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United States v. Jones

United States District Court, W.D. Missouri, Southern Division

September 22, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ULYSSES JONES, JR., Defendant.

          ORDER DENYING ATKINS MOTION

          GREG KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Now before the Court is Defendant's Motion for Pretrial Determination That the Imposition and Execution of the Death Penalty is Barred Based Upon Ulysses Jones' Intellectual Disability and Request for a Hearing (Doc. 158). After carefully considering all the evidence, the Court finds Defendant has not carried his burden of showing by the preponderance of the evidence that he is intellectually disabled under Atkins v.Virginia, 536 U.S. 304 (2002), and its progeny.

         In fact, the Government demonstrated Defendant does not have intellectual disability. The credible evidence and testimony shows that Defendant was developmentally delayed as a child, but his development “caught-up” as an adult, as demonstrated by significant evidence in the record, including his own writings, evaluations from numerous mental health professionals, and his passing the GED exam in 1985. While Defendant presently suffers from a significant neurocognitive defect, this is the result of his end stage renal disease and a severe head injury he sustained in April of 2007, sixteen months after the crimes in this case occurred.

         The motion is DENIED.

         Findings of Fact

         The Court held a four-day evidentiary hearing on this issue over an eight day period, from March 13, 2017, to March 20, 2017.[1] During the hearing, Defendant presented live testimony from two expert witnesses, Dr. Stacey Wood (“Dr. Wood”) and Dr. Daniel Reschly (“Dr. Reschly”), and three of Defendant's cousins: Bessie Harris, Glenda Thompson-Dunn, and Phyllis Shipman. Defendant also submitted 23 exhibits. The Government presented testimony from two experts, Dr. Robert Denney (“Dr. Denney”) and Dr. Jack Naglieri (“Dr. Naglieri”), and a dialysis technician, Nickole Anderson, who has frequent contact with Defendant. It also presented 73 pieces of documentary evidence and two demonstrative exhibits. Both parties submitted voluminous post-hearing briefs.

         The following summarizes the most relevant testimony and the Court's credibility findings.[2] Although this summary discusses some of the evidence in detail, the Court's failure to discuss any particular piece of evidence should not be construed as a comment on its probative value. In concluding Defendant is not intellectually disabled, the Court has carefully considered all of the evidence in the record.

         Dr. Stacey Wood

         The Defense retained Dr. Wood to conduct a comprehensive neuropsychological assessment of Defendant. She has previously worked on numerous cases involving Atkins issues. Dr. Wood holds a Ph.D. in clinical neuropsychology from the University of Houston and participated in a post-doctoral fellowship in clinical neuropsychology from the University of California at Los Angeles in both psychiatry and neurology. Although a licensed psychologist, she is not board certified in her specialty, geropsychology, nor is she board certified in neuropsychology or forensic psychology.

         Her work in this case concerned the first prong in the Atkins analysis, whether Defendant has significantly subaverage intellectual functioning. Dr. Wood administered an IQ test, the Wechsler Adult Intelligence Scale-IV (WAIS-IV), to Defendant in October of 2014 and prepared a report of her findings. She determined that as of October 2014 (that is, seven years after Defendant's head injury), he had a full scale IQ of 70 comprised of the following scores: 63 on the verbal comprehension index, 81 on the perceptual reasoning index or performance IQ, 80 on the working memory index, and 76 on the processing speed index. Dr. Wood opined that Defendant's IQ “score likely represents a decline secondary to impaired language abilities and slowed processing speed resulting from his complicated traumatic brain injury and other medical conditions.” Dr. Wood's Neuropsychological Evaluation at 11-12 (Doc. 251-1).

         Dr. Wood's in-court testimony was consistent with her report. Particularly relevant to the Atkins determination, she acknowledged that Defendant's score of 63 on the verbal index dragged down his full scale IQ score, and that the low verbal index score could have been the result of lack of schooling, educational opportunities, and the amount of time he spent in jail. She also acknowledged his low verbal score had no impact on his performance IQ. Dr. Wood also testified that, based upon Dr. Denney's evaluation, she believed Defendant's cognitive abilities declined further from the time of her evaluation in 2014 to Dr. Denney's evaluation in 2016.

         Dr. Wood did not adjust the IQ score on the WAIS-IV for the “Flynn Effect”[3] in her report, but, at defense counsel's request, she adjusted the scores in her in PowerPoint presentation for the Atkins hearing. She testified she does not normally correct for the Flynn Effect when she is doing a contemporaneous assessment using the most recent test version, but she did do so here.

         Dr. Wood acknowledged that if Defendant's cognitive impairment was the result of events from later in his life, such as brain damage from his head injury and decline from years of renal failure, a diagnosis of intellectual disability would be inappropriate.

         The Court finds her report and testimony generally credible.

         Dr. Daniel Reschly

         Dr. Reschly was hired to provide expert testimony on behalf of the defense. In his report and testimony, Dr. Reschly opined that Defendant met the definition of intellectually disabled as a child, adolescent, and adult. He opined Defendant's current intellectual functioning was between 65 and 75, and that he has had adaptive behavior deficits in everyday functioning since childhood and continuing into his adult years which were associated with significant limitations in functional intelligence. He opined that Defendant had significant limitations in intellectual functioning in childhood as demonstrated by full-scale IQ scores of 66 at age 6, 72 at age 15 (Flynn Effect corrected to 65), and 70 in 2014. Based on Vineland-II Adaptive Behavior Scales (“VABS-2”) survey forms completed from information provided by two of Defendant's younger cousins, Luella Harris and Bessie Harris, Dr. Reschly opined that Defendant had significant deficits in adaptive behavior during childhood in each of the adaptive behavior domains identified by the American Association on Intellectual and Developmental Disabilities (“AAIDD”)[4] and by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”).

         As for the opinions of the numerous psychologists and psychiatrists who evaluated Defendant over the years and diagnosed him with antisocial personality disorder (“ASPD”) and not intellectual disability, Dr. Reschly dismissed their opinions as a classic case of diagnostic overshadowing (clinicians overlooking mild intellectual disability in favor of another diagnosis).

         The Court gives Dr. Reschly's testimony limited weight and his conclusions no weight.[5]As a threshold matter, Dr. Reschly lacks significant experience and credentials in the subject matter as it relates to this particular case, performing a forensic evaluation on a prisoner in a prison setting. Dr. Reschly is an expert in special education and in assessing mild intellectual disability in school children, but he has never been licensed to practice psychology outside of a school setting, and he is not currently licensed to practice any form of psychology in any place in the United States.[6] He has also never practiced clinical psychology, forensic psychology, or neuropsychology, nor does he have any meaningful experience evaluating patients in a forensic setting such as a hospital or prison, which is what this case involves. Although he admitted he lacked competence to diagnose ASPD, this did not prevent him from testifying that Dr. Denney's diagnosis was wrong.

         Also, Dr. Reschly's analysis and testimony were results-oriented. Dr. Reschly started from a conclusion-that Defendant has been intellectually disabled since childhood-and then worked backward to identify evidence and develop a rationale supporting this conclusion. For example, he assumed that a report card showing Defendant earned several Cs must have shown grades from special education classes, even though nothing in the report card indicated these were special education classes. Dr. Reschly should have considered that those grades could have been from regular classes. He did not, apparently because Defendant receiving “C” grades in regular classes would be inconsistent with his conclusion. Dr. Reschly also avoided evidence which would undercut his conclusion, such as the opinions of several mental health professionals with the federal Bureau of Prisons (“BOP”) who evaluated Defendant over many years and never found him to be intellectually disabled. An unbiased expert would have attempted to contact these doctors and learn why they did not believe Defendant was intellectually disabled.

         Dr. Reschly's opinion is also inconsistent with several key facts. The Court heard undisputed testimony that individuals with mild intellectual disability tend to be “pleasers” who are compliant with authority figures. On the other hand, individuals with ASPD are not typically compliant unless it is in their best interest. The overwhelming evidence in this case is that Defendant is not, and never has been, a “pleaser” or compliant with authority figures. It is also very rare for an individual with intellectual disability to receive a General Education Diploma (“GED”). Yet Dr. Reschly testified that the fact Defendant had received his GED did not “confirm” or “disconfirm” that he was intellectually disabled. Tr. at 265. While this is, strictly speaking, correct-since theoretically no single piece of evidence is dispositive, a GED does not automatically rule out this diagnosis-it is very weighty evidence against intellectual disability. The Court finds crucial portions of Dr. Reschly's analysis, such as his description of Luella Harris and Bessie Harris as competent informants about Defendant's adaptive behavioral skills in his developmental years, to be so lacking in credibility that it casts a shadow over his entire analysis.

         Finally, the Court finds Dr. Reschly's demeanor while testifying was, at times, incongruous with that of a disinterested witness. Dr. Reschly was always pleasant and unfailingly polite, but at important moments during the Government's cross-examination he was noticeably evasive in answering some questions.

         Defendant's cousins: Bessie Harris, Glenda Thompson-Dunn, and Phyllis Shipman

         Ms. Harris is Defendant's first cousin. She was born in 1958, making her two years younger than Defendant. She testified that she had more significant contact with Defendant during his elementary school years when she would see him at her grandmother's house. She testified Defendant stuttered during that time period, was slower than the other kids when it came to reading and playing games, and he could not learn to play chess. His cousins and neighbors laughed at him, and his father was very abusive towards him. He needed extra help in school, but did not receive any.

         Ms. Thompson-Dunn is three years older than Defendant. She graduated from high school and recently retired from being a peer educator in special education. She testified she helped Defendant with his schoolwork when he was 9 and 16 years-old, and that he had difficulty reading and performing math. In fact, he had trouble counting to fifteen when he was 16 years-old. Kids teased him and picked on him.

         Despite testifying that she helped him with his schoolwork when he was 16 years-old, Ms. Thompson-Dunn said was not familiar his criminal conduct in his teenage years. She also struggled to remember where she or Defendant lived at that time.

         Ms. Shipman is a retired registered nurse who was born in 1952. She saw him more while she was living with her grandmother from 1965 to 1967, when she was approximately 13 to 16 years-old, and Defendant was 9 to 12 years-old. She remembers Defendant's father being physically and verbally abusive to him. She also remembers his mother trying to help him with his reading and math, and her complaining that he was very slow.

         She had limited interaction with Defendant. She did recall him coming back from the corner store with incorrect change. He could not make change-he thought a quarter and a nickel were the same-but his younger brother could. Defendant stuttered and did not talk much. She described him as “regressed” in comparison to her other cousins, and that he was teased by them for being “dumb” and “stupid.”

         Ms. Shipman testified that Defendant did not like school, and that on one occasion after he got in trouble in elementary school, he broke into the school in retaliation. She stopped having regular contact with Defendant when he was approximately eleven years-old.

         The Court believes all three of witnesses testified truthfully to the best of their abilities. They are very nice ladies. But their memories of what Defendant was like almost fifty years ago are incomplete and unreliable, and doubtlessly clouded by their familial love for him and desire that he not receive the death penalty. The Court finds none of these witnesses' are reliable sources of information about Defendant's developmental years.

         Dr. Robert Denney

         Dr. Denney is a psychologist licensed in the state of Missouri. He is board certified in neuropsychology as well as forensic psychology. Dr. Denney was a practicing psychologist with the BOP from 1991 through 2011. He has excellent credentials and extensive relevant experience. His demeanor was candid and straightforward. The Court finds his testimony very credible and gives it significant weight.

         Dr. Denney met with Defendant over two days in June of 2016 and administered the WAIS-IV in an attempt to calculate his IQ. He also attempted to conduct a clinical interview of Defendant in person, but Defendant refused to answer additional questions once Dr. Denney began asking about his childhood. Before Defendant ended the interview, he stated he authored and wrote the six letters/pleadings contained in Exhibit 34.

         Dr. Denney determined Defendant's full scale IQ was 63, with a composite score on the performance aspect of 75. In his September 16, 2016, report, he concluded that:

Currently, Mr. Jones has significant neurocognitive deficits that in my professional opinion result from a combination of chronic small vessel disease secondary to long term hypertension and renal failure and the result of his complicated brain injury. In my professional opinion, these deficits ...

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