Latest update from busy Houston:

I spent Monday and Tuesday at a CLE (continuing legal education) event in Dallas.  It was a conference specifically for capital defence attorneys at the Centre for American and International Law.  The conference focused on ‘intellectual disabilities’, otherwise known as ‘mental retardation’.  Speakers included forensic psychologists, a vocational consultant, a professor in speech-language pathology and capital defence attorneys.

In the 2002 case of Atkins v. Virginia, the Supreme Court ruled that executing mentally retarded individuals violates the Eighth Amendment’s ban on cruel and unusual punishment.  The chair opened the conference outlining the unique nature of a ‘mental retardation’ diagnosis during a capital trial.  Mental retardation is the only diagnosis that has profound legal implications based on diagnosis alone.  If a defendant is declared to be ‘insane’ at the time of the crime, he must also not have known the difference between right and wrong.  In order to be competent, the client must understand the charges (mental state) and also have the ability to aid his attorney in his own defence.  With mental retardation, a diagnosis is sufficient on its own to alter the outcome of a capital punishment trial.

The conference was particularly informative on the use of IQ testing for determining mental retardation.  The psychologists explained how the ‘Flynn Effect’, a phenomenon with IQ testing, documents substantial increases in IQ over time.  The average IQ of the population is 100.  An IQ test normed in 1977 and used today would have a population mean of 111.  This means if a client scored 75 in 1977, that score today would equate to 64.

Defendants with consistent childhood IQ scores at or below 65 are not likely targets for death prosecution.  The problem area is scores of 65-75 or ‘mildly mentally retarded’.  The Texas Court of Criminal Appeal recognises that a person with a 75 IQ may be mentally retarded: ex parte Hearn, 310 S.W.3d 424 (Tex. Crim. App. 2010).  We met with a client on Wednesday who has a historical IQ of 67 and 64, from 1994 and 1995 respectively.  The Flynn Effect would place these scores today around 62 and 59.  According to the literature at the Dallas conference, our client should escape a death sentence under Atkins.

In stark contrast, Wednesday also involved visiting with a client who was remarkably intelligent.  We visited a neighbouring county for a team meeting concerning this particular client.  He had a bad experience with previous trial counsel and as a result became very well educated on the law.  It was a unique experience and probably one of the highlights of my trip.  He was quoting Sun Tzu's The Art of War and talking about his time in the jail, keeping the team entertained throughout the visit.

We were in the county to obtain discovery from the DA’s office for his case.  Unfortunately, they were not prepared for our scheduled visit, had little of the necessary evidence they needed to convict our client, and, as a result, could not provide us with the materials we needed.

Texas gun culture: One of the lawyers I work for was at the opticians last week.  The optician asked him which eye was his strongest.  The lawyer looked puzzled.  The optician asked him which eye he used for shooting.  Solid diagnostic method.

Blog by Aine Kervick, intern at the Amicus Houston office
29 June 2012

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