United States District Court, D. New Jersey
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.” (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.
FRAMEWORK FOR ASSESSING INTELLECTUAL DISABILITY
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.
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”) and the American Psychiatric
Association (“APA”). See Atkins, 536
U.S. at 308 n.3 (identifying then-current clinical
standards). 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.
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.
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”).
warrant an evidentiary hearing, Roland bears the burden of
making an initial showing of “reasonable doubt”
about ID. 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.
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). 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).
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). These manuals are the most current
iterations of the authoritative sources in the field, and the
parties do not dispute their application. 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
“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. Each of these three prongs must be met
for a person to be positively diagnosed.
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
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
Id. “The diagnosis of intellectual disability
should be made whenever Criteria A, B, and C are met.”
Id. at 39.
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.”
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.
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).
Special Considerations in Assessing Intellectual
the APA and the AAIDD provide significant diagnostic
features, explanations, and qualifiers for forensic
use. 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.
guidelines emphasize that determining whether an individual
meets the clinical definition for ID involves clinical
judgment. 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.”
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
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.
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. These risks
can be prenatal, perinatal or postnatal. Id. at
60-61; User's Guide at 4; DSM-5 at 39. “[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).
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.
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.
THE EVIDENTIARY HEARING
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.
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.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
Scott J. Hunter, Ph.D.
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.).
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
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
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)).
Stephen Greenspan, Ph.D.
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). 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 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 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).
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).
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
Erin D. Bigler, Ph.D.
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).
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).
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).
Kevin S. McGrew, Ph.D.
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).
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).
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)).
Joel E. Morgan, Ph.D., ABPP-CN
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
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.
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)).
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. 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.
Bernice A. Marcopulos, Ph.D., ABPP
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.).
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).
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.”). 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).
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
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.
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.
Robert L. Denney, Psy.D., ABPP
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.
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). 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.).
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.
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.
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).
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).
Psychological Health and Substance Abuse.
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). These records also indicate that Ms.
Roland suffered from major depression and other psychological
disorders during Roland's developmental
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). 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,
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.).
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.). 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). 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).
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.). 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). 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.”
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.
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.
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.
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). 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)).
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)).
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” 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.
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).
to Risk Factors.
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.
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)).
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)).
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)).
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
Security Administration Records.
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. (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
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.
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).
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)). 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.).
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).
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).
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. But the
records do reveal that a “consultative
examiner” 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
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.
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).
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)).
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, ” the Court frames its
analysis of the evidence in terms of those clinical
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.
Prong One: Deficits in Intellectual Functioning
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
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.
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.
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.
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.”).
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
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”).
Measuring Intellectual Functioning
Standard Error of Measurement and Confidence
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). 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.
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).“[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).
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).
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.
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
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).
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
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
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).
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)).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). 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
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). 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.
IQ Tests: WAIS-IV and KBIT
witnesses for both Roland and the Government described the
Wechsler Adult Intelligence Scale, Fourth Edition
(“WAIS-IV”), as the “gold standard”
in intelligence testing.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.
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).
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”)). 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.
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).
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.
Roland's IQ Test Performance
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)).
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).
noted earlier, the WAIS-IV measures four indices. A detailed
summary of Roland's indices scores is provided in the
WAIS -IV Indices
Dr. Hunter's Test
Dr. Morgan's Test
FULL SCALE IQ
generally Dr. Morgan's Report: Gov. Ex. 195, Score
Comparison Chart; Dr. Hunter's Report; Def. Ex. 19E, Dr.
Hunter's Score Summary Sheet).
indices comprise additional subtests. (See generally
Dr. Morgan's Report; Dr. Hunter's Report). The
results of Roland's subtests are summarized in the
Dr. Hunter's Test
Dr. Morgan's Test