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United States v. Roland

United States District Court, D. New Jersey

December 18, 2017

UNITED STATES OF AMERICA,
v.
FARAD ROLAND, Defendant. WAIS -IV Indices Dr. Hunter's Test Dr. Morgan's Test Sum SS %ile Sum SS %ile WAIS-rV Subtests Dr. Hunter's Test Dr. Morgan's Test Raw Scaled Raw Scaled VERBAL COMPREHENSION PERCEPTUAL REASONING WORKING MEMORY PROCESSING SPEED RBANS Indices Dr. Hunter's Test Dr. Morgan's Test Raw SS Raw SS

          OPINION

          Esther Salas, U.S.D.J.

         The United States charged Defendant Farad Roland with crimes that qualify him for possible imposition of the death penalty under 18 U.S.C. § 3591 through § 3598. (D.E. No. 273, Amended Notice of Intent to Seek the Death Penalty). Roland moved for a pretrial determination of intellectual disability under the Eighth Amendment and the Federal Death Penalty Act (“FDPA”), 18 U.S.C. § 3596(c), which provides that a “sentence of death shall not be carried out upon a person who is mentally retarded.”[1] (D.E. No. 453 (“Def. Mov. Br.”)). The Government opposed Roland's motion. (D.E. No. 360 (“Gov. Opp. Br.”)). The Court has thoroughly analyzed the extensive evidence-including testimony from seven expert witnesses and nine fact witnesses, and over 360 exhibits-presented during the eighteen-day evidentiary hearing and has carefully considered the parties' written and oral arguments. For the reasons that follow, the Court concludes that Roland has abundantly satisfied his burden of proving his intellectual disability by a preponderance of the evidence and is thus ineligible for the death penalty. Accordingly, the Government is precluded from seeking a sentence of death.

         I. FRAMEWORK FOR ASSESSING INTELLECTUAL DISABILITY

         A. Legal Standard

         In 1988, Congress enacted the FDPA, which provides that a “sentence of death shall not be carried out upon a person who is mentally retarded.” 18 U.S.C. § 3596(c). The Supreme Court, in Atkins v. Virginia, later articulated the constitutional dimension to this prohibition, holding that in light of “our evolving standards of decency, ” executing the intellectually disabled violates the Eighth Amendment's ban on cruel and unusual punishment. 536 U.S. 304, 311, 321 (2002). The Court recognized a national consensus that intellectually disabled persons are “categorically less culpable than the average criminal.” Id. at 316.[2]

         The Atkins Court acknowledged the difficulties inherent in defining intellectual disability, but it did not define the condition. See Id. at 317 (“To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.”). Instead, it left “the task of developing appropriate ways to enforce [this] constitutional restriction” to the states. Id. Put differently, Atkins “did not provide definitive procedural or substantive guides” to determine who qualifies as intellectually disabled. Bobby v. Bies, 556 U.S. 825, 831 (2009). The Court did, however, point to the clinical definitions of intellectual disability promulgated by the American Association on Mental Retardation (“AAMR”)[3] and the American Psychiatric Association (“APA”). See Atkins, 536 U.S. at 308 n.3 (identifying then-current clinical standards).[4] It explained that “clinical 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.” Id. at 318.

         In Hall v. Florida, the Supreme Court clarified that these “clinical definitions of intellectual disability . . . were a fundamental premise of Atkins.” 134 S.Ct. 1986, 1995, 1999 (2014) (relying on the most recent (and still current) clinical standards and holding that Florida had violated the Eighth Amendment by “disregard[ing] established medical practice”). “The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community's diagnostic framework.” Id. at 2000. “In determining who qualifies as intellectually disabled, ” the Court instructed, “it is proper to consult the medical community's opinions.” Id. at 1993.

         Further clarifying Atkins, the Supreme Court instructed in Moore v. Texas that “[e]ven if ‘the views of medical experts' do not ‘dictate' a court's intellectual-disability determination, . . . the determination must be ‘informed by the medical community's diagnostic framework.'” 137 S.Ct. 1039, 1048 (2017) (citing Hall, 134 S.Ct. at 2000). The “current manuals, ” the Court stated, “offer the best available description of how mental disorders are expressed and can be recognized by trained clinicians.” Id. at 1053. So, while “being informed by the medical community does not demand adherence to everything stated in the latest medical guide, ” courts may not disregard current medical standards nor “diminish the force of the medical community's consensus.” Id. at 1044, 1048-49 (vacating non-ID determination based on lower court's rejection of “medical guidance” and failure “adequately to inform itself of the medical community's diagnostic framework”); see also Hall, 134 S.Ct. at 1995 (holding that Florida violated the Eighth Amendment by “disregard[ing] established medical practice”); Ybarra, 869 F.3d at 1023 (holding that the district court erred in affirming state court's non-ID determination because the state court “contradicted the very clinical guidelines that it purported to apply”).

         B. Procedural Standards

         To warrant an evidentiary hearing, Roland bears the burden of making an initial showing of “reasonable doubt” about ID.[5] Brumfield v. Cain, 135 S.Ct. 2269, 2281 (2015) (A defendant needs “only to raise a ‘reasonable doubt' as to his intellectual disability to be entitled to an evidentiary hearing.”); United States v. Watts, No. 14-40063, 2017 WL 413164, at *1 (S.D. Ill. Jan. 31, 2017) (“[I]t is [the defendant's] burden to make an initial showing of ‘reasonable doubt' about ID before an evidentiary hearing is warranted.”). Roland easily met this burden in his moving submission. (See generally Def. Mov. Br.). Roland concedes that he also carries the initial burden of establishing a prima facie case, by a preponderance of the evidence, that he is ID at the evidentiary hearing. (Id. at 5). But if he is successful, Roland argues, the Government bears the burden of rebutting his prime facie case beyond a reasonable doubt or (at the very least) by clear and convincing evidence. (Id. at 5-13). Roland's burden-shifting argument is unpersuasive.

         As the Court indicated during prehearing oral argument, Roland bears the burden of proving by a preponderance of the evidence that he is ID and therefore cannot receive the death penalty. (See D.E. No. 381, Tr. at 118).[6] The preponderance burden-the lowest of the three standards of proof-adequately reflects the degree of confidence society demands for establishing Id. See Watts, 2017 WL 413164, at *4. Indeed, this burden is consistent with every case, including those cited by the parties, to have addressed this issue (often without much controversy).[7]

         C. Clinical Standards

         As instructed by Moore, the Court will rely on the clinical definitions of ID promulgated by the AAIDD and the APA manuals: (i) AAIDD, Intellectual Disability: Definition, Classification, and Systems of Supports (11th ed. 2010) (“AAIDD-11” or “AAIDD Manual”); and (ii) APA, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (“DSM-5”). See Moore, 137 S.Ct. at 1045 (relying on AAIDD-11 and DSM-5).[8] These manuals are the most current iterations of the authoritative sources in the field, and the parties do not dispute their application.[9] Following the Supreme Court's guidance, this Court will also rely on the AAIDD, User's Guide: Intellectual Disability: Definition, Classification, and Systems of Supports (11th ed. 2012) (the “User's Guide”), over the Government's objections.[10]

         i. Three-Prong Test

         The “generally accepted, uncontroversial intellectual-disability diagnostic definition . . . identifies three core elements: (1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean-i.e., a score of roughly 70-adjusted for the standard error of measurement); (2) adaptive deficits (the inability to learn basic skills and adjust behavior to changing circumstances); and (3) the onset of these deficits while still a minor.” Moore, 137 S.Ct. at 1045.[11] Each of these three prongs must be met for a person to be positively diagnosed.[12]

         APA Definition.

         The APA defines ID as “a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains.” DSM-5 at 33. The following three criteria must be met before an individual may receive a diagnosis of ID:

A. Deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized intelligence testing.
B. Deficits in adaptive functioning that result in failure to meet developmental and sociocultural standards for personal independence and social responsibility. Without ongoing support, the adaptive deficits limit functioning in one or more activities of daily life, such as communication, social participation, and independent living, across multiple environments, such as home, school, work, and community.
C. Onset of intellectual and adaptive deficits during the developmental period.

Id. “The diagnosis of intellectual disability should be made whenever Criteria A, B, and C are met.” Id. at 39.

         AAIDD Definition.

         For the AAIDD, ID is similarly “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.” AAIDD-11 at 6. Deficits in intellectual functioning are established by “an IQ score that is approximately two standard deviations below the mean, considering the standard error of measurement for the specific assessment instruments used and the instruments' strengths and limitations.” Id. at 27. Deficits in adaptive functioning are measured by:

performance on a standardized measure of adaptive behavior that is normed on the general population including people with and without ID that is approximately two standard deviations below the mean of either (a) one of the following three types of adaptive behavior: conceptual, social, and practical or (b) an overall score on a standardized measure of conceptual, social, and practical skills.

Id. The purpose of the third prong-that the disability emerged before age eighteen-“is to distinguish ID from other forms of disability that may occur later in life . . . . Thus, disability does not necessarily have to have been formally identified, but it must have originated during the developmental period.” Id.

         The AAIDD Manual also specifies five assumptions that are “an explicit part of the definition” of ID “because they clarify the context from which the definition arises and indicate how the definition must be applied.” Id. at 6-7. Three of those assumptions are relevant here:

Assumption 1: “Limitations in present functioning must be considered within the context of community environments typical of the individual's age, peers and culture.” This means that the standards against which the individual's functioning are compared are typical community-based environments, not environments that are isolated or segregated by ability.
Typical community environments include homes, neighborhoods, schools, businesses, and other environments in which people of similar age ordinarily live, play, work, and interact.
Assumption 3: “Within an individual, limitations often coexist with strengths.” This means that people with ID are complex human beings who likely have certain gifts as well as limitations. Like all people, they often do some things better than others. Individuals may have capabilities and strengths that are independent of their ID (e.g., strengths in social or physical abilities, some adaptive skill areas, or one aspect of an adaptive skill in which they otherwise show an overall limitation).
Assumption 5: “With appropriate personalized supports over a sustained period, the life functioning of the person with ID generally will improve.” This means that if appropriate personalized supports are provided to an individual with ID, improved functioning should result. . . . The important point is that the old stereotype that people with ID never improve is incorrect. Improvement in functioning should be expected from appropriate supports, except in rare cases.

Id. at 7.

         Severity of Id.

         The DSM-5 identifies four levels of severity, ranging from mild to profound. The level of severity is “defined on the basis of adaptive functioning, and not IQ, because it is adaptive functioning that determines the level of supports required.” DSM-5 at 33-34. All levels of ID severity are exempt from capital punishment. See Moore, 137 S.Ct. at 1048 (“In Atkins v. Virginia, we held that the Constitution restrict[s] . . . the State's power to take the life of any intellectually disabled individual.”) (emphasis in original).[13]

         ii. Special Considerations in Assessing Intellectual Disability

         Both the APA and the AAIDD provide significant diagnostic features, explanations, and qualifiers for forensic use.[14] They also discuss other relevant considerations in assessing Id. The Court provides an overview of some of those points here, but notes that they are further discussed below when detailing each prong.

         Clinical Judgment.

         The guidelines emphasize that determining whether an individual meets the clinical definition for ID involves clinical judgment.[15] Clinical judgment is not simply an expert's opinion, and it “is different from either ethical or professional judgment based on one's professional ethics or standards.” AAIDD-11 at 85. Rather, clinical judgment is “a special type of judgment rooted in a high level of clinical expertise and experience” that “emerges directly from extensive data and is based on training, experiences, and specific knowledge of the person and his or her environment.” Id.

         Comprehensive View. “A valid diagnosis of ID is based on multiple sources of information that include a thorough history (social, medical, educational), standardized assessments of intellectual functioning and adaptive behavior, and possibly additional assessments or data relevant to the diagnosis.” Id. at 100.[16]

         Retrospective Diagnosis.

         In most non-forensic circumstances, ID determinations focus on the individual's present level of functioning. But in the Atkins context, where defendants usually do not receive an ID diagnosis during the developmental period, a retrospective diagnosis is often required. See, e.g., id. at 55 (“Many professionals rely on a retrospective assessment approach to measure the adaptive behavior of [individuals living in prisons].”). To that end, the AAIDD Manual and User's Guide provide a series of guidelines for clinicians charged with making these retrospective diagnoses. See Id. at 95-96; User's Guide at 20-21. The guidelines advise clinicians to (i) conduct a thorough social, medical, and educational history; (ii) assess adaptive behavior using multiple informants and multiple contexts; (iii) assess behavior within the context of community environments typical of the individual's peers and culture (e.g., home, community, school, and work); (iv) recognize that adaptive behavior refers to typical or actual functioning (not to capacity or maximum functioning); (v) consider the standard error of measurement of the instrument when estimating the individual's true IQ score; and (vi) apply the Flynn Effect. AAIDD-11 at 95-96; User's Guide at 20-21; see also Davis, 611 F.Supp.2d at 476-77 (listing guidelines for retrospective diagnosis). Moreover, a “retrospective diagnosis should be based on multiple data points that not only involve giving equal consideration to adaptive behavior and intelligence but also require evaluating the pattern of test scores and factors that affect test scores.” AAIDD-11 at 29.

         Risk Factors.

         Although etiology is not required for an ID diagnosis, certain biomedical, social, behavioral, and educational factors (i.e., “risk factors”) may give rise to Id. See Id. at 57-61.[17] These risks can be prenatal, perinatal or postnatal. Id. at 60-61; User's Guide at 4; DSM-5 at 39.[18] “[A]t least one or more of the risk factors will be found in every case of” Id. AAIDD-11 at 60. The Supreme Court recognized in Moore that “[c]linicians rely on such factors as cause to explore the prospect of intellectual disability further, not to counter the case for a disability determination.” 137 S.Ct. at 1051. And federal courts, including the Supreme Court, routinely point to identifiable risk factors applicable to the particular individual as corroborative of Id. See, e.g., id. at 1051-52 (noting that “traumatic experiences” such as “childhood abuse and suffering . . . count in the medical community as ‘risk factors' for intellectual disability”) (emphasis in original).[19]

         Reliance on Stereotypes.

         The AAIDD cautions against the use of stereotypes in determining if someone is intellectually disabled. See User's Guide at 26. Some incorrect stereotypes about people with ID are that they (i) “look and talk differently from persons from the general population”; (ii) “are completely incompetent and dangerous”; (iii) “cannot do complex tasks”; (iv) “cannot get driver's licenses, buy cars, or drive cars”; (v) “do not and cannot support their families”; (vi) “cannot romantically love or be romantically involved”; (vii) “cannot acquire vocational and social skills necessary for independent living”; and (viii) “are characterized only by limitations and do not have strengths that occur concomitantly with the limitations.” Id. “Those stereotypes, much more than medical and clinical appraisals, should spark skepticism.” See Moore, 137 S.Ct. at 1052.

         Comorbidity.

         The diagnostic criteria for ID do not require exclusion of accompanying diagnoses. “As mental-health professionals recognize, . . . many intellectually disabled people also have other mental or physical impairments . . . .” Id. at 1051 (citing DSM-5 at 40 (“Co-occurring mental, neurodevelopmental, medical, and physical conditions are frequent in intellectual disability, with rates of some conditions (e.g., mental disorders, cerebral palsy, and epilepsy) three to four times higher than in the general population”); and AAIDD-11 at 58-63). “The existence of a personality disorder or mental-health issue, in short, is not evidence that a person does not also have intellectual disability.” Id.

         II. THE EVIDENTIARY HEARING

         A. Exhibits

         The parties introduced over 360 exhibits at the hearing. (See D.E. No. 432, Parties' Joint Exhibit List). They include, among other things, Roland's medical records, school records, Social Security Administration (“SSA”) records, New Jersey Department of Youth and Family Services (“DYFS”) records, juvenile detention records, testing materials, letters, phone call recordings and transcripts, test manuals, clinical manuals, and other literature. (See id.). The Court has thoroughly reviewed and considered each of those exhibits in assessing Roland's ID claim.

         B. Expert Witnesses

         During the hearing, the Court heard opinion testimony from seven expert witnesses: four for Roland and three for the Government. The Court first provides an overview of their qualifications, followed by a summary of their conclusions and credibility determinations. Indeed, “[o]ne of the crucial functions of the Court in deciding an Atkins claim is to determine the credibility of witnesses presented at the evidentiary hearing.” Wilson, 170 F.Supp.3d at 379.[20]Having reviewed each expert's qualifications, reports, testimony, and demeanor at the hearing, the Court finds that the reports and testimony of Roland's experts-Drs. Hunter, Greenspan, Bigler, and McGrew-are more thorough, internally consistent, persuasive, and thus, credible. The Court finds the Government's experts generally less credible, as they all had fundamental disagreements with, and at times disregarded, the clinical standards and oftentimes contradicted their own conclusions. The substance of the experts' testimony, however, is best understood in light of the applicable legal and clinical standards. The Court thus analyzes the specific expert testimony and evidence in the Discussion section of this Opinion.

         i. Roland's Experts

         1. Scott J. Hunter, Ph.D.

         Roland's first expert witness was Scott J. Hunter, Ph.D., a developmental clinical neuropsychologist licensed in Illinois, Indiana, and Virginia. (Def. Ex. 40 (“Dr. Hunter's Report”) at 2; Def. Ex. 42 (“Dr. Hunter's CV”) at 1). Dr. Hunter is the director of Neuropsychology and head of the Pediatric Neuropsychology Service for the University of Chicago Medicine and Comer Children's Hospital. (Dr. Hunter's Report at 2). He is also a professor of Psychiatry and Behavioral Neuroscience, and Pediatrics in the University of Chicago's Pritzker School of Medicine and Biological Sciences Division, where he has been a faculty member for eighteen years. (Id.).

         Dr. Hunter received his master's degree and Ph.D. in clinical and developmental psychology, with emphases in behavioral neuroscience and developmental disabilities, from the University of Illinois at Chicago. (Id.; D.E. No. 386, Tr. at 11 (Dr. Hunter's Testimony)). Following completion of an APA-accredited pre-doctoral internship in clinical psychology in the Department of Psychiatry and Behavioral Sciences at Northwestern University Medical Center, Dr. Hunter completed a postdoctoral residency in pediatric neuropsychology at the University of Rochester. (Dr. Hunter's Report at 2). Dr. Hunter is the co-author and editor of three textbooks (one currently pending publication) addressing pediatric and lifespan neuropsychological development, and one textbook addressing the development of executive functioning and the relationship between executive dysfunction and disability in a range of neurodevelopmental and medical disorders. (Id. at 2-3). On June 6, 2017, the Court qualified Dr. Hunter as an expert for the defense on Id. (D.E. No. 386, Tr. at 21).

         Dr. Hunter based his testimony and report on an interview with Roland; a review of records regarding Roland's developmental, academic, medical, and legal history; a review of Roland's SSA records; and a battery of tests administered to Roland. (Id. at 60-64, 182, 194 (Dr. Hunter's Testimony); Dr. Hunter's Report at 5-11). Dr. Hunter concluded that “Roland has significant and permanent limitations in intellectual functioning, across all three required components for a diagnosis of Mild ID.” (Dr. Hunter's Report at 18; see also D.E. No. 387, Tr. at 43 (Dr. Hunter testifying that Roland “meets the criteria for diagnosis of mild intellectual disability”)).

         The Court finds Dr. Hunter's testimony, particularly with regard to Prong One, to be highly credible. Dr. Hunter is qualified to administer and interpret intelligence testing, and his practice routinely includes administering IQ tests. (D.E. No. 387, Tr. at 53 (Dr. Hunter's Testimony)). Dr. Hunter “ha[s] had training working with infants all the way up through geriatric age individuals.” (D.E. No. 386, Tr. at 8 (Dr. Hunter's Testimony)). Dr. Hunter testified that he is “familiar with how to diagnos[e], assess, and treat and provide support for intellectual disabilities, ” and “[t]hat is a large part of what [he does] on a daily basis.” (Id. at 21). Notably, Dr. Hunter's testimony and report comported with the clinical guidelines, and Dr. Hunter provided credible and persuasive explanations for many of the concerns raised by the Government's experts. (See infra at 78, 81-82, 88, 108, 118). Of further note, Dr. Hunter received no direct financial benefit from his work as an expert witness in this case. (D.E. No. 387, Tr. at 47 (Dr. Hunter's Testimony)). Moreover, only 10 percent of Dr. Hunter's practice is forensic, with 55 percent of that involvement being on behalf of defendants and 45 percent on behalf of plaintiffs. (Id. at 48, 94). Dr. Hunter has testified in twelve cases, but only two of them were criminal cases and none of them were in the Atkins context. (D.E. No. 386, Tr. at 20 (Dr. Hunter's Testimony)).

         2. Stephen Greenspan, Ph.D.

         Roland's second expert witness was Stephen Greenspan, Ph.D., a psychologist and preeminent scholar on Id. See Lewis, 2010 WL 5418901, at *2. Dr. Greenspan has a master's degree and a Ph.D. in developmental psychology from the University of Rochester, with an emphasis on developmental psychology and developmental psychopathology. (Def. Ex. 45 (“Dr. Greenspan's Report”) at 29; D.E. No. 408, Tr. at 3 (Dr. Greenspan's Testimony)). He completed a postdoctoral fellowship on mental retardation and developmental disabilities at University of California at Los Angeles's Neuropsychiatric Institute. (D.E. No. 408, Tr. at 3 (Dr. Greenspan's Testimony)). Notably, Dr. Greenspan is credited with providing the three-domain framework for assessing the adaptive-functioning prong of the ID diagnosis. (Id. at 7-8). And both the AAIDD-11 and the DSM-5 rely heavily on his model of adaptive behavior. (Id. at 7). Dr. Greenspan consulted the APA on the development of the DSM-5 and is the most cited authority in both the AAIDD-11 and the online edition of DSM-5. (Id. at 6; Dr. Greenspan's Report at 2).[21] Moreover, Dr. Greenspan is a Fellow-“a status that is awarded to a small subset of especially qualified people”-of the APA (Division of ID) and the AAIDD. (D.E. No. 408, Tr. at 17 (Dr. Greenspan's Testimony)).

         Dr. Greenspan has been published extensively on issues related to ID for over 35 years, beginning in 1980. (Id. at 16; Dr. Greenspan's Report at 2, 30-34 (listing select publications)). He is the co-editor of a book titled, “What is Mental Retardation?” and the sole or lead author of four chapters in “The Death Penalty and Intellectual Disability, ” a 2015 book published by the AAIDD. (Dr. Greenspan's Report at 2). He has received prestigious awards from the AAIDD, the APA, and the University of Washington in Seattle for his contributions in the field of Id. (D.E. No. 408, Tr. at 16-17 (Dr. Greenspan's Testimony)).

         Dr. Greenspan's practice focuses on teaching, writing, and expert consulting or testimony. (D.E. No. 409, Tr. at 53 (Dr. Greenspan's Testimony)). Although not a clinician, Dr. Greenspan has had clinical training, particularly within the field of Id. (D.E. No. 408, Tr. at 18-19 (Dr. Greenspan's Testimony)). He indicated that he has been certified as an expert in approximately 25 federal and state Atkins proceedings. (Dr. Greenspan's Report at 2; D.E. No. 409, Tr. at 57-58 (Dr. Greenspan's Testimony)). On June 12, 2017, the Court qualified Dr. Greenspan as an expert for the defense on Id. (D.E. No. 408, Tr. at 21-22).

         Dr. Greenspan based his testimony and report on an interview with Roland; interviews with 11 individuals familiar with Roland; and a review of Roland's life history records, including records regarding Roland's developmental, academic, medical, SSA, and legal history. (Dr. Greenspan's Report at 2-6; D.E. No. 408, Tr. at 72 (Dr. Greenspan's Testimony)). Dr. Greenspan concluded that a diagnosis of ID is warranted because “Roland has significant limitations in all three of the ID definitional criteria.” (Dr. Greenspan's Report at 28).

         Though Dr. Greenspan is undoubtedly one of the preeminent scholars on ID, the Court does have a few misgivings about his testimony, which it addresses in the Discussion section below. (See infra at 109-11). The Court nevertheless credits Dr. Greenspan's opinions, particularly with regard to Prong Two, because of his unquestionable expertise in this field and his dutiful adherence to the clinical standards in assessing Roland's ID claim. (See infra at 111-15). The Court takes note of the fact that Dr. Greenspan is credited with providing the three-domain framework for assessing Prong Two and is recognized as a leading expert in the field (as demonstrated by the fact that he is the most cited authority in both the AAIDD-11 and the online edition of the DSM-5). Indeed, Dr. Greenspan's expertise is evident from his knowledge of the guidelines and his comprehensive evaluation of Roland's adaptive functioning. (See infra at 100-03; 109-15). The Court finds Dr. Greenspan's conclusions credible for the additional reason that he demonstrated a mastery of the evidence of Roland's life history, oftentimes reciting detailed information from the record without the aid of exhibits.

         3. Erin D. Bigler, Ph.D.

         Roland's first rebuttal expert witness was Erin D. Bigler, Ph.D., a board-certified clinical neuropsychologist licensed in Utah, California, Texas, and Hawaii. (Def. Ex. 56 (“Dr. Bigler's CV”) at 4). Dr. Bigler received his Ph.D. in experimental-psychological psychology from the Brigham Young University (“BYU”) and completed a postdoctoral fellowship in neurophysiology-neuropsychology at Barrow Neurological Institute at the St. Joseph's Hospital and Medical Care. (Id. at 1). He is a professor of psychology and neuroscience at BYU and an adjunct professor of psychiatry at the University of Utah. (D.E. No. 422, Tr. at 41 (Dr. Bigler's Testimony). Dr. Bigler has directed or co-directed a clinical neuropsychology subspecialty within a APA-approved clinical psychology Ph.D. training programs for over forty years. (Def. Ex. 55 (“Dr. Bigler's Report”) at 1). At BYU, Dr. Bigler directs the Brain Imaging and Behavior Lab, which studies neuroimaging correlates of brain disorders, including developmental disorders. (Id.). He has also authored or co-authored textbooks that are widely used in training clinical neuropsychologists and has published over 350 peer-reviewed articles, many dealing with cognitive and intellectual assessment. (Dr. Bigler's CV at 4-103). On June 23, 2017, the Court qualified Dr. Bigler as an expert for the defense in clinical neuropsychology. (D.E. No. 422, Tr. at 43).

         Dr. Bigler based his testimony on a review of Roland's records and a review of the three primary expert reports-those of Drs. Hunter, Greenspan, and Morgan. (Dr. Bigler's Report at 1). Dr. Bigler concluded that “it is clear that Mr. Roland's level of intellectual ability is limited where the preponderance of the findings support intellectual deficits, supporting the first prong of ID.” (Id. at 8).

         The Court finds Dr. Bigler to be a qualified and exceptionally credible witness and gives great weight to his testimony, particularly with respect to Prong One. The Court notes that this is Dr. Bigler's first time testifying in the Atkins context. (D.E. No. 422, Tr. at 180 (Dr. Bigler's Testimony)). The Court was impressed with Dr. Bigler's testimony and frankness in responding to questions from counsel and the Court. Dr. Bigler persuasively and credibly explained that the evidence proffered by the Government (particularly relating to Roland's alleged malingering and inadequate efforts) was flawed in many key respects. (See, e.g., id. at 56-64; 156-60). And Dr. Bigler persuasively undermined the Government's experts' credibility by providing alternative, scientifically defensible explanations for some of their conclusions. (See, e.g., id. at 117-18; 134-36; 156-60; 169-72).

         4. Kevin S. McGrew, Ph.D.

         Roland's second rebuttal expert witness was Kevin S. McGrew, Ph.D., a psychometrician and director of the Institute for Applied Psychometrics. (Def. Ex. 58 (“Dr. McGrew's CV”) at 1-2). Dr. McGrew received a master's degree in school psychology from the Moorhead State University and a Ph.D. in educational psychology from the University of Minnesota. (Id. at 2). Notably, Dr. McGrew has served as a measurement consultant to several psychological test publishers and national and international research studies and organizations. (Def. Ex. 57 (“Dr. McGrew's Report”) at 1). Dr. McGrew is a psychological-measurement expert (or psychometrician) and has extensive experience in the development and psychometric analysis of nationally standardized, norm-referenced psychological and educational assessment instruments. (Id.). Dr. McGrew is a member of the AAIDD and the APA, among other professional organizations. (Dr. McGrew's CV at 3). He has published extensively throughout his career, including two chapters in the AAIDD's “The Death Penalty and Intellectual Disability.” (Id. at 6). Dr. McGrew has also authored or co-authored over eighty professional journal articles and book chapters, four professional books on intelligence-test interpretation, and seven psychological test batteries. (Id. at 5-15). On June 26, 2017, the Court qualified Dr. McGrew as an expert for the defense in three areas: applied psychological measurements, theories of human intelligence, and interpretation of intelligence tests. (D.E. No. 423, Tr. at 54).

         Dr. McGrew based his testimony on the reports and score summary sheets of Drs. Hunter and Morgan. (Dr. McGrew's Report at 2). He concluded that Roland's “obtained IQ scores meet Prong One for consideration of an intellectual disability diagnosis.” (Id. at 3).

         The Court finds Dr. McGrew's testimony to be highly credible. Dr. McGrew's answers to questions posed by counsel and this Court were lucid, direct, and cogent. Dr. McGrew's opinions were thoroughly researched and grounded in either the clinical standards or other scientific principles. The Court finds Dr. McGrew's thoroughness reassuring and his conclusions particularly credible on the central issues of this case. As an example of Dr. McGrew's thoroughness, the Court points to his decision to contact Dr. Alan Kaufman, the developer of the Kaufman Brief Intelligence Test (“KBIT”), to clarify an ambiguity in comparing two different versions of the KBIT test. (D.E. No. 423, Tr. at 166-67 (Dr. McGrew's Testimony)).

         ii. Government's Experts

         1. Joel E. Morgan, Ph.D., ABPP-CN

         The Government's primary expert witness was Joel E. Morgan, Ph.D., ABPP-CN, a board-certified clinical neuropsychologist licensed in New Jersey. (Gov. Ex. 167 (“Dr. Morgan's Report”) at 1). Dr. Morgan received a master's degree in school psychology from Fairleigh Dickinson University and a Ph.D. in clinical psychology from the New School for Social Research. (Gov. Ex. 350 (“Dr. Morgan's CV”) at 1-2). He has served on the board of the American Academy of Clinical Neuropsychology and on the American Board of Psychology. (D.E. No. 412, Tr. at 70-71 (Dr. Morgan's Testimony)). Dr. Morgan is the co-editor of several textbooks, including “Textbook of Clinical Neuropsychology” and “Neuropsychology of Malingering Casebook, ” and has authored chapters in many of these books. (Id. at 73; Dr. Morgan's CV at 7-8). He has also authored articles about neurological disorders presenting in adults and children and on the neuropsychological assessment of those disorders, ethics and professional responsibility, forensic matters, and validity assessment. (D.E. No. 412, Tr. at 73-74 (Dr. Morgan's Testimony)).

         Half of Dr. Morgan's practice involves clinical diagnoses of children referred because they are not performing well in school; the other half of his practice is forensic and involves making diagnoses for purposes of litigation. (Id. at 75, 79). Dr. Morgan has administered thousands of tests similar to those he administered to Roland. (Id. at 78). On June 15, 2017, the Court qualified Dr. Morgan as an expert for the Government in the field of clinical neuropsychology and child neuropsychology. (Id. at 83-84). Roland had no objection. (Id.).

         Dr. Morgan based his testimony and report on an interview with Roland; interviews with three individuals familiar with Roland; a review of Roland's developmental, academic, and medical records; a thorough review of Roland's criminal and legal history, including various DVDs, CDs, letters, emails, and transcripts of statements and interviews; letters he believed Roland authored from prison; recordings of Roland's phone conversations from prison; a review of Roland's SSA award notice; and a battery of tests administered to Roland. (Dr. Morgan's Report at 2-15). In his report, Dr. Morgan concluded that “within a reasonable degree of scientific psychological certainty, I find that Mr. Farad Roland does not have intellectual disability.” (Id. at 17). During his testimony, Dr. Morgan clarified that “essentially I am opining that we do not have a valid IQ score to make the diagnosis one way or the other.” (D.E. No. 427, Tr. at 137 (Dr. Morgan's Testimony)).

         The Court finds that Dr. Morgan's testimony and conclusions lack credibility in several respects. (See infra at 73-86; 104-09). The most glaring problem with Dr. Morgan's conclusion- as evidenced by his answers to questions from Roland's counsel-is that he was unreasonably dismissive of anything at all that might suggest a different conclusion from his own. (See infra at 104-09). He appears to have ignored any evidence-including Roland's exposure to factors that may give rise to ID or the fact that his own standardized adaptive-behavior measure revealed that Roland had significant deficits in the conceptual domain of adaptive functioning-that would suggest the possibility that Roland has intellectual limitations and adaptive deficits. (See infra at 40, 73-86; 104-09). Given the significant role of clinical judgment and the highly subjective nature of an ID evaluation, the effect of having such a pervasive bias present in the evaluator is hard to overstate. Moreover, Dr. Morgan expressed numerous disagreements with the clinical standards on which this Court is instructed to rely.[22] In expressing his disagreement, Dr. Morgan disregarded the guidelines' express guidance and relied on evidence that these clinical standards prohibit. (See infra at 104-09). Dr. Morgan's assessment of Roland's adaptive-functioning, for example, routinely failed to comport with the clinical standards. (See infra at 104-09). For these reasons, the Court finds that Dr. Morgan's testimony is lacking in credibility as well as reliability and awards little weight to his opinions.

         2. Bernice A. Marcopulos, Ph.D., ABPP

         The Government's Prong-Two rebuttal expert witness was Bernice A. Marcopulos, Ph.D., ABPP, a board-certified clinical neuropsychologist licensed to practice in Virginia. (Gov. Ex. 362 (“Dr. Marcopulos's CV”) at 1). Dr. Marcopulos received a master's degree and a Ph.D. in clinical neuropsychology from the University of Victoria. (Id.). Dr. Marcopulos is currently a professor at the Department of Psychology at James Madison University and is part of the associate faculty at the University of Virginia. (Id. at 1-1; D.E. No. 427, Tr. at 176-77 (Dr. Marcopulos's Testimony)). She primarily teaches graduate courses, including courses in neuropsychological assessments (which cover IQ testing and adaptive-functioning measures), human psychology (which cover ID), and forensic neuropsychology. (D.E. No. 427, Tr. at 176-78 (Dr. Marcopulos's Testimony)). She is a member of several professional organizations, including the APA, and oversees the creation of board-certification examinations for the American Board of Clinical Neuropsychology. (Id. at 179-81; 183-84). Dr. Marcopulos's clinical experience includes serving as the director and clinical neuropsychologist of the Division of Behavioral Medicine and Neuropsychology at the Western State Hospital in Staunton, Virginia. (Id. at 185-89; Dr. Marcopulos's CV at 1). Dr. Marcopulos has published several peer-reviewed articles in the field of clinical neuropsychology and has edited a book titled “Clinical neuropsychological foundations of schizophrenia.” (Dr. Marcopulos's CV at 4-18; D.E. No. 427, Tr. at 182-83 (Dr. Marcopulos's Testimony)). She is a Fellow of the National Academy of Neuropsychology and the APA. (Dr. Marcopulos's CV at 3; D.E. No. 427, Tr. at 184 (Dr. Marcopulos's Testimony)). In 2015, Dr. Marcopulos received the American Academy of Clinical Neuropsychology Distinguished Neuropsychologist Award. (Dr. Marcopulos's CV at 3). The Court accepted Dr. Marcopulos as an expert for the Government in clinical neuropsychology on June 19, 2017. (D.E. No. 427, Tr. at 192-93). Roland had no objection. (Id.).

         Dr. Marcopulos submitted a joint rebuttal report with Dr. Morgan on May 19, 2017. (Gov. Ex. 168 (“Joint Rebuttal Report”)). Drs. Marcopulos and Morgan have worked together in several capacities: they both serve on the American Board of Clinical Neuropsychology and are both oral examiners, and they have co-authored several papers, chapters, and books together. (Dr. Marcopulos's CV at 6-7; D.E. No. 416, Tr. at 15 (Dr. Marcopulos's Testimony)). Dr. Marcopulos is accredited with drafting the “Prong Two - Adaptive Skills” section of the Joint Rebuttal Report, in which she joins Dr. Morgan's conclusion that Roland “does not meet any of the three prongs diagnostic of ID.” (D.E. No. 427, Tr. at 67 (Government attorney stating that “the adaptive component was written by Dr. Marcopulos”); Joint Rebuttal Report at 6-9, 10).

         The Court finds Dr. Marcopulos's testimony especially lacking in credibility. The problems with Dr. Marcopulos's work are legion. First, the Government vehemently objected to Roland's questioning of Dr. Morgan on the “Prong Two - Adaptive Skills” section of the Joint Rebuttal Report and represented to this Court that “the adaptive component was written by Dr. Marcopulos.” (D.E. No. 427, Tr. at 67-68 (Government attorney objecting to Roland's counsel's questioning of Dr. Morgan on that section of the Joint Rebuttal Report and stating that “several times we laid out on the record, the adaptive component was written by Dr. Marcopulos. It is fair for her but not for Dr. Morgan. He didn't write it. You can't say didn't you write that? Because he didn't write that.”).[23] Yet, Dr. Marcopulos testified that she did not author a substantial portion of the adaptive-behavior section, which (as noted below) calls into question the reliability of the entire Joint Rebuttal Report and the credibility of both authors. (See infra at 112-13).

         Second, the Court questions the thoroughness of Dr. Marcopulos's review because her testimony comprised mostly general statements with little or no evidence from the record to support her opinions. (See infra at 112-13). Although Dr. Marcopulos expressed her frustration at the “lack of records available that could have answered” some of her questions about Roland's adaptive functioning, she appeared to have ignored many of the records that were available for her review. (See infra at 113-14). Cross-examination revealed that Dr. Marcopulos had little knowledge of Roland's life history and it remains unclear on what evidence Dr. Marcopulos relied in forming her expert opinion. (See infra at 113-14).

         Third, at the hearing, Dr. Marcopulos oftentimes contradicted her own conclusions and testified on numerous occasions that Roland did indeed have certain deficits. (See, e.g., D.E. No. 416, Tr. at 125-26, 137 (Dr. Marcopulos testifying that the record contains evidence of Roland's deficits)). Fourth, like Dr. Morgan, Dr. Marcopulos expressed several disagreements with the clinical standards. (See, e.g., id. at 182-85 (Dr. Marcopulos disagreeing with the AAIDD's guidance to avoid using evidence of someone's behavior in prison)). Finally, and again similar to Dr. Morgan's evaluation, Dr. Marcopulos acknowledged at the hearing many of the risk factors to which Roland was exposed, but omitted them from her section of the Joint Rebuttal Report. (See Id. at 108 (Dr. Marcopulos's Testimony)).

         In sum, the Court finds that Dr. Marcopulos's credibility was thoroughly impeached and her testimony is not helpful in evaluating the critical issues in this case.[24]

         3. Robert L. Denney, Psy.D., ABPP

         The Government's final rebuttal expert witness was Dr. Robert L. Denney, Psy.D., ABPP, one of only seven board-certified neuropsychologists and forensic psychologists in the world. (Gov. Ex. 194A (“Dr. Denney's CV”) at 1, 4; D.E. No. 418, Tr. at 79-80 (Dr. Denney's Testimony)). Dr. Denney has a master's degree in psychology and a doctorate in clinical psychology from the Forest Institute of Professional Psychology. (Dr. Denney's CV at 4). He is currently a staff neuropsychologist in the Department of Neurology at the Citizens Memorial Hospital and maintains a private practice at the Neuropsychological Associates of Southwest Missouri. (Id. at 1; D.E. No. 418, Tr. at 74 (Dr. Denney's Testimony)). Dr. Denney completed his clinical internship at the U.S. Medical Center for Federal Prisoners and remained there as a staff psychologist from 1991 to 2011. (Dr. Denney's CV at 1-3). Dr. Denney is a Fellow of the APA, National Academy of Neuropsychology, American Academy of Clinical Neuropsychology, and the American Academy of Forensic Psychology. (Id. at 5). He sits on the boards of several peer-reviewed scientific journals and has chaired the National Academy of Neuropsychology. (Id. at 4-5). Dr. Denney has authored or co-authored over thirty journal articles and over twenty books or book chapters. (Id. at 6-12). The Court accepted Dr. Denney as an expert for the Government in forensic psychology and clinical neuropsychology on June 21, 2017. (D.E. No. 418, Tr. at 80). Roland had no objection. (Id.).

         Dr. Denney based his testimony and report on a review of the reports and raw test data of Drs. Hunter, Morgan, and Greenspan; Roland's educational records; Roland's incarceration history; and transcripts of Roland's November 2016 telephone calls from prison. (Gov. Ex. 194 (“Dr. Denney's Report”) at 1-2).[25] Dr. Denney concluded that “the test data presented in the record are not valid reflections of Mr. Roland's genuine cognitive functioning and should not be relied upon for diagnostic determination.” (Id. at 24). Specifically, Dr. Denney opined that “[t]he combined results from both the November 2016 and March 2017 examinations, along with the demonstrated cognitive abilities manifest within the phone calls, is sufficient information within the context of litigation to conclude it is more likely than not that Mr. Roland has been malingering neurocognitive dysfunction” and “those results should not be used to support a diagnosis of ID.” (Id.).

         Though Dr. Denney's qualifications are undoubtedly impressive, having had an opportunity to consider the testimony, conclusions, and demeanor of all experts at the hearing and all the evidence proffered by the parties, the Court finds the testimony and conclusions of Roland's experts, particularly Drs. Bigler and McGrew, to be more thorough, credible, and therefore more persuasive. The Court bases its conclusion on several reasons. First, the Court finds that, like the other Government experts, Dr. Denney espoused an approach to assessing ID that is directly at odds with the clinical standards. (See infra at 69-73; 81-85). In forming his conclusions, for example, Dr. Denney relies heavily on evidence (such as recorded phone conversations from prison) that the AAIDD proscribes. (See Dr. Denney's Report at 24-25). This is so because, again, like the other Government experts, Dr. Denney also disagrees with certain aspects of the clinical standards. (See, e.g., D.E. No. 420, Tr. at 75-76 (Dr. Denney disagreeing with the AAIDD's guidance on evaluating criminal behavior and the weight of strengths and deficits)). Second, the Court is troubled by the fact that Dr. Denney concluded that Roland was malingering without ruling out, or even mentioning, any other alternatives. (See supra at 82, 86). Third, evidence and testimony from other experts demonstrated that many of the concerns Dr. Denney raised to conclude that Roland malingered (or exhibited poor effort) could indeed be addressed by alternative explanations. (See supra at 82-85). Finally, the Court is unpersuaded by Dr. Denney's skepticism about the significance of passing validity measures designed to detect inadequate effort or malingering. (See supra at 71, 83). So, compared to Drs. Bigler and McGrew, the Court finds Dr. Denney's testimony to be less credible and will assign it less weight.

         C. Fact Witnesses

         The Court also heard testimony from nine fact witnesses: seven for Roland and two for the Government. They consisted of Roland's educators (Delores Lemon-Gresham and Kathleen Bohm), a social worker who performed educational evaluations for special needs students in Newark Public Schools (Andy D'Amato), Roland's cousin (Jeannette Carter), a correctional officer who interacted with Roland (Captain Michael Thomas), two SSA-related witnesses (Melissa Bruckner and Herman Huber), a mental health professional from the New Jersey Department of Corrections (Richard Cevasco), and the chief psychologist for the Federal Bureau of Prisons at the Metropolitan Detention Center (Michael Segal). The Court found all of these fact witnesses to be generally credible and provides further detail on their testimony below, as relevant to the Court's analysis.

         III. ROLAND'S BACKGROUND

         In analyzing Roland's Atkins claim, the Court will begin with an overview of Roland's background, drawing from a voluminous record extending to Roland's early childhood and including contemporaneous accounts and evaluations from family members, teachers, social workers, correctional officers, mental health professionals, and SSA records. The following facts from Roland's background are those that the Court finds most relevant to its analysis or those that provide context for later discussion. The Court does not attempt to provide a comprehensive summary of the voluminous record presented at the hearing. Additional facts adduced at the hearing appear throughout the three-prong analyses below. (See infra at 44-134).

         Roland's early life was quite tumultuous, marked by parental loss, abuse, neglect, and malnutrition-or what the clinical community calls “risk factors.” (See supra at 12-13; infra at 38-40). Roland was born in Newark, New Jersey, on August 18, 1984. (Def. Ex. 2e). He is the fifth of six children born to his mother, Elvena (“Tessie”) Roland. (See Def. Exs. 2a-2k). Ms. Roland died of AIDS on May 31, 1995, when Roland was 10 years old. (Def. Ex. 2c). Roland's natural father, Lawrence James, spent much of Roland's life incarcerated. (See Def. Ex. 6b at 3-4; Def. Ex. 6c at 14-24). Mr. James also died of AIDS on May 21, 1996, when Roland was 11 years old. (Def. Ex. 2h).

         Mother's Psychological Health and Substance Abuse.

         Ms. Roland had a significant history of drug and alcohol abuse and psychiatric hospitalizations, including one that occurred shortly after Roland's birth. Ms. Carter testified that Ms. Roland used to “smoke the pipe” and “sniff dope, or coke.” (D.E. No. 385, Tr. at 99-100 (Ms. Carter's Testimony)). According to Ms. Carter, Ms. Roland was also an alcoholic who drank during her pregnancy with Roland, beginning in the morning “as soon as the liquor store opened up.” (Id.). Whenever Ms. Roland “had money to get something, she drank.” (Id. at 103; Def. Ex. 5a at 103). Hospital records confirm Ms. Carter's account. Hospital records from October 2, 1984 (when Roland was less than two months old) document that Ms. Roland “takes drugs, ” “admits to abusing Doriden and cocaine whenever she has the money, ” “is a regular alcohol consumer of one to two beers per day and on occasion more, ” and “is unemployed and smokes up to one pack a day.” (Def. Ex. 5a at 766, 779, 784, 1256).[26] These records also indicate that Ms. Roland suffered from major depression and other psychological disorders during Roland's developmental years.[27]

         Neglect and Malnutrition.

Given the impact of her own psychiatric and substance-abuse issues, Ms. Roland struggled to care adequately for any of her children. Ms. Roland was referred multiple times to DYFS for child neglect, as the children were “left alone on a regular basis, are not dressed properly, not fed properly, and oldest child does not attend school.” (See Def. Ex. 4a at 20).[28] DYFS records further note that the apartment where the children lived had neither “electricity nor food, ” and DYFS made several emergency food referrals because the family had run out of food. (See Id. at 24; Def. Ex. 4b at 140, 144, 163, 166).

         Corroborating these records, Ms. Carter testified vividly and compellingly that when she visited Ms. Roland's home in 1985 or 1986, she found Ms. Roland “in the kitchen with about three other people. They were all passed out. [Roland] was in a play pen. And he had feces all over his face and forehead.” (D.E. No. 385, Tr. at 100 (Ms. Carter's Testimony)). Around him were a belt, a syringe, a burned spoon, and alcohol. (Id.). She also recalled that when Roland visited Ms. Carter's parents' house, Roland was “always hungry, ” and she would sometimes see him eating “in the dark.” (Id. at 111-13). And when Roland was 6 or 7 years old, he tried to eat canned dog food with a spoon, but Ms. Carter stopped him. (Id.). Ms. Carter noted that the can had a picture of a dog on it. (Id.).

         The children were ultimately removed from Ms. Roland's custody. (See Def. Ex. 4b at 156). Roland and his brothers, Amin and Larry, were placed with their maternal aunt, Lethia Thomas, and her husband, Winston Thomas. (Id.).[29] But Ms. Thomas, who was legally blind and had three children of her own, continued to neglect Roland. DYFS records report that Ms. Thomas “has no commitment to these children, ” “is very quick to give away all responsibility for them, ” “often doesn't know where they are, ” “refused to participate in parenting techniques and displayed no real commitment, ” provided poor living conditions for the children, and treated the children as an “after-thought.” (Id. at 184-87).[30] DYFS records also note that “there is no food in the home for children” and that Ms. Thomas failed to register Roland in school. (See Def. Ex. 4a at 66).

         Abuse.

         The record is replete with Roland's abuse at the hands of Mr. and Ms. Thomas. In May 1997, when Roland was 12, a hospital social worker reported to DYFS that Roland had “3 scratch marks on the left side of his face, a mark under his left eye, and a deep scratch mark in the center of his throat caused by his aunt hitting him.” (Def. Ex. 4b at 64). He “was also beaten by his uncle and had marks on his legs from the beating.” (Id.).[31] The social worker reported that “her major concern is that [Roland's] aunt hit him in the head with a stick and she is concerned that if things get out of hand that [Roland] may be seriously hurt.” (Id.). In June 2001, at age 16, Roland was admitted to the hospital for a scalp laceration after Mr. Thomas struck him in the head with a stick. (See Def. Ex. 12d at 1-3, 6).[32] When questioned about their abuse, Mr. and Ms. Thomas explained to DYFS that “they had [Roland] for 12 years and the child has always been a behavior problem, ” noting that Roland “had been thrown out of 5 schools in Newark.” (Def. Ex. 4a at 61). They clarified, however, “that [Roland] was not a problem in the home[, ] just in the community and when he's at school.” (Id.).

         Academic Difficulties.

         Roland's academic record is one of overwhelming failure. Ms. Carter testified that Roland was slower in his developmental years than his peers, including slower to walk, talk, and read. (D.E. No. 385, Tr. at 107-11 (Ms. Carter's Testimony)). For example, at age 8, Roland could not read simple words like “kick” or “jump.” (Id. at 111). Ms. Carter recounted that when Roland played video games with her son, who is younger than Roland, her son would have to instruct Roland on what to do, since Roland did not know how to read the words that appeared on the screen. (Id.). School records similarly reveal that Roland was delayed in acquiring skills appropriate for a child his age. In 1993, at age 9, Roland was placed in special-education classes with a designation of emotionally disturbed. (See Def. Ex. 15a). His special education teacher, Delores Lemon-Gresham-who remembers Roland because of his bad hygiene-believes that Roland had deficits other than emotional disturbance, including that, by age 11, Roland still could not read. (D.E. No. 384, Tr. at 175-76 (Ms. Gresham's Testimony)).

         In 1998, at approximately 13 years old, Roland began to get in trouble with the law. (See Def. Ex. 9a at 10-13 (summarizing Roland's arrest and court history)). Hence for parts of 1998 through 2002, he was confined at a youth detention center. (See generally Def. Ex. 9a; see also D.E. No. 384, Tr. at 64-91 (Cap. Thomas's Testimony)). During this time, he attended Sojourn High School at the Essex County Juvenile Detention Center (“Sojourn”). (See Def. Ex. 15e). In March 1999, at 14, Roland took the New Jersey Grade 8 Proficiency Assessment Individual Student Report, scoring in the lowest of three categories with a 142 (“Partially Proficient”) in Language Arts Literacy and a 150 (“Partially Proficient”) in Mathematics. (See Def. Ex. 15e at 8; Dr. Greenspan Report at 8-9 (specifying that Partially Proficient requires a score below 200, Proficient requires a score between 200 and 250, and Advanced Proficient requires a score above 250)). Kathleen Bohm, Roland's teacher at Sojourn, testified that Roland obtained these low scores after she had been working with him for some time, reflecting that he was “[s]till extremely limited.” (D.E. No. 384, Tr. at 17 (Ms. Bohm's Testimony)).

         A Sojourn report card for the 2001 through 2002 school year (when Roland was 17) lists Roland in grade 9, indicating that he was left back two grades. (See Def. Ex. 15e at 1; see also Dr. Greenspan's Report at 9). During his time at Sojourn, Roland did receive some As and Bs on his report cards. (See Def. Ex. 15e at 1, 4-7). Ms. Bohm testified, however, that in 1998, 1999, and 2001, grades at Sojourn were not based on aptitude; they were instead based primarily on participation and completing tasks. (D.E. No. 384, Tr. at 31-35 (Ms. Bohm's Testimony)). Moreover, an April 12, 2002 IEP from the Juvenile Justice Commission states that Roland “is achieving significantly below grade level.” (See Def. Ex. 15b at 16). The IEP further notes that Roland “exhibits Oppositional Defiant Disorder as well as Attention-Deficit/Hyperactivity Disorder which is part of an earlier diagnoses he received in 1996. He requires frequent redirection.” (Id. at 5).

         On September 7, 2001, at 17 years old, Roland took the Test of Adult Basic Education (“TABE”) at Sojourn, scoring a grade-equivalent of 3.5 in reading, 3.3 in applied mathematics, 3.6 in total mathematics, 2.2 in language, and 0.3 in spelling. (See Def. Ex. 15e at 2-3).[33] A month later, in October 2001, Roland took the New Jersey Grade 11 High School Proficiency Test, in which he failed both the reading and the writing sections, but passed the math section by one point. (See Def. Ex. 15e at 9; Dr. Greenspan's Report at 9). Roland took another TABE on December 18, 2001, at age 17, scoring a grade-equivalent of 4.4 in reading, 3.6 in total math, 2.6 in language, and 4.7 in spelling. (See Def. Ex. 15b at 5 (IEP listing Roland's results)).

         The New Jersey Department of Corrections administered several TABEs to Roland from 2005 through 2011: (i) in July 2005, at age 20, Roland scored a grade-equivalent of 6.6 in reading, 2.4 in language, 4.1 in spelling, 6.4 in mathematics computation, 2.1 in applied mathematics, and 4.2 in total mathematics; (ii) in August 2006, at age 22, Roland scored a grade-equivalent of 7.6 in reading, 2.3 in language, .0 in spelling, 5.0 in mathematics computation, 5.4 in applied mathematics, and 5.2 in total mathematics; and (iii) in March 2011, at age 26, following almost three years of incarceration, Roland scored a grade-equivalent of 6.4 in reading, 3.5 in language, 12.5 in spelling, 10.0 in mathematics computation, 6.0 in applied mathematics, and 7.8 in total mathematics. (See Gov. Ex. 113 at 5; see also Gov. Ex. 353 (compiling chart of Roland's TABE results over time)).

         Reported Cognitive Difficulties.

         Roland's Juvenile Justice Commission records further illustrate his difficulties. On January 2, 2002 (at age 17), while Roland was in the custody of the Juvenile Justice Commission, Dena Farber, Ph.D., CAC, conducted a psychological screening that included administering a KBIT (“2002 KBIT”) and a clinical interview. (See Def. Ex. 9a at 55-59, 100). Roland received a Composite IQ score of 70, plus or minus 7; a Vocabulary IQ score of 75, plus or minus 8; and a Matrices IQ score of 69, plus or minus 9, on the 2002 KBIT. (See Id. at 58). Dr. Farber documented that Roland was “cooperative with this interviewer and the interview processes”[34] and noted that the “[e]valuation reveals a young man who has very poor judgment and little insight into his behaviors.” (Id. at 59). Elsewhere, Dr. Farber wrote that the “[r]esults are likely indicative of limited schooling rather than actual cognitive functioning.” (Id. at 58). Dr. Farber's assessment further includes her impressions that Roland “has trouble controlling and modulating the expression/feeling of anger, ” that “[h]is response to insults verbal/physical- from others is to lash out in kind. The rush of emotion feeling overwhelms him and thus interferes with any ability to plan ahead and [foresee] the likely consequences of his actions.” (Id. at 59).

         The next day, on January 3, 2002 (at age 17), Lynne Gavan, CADC, conducted a comprehensive substance-abuse assessment on Roland. (Id. at 84-86). As part of her evaluation, Ms. Gavan administered to Roland a substance-abuse screening test (the “SASSI-A2”). (Id. at 84). Ms. Gavan also documented that Roland “was cooperative with the interview process” and noted that Roland “appeared to be somewhat cognitively limited which may account for the high defensive score in the SASSI-A2 results. Many of the questions had to be explained to [him].” (Id. at 85). Ms. Gavan's additional impressions include that Roland's score on one component of the SASSI-A2 “suggests a lack of insight and awareness, ” and his score on a different component of the test “indicates a high risk of Acting Out behavior when combined with inadequate adult supervision, poor impulse control and poor anger management techniques.” (Id. at 84-85). Ms. Gavan noted a second time that Roland “appears to have poor insight and somewhat limited cognitive ability.” (Id. at 85).

         Exposure to Risk Factors.

         Defense and Government experts here agree that exposure to risk factors can inhibit brain growth and that many risk factors were present in Roland's life history.[35]

         Dr. Hunter explained in his report that

it is worth noting that in Mr. Roland's case, there are several risk factors that have been identified for his neurodevelopmental delays. These include his likely exposure to illicit substances and alcohol throughout his mother's pregnancy with him, his experience of poor attachments and neglect across his infancy and childhood, the extreme level of poverty he lived in throughout his childhood and adolescence, the record of likely malnutrition he experienced, and the substandard educational instruction and support he was provided. The intersection of these traumatic and significantly abusive experiences are understood to impact neuropsychological and behavioral development substantially, and contribute as well to ongoing vulnerabilities to increased impact of additional stressors, like violence and aggression, overtime.
Pertinent to the above discussed factors associated with potential etiology, Mr. Roland does have a reported and documented history of head traumas during his childhood and into adulthood, that have likely served to enhance and increased the impact of his ID on his ongoing development of adaptive and behavioral functioning. Mr. Roland described, and the medical records supported, trauma to his head secondary to physical abuse by his uncle. He reported a head injury, where he “saw stars” and had some bleeding of the scalp, in conjunction with a school bus accident when he was 8 or 9 years of age. . . . These reported head traumas are likely additional factors contributing to his sustained challenges with aspects of cognitive development; as noted previously, repeated head injuries can serve to complicate and exacerbate already significant deficits in cognitive functioning.

(Dr. Hunter's Report at 7-8; see also D.E. No. 386, Tr. at 193-94 (Dr. Hunter's Testimony)).

         Dr. Greenspan testified at length about evidence of risk factors in Roland's history. (See D.E. No. 408, Tr. at 78-100 (Dr. Greenspan's Testimony)). Dr. Greenspan began by outlining the three biggest risk factors for ID: prenatal exposure to alcohol, malnutrition, and lack of parental stimulation. (Id. at 79-81). He then explained that these risk factors can be additive or duplicative, meaning “the more risk factors the more likely that it would result in ID.” (Id. at 79). Dr. Greenspan ultimately concluded that “[h]ere you have a child or a person with multiple risk factors, and the three biggest that are known to cause Id. Put those together you have a kid who is very much at risk for ID.” (Id. at 81; see also Dr. Greenspan's Report at 26 (discussing Roland's exposure to risk factors)).

         At the hearing, Dr. Morgan also recognized Roland's exposure to a “plethora” of risk factors:

There are numerous risk factors for Id. And based on Mr. Roland's history, he actually has many of them. He came from an impoverished background. He had almost no parental support. He had intermittent school attendance. His parents were addicted to drugs and died when he was young. They died of AIDS. Mr. Roland had gone from one living situation to another, from [f]amily to family, and moved around a lot. There were numerous interventions from [DYFS]. There were problems with just basic, normal care in the home. Basic normal hygiene. Nutrition. There were a plethora of factors that were at risk for Mr. Roland.

(D.E. No. 414, Tr. at 9-10 (Dr. Morgan's Testimony)).

         Dr. Marcopulos likewise testified that there was evidence in the record of Roland's exposure to several risk factors, including trauma, neglect, malnutrition, poverty, parental alcohol and drug use, and abandonment. (D.E. No. 416, Tr. at 107-10 (Dr. Marcopulos's Testimony)). Unlike Drs. Hunter and Greenspan, the Government's experts did not address Roland's exposure to risk factors in their written reports. But both Drs. Morgan and Marcopulos testified that they nevertheless considered them in their analyses. (See D.E. No. 414, Tr. at 10-11 (Dr. Morgan's Testimony); D.E. No. 416, Tr. at 109-10 (Dr. Marcopulos's Testimony)).

         Social Security Administration Records.

         The SSA determined that Roland was “learning disabled” in 1996, when he was 11 years old. (D.E. No. 384, Tr. at 128-131 (Ms. Bruckner's Testimony); Def. Ex. 17 at 8). As a result of this determination, Roland received Supplemental Security Income (“SSI”) benefit payments beginning on January 17, 1996.[36] (See D.E. No. 384, Tr. at 108, 125, 130-134 (Ms. Bruckner's Testimony); Def. Ex. 17 at 5, 8). The SSA conducted a reevaluation (known as a “continuing disability review”) of its learning-disability determination in 1999 (when Roland was 14) and determined instead that Roland was “mentally retarded” (or “MR”). (D.E. No. 384, Tr. at 95-96, 108-109 (Ms. Bruckner's Testimony); Def. Ex. 17 at 7).

         The Court finds Roland's SSA records extremely probative, credible, and informative to the Court's analysis of all three prongs of the ID definition. Although most of Roland's SSA records were “purged” (i.e., destroyed) in the normal course of business, the remaining incontrovertible records confirm that Roland received disability payments based upon a determination that he was “mentally retarded.” (D.E. No. 384, Tr. at 114, 134 (Ms. Bruckner's Testimony)). The Court heard testimony from two witnesses employed at the SSA who authenticated the documents and explained the SSA's disability-determination process: Melissa Bruckner, an SSA employee at the New York Regional Office's Center for Disability and Program Support; and Herman Huber, a clinical psychologist employed as a psychological consultant at the SSA's Division of Disability Determination Services for over 30 years. (See generally id.; D.E. No. 423 (Dr. Huber's Testimony)). Having had the opportunity to consider these witnesses' testimony and demeanor at the hearing, the Court finds both witnesses to be knowledgeable about the SSA's procedures, clear, straightforward, and credible. For that reason, the Court relies heavily on their uncontested testimony, which is summarized below.

         A changing diagnosis from learning disabled to MR is made by a medical consultant. (D.E. No. 423, Tr. at 33 (Dr. Huber's Testimony)). In Roland's case, Dr. Huber was the medical consultant who changed Roland's learning-disability designation to MR. (D.E. No. 384, Tr. at 113-114, 143, 162 (Ms. Bruckner's Testimony); D.E. No. 423, Tr. at 18 (Dr. Huber's Testimony); see also Def. Ex. 17 at 7).

         Dr. Huber testified that the SSA conducts a “global” assessment of the child and considers both IQ scores and adaptive functioning. (D.E. No. 423, Tr. at 26 (Dr. Huber's Testimony)).[37] To assess intellectual functioning, Dr. Huber testified that it was his practice to request an IQ test for “nearly all” applicants suspected of having a potential Id. (Id. at 23). He described IQ tests as “central to the evaluation if there is an allegation of intellectual disability or mental retardation.” (Id.). The only time Dr. Huber would not request an IQ test was when “you have a claimant who is so disabled, so limited, that IQ testing isn't even possible. In that case you wouldn't require it because it couldn't be done.” (Id. at 24). For cases involving mild ID, on the other hand, IQ scores would be part of the determination “[v]irtually all the time.” (Id.).

         The SSA's disability determination was also based on the claimant's adaptive functioning. (Id. at 26-28). “[W]ith a diagnosis of mental retardation, ” the SSA is “looking at a child whose cognitive abilities are limited across the board, generally, in all spheres.” (Id. at 27). Specifically, the SSA is “looking at various contexts in which the child operates [e.g., ] school, home, outside of the home, to see whether the functioning is consistent in all the domains that the child functions in.” (Id. at 26-27).

         Although Dr. Huber had no independent recollection of conducting Roland's continuing-disability review, three points from his testimony are particularly noteworthy. First, Dr. Huber testified that he would not diagnose a claimant as fitting the criteria for ID if he did not believe it to be the case after a thorough review of the claimant's records. (See Id. at 20, 26-28, 30-32). Second, Dr. Huber stated that if he thought an application was incomplete, he would request additional records, testing, or both. (See id.). Third, Dr. Huber testified that he would not change a diagnosis from learning disabled to ID based purely on statements from a child's parents or guardians. (Id. at 39).

         The Government disputes the probity of these records, arguing that Roland “presented no evidence that an IQ test” or “any adaptive functioning tests . . . were administered by the SSA.” (Gov. Post-Hearing Opp. ¶¶ 112-15). The Government is correct that the records do not reveal any specific tests administered to Roland when he was 14.[38] But the records do reveal that a “consultative examiner”[39] administered at least one test to Roland. (D.E. No. 384, Tr. at 117, 120-21 (Ms. Bruckner's Testimony); see also Def. Ex. 17 at 7). While this last point does not directly refute the Government's argument, it does reinforce Dr. Huber's statement (and thus enhances his credibility) that he would not base an ID diagnosis purely on statements from a child's parents or guardians.

         In light of the above, the Court finds that Roland's SSA records are probative and reliable, and the Court will give them considerable weight in its analysis.

         Current Allegations.

         On June 5, 2013, Roland was charged in a Second Superseding Indictment, alleging (among other things) six counts of Murder in Aid of Racketeering in violation of 18 U.S.C. § 1959, five of which have been authorized by the Attorney General of the United States for a sentence of death. (See D.E. No. 66, Second Superseding Indictment (“Indictment”); D.E. No. 273, Amended Notice of Intent to Seek the Death Penalty (“Death-Penalty Notice”)). Specifically, the Death-Penalty Notice states that “the circumstances of the offenses charged in Counts Three, Five, Six, Seven, and Eight of the Second Superseding Indictment are such that, in the event of a conviction, a sentence of death is justified . . . .” (Death-Penalty Notice at 1).

         Roland's pattern of racketeering activity allegedly spanned from January 2003 through March 2011, when Roland was 18 through 26 years old. (Indictment at 9-13; 34-40). The first of Roland's death-penalty-eligible murders is alleged to have occurred on December 4, 2003, when Roland was 19 years old. (Id. at 9-10, 34-35; Death-Penalty Notice at 1-2). Roland was arrested on May 17, 2012 (see D.E. dated May 17, 2012; D.E. Nos. 26, 29-30), and is currently confined at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York. (See Gov. Ex. 349 at 2; see also D.E. No. 418, Tr. at 41-42 (Dr. Segal testifying that Roland's confinement at MDC began on September 2, 2015)).

         IV. DISCUSSION

         As instructed by the Supreme Court in Atkins, Hall, and Moore, the Court relies primarily on the professional clinical standards established by the APA and AAIDD in assessing whether Roland is Id. Although those standards do not represent “a constitutional command, ”[40] the Court frames its analysis of the evidence in terms of those clinical standards.

         The Court uses the three-prong clinical framework to structure its reasoning and cites particular exhibits or testimony to explain how that evidence factored into its decision. The parties, however, are familiar enough with the extensive factual record so the Court will not reiterate in this already-lengthy Opinion all the evidence that was presented to, and considered by, the Court at each stage. Suffice it to say, the Court recognizes the stakes and seriousness of the Atkins issues and has attempted to address each major point raised by the parties-even if some of the evidence is not discussed at length.

         A. Prong One: Deficits in Intellectual Functioning

         To prevail on the first prong of his ID claim, Roland must prove, by a preponderance of the evidence, that he displays “significantly subaverage intellectual functioning.” See AAIDD-11 at 6; DSM-5 at 33; Hall, 134 S.Ct. at 1994 (noting that the first criterion of ID is “significantly subaverage intellectual functioning”).

         i. Definitional Standards

         For the AAIDD, “intellectual functioning . . . includes reasoning, planning, solving problems, thinking abstractly, comprehending complex ideas, learning quickly, and learning from experience.” AAIDD-11 at 31. For Prong One, the APA likewise “refers to intellectual functions that involve reasoning, problem solving, planning, abstract thinking, judgment, learning from instruction and experience, and practical understanding. Critical components include verbal comprehension, working memory, perceptual reasoning, quantitative reasoning, abstract thought, and cognitive efficacy.” DSM-5 at 37.

         Assessing intellectual functioning, even with the aid of standardized instruments, is an inexact science. See AAIDD-11 at 31. Nevertheless, IQ tests are the best available tools for measuring intellectual functioning. Id. Accordingly, both the AAIDD and the APA frame Prong One of ID in terms of IQ scores. In this regard, the APA describes Prong One in part as follows:

Intellectual functioning is typically measured with individually administered and psychometrically valid, comprehensive, culturally appropriate, psychometrically sound tests of intelligence. Individuals with intellectual disability have scores of approximately two standard deviations or more below the population mean, including a margin for measurement error (generally points). On tests with a standard deviation of 15 and a mean of 100, this involves a score of 65-75 (70 ± 5).

DSM-5 at 37.

         The AAIDD Manual similarly provides:

The “significant limitations in intellectual functioning” criterion for a diagnosis of intellectual disability is an IQ score that is approximately two standard deviations below the mean, considering the standard error of measurement for the specific instruments used and the instruments' strengths and limitations.

         AAIDD-11 at 31. The AAIDD emphasizes that the “intent of this definition is not to specify a hard and fast cutoff point/score for meeting the significant limitations in intellectual functioning criteria of ID.” Id. at 35; see also DSM-5 at 37 (“IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks.”).

         Again, the guidelines stress the importance of clinical judgment in interpreting IQ test scores. See AAIDD-11 at 35 (“The use of ‘approximately' reflects the role of clinical judgment in weighing the factors that contribute to the validity and precision of a decision.”); DSM-5 at 37 (“Clinical training and judgment are required to interpret test results and assess intellectual performance.”); (see also supra at 10).

         “In the Atkins context, the Court must examine the reliability and validity of IQ scores, and consider the credibility of witnesses that proffer expert opinions on those scores.” Montgomery, 2014 WL 1516147, at *26 (quoting Salad, 959 F.Supp.2d at 871); see also Hardy, 762 F.Supp.2d at 883 (noting that “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 before it to resolve disputes between them”).

         ii. Measuring Intellectual Functioning

         1. Standard Error of Measurement and Confidence Intervals

         Standard Error of Measurement. One factor that must be considered in the interpretation of a person's IQ score is the standard error of measurement (“SEM”). “An IQ score is subject to variability as a function of a number of potential sources of error, including variations in test performance, examiner's behavior, cooperation of test taker, and other personal and environmental factors.” AAIDD-11 at 36; see also Hall, 134 S.Ct. at 1995 (“An individual's IQ test score on any given exam may fluctuate for a variety of reasons. These include the test-taker's health; practice from earlier tests; the environment or location of the test; the examiner's demeanor; the subjective judgment involved in scoring certain questions on the exam; and simple lucky guessing.”) (citing User's Guide at 22).[41] So, the SEM, “which varies by test, subgroup, and age group, is used to quantify this variability and provide a stated statistical confidence interval within which the person's true score falls.” AAIDD-11 at 36.

         The Supreme Court “instructs that, where an IQ score is close to, but above, 70, courts must account for the test's standard error of measurement.” Moore, 137 S.Ct. at 1049. “The SEM reflects the reality that an individual's intellectual functioning cannot be reduced to a single numerical score.” Hall, 134 S.Ct. at 1995; see also Moore, 137 S.Ct. at 1049 (citing the User's Guide at 22-23). As the Supreme Court explained, the SEM is “a statistical fact, a reflection of the inherent imprecision of the test itself.” Moore, 137 S.Ct. at 1049. “For purposes of most IQ tests, this imprecision in the testing instrument means that an individual's score is best understood as a range of scores on either side of the recorded score within which one may say an individual's true IQ score lies.” Id. (explaining that Moore's score of 74, adjusted for the SEM, yields a range of 69 to 79); see also DSM-5 at 37 (indicating that the SEM is generally a five-point range).[42]“[To] ignore[] the inherent imprecision of these tests risks execut[ion] of a person who suffers from intellectual disability.” Hall, 134 S.Ct. at 2001; see also Brumfield, 135 S.Ct. at 2278 (finding unreasonable a state court's conclusion that a score of 75 precluded an intellectual-disability finding).

         Confidence Intervals.

         Much of the hearing focused on the relationship between the SEM and confidence intervals. (See, e.g., D.E. No. 423, Tr. at 112 (Dr. McGrew explaining the relationship between the two phenomena)). “The SEM is used to calculate the confidence interval, or the band of scores around the observed score, in which the individual's true score is likely to fall. Confidence intervals express test score precision and serve as reminders that measurement error is inherent in all test scores and that observed test scores are only estimates of true ability.” (Def. Ex. 24 (“WAIS-IV Manual”) at 46). Dr. McGrew likewise explained that a “person does not obtain a specific IQ score when tested. A person obtains a range of possible IQ test scores with a certain degree of confidence.” (Dr. McGrew's Report at 7).

         Although the Supreme Court thoroughly discusses the SEM in Hall, the Court does not indicate whether lower courts must use a 68% confidence interval (defined as IQ test score ± one SEM) or a 95% confidence interval (defined as IQ test score ± two SEMs) to determine the defendant's IQ score range. See AAIDD-11 at 36 (describing difference between one SEM and two SEMs). Rather, the Court consistently referred to the use of “the SEM” in the singular.[43]

         Dr. Morgan explained at the hearing, however, that the “real score for a psychological test is within the 95% confidence interval. That accounts for the potential error inherent in all testing.” (D.E. No. 412, Tr. at 157 (Dr. Morgan's Testimony)). Moreover, the parties' experts agree that the 95% confidence interval is to be used for index and Full Scale IQ (“FSIQ”) scores. (See D.E. No. 420, Tr. at 91-92 (Dr. Denney's Testimony); D.E. No. 427, Tr. at 10 (Dr. Morgan's Testimony); D.E. No. 387, Tr. at 7, 15 (Dr. Hunter's Testimony); Dr. McGrew's Report at 7). Dr. McGrew also explained:

The concept of error tolerance in measurement and experiments is recognized in most sciences, as well as the need to account for acceptable levels of error when presenting scientific data and evidence. Since IQ tests do not possess perfect reliability, there is a degree of known error in each IQ test score. As per scientific and professional standards, each of Mr. Roland's IQ test scores should be interpreted as a range of scores- bounded by a 95% confidence interval band ( 5 IQ score points). The notion of an acceptable error tolerance of 5% (conversely, a 95% confidence interval) has a long history in the sciences, and is grounded in reasoned logic, mathematical and statistical theory, and statistically tractable mathematical quantification of the characteristics of the normal curve.

(Dr. McGrew Report at 5).

         The Court will, therefore, follow the experts' guidance (and the approach set forth in Wilson) and apply a 95% confidence interval (i.e., two SEMs) in evaluating Roland's IQ scores. See Wilson, 170 F.Supp.3d at 372, 375 (interpreting Hall as requiring a 95% confidence interval and applying same to Wilson's IQ score).

         2. Flynn Effect

         The Flynn Effect, named after James R. Flynn, is a phenomenon that, over time, standardized IQ test scores tend to increase with the age of the test (about 0.30 points per year) without a corresponding increase in actual intelligence in the general population. See AAIDD-11 at 37; User's Guide at 23. “That is, individuals tested today on an IQ test normed many years earlier will obtain inflated IQ scores, as the older test norms are obsolete for individuals in contemporary society.” (Dr. McGrew's Report at 14). Both the AAIDD and the APA consider the Flynn Effect an important factor in examining IQ scores. See AAIDD-11 at 37; DSM-5 at 37. Flynn suggests-and the AAIDD recommends-a downward departure of IQ scores by 0.3 points per year based on when the IQ test was administered relative to when the IQ test's norms were produced (i.e., a Flynn adjustment or correction). See User's Guide at 20-21, 23; AAIDD-11 at 37, 95-96 (providing the precise calculation of .33 times the number of years that have elapsed from the last time the test was normed until taken by the subject).

         District courts, upon consideration of expert testimony, may apply or reject the Flynn Effect. See In re Cathey, 857 F.3d 221, 227 n.33 (5th Cir. 2017) (citing Ledford v. Warden, Georgia Diagnostic & Classification Prison, 818 F.3d 600, 640 (11th Cir. 2016)); see also Montgomery, 2014 WL 1516147, at *27-28 (declining to apply Flynn-adjustment to defendant's IQ score because it would not have affected the Court's analysis); Hardy, 762 F.Supp.2d at 866 (applying Flynn-adjustment to defendant's IQ score).[44]

         As it turns out, the Court need not delve too deeply into this issue because three of Roland's IQ scores-70, 71, and 75-are within the range of mild ID regardless of a Flynn correction. (See Dr. Hunter's Report at 12 (calculating a FSIQ of 71); Dr. Morgan's Report at 10 (calculating a FSIQ of 75); Def. Ex. 9a at 58 (listing Roland's 2002 KBIT composite IQ score of 70)).[45]Generally, “a full-scale IQ score of 70-75 or lower ordinarily will satisfy the first requirement for a finding of intellectual disability.” McManus v. Neal, 779 F.3d 634, 650 (7th Cir. 2015).[46] And although the Supreme Court does not provide explicit guidance on how courts should treat multiple IQ test results, “the facts in Hall require lower courts to consider evidence of adaptive functioning if even one valid IQ test score generates a range that falls to 70 or below.” Wilson, 170 F.Supp.3d at 366, 372-75 (relying on one of nine IQ scores to determine that Wilson satisfied Prong One); see also Moore, 137 S.Ct. at 1061 n.1 (noting that Hall “reached no holding as to the evaluation of IQ when an Atkins claimant presents multiple scores”); id. at 1045 & n.4, 1047 (noting that Moore had seven IQ scores-including a 78-and relying on Moore's score of 74).[47]

         The Court will nonetheless recognize the Flynn Effect as a best practice for an ID determination. The AAIDD mandates the application of the Flynn Effect when a clinician administers a test with outdated norms, especially in light of the retrospective diagnosis here. See AAIDD-11 at 95-96; id. at 37 (“[B]est practices require recognition of a potential Flynn Effect when older editions of an intelligence test (with corresponding older norms) are used in the assessment or interpretation of an IQ score.”). The DSM-5 likewise recognizes the Flynn Effect as one of the factors that may affect IQ test scores. See DSM-5 at 37. Moreover, Roland's experts posit that the Court should apply a Flynn adjustment. (See Dr. Hunter's Report at 16-17; Dr. McGrew's Report at 13; Dr. Greenspan's Report at 11-12).[48] And Dr. Morgan testified that a Flynn correction would not affect his analysis in this case. (D.E. No. 414, Tr. at 30-31 (Dr. Morgan's Testimony); id. at 162-63 (Dr. Morgan testifying that he did not apply a Flynn-adjustment because Roland's IQ scores would nevertheless be invalid)). Dr. Denney also testified that although the “issue is still unsettled[, ] I think it is fair and reasonable to consider the potential effect of Flynn . . . .” (D.E. No. 420, Tr. at 77 (Dr. Denney's Testimony)). In light of the AAIDD's mandate, the evidence presented by both parties, and other federal courts' practices, this Court will adjust Roland's IQ scores to correct for the Flynn Effect.

         3. IQ Tests: WAIS-IV and KBIT

         Expert witnesses for both Roland and the Government described the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”), as the “gold standard” in intelligence testing.[49]And federal courts routinely rely on Wechsler IQ test scores in making prong-one determinations. See, e.g., Montgomery, 2014 WL 1516147, at *26; Smith, 790 F.Supp.2d at 501.

         The psychometrics of an IQ test are designed to aggregate data from the item level, to the subtest level, to the index scores, to the FSIQ scores. (Dr. McGrew's Report at 20-22; D.E. No. 412, Tr. at 140 (Dr. Morgan's Testimony); D.E. No. 386, Tr. at 81-82 (Dr. Hunter's Testimony)). “[A]t each successive level of summation or aggregation[, ] the reliability (and validity) of the resulting score indices increases.” (Dr. McGrew's Report at 20-22). The WAIS-IV measures four indices: Verbal Comprehension Index, Perceptual Reasoning Index, Working Memory Index, and Processing Speed Index. (D.E. No. 412, Tr. at 140 (Dr. Morgan explaining the WAIS-IV indices)). These indices are further broken down into ten subtests and item levels. (Dr. McGrew's Report at 20-22; see also infra at 56).

         The FSIQ score “is the best approximation of an individual's overall cognitive functioning.” Davis, 611 F.Supp.2d at 485; Lewis, 2010 WL 5418901, at *10 (“The court considers the full scale IQ score as the best indicator of Prong 1 intellectual functioning.”). The parties' experts agree that a FSIQ is the “most reliable measure” of determining intellectual functioning. (D.E. No. 422, Tr. at 69-70 (Dr. Bigler: “The Full Scale IQ score is the most reliable measure.”); D.E. No. 423, Tr. at 66 (Dr. McGrew: “Full Scale IQ score is the most robust, reliable and valid score on intelligence tests.”); D.E. No. 427, Tr. at 41 (Dr. Morgan agreeing that the composite and FSIQ scores are “the most reliable measures”)).[50] In fact, Dr. Morgan testified that “[o]nly the Full Scale IQ is really relevant, and required for the diagnosis, to satisfy prong 1.” (D.E. No. 414, Tr. at 148 (Dr. Morgan's Testimony)). The AAIDD Manual also emphasizes reliance on “a global (general factor) IQ as a measure of intellectual functioning.” AAIDD-11 at 41.

         Intellectual functioning can also be assessed by the KBIT. The original KBIT had two subtests: Vocabulary and Matrices. (D.E. No. 414, Tr. at 45 (Dr. Morgan's Testimony)). The most recent version of the test (“KBIT-2”) has added a third subtest called “Riddles.” (Id.). The subsections together yield a full-scale composite score. (Id. at 41).

         Consistent with the experts' testimony, clinical guidelines, and caselaw, the Court will place significant weight on Roland's FSIQ scores on the WAIS-IV. See User's Guide at 10 (urging clinicians to “[u]se individually administered, standardized instrument(s) that yield a measure of general intellectual functioning”). IQ scores alone, however, are not dispositive of a person's intelligence; as noted above, “one needs to use clinical judgment in interpreting the obtained score.” AAIDD-11 at 35.

         iii. Roland's IQ Test Performance

         Roland has four available IQ test scores. Dr. Hunter administered the WAIS-IV to Roland in November 2016, yielding an IQ score of 71, with a 95% confidence interval range of 68 to 76. (Dr. Hunter's Report at 12; Dr. McGrew Report's at 3-4). Dr. Morgan also administered the WAIS-IV to Roland approximately four months later, in March 2017, yielding an IQ score of 75, with a 95% confidence interval range of 71 to 80. (Dr. Morgan's Report at 3-4). Roland was also administered the 2002 KBIT by Dr. Farber, when he was 17, which resulted in a composite score of 70, with a 95% confidence interval range of 65 to 75. (Def Ex. 9a at 55, 58; Dr. McGrew's Report at 10). Finally, in March 2017, Dr. Morgan administered the KBIT-2 to Roland, which resulted in a composite score of 78. (Gov. Ex. 354; D.E. No. 414, Tr. at 46, 163 (Dr. Morgan's Testimony)).

         Applying a Flynn-adjustment to Roland's IQ scores results in a:

• 68 on Dr. Hunter's test, with a 95% confidence interval range of 63 to 73;
• 72 on Dr. Morgan's test, with a 95% confidence interval range of 67 to 77;
• 69 on the 2002 KBIT, with a 95% confidence interval range of 64 to 74; and . 74 on the KBIT-2, with a 95% confidence interval range of 69 to 79.

(Dr. McGrew's Report at 6).

         As noted earlier, the WAIS-IV measures four indices. A detailed summary of Roland's indices scores is provided in the chart below.

WAIS -IV Indices
Dr. Hunter's Test
Dr. Morgan's Test
Sum
SS
%ile
Sum
SS
%ile

VERBAL COMPREHENSION

17
76
5
17
76
5

PERCEPTUAL REASONING

15
71
3
20
81
10

WORKING MEMORY

15
86
18
16
89
23

PROCESSING SPEED

9
71
3
10
74
4

FULL SCALE IQ

56
71
3
63
75
5

         (See generally Dr. Morgan's Report: Gov. Ex. 195, Score Comparison Chart; Dr. Hunter's Report; Def. Ex. 19E, Dr. Hunter's Score Summary Sheet).

         These indices comprise additional subtests. (See generally Dr. Morgan's Report; Dr. Hunter's Report). The results of Roland's subtests are summarized in the following chart.

WAIS-rV Subtests
Dr. Hunter's Test
Dr. Morgan's Test
Raw
Scaled
Raw
Scaled
VERBAL COMPREHENSION

Similarities

13
4
14
5

Vocabulary

21
6
26
7

Infonnation

8
7
5
5

(Comprehension)

19
8
n/a
n/a
PERCEPTUAL REASONING

Block Design

20
5
20
5

Matrix Reasoning

8
4
17
9

Visual Puzzles

8
6
9
6

(Figure Weights)

9
6
n/a
n/a

(Picture Completion)

8
6
n/a
n/a
WORKING MEMORY

Digit Span

22
7
21
6

Arithmetic

12
8
14
10

(Letter-Number Sequencing)

15
7
n/a
n/a
PROCESSING SPEED

Symbol Search

18
5
25
7

Coding

34
4
29
3

(Cancellation)

36
9
n/a
n/a

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