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When the Defendant is Mentally Retarded

By Diana McCoy, Ph.D.

When your client is looking at you with adoration and nodding agreeably, maybe it's not really adoration at all. Maybe it's lack of comprehension.

In light of the Tennessee Supreme Court's recent decision in State v. Heck Van Tran, which makes it unconstitutional to execute a mentally retarded defendant, one would hope that strenous effort is being made to determine which defendants now on death row classify as mentally retarded. In capital cases, determining whether your client is mentally retarded and how best to present this evidence is more important that ever. However, developing expertise with mentally retarded defendatns is a crucial skill no matter what the charges against your client.

Although mental retardation, it might seem, should be easy enough for anyone to spot, this is not necessarily the cae. Simply determining, for example, whether your client is a high school graduate, can read, or has a driver's license does not do the trick. The client may be exaggerating her accomplishments or may not understand your question. Sad to say, since Tennessee is ranked next to last in terms of state educational systems, the mere possession of a high school diploma does not an intelligent person make. In addition, the individual may have earned an attendance certificate as opposed to an actual diploma.

In fact, only a fifth grade reading ability is necessary to pass a written driver's license test in Tennessee, a significant point in a capital case in which I was involved several years ago. As a practical matter, mentally retarded individuals are able to develop academic abilities up to the sixth grade level by their late teens. Accordingly, having a driver's license does not automatically rule out mental retardation.

Technically, an IQ of 70 is where "Mild Mental Retardation" ends and "Borderline Intelligence" begins, with 85% of all mentally retarded individuals falling within the mild category. "Moderate Mental Retardation," constituting 10% of all mentally retarded individuals, ranges from an IQ of 35 to 40 up to 50 to 55. "Severe Mental Retardation," 3.5% of all mentally retarded individuals, ranges from 20 to 25 up to 35 to 40. The "Profound Mental Retardation" range is 20 to 25 and constitutes 1.5% of the mentally retarded. Accordingly, the vast majority of the mentally retarded are within the Mild Mental Retardation range.

And yet it is the mild mentally retarded who pose the defense attorney's greatest challenge. It is often difficult to discern at casual glance that they are retarded at all. Even the name itself, "mild," deceptively suggests that the individual's difficulties are not really so severe. This is contrary to what is actually known about the tendency of mildy retarded individuals, compared to normal individuals, to be more easily influenced, readily intimidated by authority figures, susceptible to suggestion, and acquiescent. In addition, they are more likely to have problems with logic, foresight, planning, and anticipating consequences and consistently fail to understand abstract concepts, i.e., why a particular behavior is morally and legally wrong. They are more likely to be viewed by a jury as callous and without remorse because they tend to miss important social cues and act inappropriately by grinning, looking blank, or falling asleep. In short, the "mildly" mentally retarded defendant is more likely to be caught, to confess, and to be convicted.

Don't Let Your Client Fool You

Many mildly mentally retarded individuals have trained themselves from an early age to appear brighter than is actually the case. The mentally retarded defendant may exhibit this by being agreeable with an interviewer/interrogator, for example, who he views as more powerful and/or smarter than he. He may also take this approach with you, so listen to what he has to say before you somehow "suggest" to him the correct answers to your questions, however unintentionally you may mean this. Remember, he learned long ago that if he challenges someone's point of view this may subject him to a barrage of questions he may not be able to answer, thus letting all the world know that he is mentally retarded. We all want respect, to be accepted, and to fit in. In consideration of this, the safest, easiest thing for him to do is to take the path of least resistance and simply agree or say whatever he thinks the other person wants to hear. This tendency is especially compounded when he is meeting with more than one person at a time, so take care not to overwhelm him by sheer numbers alone.

The literature on false confessions is replete with case studies of mentally retarded individuals being especially vulnerable to police coercion. By virtue of their cognitive limitations they lack the logic and reasoning skills necessary to resist suble and not-so-subtle police tactics. They also may want to appear competent at all costs, even if this means agreeing they did something they did not do simply because the question was put to them in a manner suggesting they would somehow be stupid not to agree. If you have a client who is mentally retarded, be sure and scrutinize the rights waiver with special focus; the reading level of most rights waivers is 7th grade and, as I have already mentioned, the highest expected reading level for someone deemed to be mentally retarded is 6th grade.

Mentally retarded defendants are often frustrating to deal with because of their unwillingness to tell you when they do not understand something. I have sat in on interviews between an attorney and his or her client when it became obvious to me that the client had no idea what the attorney was saying, sometimes even clients of average intelligence! Studies have shown that most college students do not know what "subsequent" means, much less a mentally retarded client, yet this seems to be a word beloved by attorneys. Ask your client to explain what you just told him and then patiently explain in simple words any misunderstandings. Periodically asking your client to explain what you just told him is one of the best screening tools in diagnosing mental retardation for the lay person.

Blind defiance is something else to watch for; simply denying any knowledge of the incident altogether in a child-like manner is another common approach taken by mentally retarded defendants, even when this flies in the face of all the evidence as well as commonsense. Again, you may need to carefully and patiently explain the evidence and then provide a face saving way for your client to reconsider his story so that he takes a less concrete, simplistic approach to his case. It goes without saying that the mentally retarded defendant is not as able to help you prepare his defense as is the defendant of normal intelligence.

Mentally retarded defendants may also leave out a critical part of their account regarding what happened, simply because they do not appreciate the significance this has for their case. What they do manage to tell you is often jumbled, out of sequence, and downright incomprehensible. Inasmuch as mentally retarded individuals typically are not expected to be insightful, introspective, or psychologically minded and often lack abstract thinking and vocabulary skills, it may be difficult for them to describe their intellectual and emotional state at the time of the incident in any sort of meaningful way.

In one of my more memorable cases, the mentally retarded defendant was charged with the beating death of his best friend, the result of a dissociative episode. The client was too retarded as well as too impoverished in language and social skills to adequately convey to the state's mental health experts the extent of the flashbacks from which he suffered on an ongoing basis, much less at the time of the incident. These doctors could appreciate that he had significant psychiatric problems, based on his history if nothing else, but could not see the connection between his state of mind at the time of the incident and the serious diagnoses he carried of schizophrenia and posttraumatic stress disorder. This was in large part due to the defendant's inability to clearly express himself and to appreciate the importance of this information to his defense.

Knowing When You Need an Expert and Then, How to Use Her

When your preliminary review of the records and interview with the client suggest you may be dealing with a mental retardation issue, it is time to hire a clinical psychologist. A psychologist is trained in doing psychological testing as opposed to a psychiatrist, who is not. You need psychological test data to prove your case.

Upon choosing a qualified clinical psychologist, immediately provide her with all your records on the client and get her whatever additional records she feels are necessary. Have faith in her expertise and do not attempt to dictate to her in advance what her results should be, ought to be, must be. Nothing succeeds like the truth and conversely, nothing is more damamging than trying to stretch non-existent "facts" to fit a theory.

Effectively Using Psychological Testing

Be prepared for the prosecutor to point to the statistical properties of pscyhological testing, i.e., testing error, if your defendant is right on the border of being mentally retarded on a standard test of intelligence. Specifically, there is a known statistical factor of plus or minus two or three points such that although the defendant tests out as having an IQ of 68, statistically the defendant's true IQ may be between 65 and 71. Further, test scores may be artificially lowered as a result of the defendant's concentration problems, lack of interest in the testing due to depression and/or anxiety, medication he is taking, and so forth. The defendant's medical history must be obtained, incuding a listing of current medications, to determine if medical factors may be impacting test-taking behavior and/or to rebut any argument by the prosecutor.

In addition to the well known IQ test, other psychological tests measure various and sundry cognitive capacities that may be very helpful. These test results may bolster the validity of your IQ score as well as serve as an independent means of explaining other aspects of the defendant's abilities. You will most definitely want her academic abilities measured. As noted above, scoring at the sixth grade level and below is consistent with mild mental retardation.

Receptive language skills, that is, what she understands of the spoken word in contrast to expressive language skills, her speaking vocabulary, can also be measured via psychological testing. It can be very helpful to a jury to hear not just that the client's receptive language skills are at the 12th percentile but that compared to others taking this test, 88% of them did better than your client. Knowledge of your client's receptive language skills also comes into play when dealing with the issue of the rights waiver. That is, if she couldn't have read her rights waiver because her reading level was so low, could she have understood if her rights were read to her, or are her receptive language skills so poor as well that this would have made absolutely no difference?

Mental Retardation = Low IQ + Low Social-Adaptive Skills (manifested before age 18)

Successfully demonstrating mental retardation is dependent on more than just your client attaining an IQ score of 70 or below on a test of intelligence. You must also show that social-adaptive functioning is well below average, with psychological testing able to quantify this, and that these conditions existed before age 18. This not only is the DSM-IV definition of mental retardation but also is the definition of mental retardation used in the 1990 Tennessee statute forbidding the execution of mentally retarded defendants.

Social-adaptive functioning is defined as the performance of the daily activities required for personal and social sufficiency. this includes such categories of behavior as self-care skills, communication, social skills, home living skills, self-direction, health and safety, leisure, work, and functional activities. Social-adaptive functioning is age-related in that for normal individuals, adaptive behavior increases and becomes more complex as an individual grows older. However, with mentally retarded individuals, their level of growth is not so extensive and they reach a much lower ceiling than do individuals of average intelligence.

Social-adaptive behavior is measured by actual functioning as opposed to ability. That is, the criterion for whether an individual passes a particular item has to do with does he regularly do the item as opposed to can he do it if he wants to. The informant who answers the psychologist's questions about the client's abilities is someone who is in close proximity to the defendant, such as a relative or correctional officer, and is thus hopefully in a position to know what he or she does on a regular basis.

Tests measuring social-adaptive functioning can be helpful to a jury by specifying very concretely exactly what day-to-day skills your client has and at what mental age he or she functions. For example, a client's coping skills may be comparable to those of a child 12 years, 2 months of age. Her expressive language skills may be akin to a child 7 years, 4 months of age. It helps to give examples of items failed. For example, stating that the defendant seldom independently weighs consequences of actions before making decisions or does not make his own appointments gives the jury specific, concrete information about the individual. More basic items pertain to being able to write advanced letters, make change, use a table of contents, tell time, read adult newspaper stories each week, be able to give complex directions to others, cook a meal independently, dress appropriately for the weather, and so forth. This descriptive approach is much more straightforward and clearer than simply stating in generalized terms whether she is above average, below average, etc.

It is essential to gather as much data as you can about your client's day-to-day functioning. The prosecuotr will almost certainly have knowledge of the defendant's skills and abilities, and you will need to explain why these aspects of the defendant's behavior are nonetheless consistent with retardation. For example, in one capital case the defendant had at one time driven an ambulance for a living, thus demonstrating not only his ability to pass a driver's license test but also hold down a job. He was also allegedly living on his own at the time of the homicide. As noted above, only a fifth grade reading level is necessary to pass a Tennessee driver's license test, so working as an ambulance driver was not particularly significant. Closer examination revealed that the job itself was short-lived and that he was actually living with a girlfriend, higher functioning that he, who did the cooking, housecleaning, bill paying, etc.

Clearly, a thorough social history is necessary to learn the details of the defendant's actual situation, with everything not always being what it seems on the surface. Employers may be good sources of information corroborating your client
s poor decision-making ability, child-like behavior, and so forth. Parents and other family members can be excellent sources of information but are not considered neutral. However, they are a good place to start in developing concepts about your client that teachers, employers, counselors, and so forth may be able to confirm.

School Records - Your Single Most Important Source

Regardless of the age of your client, make an all out effort to obtain his school records. The younger the defendant, the more likely educational records are available, with a wealth of supportive services, including psychological and educational testing, providing base line test scores. This is extremely helpful in satisfying the "before age 18" criterion. Insist on being given all the available school records, not just what a clerk picks and chooses from the file. The best scenario is to actually be there yourself if at all possible when the records are being duplicated to ensure you are getting everything. This is not the way we want to spend our time as busy professionals, but it is nonetheless worth the effort.

Your request should specify in no uncertain terms that you want all records, including attendance, disciplinary, grades, and psychological records. Psychological records are typically housed separtely from other school records. Sometimes even specifically requesting these records is no guarantee you will get them. I have had the experience of requesting educational records three times from the same school system and each time I was sent different records.

School records are often the best means available for showing early, pre-age 18 limitations, but these may not always be available and, depending upon the age of the defendant, may not have much in them at all. Having said that, let me also add that although at first glance you may see little that seems helpful, the real gold may lay beneath the surface. Don't just scan the records in hopes that a low IQ test score will jump out at you. If it doesn't, don't assume that that's the end of that. Instead, scrutinize these records closely for major changes and patterns in academic performance that may highlight instability in the person's life at a particular juncture such as divorce, death of a family member, and so forth. Look for school suspensions, which may suggest disciplinary issues stemming from emotional problems, as well as behavior problems coinciding with grades declining. Undiagnosed learning problems result in a child growing fruther and further behind academically in comparison to peers and thus developing worse and worse self-esteem. This is the beginning of behavior problems, a classic pattern.

In lieu of an IQ test score, repeatedly failing the high school proficiency exam may suggest below average intelligence. If the defendant did get a high school diploma, is it truly an academic diploma or just an attendance diploma? Your client may not be willing to admit to having earned an attendance diploma or to having received special education services, which you may learn about for the first time by a review of the records. What was his rank in class? Being 164th out of a class of 185 is significant even if you otherwise have a scanty record containing little in the way of useful information.

Earning passing scores in shop classes as opposed to taking academic subjects is significant. Poor scores on the standardized testing administered regularly by most school systems through elementary and high school may be helpful in substantiating below average intelligence, but since stanines and percentiles are involved these may be a little complicated to interpret without the help of a school or clinical psychologist.

In the event that you see an IQ test score that seems high, be advised that there are short, easy-to-administer tests that purport to be IQ tests. However, these tests typically have limited validity, with studies showing that they may result in overinflated scores compared to the Wechsler Adult Intelligence Sclae III (WAIS III), by far the most widely accepted IQ test. In other words, the so-called IQ score obtained in school records may be higher than is actually warranted. This point needs to clearly be made to the trier of fact by demonstrating other factors known about the defendant consistent with mental retardation in addition to citing relevant research findings comparing the test in question to the WAIS III.

In addition to reviewing records, interview persons identified in these records. The younger the defendant, the more likely there are to be teachers who can be interviewed to provide interesting insights and anecdotes about the client and may potentially be witnesses. Teachers will often notice things that may not actually be reported in records. Be sure and take along a photograph of your client as a child or teenager to help jog the memory of school personnel you are interviewing; they have typically seen thousands and thousands of children over the years.

Teachers and principals are often savvy these days to the fact that they do not have to talk to you. Whether or not they will do so varies quite a bit, with some being eager to be helpful and others downright hostile. I recently had the experience of one principal, with whom I had made an appointment several days in advance and who knew the purpose of my visit, smugly tell me that each and every teacher I wished to talk to was otherwise occupied that day. This administrator was well aware that I had traveled ninety miles to meet with him and his staff. The defendant was a Hispanic young man in a small town, adopted by newcomers to the community, whose residents had already tried and found him guilty of rape prior to the actual trial itself. I left empty-handed.

The prosecutor will probably suggest that low IQ scores obtained now, in the absence of a baseline IQ measure before age 18, may be due to other factors, such as prolonged drug and alcohol abuse, head injuries from fights or motor vehicle accidents, depression because of facing criminal charges, etc. These are all legitimate issues that need to be addressed in the psychological work-up of the defendant.

I have found it helpful to give intelligence tests to immediate family members in an effort to demonstrate familial mental retardation, indicating that the defendant came by his condition honestly and more than likely was retarded from birth as opposed to later in life, after age 18. There are more than 250 biological causes of mental retardation. They are grouped under general categories of chromosomal abnormalities (Down's syndrome), other genetic factors, prenatal and perinatal factors (infection during pregnancy, mother's drug and alcohol use during pregnancy), environmental factors (lead poisoning), acquired childhood disorders, and sociocultural factors (malnutrition and child abuse).

Faking Mental Retardation

And last but not least, there is the recurring issue of malingering and whether your client is going out of her way to make herself look retarded, certainly a logical question in the minds of most jurors. By presenting school and other records, anecdotal evidence, and a variety of psychological tests with consistent results, the true ability of your client can be accurately portrayed.

One test often used to discredit claims of malingering, the MMPI-2, cannot be taken by most mentally retarded individuals. An eighth grade reading level is required for the MMPI 2 and, as you may recall, according to the DSM-IV, individuals who are mildly mentally retarded are not expected to attain above the sixth grade level academically. Although audiotapes are available of the MMPI 2, it has been my experience that the vocabulary level of the mentally retarded individual, as opposed to someone who cognitively functions above 70 but happens to be illiterate, is not sufficient for him to be successfully tested with this instrument. This is unfortunate, since the MMPI 2 has validity scales that can be pointed to in terms of how the defendant approached this test, with this then being generalized to the overall evaluation. The validity scales include such things as the defendant reporting moderate or extreme symptoms, trying to present herself straightforwardly or in a positive light, responding in an overly defensive versus non-defensive manner, not being prone to introspectiveness or given to psychological insight, or any of a number of factors that can often be very helpful in describing the test-taking attitude of the testee.

In the absence of the MMPI 2 validity scales assessing your client's test-taking attitude, it is important that all measures of mental functioning, such as intelligence, social-adaptive functioning, academic level of attainment, and receptive language skills, be reasonably consisten with each other. Otherwise, you will have problems demonstrating that your test results are valid.

All of this, of course, one would likewise expect to be consistent with other known facts about the client, such as the types of jobs she has held over the years. It would be inconsistent for a defendant who is scoring in the 60's (mentally retarded) on all psychological instruments to have earned an associates degree and to have worked for years as an executive secretary unless there has been some sort of intervening variable to account for this, such as a head injury with resulting brain damage.

Lay Your Ground Work Early

I urge you to consider your client's intelligence level early on. If your investigation shows the likelihood of mental retardation, you need to start laying the ground work from the very beginning. For example, at the preliminary hearing if police officers are offering testimony regarding the defendant's ability to make a statement and you cross examine on this issue, you have built a record which later can be helpful in a motion to suppress the statement.

Even if the client has been arrested a dozen times before and thus has heard the Miranda warnings a dozen times, contrary to popular thinking this in and of itself does not automatically suggest competency. There are research studies that factor in prior arrest record, age, intelligence, learning disabilities, race, and so forth that have interesting results regrding the defendant's ability to knowingly, intelligently, and voluntarily waive her rights. Number of prior arrests and mere repetition of the Miranda warnings are no guarantee she knew and more significantly, truly understood the application of her rights.

Another reason to know your client's psychological condition via an evaluation prior to filing the motion to suppress is so that you do not later end up with facts that are vastly different from your motion to suppress. Such a circumstance makes your client look like a liar when his only real mistake may be that he is so below average in intelligence that he does not know what to say that is helpful in his own behalf, saying one thing to you, his attorney, and something else to the psychologist. Even if the motion to suppress fails, information learned about your client's cognitive capacities may be helpful later, in the actual trial. It may also prove invaluable in helping you communicate effectively with your client in order to learn as much as possible from him about his case.

In short, although Van Tran certainly highlights the absolute necessity of scrupulously investigating your client's intellectual functioning in capital litigation, intellectual factors could potentially be highly relevant in a wealth of other circumstances your client may face. The possibilty that your client is mentally retarded needs to be investigated very early on, before even beginning criminal proceedings, to ensure protection of not only his federal constitutional rights but also the specific rights afforded by Tennessee law.


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