[Paleopsych] NYT: Inmate's Rising I.Q. Score Could Mean His Death
checker at panix.com
Sun Feb 6 16:21:51 UTC 2005
The New York Times > National > Inmate's Rising I.Q. Score Could Mean His Death
By ADAM LIPTAK
YORKTOWN, Va., Feb. 3 - Three years ago, in the case of a Virginia
man named Daryl R. Atkins, the United States Supreme Court ruled that
it was unconstitutional to execute the mentally retarded. But Mr.
Atkins's recent test scores could eliminate him from that group.
His scores have shot up, a defense expert said, thanks to the mental
workout his participation in years of litigation gave him.
The Supreme Court, which did not decide whether Mr. Atkins was
retarded, noted that he scored 59 on an I.Q. test in 1998. The cutoff
for retardation in Virginia is 70.
A defense expert who retested Mr. Atkins last year found that his I.Q.
was 74. In court here on Thursday, prosecutors said their expert's
latest test yielded 76.
Mr. Atkins, a slight, balding 27-year-old in an orange jumpsuit, sat
slumped with his chin on his hand as lawyers argued about whether his
intelligence was low enough to spare him from execution. In 1996, he
and another man abducted Eric Nesbitt, 21, an airman from Langley Air
Force Base, forced him to withdraw money from an A.T.M. and then shot
him eight times, killing him.
He will be one of the first death row inmates to have a jury trial on
the question of whether he is retarded. The jury's decision will
determine whether his life will be spared.
Mr. Atkins's more recent scores should be discounted, a clinical
psychologist who tested him in 1998 and 2004 said, because they are
the result of "a forced march towards increased mental stimulation"
provided by the case itself.
"Oddly enough, because of his constant contact with the many lawyers
that worked on his case," the psychologist, Dr. Evan S. Nelson, wrote
in a report in November, "Mr. Atkins received more intellectual
stimulation in prison than he did during his late adolescence and
early adulthood. That included practicing his reading and writing
skills, learning about abstract legal concepts and communicating with
In helping put an end to the death penalty for the mentally retarded,
then, Mr. Atkins could have ensured his own execution.
Prosecutors say that Mr. Atkins has never been retarded and that the
recent tests confirm it. "I don't see how a 76 is exculpatory and
evidence of mental retardation," Eileen M. Addison, the commonwealth's
attorney here, said in court on Thursday. "It needs to be under 70."
Ms. Addison has said that Mr. Atkins's crime also proves that he is
not retarded. In an interview last year, she said that his ability to
load and work a gun, to recognize an A.T.M. card, to direct Mr.
Nesbitt to withdraw money and to identify a remote area for the
killing all proved that Mr. Atkins is not retarded.
"I don't believe the truly mentally retarded commit these kinds of
crimes," she said last year. She did not respond to recent messages
There are several other reasons that Mr. Atkins's scores may have
risen. I.Q. scores are rarely completely stable and can drift, though
within a relatively narrow range, typically by five points up or down.
Psychologists recognize that practice drives scores higher. And I.Q.'s
tend to rise over time, by about three points a decade.
Dr. Evans, the defense psychologist, concluded that "Mr. Atkins's
'true' I.Q. is somewhere in the mid- to upper 60's."
Dozens of mentally retarded people have been released from death row
as a consequence of the Supreme Court's decision, under agreements and
judicial findings. Others will face trials like Mr. Atkins's. David M.
Gossett, a Washington lawyer who represents a death row inmate in a
similar position in Georgia, said incarceration itself may also have a
positive effect on the test scores.
"Prisons are highly structured and safe environments," Mr. Gossett
said. "They're sometimes good environments for the mentally retarded.
These people are not vegetables. They can learn. These are people who
can get better at taking tests."
In old cases and new ones, courts across the country have been
struggling to interpret the Supreme Court's decision. Seven states
have passed new laws, according to the Death Penalty Information
They have adopted essentially the same definition of mental
retardation, requiring defendants to prove three things: that their
I.Q. is below 70 or 75, that they lack fundamental social and
practical skills, and that both conditions existed before they turned
Mr. Atkins was never tested as a youth, and so the jury will have to
consider how to look back using his test scores as a young adult.
The defense bears the burden of proving he is retarded, so the absence
of scores from when he was young and the relatively high current test
numbers may hurt his case.
"I don't know what you have before age 18," Judge Prentis Smiley Jr.,
of the York County Circuit Court here, told Mr. Atkins's lawyers on
Thursday. "That's your problem."
The judge described a clear standard. "The issues are bright lights
and targeted with a bull's-eye," Judge Smiley said.
Richard Burr, who represents Mr. Atkins along with Joseph A. Migliozzi
"For people real close to the edge, there is nothing easy about that,"
Mr. Burr said. "There is going to be controverted evidence, subject to
sharp disputes and disagreements."
Jurors in Mr. Atkins's case, which will be tried this spring or
summer, will probably hear from mental health experts, teachers,
family members, classmates and, perhaps, victims of some of the 16
other felonies that Mr. Atkins committed when he was 18 in what Dr.
Nelson called a four-month crime spree. He dropped out of high school
that year, his third attempt to pass the tenth grade.
Virginia's handling of mental retardation in capital cases is
relatively unusual. In new cases, juries in this state do not reach
the question until after they have convicted the defendant. Many other
states have a judge decide the issue before trial.
Judge Smiley said he planned to tell jurors that Mr. Atkins was
convicted and sentenced to death. He will also allow prosecutors to
dismiss jurors who say they oppose the death penalty in all
Mr. Atkins's lawyers asked the Virginia Supreme Court to reverse those
rulings. On Wednesday, that court declined to hear the case.
"This proceeding has veered off the course of fairness," Mr. Burr told
Judge Smiley on Thursday. "We want to have the opportunity to prove
that Daryl Atkins is mentally retarded."
Mr. Atkins nodded in agreement.
More information about the paleopsych