Redefining Mental Retardation in Capital Murder

Redefining Mental Retardation in Capital Murder

Of Unsound Mind

According to court records, Jorge Junior Vidal was born in Delano, California, on October 23, 1969 [See: People v. Superior Court (Vidal), 07 S.O.S. 1781; People v. Superior Court (Vidal), Ct. App. 5 F045226 (2004); People v. Vidal, Tulare County Super. Ct. No. 69782-C]. On January 24, 2001, Vidal was one of seven men who invited Eric Jones to enter a private garage to join them in “getting high.” Once inside the garage, instead of partying, Jones was bound, hands and feet, with an extension cord and beaten severely. Vidal reportedly stripped an electrical cord, attached the exposed ends to Jones’ fingers, poured water on the garage floor where Jones lay, repeatedly inserted and removed the plug from a wall outlet, and as Jones was being shocked, asked, “Are you feeling energized?” At some point, Jones’ clothes were cut off, and while he was being brutally sodomized, stabbed with a screwdriver, and jolted with a stun gun, music blasting from a car radio was used to drown out his screams. Eventually, Jones was thrown into the trunk of a car and driven to a field in southern Tulare County, where he was shot nine times at close range in the back and through his cheek. Left naked in the field, Eric Sean Jones, who was 17 years old at the time, bled to death within a few minutes, after having been tortured for nearly 2 hours. All this was apparently done in response to or in retribution for Jones’ earlier alleged attempt to steal Vidal’s car.

Three days after Jones was killed, Vidal and two others were arrested and charged with Jones’ “torture killing.” Of the seven men involved in the crime, two, Juan Dedios Soto and his younger brother Gerardo Soto, have yet to be apprehended and are believed to have fled to Mexico. Gerardo Zavala was convicted of second-degree murder and sentenced to 16 years to life. Keith John Seriales and Daniel Portugal were each convicted and sentenced to life in prison, without the possibility of parole. Tyrone Ebaniz’s conviction (for 1st degree murder, torture, and kidnapping) and sentence (36 years to life) has been overturned twice on appeal (because of error in jury instructions), with his third trial pending. Ebaniz was 16 years old at the time and, reportedly, Jones’ best friend.

Vidal was charged with murder (with special circumstances and enhancement), torture, forcible sexual penetration, sexual assault in concert, unlawful sexual penetration of person under age 18, kidnapping, false imprisonment, multiple counts of unlawful weapon possession, and other lesser charges. The prosecution filed the case as a capital offense; the defense responded by filing a motion to preclude the imposition of the death penalty under Atkins, as implemented in California law [See: Atkins v. Virginia, 536 U.S. 304 (2002) and California Penal Code Section 1376]. California law allows defendants a choice in this matter: to have the issue decided by a judge in a pretrial hearing or by a jury after the guilt phase of trial. Opting for the former, in October 2003 and March 2004, Vidal’s motion was heard during an evidentiary hearing.

Proving Mental Retardation

As might be expected, psychological experts for the defense (who has the burden of proof) and the prosecution disagreed as to whether Vidal met the legal standard for mental retardation. Consistent with the clinical diagnosis of mental retardation or intellectual disability of both the American Association on Intellectual and Developmental Disabilities [AAIDD; known as the American Association on Mental Retardation (AAMR) prior to 01/01/07] and the American Psychiatric Association (APA), the legal definition of mental retardation set forth in both Atkins and the California Penal Code involves a three-pronged test: significantly sub-average general intellectual functioning, which must exist concurrently with deficits in adaptive behavior, and which must have a manifest onset before the age of 18 (AAMR, 2002; West, 2007; APA, 2000; Atkins v. Virginia, 2002).

In assessing the first prong of mental retardation—Vidal’s general intellectual functioning—the psychologists were able to review several standardized intelligence tests administered to Vidal through the public school system as early as 1980 (when he was 11), as well as one administered by a defense expert in 2003. Across administrations, Vidal consistently scored in the mentally retarded range in terms of his Verbal Intelligence Quotient (VIQ), while his Performance Intelligence Quotient (PIQ) ranged from average to high average (See Table 1). Vidal’s Full Scale Intelligence Quotient (FSIQ) ranged from borderline mental retardation to average intelligence. With each administration, there was a strikingly significant split between his VIQ and PIQ.

In addition to administering the Wechsler Abbreviated Scale of Intelligence to Vidal in 2003, the defense expert, psychologist Eugene Couture, also administered the Peabody Picture Vocabulary Test, which is designed to assess the respondent’s ability to understand spoken language. As Vidal’s first language was Spanish, the Peabody was given in both English and Spanish, with Vidal scoring in the lowest percentile on both versions (as he had on prior administrations in 1980 and 1989).

According to family members, it was clear early on that Vidal was “not very smart.” His older sister noted his ability to read and write was not the same as his peers and that, even with help, he was unable to understand and complete homework assignments. As early as kindergarten, Vidal’s academic records identified him as having language problems. He was held back in the 4th grade, and while his communication skills had improved somewhat by the 9th grade, Vidal was never completely fluent in Spanish or English (he was never able to read or write anything beyond the simplest of words) and had difficulty understanding both languages. Throughout his school years, Vidal took approximately seven achievement tests, never performing at grade level (with the exception of scoring at the 12th-grade level on a letter identification subtest when in 8th grade) and never showing improvement between administrations. Several individualized educational plans were constructed (and unsuccessfully implemented) for Vidal and he received the support of special education services or a resource specialist throughout his education. While he reached the 12th grade, Vidal did not graduate and never functioned beyond a 2nd- or 3rd-grade level academically.

To address the second prong of mental retardation, “deficits in adaptive functioning,” Couture administered the Vineland Adaptive Behavior Scales, using Vidal’s sisters and ex-wife as informants. Vidal’s scores were below 70 on “daily living,” “communication,” and “social” across informants, while Vidal rated himself as below 70 on only two of the three subscales. In addition to standardized test results, lay witnesses described Vidal’s historical difficulties with routine tasks and with remembering chores and household rules. Thirty-two years old at the time of Jones’ murder, Vidal never lived independently, only leaving his mother’s home when he married. The father of several children, Vidal was described as a loving father who occasionally provided his children with a degree of care. Over the years, Vidal had worked as a seasonal field laborer.

After hearing all the evidence, in mid-March 2004, the Superior Court judge ruled that Vidal had met his burden of proof. The judge reasoned that Vidal’s VIQ (combined with clear deficits in adaptive functioning) was sufficient to establish a severe lack of verbal ability that went to the issues of “premeditation, deliberation, appreciation of concepts of wrongful conduct, ability to think and weigh reasons for and not for doing things and logic [and] foresight,” as proscribed by Atkins. A finding that Vidal was, in fact, mentally retarded was issued, thereby blocking the prosecution from seeking the death penalty.

The prosecution appealed the decision in the 5th District Court of Appeals on several grounds. Most relevant to this discussion was the People’s contention that the trial court “exceeded its jurisdiction” by basing its decision on the defendant’s VIQ score—rather then the FSIQ score—combined with adaptive behavior scores. The People argued that Vidal’s behavior in the instant offense calls into question the nature and degree of any manifest adaptive deficits and that while his VIQ had been consistently low, his PIQ and FSIQ argued against mental retardation. In May 2005, the lower court’s ruling was reversed when, in a split decision, the Appeals Court held that the FSIQ is (or should be) the primary determinant of intellectual functioning and mental retardation.

Intellectual Error

Since 1976, when the death penalty was reinstated, approximately 44 persons with mental retardation have been executed, with others pending (Keyes, Edwards, & Perske, 2002). In Virginia, a mentally retarded man sat on death row for 10 years before being exonerated by DNA evidence (Elgie, 2001). In Texas, a man is awaiting execution whose IQ scores (on three different administrations), as entered into evidence, were 65, 68, and 74 (Clark v. Dretke, 2004). Before the U.S. Supreme Court decided Atkins in 2002, 18 states and the federal government had existing laws that banned the execution of persons identified as mentally retarded. Of those 19 jurisdictions, nine specified a FSIQ score of 70 or below (on a standardized assessment procedure) as the cut-off for classification.

However, when the Supreme Court published its opinion in Atkins, it did not operationally define, delimit, or quantify “subaverage general intellectual functioning” or “deficits in adaptive functioning.” The Court intentionally did not provide a specific cut-off score for mental retardation or identify a particular measure (or measures) to be employed in that determination. The Court’s intention was that the best measure of intellectual functioning remains a matter of fact to be resolved on the trial court level, based on the evidence unique to each given case.

Despite this, of the eight states that passed new legislation to be in compliance with Atkins, two opted to institute a cut-off FSIQ of 70 and one, a FSIQ of 75. Like Atkins, the remaining states’ statutes had no fixed IQ score, thereby allowing trial courts greater flexibility in determining the degree of weight given to different categories of evidence. In those states, which include California, the trier of fact is bound to treat each defendant individually when determining whether the death penalty is an appropriate sentencing option.

Given this, on April 2007, the California Supreme Court unanimously overturned the Fifth District Court of Appeals ruling in Vidal. In writing the opinion, Justice Werdegar noted that the District Court erred in presuming that the best measure of intellectual functioning is a matter of law when in actuality, it is a factual question to be determined or decided in each case by the trier of fact. In turn, the Supreme Court concluded that the trial court judge did not exceed his authority or use an incorrect standard when finding Vidal was mentally retarded. In other words, although Vidal’s FSIQ scores were generally within the standard average range of intellectual functioning, as a matter of law that fact alone does not preclude a finding of mental retardation. Because Atkins does not incorporate the set requirement of a specific test score, the Supreme Court did not find error in the trial court giving greater weight to one piece of evidence (Vidal’s VIQ) over another (his FSIQ), even when the evidence comes from the same source or test.

Between Black and White

There are issues in the domain of forensic psychology where clinical definitions are not a clean match to legal definitions, nor do they directly inform the factual question at hand. The definition and determination of mental retardation appears to be one such issue. In terms of clinical diagnosis, the purported purpose of which is to direct treatment interventions, the APA has established three criteria for a diagnosis of mental retardation: “significantly subaverage intellectual functioning”; concurrent “deficits or impairments in adaptive functioning”; and onset of these indicators before age 18 (APA, 2000).

To be diagnosed with “mild mental retardation,” the APA requires an approximate IQ score of 70 or below (on an individually administered test). The more impaired subcategories of mental retardation (i.e., moderate, profound, and severe) do not have a set range of scores, but allows for a “give-or-take” of 5 to 10 points. The APA’s adaptive functioning criterion is defined as “the person’s effectiveness in meeting the standards expected for his or her age by his or her cultural group.” To meet this criteria, the individual must demonstrate deficits or impairments in at least two areas specified by the APA. These include communication, social/interpersonal skills, self-care, health, safety, home living, use of community resources, self-direction, functional academic skills, work, and leisure.

The Social Security Administration (SSA) uses comparatively flexible eligibility requirements (in terms of qualifying criteria, domains, cut-off scores, and age) when classifying individuals as mentally retarded for the purpose of assigning financial benefits (SSA, 2003). The AAIDD, which influences the definition of mental retardation used by other agencies and service providers (such as the Department of Education), is expected to issue a new definition of mental retardation or intellectual disability in 2009 or 2010. As with the APA, the AAIDD’s existing definition requires “subaverage intellectual functioning,” “deficits or impairments in adaptive functioning,” and onset/manifestation by the age of 18 years (this is to rule out brain/neurological damage in a previously non-retarded adult) (AAMR, 2002). In order to account for measurement error, the AAIDD’s ceiling for “subaverage intellectual functioning” is an IQ score of 75, or a score representing at least two standard deviations above the mean on a standardized test.

The AAIDD currently defines adaptive behavior as “the collection of conceptual, social, and practical skills that people have learned so they can function in their everyday lives.” According to the AAIDD, significant limitations in adaptive functioning “impact a persons’ daily life and affect the [individual’s] ability to respond to a particular situation or to the environment.” When standardized tests are used to assess “deficits or impairments in adaptive functioning,” the AAIDD requires a score of at least two standard deviations below the mean on a measure of one or more of the three domains. While adaptive functioning can be assessed by standardized measures, it is often determined by subjective impressions, reported observations, integrated documentation, and/or clinical assessment.

How mental retardation is defined has bearing on several legal issues, such as determining juvenile fitness and adult competence, proving certain elements of murder, and whether the death penalty is an appropriate sentence in a given case. In the context of capital murder by defendants who are mentally retarded, the Atkins Court found that, “Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.”

Redefining Mental Retardation

In 2005, the California Supreme Court chose not to adopt an IQ score of 70 as the upper limit for making a “prima facie” showing of mental retardation (Hawthorne, 2005). Rather than base the finding on a single test score (measuring either intellectual or adaptive functioning), the Court concluded that making a finding of mental retardation requires “an assessment of the individual’s overall capacity, based on a consideration of all the relevant evidence.” In 2007, with Vidal, the Court went further, holding that even with a FSIQ score that would preclude clinical diagnosis, a defendant may be found mentally retarded based on subscores of the same test (provided the other two prongs of mental retardation have been proved).

Many states (and expert witnesses) have held to a definitive IQ score cut-off despite the clear intention of Atkins. Using a cut-off score obviously makes the decision of whether a defendant is mentally retarded a simple one; it is not, however, sufficient to make the decision one that is definitively accurate or just. Our understanding of intelligence is constantly evolving, with no universally accepted definition of the construct itself. Likewise, our understanding of how to best measure “intelligence” is evolving. While re-norming standardized intelligence tests may help offset the Flynn Effect, defendants tested at either end are at risk of being misdiagnosed, especially if experts do not determine exactly when each test was administered in the given test’s life-cycle.

To ensure that neither proceedings nor the punishment of a capital crime of those with mental retardation is cruel, unusual, or excessive, the trier of fact must be given more information than is necessary for making a clinical diagnosis. As was the case for Vidal, a defendant may have a FSIQ that precludes a diagnosis of mental retardation, but may manifest significant deficits in components of intelligence that have great legal relevance, such as in the ability to process information. Another defendant may have IQ scores that indicate retardation, yet possess the capacity to create intent and to kill with premeditation by “lying in wait.” As noted in Atkins, “there are many persons who have been diagnosed as mentally retarded who know the difference between right and wrong and are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reactions. Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability.”

A thorough forensic evaluation of intellectual and adaptive functioning must address each and every aspect of intelligence as provided in the legal definition of mental retardation. For example, beyond the initial question of whether the defendant knows right from wrong in both a social and cultural context, comes the matter of how complex a moral question the defendant can answer. Beyond that, how capable is the defendant of controlling his or her impulses, and in the context of what degree and nature of internal and external pressures? Ultimately, the expert witness must provide information for the trier of fact to use in deciding whether the defendant meets the legal definition of mental retardation, a definition that determines moral culpability.

References

American Association on Mental Retardation (AAMR). (2002). Mental retardation: Definition, classification, and systems of supports (10th ed.) Annapolis, MD: Author.

American Psychiatric Association (APA). (2000). Diagnostic and statistical manual of mental disorders, 4th edition – test revision (DSM IV-TR). Arlington, VA: Author.

Atkins v. Virginia, 536 U.S. 304 (2002).

Clark v. Dretke, No. 5:04-cv-00124-DF (2004).

Elgie T. (2001, July 10). The death penalty in Virginia: Attempts at legislative reform. The Richmond Journal of Law and the Public Interest. Retrieved June 18, 2007, from http://law.richmond.edu/rjolpi/Issues_Archived/2001_Spring_Issue/Elgie.html

Keyes, D., Edwards, W., & Perske, R. (2002). People with mental retardation are dying—legally: At least 44 have been executed. Mental Retardation, 3, 243–244.

Penry I (Penry v. Lynaugh, 492 U.S. 302 (1989).

Penry II (Penry v. Johnson, 532 U.S. 782 (2001) (Penry II).

People v. Hawthorne, 35 Cal.4th 40 (2005).

People v. Superior Court (Vidal), 07 S.O.S. 1781.

People v. Superior Court (Vidal), Ct.App. 5 F045226 (2004).

People v. Vidal, Tulare County Super. Ct. No. 69782-C.

Social Security Administration (SSA), Office of Disability Programs. (2003). Disability evaluation under social security. [SSA Pub. No. 64-039]. Washington, DC: U.S. Government Printing Office.

West. (2007). California penal code section 1376. Retreived June 18, 2007, from http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=01001-02000&file=1367-1376

About the Author

Bruce Gross, PhD, JD, MBA, is a Fellow of the American College of Forensic Examiners and is an Executive Advisory Board member of the American Board of Forensic Examiners. Dr. Gross is also a Diplomate of the American Board of Forensic Examiners and the American Board Psychological Specialties. He has been an ACFEI member since 1996 and is also a Diplomate of the American Psychotherapy Association.

In two separate but related decisions, in 1989 and 2001, the United States Supreme Court held that mental retardation is a mitigating factor to be considered by capital juries during sentencing, that the class of individuals diagnosed as “mentally retarded” is not homogeneous in terms of their capacity for legal and moral culpability, and that capital punishment of mentally retarded persons is not a universal or per se violation of the Eighth Amendment’s protection against “cruel and unusual punishment” (Penry I, 1989; Penry II, 2001). One year later, in deciding the 2002 case of Atkins v. Virginia, the Court noted the shift in social thought and practice regarding the execution of mentally retarded defendants, reversed its position in Penry, and made the mentally retarded a class exempt from the death penalty. In April 2007, a ruling by the California Supreme Court gave trial court judges broader discretion in determining if a defendant is mentally retarded and, therefore, exempt from the death penalty. Not only in California, but throughout the United States, this ruling has the potential to affect those persons on death row and currently facing capital charges whose intellectual functioning borders on the classification of mentally retarded.

Fall 2007 THE FORENSIC EXAMINER

By Bruce Gross, PhD, JD, MBA, FACFEI, DABFE, DABPS, DABFM, DAPA

The American College of Forensic Examiners