[Paleopsych] NYT: Inmate's Rising I.Q. Score Could Mean His Death

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The New York Times > National > Inmate's Rising I.Q. Score Could Mean His Death
http://www.nytimes.com/2005/02/06/national/06atkins.html
5.2.6

    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
    professionals."

    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
    seeking comment.

    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
    Center.

    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
    18.

    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
    Jr., disagreed.

    "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
    circumstances.

    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.