turn consisted of six subscales or sub-tests, and the performance component consists of five subscales. Psychologists use IQ testing to measure intelligence and the WAIS-III is a gold standard for this testing. Both psychologists found Smith to have a Full Scale IQ of 67. In addition, Dr. Zimmerman found Smith to have a Verbal IQ of 68, and a Performance IQ of 74. Dr. Swanson assessed Smith’s Verbal IQ at 67, and his Performance IQ at 73. The results were nearly identical as to the Verbal and Performance IQs and were identical as to the Full Scale IQ. This alone supports the reliability of the results. Assuming these scores are correct, they satisfy the first criteria for mental retardation without correction for the Flynn Effect. The Court however finds the Flynn Effect should be applied to the WAIS-III scores. This produces a corrected IQ score of 64-65. The WAIS-III is made up of a number of different subtests. A chart was introduced by the defense comparing Smith’s raw scores and standard scores on eleven of the subtests from Dr. Zimmerman and Dr. Swanson’s administration. The raw scores are the actual scores achieved on each subtest; these are then converted into standard scores which represent a range. For example, a raw score of 7 or 8 on Picture Arrangement yields the same standard score of 7. A raw score of 11 or 12 on Block Design yields the same standard score of 4. The raw scores Smith achieved on the two administrations of the tests were remarkably consistent. For two of the sub-tests, the score was identical under Dr. Zimmerman and Dr. Swanson, and six others have only a one digit difference. This clustering of scores was even more pronounced when converted to standard scores. With that conversion, Smith’s scores were identical for Dr. Zimmerman and Dr. Swanson on five of the eleven subtests, with only a one digit difference on five others. The only subtests where a greater disparity occurred was Vocabulary, where Dr. Zimmerman’s standard score was a 6 and Dr. Swanson’s was a 4. But even with that disparity, the difference was still within the standard error of measurement, and therefore statistically insignificant. In addition, Dr. Cunningham testified that the Vocabulary section of the test constituted only 9% of the IQ score, with the other 91% of the results substantial similar, if not identical. Dr. Zimmerman testified that this consistency between test results indicates they are an accurate measure Smith’s actual functioning. Dr. Swanson also testified that this consistency indicated “inter-rater reliability between testers” which means consistent effort on both tests. Finally, Dr. Cunningham likewise testified that the consistency of the results, all the way down to the subtest standard scores, indicate good effort and reliability. 2. Criticism of IQ Scores by Dr. Hayes Dr. Hayes, nonetheless, found several aspects of the comparative IQ testing to criticize which she asserted undermined their reliability. First, she pointed out that Smith was unable to consistently repeat three digits backwards from memory on one subtest, while he was able to reorder four and five digit letter combinations into a sequential order on another sub-test. To put this in context, the Digit Span recitation is part of the IQ test. A series of numbers are read to the individual and they are to recite them back from memory, either in the same forward sequence, or backwards, depending on the instructions. With Dr. Zimmerman, Smith was able to recite up to five digits forward correctly, and just up to two digits backwards correctly. With Dr. Swanson, Smith likewise was able to remember up to five digits forward and again only two digits backwards. Since these are identical results, the Court finds they indicate reliability. Dr. Hayes, however, chose to compare these consistent scores on the Digit Span to 'results from a different test, Letter-Numbering Sequencing, arguing inconsistency between them. As a threshold, the Court questions the appropriateness of comparing the results of one subtest with a different subtest and then arguing they are somehow inconsistent. It is akin to the proverbial comparing of apples with oranges. Dr. Cunningham testified persuasively that it is not accepted practice in the professional community to compare answers to even the same question from one administration to another since natural variations occur within the same person from test to test. In any event, in the Letter-Numbering Sequencing subtest, the person is read several numbers and letters and told to recite them back in the proper numbering order followed by the proper letter order. With Dr. Zimmerman, Dr. Hayes stated that Smith was able to get three trials of four digit sequencing correct and one out of three attempts at five digit sequencing. Dr. Hayes also testified that Dr. William Gouvier administered the same test to Smith and Smith successfully sequenced two of the four digit combinations and two of the five digit combinations. The Court finds the comparison between Dr. Zimmerman and Dr. Gouvier noteworthy because again Smith performed roughly the same between the same two tests. The Court finds that Dr. Hayes’ comparison of different tests highly questionable, and concludes that the consistency between the same test administrations — Dr. Zimmerman and Dr. Swanson as to Digit Span and Dr. Zimmerman and Dr. Gouvier as to the Letter-Number Sequencing — supports the reliability of the testing. The next challenge Dr. Hayes had to the WAIS-III administrations dealt with vocabulary. According to Dr. Zimmerman’s testing, when he asked Smith what a ship was, Smith said it moves cargo and people from place to place on water. With Dr. Swanson, the response was “metal” followed by a pause, then something inaudible and then an “I don’t know.” Since Smith had been in the Navy, Dr. Hayes thought his response completely illogical. She testified when she asked Smith the same question during their lengthy interview, more specifically what another name for a ship was, he correctly answered vessel. Dr. Hayes’ recitation of what happened during the interview, however, is significantly truncated. During that interview, when she first asked Smith what a ship was, he paused and said “What is a ship? A ship ... how can I put this?” shaking his head, followed by a long pause. The interview was interrupted by someone knocking on the door. After the interruption, Smith suggested to Dr. Hayes that she ask him another question. So she asked him a different question, but then returned a short while later to the definition of a ship, specifically saying, “Now what is a ship? What’s a ship mean? Or what’s another word for a ship?” Dr. Hayes herself admitted that her prompting him for an alternative word for a ship is not allowed on the WAIS-III. Smith nonetheless continued to struggle: ‘What’s the other word for a ship?” And then finally said, “I don’t know. A vessel.” The Court does not doubt that Smith knows what a ship is, but the whole purpose of this hearing was to determine his level of intelligence and cognition. The fact that a person who served in the Navy would still have difficulty defining a ship and needed prompts to finally come up with even a hesitant answer is a significant indicator of cognitive deficits. Dr. Hayes completely glossed over this in her account, which calls into question both her qualifications and her credibility. Additionally, the fact that Smith likewise struggled in defining a ship to Dr. Swanson, who presumably administered the test correctly, without prompts, reinforces this conclusion. And with regard to Dr. Zimmerman’s account, while Smith gave a correct definition, it is unknown how long it took him to do so. Dr. Hayes also focused on two other “vocabulary” discrepancies between Dr. Zimmerman’s testing and Dr. Swanson’s. The vocabulary subtest consisted of some 25 items to define, of which Dr. Hayes picked out three to challenge. However, the vast majority of the answers were consistent between the two tests, again supporting reliability. Dr. Hayes also highlighted one discrepancy in Smith’s responses in the subtest regarding “similarities.” When asked by Dr. Zimmerman how a table and chair are alike, he correctly said that both were furniture, but when asked by Dr. Swanson, he said they are both used for a purpose, then said he did not know. Regardless of how they might have been scored, both initial answers correctly described how they were in fact similar. And, again, the remaining answers were largely consistent on that subtest as well. Under the Information subtest, Dr. Hayes found a discrepancy in the response to who Martin Luther King was. With Dr. Zimmerman, Smith said he was a black man while with Dr. Swanson, he said he was a freedom fighter. Dr. Hayes, as did Dr. Zimmerman, considered the answer of a “black man” to be unacceptable. Nonetheless, it was not an incorrect answer. Citing these individual examples, Dr. Hayes claimed it showed that Smith was not responding consistently, even though she conceded that the discrepancies were not of statistical significance. The Court concludes to the contrary. The overwhelming evidence is that Smith’s responses on both tests were entirely consistent at every meaningful level. As Dr. Zimmerman testified, one should look to the overall response pattern, which is reflected in the raw scores and the scale scores, to assess consistency and reliability. Dr. Hayes’ idiosyncratic picking apart of a few isolated responses to challenge the overall results was overreaching and simply not credible. As further support for the reliability of the Dr. Zimmerman-Dr. Swanson testing, their results are consistent with other IQ-related assessments of Smith’s cognitive capacity. Unquestionably, as already noted, the WAIS-III is recognized as a gold standard for IQ testing. Smith’s Full Scale Score of 67 was identical on both Dr. Swanson’s and Dr. Zimmerman’s test and falls within the range of mild mental retardation. In earlier years, while a student, Smith had taken two Otis IQ tests, which are group administered, hence less reliable than individual testing but nonetheless useful as corroboration. When Smith was in the 7th grade, at the age of 13, he took an Otis Beta test which resulted in an IQ score of either 69 or 65 (the IQ score is obscured). Either score falls into the mild mental retardation range. This is also significant as supporting the third requirement for a diagnosis of mental retardation — onset before the age of 18. In 1964, when Smith was 16 years old and in the 10th grade he took an Otis Gamma Test, scoring a numeric IQ of 75 which was classified by the document as “borderline” (sic). With consideration of the typical standard error of measurement for IQ tests, a score of 75 is the outer edge of mild mental retardation. While both of these tests were group administered, they were done so in a school setting, which required certain prior training and the following of proper protocols for administration. Prior to entering the military, Smith took the Navy General Classification Test which measures verbal intelligence. Smith scored a 34 of that test, which Dr. Hayes indicated was at the 5th percentile, meaning 95% of the prospective enlistees who took the test scored higher. Dr. Swanson testified that the GCT is not an IQ test but it does highly correlate with IQ scores. She explained that the mean of the test is 50 (as compared to 100 for an IQ test), with a standard deviation ranging from 7.5 to 10, depending on which the military was using at the time, which unfortunately could not be determined. This would place Smith’s score at least one “and probably two” standard deviations below the mean. Two standard deviations below the mean on an IQ test is in the mild mental retardation range. Dr. Cunningham testified similarly, estimated the GCT score to be analogous to either a 70 or a 76, depending again on the standard deviation in use at the time. As Dr. Cunningham testified, all of these scores cluster within a range of 69 (possibly 65 on the Otis Beta) to perhaps a 76, dating back to when Smith was 13 years up through his 50’s. All but the 76 are within the range of mild mental retardation, which cuts off at 75. One more test must be considered. In 1977, after Smith was convicted of robbery and sentenced to prison, his tested IQ was 93, which would be in the average range, well distant from mild mental retardation. According to Dr. Hayes, this was a Revised Beta Examination, which is a nonverbal test, akin to the performance items of the WAIS, and used to quickly estimate IQ. She acknowledged it was less reliable than a WAIS test. Dr. Swanson testified that while the Beta is not a gold standard for IQ testing, it is usually good corroborative information. Her concern about the validity of this particular test was the institutional prison setting and whether the testing was actually properly supervised so the results could be considered reliable. Since the results of that test were so different from the cluster of the five other scores, she found it suspicious, an “outlier.” Dr. Cunningham concluded likewise. The Court agrees. The five other scores ranged from 65 or 67 to a possible high of 76 and essentially bookended Smith’s life, beginning with three tests as a youth and culminating in two gold standard tests in his 50’s. They are all in the mild mental retardation range, with the Navy GCT possibly on the cusp, depending on what the standard deviation actually was. The 93 from the Department of Corrections stands in stark contrast, indicating to this Court that the test was not administered with adequate supervision to assure the integrity of the results. The Court therefore disregards it. i. Malingering and Bias Concurrent with Dr. Hayes’ claims of inconsistency between isolated items on the two WAIS test administrations, she also contended that neither Dr. Zimmerman nor Dr. Swanson adequately considered malingering or biased responding by Smith. According to the DSM-IV, malingering should be strongly suspected if any combination of the following are observed: 1. Medicolegal context of presentation; 2. Marked discrepancy between the person’s claimed stress of disability and the objective findings; 3. Lack of cooperation during the diagnostic evaluation and in complying with prescribed treatment regimen; 4. Presence of Antisocial Personality Disorder. Obviously, in an Atkins situation, the context is medicolegal with potentially a life or death consequence hinging on the outcome. Also, Dr. Hayes testified that Smith showed traits of antisocial personality disorder. On the other hand, Dr. Swanson in her report stated that Smith was “cooperative during the testing and demonstrated good effort throughout the throughout the assessment.” Further on, she elaborated that “Mr. Smith put forth good effort. He worked to the time limit on timed subtests and gave maximum time to untimed items. He often self-corrected in an effort to get a higher score. The WAIS-III results appear to be a valid estimate of current cognitive functioning ...” D.r. Zimmerman and Dr. Swanson both testified at the Atkins hearing and made clear they did consider the possibility of malingering or biased responding and found no evidence of it. Dr. Zimmerman was qualified as an expert in psychology, with over thirty years experience, and testified that he has administered “hundreds, if not thousands” of WAIS version IQ tests in his career. Specifically, with respect to malingering or response bias, Dr. Zimmerman testified that he administers these tests frequently, including for the Office of Disability Determinations where people do attempt to malinger, and he considers himself “pretty adept” at picking such people out. Having given so many such tests, he has the “normative data” in his brain on how people typically respond when they are misrepresenting themselves. For example, Dr. Zimmerman testified that malingerers will frequently answer “I don’t know” to the questions, or “I can’t do it” on the performance items, or will stop after several questions and claim they can not do anymore. He did not see those patterns with Smith. As an example of Smith’s effort, Dr. Zimmerman testified concerning a particular performance sub-test of the WAIS in which the person is asked to look at a series of pictures and identify what is missing in the picture. The pictures become progressively more complex, and the person has just 20 seconds to study and identify what is missing in each successive one. In Smith’s case, he correctly answered several simpler ones, then made mistakes on several more difficult ones, but then answered correctly, but too late on even more difficult ones. Dr. Zimmerman testified that this shows good effort, as Smith “doesn’t quit, he keeps trying and trying” and “tries hard enough to get the correct answer” even though he has run out of time. This parallels Dr. Swanson’s similar comment in her expert report, already noted, that Smith worked to the time limit on the timed subtests and gave maximum time to the untimed items. Dr. Zimmerman further testified that had he detected that Smith was not putting forth his best effort, he would have called him on it. And if Smith had continued to answer with “suboptimal effort,” Dr. Zimmerman would have given him a malingering test and also noted his suspicions in his report. He did not give any malingering test to Smith because he believed Smith put forth his best performance. Dr. Zimmerman had “no question” that the WAIS-III results were a valid and accurate measure of Smith’s IQ. Dr. Swanson likewise testified that when she administered the WAIS-III to Smith a year and a half later, she perceived him “giving a hundred percent” and trying very hard to do well on the test. She pointed out that malingerers will frequently give up early in a timed test, saying they do not know the answer, while Smith would persist, asking for more time, even if the ultimate answer was incorrect, or, if correct, came too late for her to give him credit for it. She saw no indication that Smith was deliberately trying to dial down his answers. She also pointed out that someoné trying to deliberately feign lesser ability on the first test, not knowing a second test was coming over a year later, would have great difficulty in trying to remember to feign in the same manner, considering all the subtests involved. On the other hand, both Dr. Swanson and Dr. Zimmerman acknowledged that in Mississippi, the law requires that a malingering test be given in all instances. Dr. Zimmerman testified that giving a specific malingering test would have taken less than a minute to administer. In light of the seriousness of this issue, and the brevity that such a test would take, the Court is disappointed that neither Dr. Zimmerman nor Dr. Swanson choose to administer such a test in connection with the WAIS-III. One of the defense psychologists, Dr. William Gouvier, did in fact administer malingering tests to Smith. Dr. Gouvier was retained to assess Smith for possible brain damage and did not administer an IQ test. However, he did administer two malingering tests and the result indicated that Smith put forth good effort and was not malingering. The Court concludes that Smith did not in fact malinger or evidence response bias during the administration of Dr. Zimmerman’s or Dr. Swanson’s tests. The Court comes to this conclusion in part out of deference to both Dr. Zimmerman’s and Dr. Swanson’s vast experience in administering the test and their clinical ability to spot subpar performance. They both testified emphatically that in their judgment Smith gave full effort during the testing. More importantly, the test results themselves, although a year and a half apart, were entirely consistent with each other, not just in the final IQ assessment but in the scoring of the subtests as well. Dr. Hayes attempted to discredit the results by picking out isolated inconsistent responses, but her limited criticisms only underscored the remarkable consistency between the two administrations. The Court must also point out one other concern it has with regard to Dr. Hayes’ testimony. As discussed earlier, the Digit Span test is part of the WAIS-III test. It is also significant as a so-called embedded measure to assess whether a person is putting forth good effort. Dr. Cunningham testified that the Digit Span test is where feigners frequently try to suppress their performance. Smith’s total score for the digit span on both tests was at the higher end, indicating he was likely responding honestly. Dr. Cunningham further confirmed this by comparing Smith’s Digit Span score to the Vocabulary Score, as feigners will usually have a higher Vocabulary Score than Digit Span. In Smith’s case, the score was the same on Dr. Zimmerman’s administration and for Dr. Swanson, the Digit Span score was the higher one, a finding also contrary to feigning. The Court finds disturbing that Dr. Hayes glossed over consideration of this embedded measure, which indicated Smith put forth good effort. She did not mention it on direct examination and when questioned on cross-examination, she acknowledged the Digit Span test as an embedded measure used to assess effort, she said she looked at his results on the two administrations, but acknowledged she did not report on his level of effort. Her explanation for not reporting on it was that for persons who may be in the mentally retarded range, the results are not reliable. This, however, is a questionable explanation. Dr. Hayes is correct that if a mentally retarded person does poorly on the Digit Span test, it may be a result of deficient intelligence rather than feigning, hence the test results would be inconclusive. But since she did clearly look at Smith’s Digit Span performance, as she used it to compare with his Letter-Number Sequencing, she had to have seen that his score was at the higher end, indicating good effort. This failure, at a minimum, reflects on her qualifications but also indicates a resistance, similar to the “ship” episode already cited, to recognize evidence of cognitive deficits, which undermines her credibility. Lastly, the Court is not persuaded that malingering tests are particularly effective in populations suspected of possible mental retardation. The reason should be obvious. If a person is genuinely mentally retarded, his responses may be similar to a person of normal intelligence who is trying to feign mental retardation. Dr. Cunningham testified that formal effort assessments have not been standardized against a mentally retarded population, and Dr. Swanson testified that formal malingering tests are not very reliable with persons in the lower cognitive functioning range. Therefore, using those formal assessments to determine malingering prior to first determining whether Smith is mentally retarded in the first place in effect puts the cart before the horse. ii. Other Testimony Dr. Hayes did not herself administer an IQ test. She stated that the Court’s requirement that the testing be videotaped caused her ethical problems. She explained that the possibility that the questions would become public would undermine the validity of future testing. She contended that even if the testing'was sealed and available only to the attorneys that was not good enough to assure confidentiality. While the Court presumes Dr. Hayes’ ethical concerns are genuine, the Court is not persuaded that her conclusion is a reasonable one. The Official Position Statement of the National Academy of Neuropsychology, which she referenced, counsels against “uncontrolled” test release, but goes on to suggest as “potential resolutions .... protective arrangements or protective orders from the court.” Furthermore, in the summer of 2008, the next generation of WAIS IQ testing became available — the WAIS-IV. The Atkins hearing was not until almost a year later, in 2009. Dr. Hayes could have administered the older WAIS-III during that interim period, the same test administered by Dr. Zimmerman and Dr. Swanson, since it had in effect become obsolete for future testing purposes. Two other points raised by Dr. Hayes need brief attention. In her report, she included an analysis of Smith’s IQ based on demographic characteristics, coming up with an IQ in the Average range. Dr. Cunningham testified that the lowest possible score a 59 year old black man could receive — “(e)ven if he’s been hospitalized and is in a coma his whole life”— was a 73.9. When asked if this figure was correct, Dr. Hayes resisted conceding it, but ultimately could not deny it since it is an objectively calculable finding. She did acknowledge that the Barona formulas are less accurate in the lower ranges of intelligence and that the formula has a “pretty large standard of error.” That is an understatement as Dr. Cunningham estimated the standard of error to be plus or minus 20 points. In Smith’s case, that would mean that there was a 95% likelihood of his IQ being between 50 and 95, which is essentially meaningless as a calculation. The Court has rejected this imputation based on the Barona Study from Dr. Hayes before, and does so again. In addition, Dr. Hayes testified at the hearing to an extrapolation of IQ based on data from an unscored neuropsychological test, the Wechsler Memory Scale (“WMS-III”), which had been administered by Dr. Gouvier. She testified that the manual allows for an extrapolation from IQ scores to predicted WMS scores, and she testified that she simply did the reverse, producing from the WMS score an implied predicted IQ of 91. When asked if this was a standard practice of psychologists to do the reverse extrapolation, she thought that many would but she did not know in fact if any actually did. Dr. Cunningham, on the other hand, was able to shed light on the problem with Dr. Hayes’ reverse extrapolation. He explained that the purpose of using an established IQ score to extrapolate to an estimated score on the WMS is to determine if a person has an impaired memory relative to his overall intelligence. An IQ score represents a broad range of cognition. Memory is only one aspect of intelligence, and the WMS only covers about one-third of what goes into an IQ score. The remaining two-thirds are not memory related. So while it may well be appropriate to take a known IQ score to predict whether that single factor of memory is impaired, it is not appropriate to use that one single factor of memory capacity and backtrack to a full scale IQ. For that reason, Dr. Cunningham stated emphatically that her reverse extrapolation was not acceptable in the professional and scientific community. The Court agrees. 3. The Court’s Finding re: Smith’s Intellectual Functioning The issue of IQ should have been a non-issue in this case based on the clear guidelines of the APA and AAMR/AAIDD and the evidence. The Court finds that all of the credible evidence lends full support to the WAIS-III scores, and that the defendant has established well beyond a preponderance of the evidence that his intellectual functioning is more than two standard deviations below the mean, with or without correction for the Flynn Effect. The Court finds that Smith therefore possesses significantly subaverage intellectual functioning as that term is used to diagnose mental retardation. The Court now turns to the other criteria relevant to this diagnosis. b. Factor Two: Significant Limitations in Adaptive Functioning The Court next considers whether Smith has proven that he exhibits the significant limitations in adaptive functioning required for a finding of mental retardation. That factor is defined as follows: Concurrent deficits or impairments in present adaptive functioning (i.e., the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. The AAMR/AAIDD echoes this requirement: “significant limitations ... in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.” Those two standards underpin what is referred to as the “adaptive behavior” prong of the diagnosis of mental retardation developed by APA and AAMR/ AAIDD. The focus is on “ ‘how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting.’ ” Wiley v. Epps, 625 F.3d 199, 216 (5th Cir.2010) (quoting DSM-IV-TR at 42). The definition of this prong is less settled than that for intellectual functioning. For IQ, the APA and AAMR/ AAIDD are in substantial agreement on the standard to be used: a score of 75 or below on one of the generally accepted tests of intelligence. For adaptive behavior, the current version of the APA’s guidance requires concurrent deficits in at least two of eleven relatively specific areas of adaptive functioning. The AAMR/ AAIDD takes a more holistic approach and treats adaptive behavior as a global characteristic that finds expression in three relatively abstract areas of functioning— conceptual, social, and practical — and requires deficits in just one of these three general domains to reach a finding of mental retardation. That is, “the three broad domains of adaptive behavior in [the AAMR’s] definition represent a shift from the requirement ... that a person have limitations in at least 2 of the 10 specific skill areas listed in [the AAMR’s] 1992 definition,” which was the model for the approach still used by the APA. The AAMR/AAIDD moved away from that model because “[t]he three broader domains of conceptual, social, and practical skills ... are more consistent with the structure of existing measures and with the body of research on adaptive behavior.” While these differences in definition are noteworthy, they encompass the same range of behaviors. See Wiley, 625 F.3d at 216. Both the APA and the AAMR/ AAIDD direct clinicians to the same standardized measures of adaptive behavior, such as the Vineland Adaptive Behavior Scales-II (VABS-II) and the Adaptive Behavior Assessment Scale-Second Edition (ABAS-II). Still, as evidenced by the DSM-IV-TR’s referral of clinicians to the AAMR’s instruments, the AAMR/AAIDD has taken the lead in developing the guidelines for interpreting the results of those tests. The Court finds it appropriate therefore to primarily rely on the AAMR/ AAIDD’s procedures for evaluating the defendant’s level of adaptive functioning. The AAMR/AAIDD uses the following criteria for determining whether someone has significant limitations in adaptive functioning: [P]erformance [must be] at least two standard deviations below the mean of either (a) one of the following three types of adaptive behavior: conceptual, social, or practical, or (b) an overall score on a standardized measure of conceptual, social, and practical skills. The AAMR/AAIDD repeatedly emphasizes that a diagnosis of significant limitations should be made whenever a person has performed at least two standard deviations below the mean in any of the three domains or in the total score. A person is evaluated by using a standardized test, including the VABS-II and ABAS-II. As with the tests of IQ, the scores on these tests for each domain, as well as the overall score, must be evaluated in light of the standard errors of measurement for the test. “If a person has a score that does not meet the cutoff but is within one standard deviation of the cut-score, it is advised that the score be reevaluated for reliability or the individual should be reassessed with another measure.” “The assessment of adaptive behavior focuses on the individual’s typical performance and not their best or assumed ability or maximum performance.... This is a critical difference between the assessment of adaptive behavior and the assessment of intellectual functioning, where best or maximal performance is assessed.” None of the generally accepted scales of adaptive behavior rely on direct observation of the person nor upon his own self-report of what he is capable of doing. Rather, the clinician is to gather adaptive behavior information from third parties. In selecting the informants, it is “essential that people interviewed about someone’s adaptive behavior be well-acquainted with the typical behavior of the person over an extended period of time, preferably in multiple settings.” “Very often, these respondents are parents, older siblings, other family members, teachers, employers, and friends.” “Observations made outside of the context of community environments typical of the individual’s age peers and culture warrant severely reduced weight.” The informants should also be asked to provide information about the person’s day-to-day level of functioning, as well as data on the amount of support the person needs in order to carry out any of the relevant functions. 1. Retrospective Diagnosis Unlike in a medical, educational, or social services context, the law is concerned with what was rather than what is. The point of an Atkins hearing is to determine whether a person was mentally retarded at the time of the crime and therefore ineligible for the death penalty, not whether a person is currently mentally retarded and therefore in need of special services. Because of this, the diagnosis of mental retardation in the Atkins context will always be complicated by the problems associated with retrospective diagnosis. These problems are only compounded by the fact that both the APA and AAMR/ AAIDD define mental retardation as a developmental disability and limit the diagnosis to those persons who exhibited the required characteristics prior to age 18. As those under the age of 18 are already constitutionally ineligible for the death penalty, Roper v. Simmons, 548 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), no clinician evaluating a person for purposes of an Atkins hearing will ever be evaluating the person prior to age 18. Mental retardation in the Atkins context, if it is to be diagnosed at all, must therefore be diagnosed retrospectively. So, while the APA speaks of “Moncurrent deficits or limitations in present adaptive functioning,” it is clear that the assessment of mental retardation for purposes of Atkins looks backwards — beyond even the time of the crime and back into the developmental period. Certainly a person’s level of adaptive functioning in the present might provide some information about his abilities during the developmental period as a person without limitations in the present is less likely to have had limitations before, and a person with limitations today is more likely to have had them during the developmental period. But particularly with the mildly mentally retarded, who tellingly used to be labeled the “educable,” the AAMR/AAIDD has been clear that a person’s current strengths and weaknesses are not the best evidence of the relevant facts in an Atkins hearing. With IQ, which is a relatively stable, immutable trait, the problems associated with retrospective diagnosis mostly disappear. Absent intervening trauma or injury, a person’s IQ tested after the developmental period is likely to be quite close to the IQ that would have been obtained had the person been tested prior to age eighteen. The closest that retrospectivity comes to influencing the IQ prong of the test is the Flynn Effect. But that phenomenon is an artifact of the instruments used to assess intelligence, not a consequence of retrospective diagnosis per se. Evaluating someone’s adaptive behavior, on the other hand, is less stable even in theory, and difficult to assess in practice, and all the more so when done retrospectively. The committee of the APA responsible for mental retardation, Division 33, as well as the AAMR/AAIDD have developed guidelines to help clinicians navigate the difficulties associated with retrospective diagnosis. The guidelines in the AAIDD’s User’s Guide are the most detailed. Relevant to adaptive behavior, they direct clinicians to: (1) Conduct a thorough social history; (2) Conduct a thorough review of school records; (6) Recognize that self-ratings have a high risk of error with regard to adaptive behavior; (7) Conduct a longitudinal evaluation of adaptive behavior; and (8) Not use past criminal or verbal behavior in assessing adaptive behavior. In addition, the assessment of adaptive behavior should: (a) use multiple informants and multiple contexts; (b) recognize that limitations in present functioning must be considered within the context of community environments typical of the individual’s peers and culture; (c) be aware that many important social behaviors, such as gullibility and naivete, are not measured on current adaptive behavior scales; (d) use an adaptive behavior scale that assesses behaviors that are currently viewed as developmental^ and socially relevant; (e) understand that adaptive behavior and problem behavior are independent constructs and not opposite poles of a continuum; (f) realize that adaptive behavior refers to typical and actual functioning and not to capacity or maximum functioning. Finally, the third-party respondents should focus on the defendant’s adaptive behavior closest to the developmental period about which the informant is confident discussing, and, whatever age it is, the examiner should log that age as the date of the defendant’s functioning for purposes of scoring and comparison with age-normed tables. 2. Clinical Judgment in Adaptive Functioning Assessment The Court has previously noted how objective the first prong of the APA and AAMR/AAIDDD assessments is — an IQ measured on a recognized standardized test — as compared to the second prong, which relates to adaptive behavior. The second prong involves significantly more subjective clinical judgment. Hardy, 762 F.Supp.2d at 883. As noted by the Fifth Circuit, “The assessment of adaptive functioning deficits is no easy task. Because its conceptualization ‘has proven elusive,’ adaptive functioning ‘historically has been assessed on the inherently subjective bases of interviews, observations, and professional judgment.’ ” Wiley, 625 F.3d at 218 (internal citation omitted). This greater degree of subjectivity has two consequences. First, as the degree to which a matter is left to an individual clinician’s judgment increases, so does the degree to which the Court must rely on its assessment of the relative competence and credibility of the individual experts to resolve disputes between them. Second, as the need for clinical judgment increases, so does the opportunity for disputes between clinicians. The defense and government experts are diametrically opposed with regard to adaptive behavior, echoing the Court’s previous experience with Dr. Swanson and Dr. Hayes in Hardy. Hardy, 762 F.Supp.2d at 884. Dr. Swanson found that “Mr. Smith has substantial limitations in the areas of self-care, understa