U.S. v. Hardy
| Decision Date | 24 November 2010 |
| Docket Number | Criminal Action No. 94–381. |
| Citation | 762 F.Supp.2d 849 |
| Parties | UNITED STATES of Americav.Paul HARDY. |
| Court | U.S. District Court — Eastern District of Louisiana |
Herbert Victor Larson, Jr., New Orleans, LA, Marilyn Michele Fournet, Baton Rouge, LA, Denise M. LeBoeuf, Capital Post-Conviction Project of Louisiana, New Orleans, LA, for Paul Hardy.HELEN G. BERRIGAN, District Judge.
The AAMR & DSM–IV–TR Definitions of Mental Retardation
The Expert Witnesses
II.
Factor One: Significantly Subaverage Intellectual Functioning
The Cutoff IQ Score
Hardy's IQ Score
The Flynn Effect in General
The Flynn Effect as Applied to Hardy
863
The Adequacy of Hardy's Effort
867
Practice Effects
867
Personality Testing
870
Other Discrepancies
871
Malingering/Response Bias
873
Other Evidence of Hardy's IQ
875
The 1996 Testimony
876
Factor Two: Significant Limitations in Adaptive Functioning
879
The Definition and Assessment of Adaptive Functioning/Behavior
879
Retrospective Diagnosis
881
Hardy's Level of Adaptive Functioning
882
Dr. Swanson's Assessment
885
Dr. Swanson's VABS–II Assessment of Hardy Based on Tony Van Buren
Dr. Hayes' Interview with Toni Van Buren
887
Dr. Swanson's Other Interviews
890
Dr. Swanson's Interviews and Testing of Hardy
891
Dr. Hayes' Assessment
891
Dr. Hayes' VABS–II Assessment of Hardy Based onJavetta Cooper
892
Criticism of Dr. Swanson's Evaluation
893
Other Evidence of Hardy's Level of Adaptive Functioning
894
Additional Interviews
894
Direct Observation
895
Records and Other Sources
896
The Court's Findings of Fact
896
Factor Three: Onset Before Age 18
903
III.
904
APPENDIX A
Remaining Reasons Cited by Dr. Hayes for Discrediting Dr. Tetlow's IQ Test
APPENDIX B
910
Dr. Hayes' Alternative Sources for Estimating Hardy's IQ
School Records
910
Family Data
911
Lay Opinions
912
Demographic Imputation
912
APPENDIX C
913
Defense Diagnoses in 1996 and Their Similarities to Mild Mental Retardation
APPENDIX D
917
Interviews and Other Information Relevant to Adaptive Behavior
Dr. Hayes' Interview with Theresa Minor
917
Dr. Hayes' Interview with Vance Ceaser
917
Dr. Hayes' Interview with Greg Williams
918
Dawn Dedeaux Videos
920
Hardy's Telephone Calls from Jail
920
APPENDIX E
923
Dr. Hayes' List of Additional Facts Relevant to Hardy's Adaptive Behavior
Communication
923
Self Care
923
Home Living
923
Social/Interpersonal Skills
924
Use of Community Resources
924
Self Direction
924
Functional Academic Skills
925
Work
925
Leisure
925
j.
Health & Safety
925 This matter comes before the Court on a motion for pre-trial determination of mental retardation filed by Paul Hardy (“Hardy”), the defendant in this capital case. An evidentiary hearing was held on September 14–18, 2009, and September 21–23, 2009, and the matter was taken under advisement. Having thoroughly considered the record, the evidence and testimony adduced at trial, and the law, the Court now issues its opinion.
Hardy stands convicted of two crimes for which the government seeks the death penalty: (1) conspiracy to injure, oppress, threaten and intimidate Kim Groves (“Groves”) and another person in the right to be free from the use of unreasonable force by one acting under color of law and in the right to provide information to law enforcement authorities about a federal crime, resulting in the death of Groves, in violation of 18 U.S.C. § 241; and (2) deprivation of Groves' civil rights in violation of 18 U.S.C. § 242 and 2. Hardy claims that he is mentally retarded and is therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and the Federal Death Penalty Act, 18 U.S.C. § 3596(c). 1 The propriety of determining the issue before the Court without a jury and pre-trial is uncontested, as is Hardy's burden of proof by a preponderance of the evidence.
a. The AAMR & DSM–IV–TR Definitions of Mental Retardation
Mental retardation is a developmental disability, the definition of which the Court derives from the two sources recognized by the Supreme Court in Atkins: The American Association on Mental Retardation (“AAMR”), now known as the American Association on Intellectual and Developmental Disabilities (“AAIDD”), and the American Psychiatric Association (“APA”).
The AAMR/AAIDD defines mental retardation in the 10th edition of its standard reference work as follows:
Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.
Mental Retardation Definition, Classification, and Systems of Supports 1 (2002) (“AAMR 10th Edition”).2
The definition and diagnostic criteria for mental retardation of the APA is contained in its standard reference work, the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (2000) (“DSM–IV–TR”). It provides in relevant part that a diagnosis of mental retardation requires:
A. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning).
B. Concurrent deficits or impairments in present adaptive functioning (i.e., the person's effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living. social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.
C. The onset is before age 18 years of age.
The DSM–IV–TR categorizes mental retardation as mild, moderate, severe, and profound, with a residual category of “mental retardation, severity unspecified.” Id. at 42–44. Mild mental retardation is associated with an IQ of 50–55 to 70–75,3 and the DSM–IV–TR further describes it as follows:
Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of “educable.” This group constitutes the largest segment (about 85%) of those with the disorder. As a group, people with this level of Mental Retardation typically develop social and communication skills during the preschool years (ages 0–5 years), have minimal impairment in sensorimotor areas, and often are not distinguishable from children without Mental Retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth-grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings.DSM–IV–TR at 43.
The American Psychological Association's Division of Mental Retardation and Developmental Disabilities (“Division 33”) echoes this point and further elaborates:
People classified with mild MR evidence small delays in the preschool years but often are not identified until after school entry, when assessment is undertaken following academic failure or emergence of behavior problems. Modest expressive language delays are evident during early primary school years, with the use of 2– to 3–word sentences common. During the later primary school years, these children develop considerable expressive speaking skills, engage with peers in spontaneous interactive play, and can be guided into play with larger groups. During middle school, they develop complex sentence structure, and their speech is clearly intelligible. The ability to use simple number concepts is also present, but practical understanding of the use of money may be limited. By adolescence, normal language fluency may be evident. Reading and number skills will range from 1st- to 6th-grade level, and social interests, community activities, and self-direction will be typical of peers, albeit as affected by pragmatic academic skill attainment. Baroff (1986) ascribed a mental age range of 8 to 11 years to adults in this group. This designation implies variation in academic skills, and for a large proportion of these adults, persistent low academic skill attainment limits their vocational opportunities. However, these people are generally able to fulfill all expected adult roles. Consequently, their involvement in adult services and participation in therapeutic activities following completion of educational preparation is relatively uncommon, is often time-limited or periodic, and may be associated with issues of adjustment or disability conditions not closely related to MR.
Am. Psychol. Ass'n, Manual of Diagnosis and Professional Practice in Mental RetardationN 17–18 (John W. Jacobson & James A. Mulick eds., 1996).
The Supreme Court in Atkins recognized that the two “official” definitions of mental retardation are similar, but left to states the “task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Atkins, 536 U.S. at 317, 122 S.Ct. 2242. In doing so, it noted that:
[C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process...
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