Opinion
No. WR-38,198-03
January 18, 2006. DO NOT PUBLISH.
On Subsequent Application for Writ of Habeas Corpus, in Cause No. 97-f-462-102 from the 102nd District Court of Bowie County.
PER CURIAM, KELLER, P.J. and MEYERS, J. Dissent.
ORDER
This is a subsequent application for habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he is mentally retarded and cannot be sentenced to death under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002). Applicant was convicted of capital murder on 1998. We affirmed the conviction and sentence. Murphy v. State, No. 73,194 (Tex.Crim.App. May 24, 2000). On October 20, 2000, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Murphy, No. WR-38,198-02 (Tex.Crim.App. April 10, 2002). We have reviewed this subsequent application and find that it has presented a prima facie case under our holding in Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App. 2004) and satisfies the requirements of Texas Code of Criminal Procedure, Article 11.071, section 5. Accordingly, we find that the requirements for consideration of a subsequent application have been met in his first claim and the writ should issue according to Article 11.071, section 6. The cause is remanded to the trial court to resolve the issue as set out in Article 11.071, sections 7 through 10. Our determination necessitates the granting of a stay of execution until this matter is resolved by order of this Court. IT IS SO ORDERED.
CONCURRING STATEMENT
Based upon the affidavits attached to his application, I agree that applicant has made a prima facie showing of mental retardation under Atkins, and thus we should remand this case to the trial court for further consideration. I am, however, concerned that applicant claims that he is mentally retarded even though the only intelligence test score that he relies upon is one that shows his over-all I.Q. as being 81. This score is well above the generally accepted cut-off score of 70 for the mildly mental retarded. Applicant relies on a purported "Flynn effect" and the statistical margin of error to argue that his "true" I.Q. might be as low at 69. It is on this basis that applicant asserts that he has made a prima facie showing of the first prong of mental retardation. Discussion of the Flynn effect has, since the Atkins decision, suddenly come to the fore of death-penalty mental-retardation claims. According to the description by one court,
"Ever since the introduction of standardized IQ tests in the early 20th century, there has been a systematic and pervasive rise in IQ scores all over the world, including the United States. Known as the Flynn effect . . ., [it] causes IQ test norms to become obsolete over time [citations]. In other words, as time passes and IQ test norms get older, people perform better and better on the test, raising the mean IQ by several points within a matter of years. Once a test is renormed, which typically happens every 15-20 years, the mean is reset to 100, making the test harder and `hiding' the previous gains in IQ scores."Thus, if the Flynn effect is credited, "[g]ains on the Wechsler scales are approximately 0.311 points per year; `[a]lthough there is not a consensus among professionals as to why these gains are occurring or what these gains actually mean (e.g., are we really getting smarter?), all are in agreement that the gains occur. . . .'" However, at least one court has stated that the American Association of Mental Retardation (AAMR) "does not suggest that an IQ score must reflect adjustment for the Flynn effect." Furthermore, "[t]he scientific community does not agree on the cause of this phenomenon." Mr. Flynn, a political scientist residing in New Zealand, attributes his namesake effect to environmental factors such as "the advent of television and the greater cognizant demands of industrial development." Mr. Flynn states that "[t]he hypothesis that best fits the results is that IQ tests do not measure intelligence but rather correlate with a weak causal link to intelligence." According to one unscientific source, Mr. Flynn "concluded that someone who scored among the best 10% a hundred years ago, would nowadays be categorized among the 5% weakest. That means that someone who would be considered bright a century ago, should now be considered a moron!" There is something intuitively illogical about this argument, but perhaps there is a sound scientific basis for it. If so, what impact, if any, does (or should) this Flynn effect have upon the determination of whether a person standing trial today is so mentally retarded that it would violate the Eighth Amendment to execute him regardless of all other facts that might militate in favor of the death penalty? Do, as Mr. Flynn posits, I.Q. tests have merely a "weak correlation" with actual intelligence? Do I.Q. tests accurately reflect a person's ability to function in society? To be morally cognizant and culpable for his criminal conduct? Should the legal standard for determining mental retardation for Eighth Amendment purposes rely upon I.Q. test scores (and if so should that reliance be based upon the highest score, the lowest, the most recent, an average of all scores, the raw score, a score that has been recalculated by taking into account the Flynn effect and/or the standard deviation of error, one that is a specific number or that falls within a range- and, if so, what range) as part of its definition or should the fact-finder focus solely upon a person's childhood or adult behavior and cognitive abilities? For if, in fact, I.Q. scores are so unreliable in measuring actual mental functioning that an over-all test score of 81 may be equivalent to an actual I.Q. of 69, perhaps the use of I.Q. test scores is a scientifically inappropriate means of measuring mental retardation. The result may be that, for purposes of Atkins, what juries and courts need is a "reasonable man" assessment of mental competence as opposed to a statistician's. These are questions upon which the parties in this case might wish to offer documentary evidence and testimony so that the trial court and this Court may make the ultimate factual determination of whether applicant is so mentally impaired that he is exempt from the death penalty under the Eighth Amendment to the United States Constitution. The ultimate question that must be decided is not whether a person has a certain specific I.Q. test score or whether that person's measured I.Q. score might qualify him for the receipt of additional social services or special educational assistance, but rather whether he is so mentally deficient that he ought not be held fully morally accountable for his criminal conduct. I therefore join in the Court's decision to grant applicant's request for a stay of execution and to remand this case to the trial court for further evidentiary development on these issues.
Atkins v. Virginia , 536 U.S. 304 (2002).
Applicant asserts that approximately 6 points should be shaved off of his 1998 I.Q. test score because the version of the test he took, the WAIS-R, was normed twenty years earlier and thus reflected a person's "true" intelligence level only at the time it was normed. He claims that another 5-6 points should be shaved off to account for the possible statistical margin of measurement error. And then, because that brings his I.Q. score down into the possible range of 69-75, he may be considered mentally retarded as falling within the range of those considered mildly mentally retarded under the first American Association for Mental Retardation criterion.
See, e.g., Walton v. Johnson , 407 F.3d 285, 295-97 (4th Cir. 2005) (capital murder defendant claimed that his I.Q. tests of 90 and 77 were really within range of mental retardation taking into account "the Flynn effect" and the statistical margin of error); Walker v. True, 399 F.3d 315 (4th Cir. 2005), after remand, 401 F.3d 574 (4th Cir. 2005); In re Hicks, 375 F.3d 1237 (11th Cir. 2004); People v. Superior Court (Vidal), 129 Cal. App. 4th 434, 28 Cal. Rptr. 3d 529 (5th Ct. App. 2005), vacated and later proceeding at People v. S.C., 2005 Cal. LEXIS 13290 (Cal., Nov. 17, 2005); Bowling v. Commonwealth, 163 S.W.3d 361, (Ky. 2005); State v. Burke, 2005 Ohio 7020 (2005); State v. Murphy, 2005 Ohio 423 (2005); Myers v. State, 278 P. 1106 (Okla. 2005); Black v. State, No. M2004-01345-CCA-R3-PD, 2005 Tenn. Crim. App. LEXIS 1129 (Tenn. 2005).
People v. Superior Court , 129 Cal. App. 4th at 471 (quoting Kanaya et al., The Flynn Effect and U.S. Policies: The Impact of Rising IQ Scores on American Society Via Mental Retardation Diagnoses, American Psychologist, at 778 (Oct. 2003)).
Id.
Burke , 2005 Ohio 7020, P51.
Bowling , 163 S.W.3d at 374, n. 12.
Id. (citing James R. Flynn William T. Dickens, Heritability Estimates Versus Large Environmental Effects: The IQ Paradox Resolved, 108 Psych. Rev. 346 (April 2001)). Others have attributed it to better nutrition. Id. (citing Richard Lynn, The Role of Nutrition in Secular Increases in Intelligence, 11 Personality Individual Differences 273-85 (1990 No. 3).
Flynn, J.R., Massive IQ Gains in 14 Nations: What IQ Tests Really Measure, Psychological Bulletin, 101,171-191 (1987) (found at http://www.indiana.edu/~intell/flynneffect.shtml#Flynn87) (last visited on Jan. 18, 2006).
F. Heylighen, Increasing Intelligence: The Flynn Effect , Principia Cybernetica Web (Aug. 22, 2000) at http://pespmc1.vub.ac.be/FLYNNEFF.html (last visited January 18, 2006). This same source explains that
Older people tend to have lower scores on IQ tests than younger people. Until now, it was always assumed that this means that intelligence diminishes with age. However, this observation can be explained as well by noting that older people were raised in a period when the general level of intelligence was lower. Flynn showed that if people's IQ is evaluated with tests calibrated for the period during which they grew up, an old person scores as well as a young one. The reason that older people do less well on IQ tests is not that they have become more stupid with age, but that the younger generation simply got a head start.
Id.
See generally , Stephen J. Ceci, So Near and Yet So Far: Lingering Questions About the Use of Measures of General Intelligence for College Admission and Employment Screening, 6 Psych. Pub. Pol. and L. 233, 245-46 (March 2000) (discussing Flynn effect and reasons why, even when I.Q. tests are re-normed, the number of mental retardation classifications do not immediately increase); see also Linda Knauss Joshua Kutinsky, Into the Briar Patch: Ethical Dilemmas Facing Psychologists Following Atkins v. Virginia, 11 Widener L.Rev. 121, 127-28 (2004) (noting the Flynn effect and stating that "[e]ach time an IQ test is re-normed, a generalized lowering of IQ scores occurs because the new norms recalibrate the average IQ. This removes the increases that accumulated over the previous norming cycle. So, if 2.27% of the population is diagnosed as MR in the year an IQ test is normed, then each subsequent year fewer people will score in the MR range due to the tendency for scores to rise. This will continue until new norms once again come into use. Thus, we can expect an increase in MR diagnoses each time new IQ norms are published[,]" but concluding that "these documented changes in IQ scores occur in the absence of any meaningful change in the intellectual ability of the individuals affected. Any inconsistencies most likely result from imperfections in our tools and data, rather than from actual changes in the intellectual abilities of those being tested") (footnotes omitted).