A Single IQ Score Over 70 Supports Finding of No Intellectual Disability, Despite Conflicting Test Results and Expert Testimony =============================================================================================================================== * Belinda Kelly * Phillip Resnick ## The Defendant is not Entitled to *Habeas* Relief on his Intellectual Disability Claim, Because he did not Meet the Burden of Rebutting the Presumed Correctness of the State Court's Decision that he did not have an Intellectual Disability In O'*Neal v. Bagley*, 728 F.3d 552 (6th Cir. 2013), the Sixth Circuit Court of Appeals affirmed a district court's denial of *habeas corpus*. The appeals court ruled, despite three separate IQ scores below 70, that because of conflicting expert witness testimony, the defendant did not rebut by clear and convincing evidence the state court's factual finding that he did not have an intellectual disability. Thus, he was ineligible for relief from execution under *Atkins v. Virginia*, 536 U.S. 304 (2002). #### Facts of the Case In September 1993, James O'Neal moved into a Cincinnati home with his wife, her four children, and his two sons from prior relationships. Mrs. O'Neal demanded that he and his sons leave after a physical altercation on December 7, 1993. On December 11, 1993, Mr. O'Neal broke in, shot Mrs. O'Neal to death, tried to shoot her son, and fled. He later surrendered. Forensic evidence linked his gun to the shooting and he confessed to the crimes. At trial, conflicting expert witness testimony from psychologists was presented, as well as results of several IQ tests. Mr. O'Neal scored below 70 on three separate IQ tests between 1968 and 2004 and scored 71 on a fourth in 1994. In addition, the defense expert who examined and administered the 2004 test to Mr. O'Neal gave testimony supporting his opinion that the defendant had significant limitations in academic and social skills. The expert diagnosed mild to borderline intellectual disability. Another expert witness psychologist, who evaluated Mr. O'Neal before trial and administered the 1994 IQ test, opined that Mr. O'Neal functioned higher than his IQ suggested and did not have an intellectual disability. A third psychologist, who reviewed both experts' evaluations and several other records, but did not examine Mr. O'Neal, opined that Mr. O'Neal's sub-70 IQ scores did not offset a lack of significant deficits in his adaptive functioning, as established by employment, military history, and parenting. The court ultimately agreed. Mr. O'Neal was convicted on several counts including aggravated murder with death penalty specifications. On direct review the Supreme Court of Ohio affirmed his conviction and sentence. Mr. O'Neal exhausted his state appeals. His postconviction petition regarding the question of intellectual disability under the *Atkins v. Virginia* decision was denied. Mr. O'Neal claimed that he had an intellectual disability and was therefore ineligible for execution, on the basis of low scores on several IQ tests, significant limitations in his academic and social skills, and school records showing onset of the disability before age 18. The state appellate court faulted the trial court for applying an improper IQ standard, but affirmed the factual determination because it was supported by “reliable, credible evidence,” rendering any error “harmless.” The court affirmed that Mr. O'Neal did not have significantly subaverage intellectual function on the basis of an IQ score higher than 70 and the finding that he did not have limitations in two or more adaptive skills. In 2002, Mr. O'Neal filed a federal petition for *habeas corpus*. The district court granted a certificate of appealability on 4 of 18 claims raised, one of which addressed intellectual disability. #### Ruling and Reasoning As amended by the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, 28 U.S.C. § 2254 (d)(2) states that a defendant is entitled to *habeas* relief only if he can establish that the state appellate court unreasonably determined the facts in light of the evidence presented to it. In addition, the petitioner bears the “burden of rebutting the presumption by clear and convincing evidence” (28 U.S.C. § 2254(e)(1)). The state appellate court affirmed that the trial court's determination that Mr. O'Neal did not have an intellectual disability was supported by “reliable, credible evidence.” That was the last reasoned state court decision on the merits. Under the AEDPA, that determination is given deference by the federal court in a *habeas corpus* proceeding. In *Atkins*, the Supreme Court of the United States held that executing those with intellectual disabilities is cruel and unusual punishment under the Eighth Amendment. Defining intellectual disability was left to the states. In *State v. Lott*, 779 N.E.2d 1011 (Ohio 2002), the Supreme Court of Ohio established that an individual has an intellectual disability if he has “(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset before the age of 18” (*Lott*, p 1014). It noted in addition that “there is a rebuttable presumption that a defendant is not mentally retarded if his or her IQ is above 70” (*Lott*, p 1014). A failure to satisfy any one of the three criteria defeats an *Atkins* claim in Ohio. An IQ above 70 places the burden on the defendant to prove that he has an intellectual disability. The Sixth Circuit majority acknowledged that Mr. O'Neal provided expert witness evidence of significant limitations in academic and social skills, and another expert identified “significant deficits in several conceptual areas.” However, the latter expert placed Mr. O'Neal's function in the borderline range of practical adaptive skills and attributed his social problems to drug abuse and personality disorder instead of specific cognitive deficits. The Sixth Circuit ruled that “it is not enough on *habeas* review that the evidence presented, selectively read, at times supports his mental retardation claim” (*O*'*Neal*, p 563). Mr. O'Neal failed “to adequately undermine by clear and convincing evidence the state court's factual findings to the contrary” (*O*'*Neal*, p 563). The court stated that although the expert witness testimony and IQ scores could lead many reasonable people to conclude that Mr. O'Neal had an intellectual disability under Ohio law, it could just as easily be concluded that he did not have such a disability on the basis of the record, when read as a whole. #### Dissent In dissent, Justice Merritt criticized the majority's dismissal of Mr. O'Neal's intellectual disability defense because the justices deferred to the state court's “findings,” since this was a *habeas corpus* proceeding. He argued that the state court's opinion did not warrant deference, because it was contrary to scientific opinion, specifically the presumption that a single “over-70 IQ score” is factual evidence for an Ohio presumption of normal intellectual ability. Justice Merritt argued that the majority discounted testimony given by the defense expert that the IQ of 71 was an outlier based on an old test that became a 67 on the updated version. He also argued that a one-test cutoff went against the current conceptualization of intellectual disability that includes adaptive function, as defined by the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities. Finally, the judge argued that the prosecution's expert selectively ignored the portions of Mr. O'Neal's history that showed that, despite obtaining employment and joining the military, he ultimately functioned poorly in those pursuits. Consequently, the finding did not comply with the standards established by modern scientific opinion required by *Atkins.* “A state court opinion that defies both modern scientific opinion and applicable language in *Atkins* deserves no deference” (*O*'*Neal*, p 567). #### Discussion What constitutes intellectual disability in the context of competence to be executed is a topic that was just addressed by the United States Supreme Court in *Hall v. Florida*, No. 12–10882 (U.S. May 27, 2014) (discussed below in “Intellectual Disability, IQ Measurement Error, and the Death Penalty”), decided after this Ohio case. In that case, the Supreme Court, in a 5-to-4 decision, held that Florida's threshold of requiring a defendant to show an IQ score of 70 or below before being permitted to present any additional evidence of adaptive function was unconstitutional. The Court's rationale was that Florida's threshold rule disregards established medical practice by taking the IQ score as final and conclusive evidence of intellectual capacity, disregards the known standard error of measurement (SEM) in IQ tests, and bars further relevant evidence related to adaptive function. Presentation of evidence of adaptive function was not barred in *O*'*Neal*, and ultimately this decision may be unaffected by *Hall*. Regardless, the *Hall* holding raises the question of what weight should be given to an IQ score that falls within the standard error of measurement of a threshold score, similar to the question raised in *O*'*Neal*. The *Hall* case means that future hearings about *Atkins* eligibility in marginal cases are likely to be contested, with experts disagreeing about both IQ scores and adaptive functioning. ## Footnotes * Disclosures of financial or other potential conflicts of interest: None. * © 2014 American Academy of Psychiatry and the Law