OPINION
This matter comes before the court on Defendant Ahmed Muse Salad’s Motion to Bar Death Penalty Under Eighth Amendment and 18 U.S.C. § 3596(c) (“Motion”), filed on April 15, 2013. (ECF No. 608.) For the reasons stated herein, the court FINDS that Ahmed Muse Salad (“Salad” or the “Defendant”) is not intellectually disabled
On February 1, 2013, Salad filed a Notice of Atkins Filing,
II. LEGAL STANDARDS
The Federal Death Penalty Act (“FDPA”) prohibits execution of intellectually disabled defendants. See 18 U.S.C. § 3596(c). The United States Supreme Court, in Atkins v. Virginia,
As a threshold matter, both parties agree, and the vast majority of courts to address this issue have found, that the defendant bears the burden of proof on an Atkins claim by a preponderance of the evidence. See, e.g., Hooks v. Workman,
The substantive standards for determining intellectual disability are grounded in the “clinical definitions of mental retardation.” * Atkins,
Additionally, “[t]hough the factors state that the problems had to have manifested themselves before the defendant reached the age of eighteen, it is ‘implicit’ that the problems also [must have] existed at the time of the crime.” Holladay v. Allen,
III. THE DEFENDANT’S BACKGROUND
The characteristics and national origin of the Defendant present a number of unique challenges in evaluating his Atkins claim. As such, the court provides a brief overview of his background in advance of applying the three-pronged intellectual disability test to the Defendant. Salad is an approximately twenty-seven to twenty-nine year old Somali male.
As a young boy, Salad received no formal schooling. Starting around the age of five, he, like most nomadic Somali boys, assisted in the care of livestock,' such as herding and milking the goats. At the age of approximately eleven or twelve, Salad left his family in the bush region, and traveled to the city of Qardho, where he lived for approximately three or four years with an aunt. While in Qardho, Salad attended madrassa, or Quranic school, where pupils study and memorize Quranic
At approximately age fifteen, he joined the Puntland militia, known as the Darawish. As a soldier, Salad learned the basics of how to use an AK-47 firearm and was primarily a guard at military installments, although he was also involved in a number of skirmishes. He did not receive any specialized military training while in the Darawish. At some point he became a member of the Presidential Guard for the President of Puntland, and later, as a member of the Darawish forces, a police officer in Qardho. During the years Salad was in the militia, and possibly afterwards, he attempted to make extra money fishing on the Somali coast with other members of his clan. Salad eventually left the militia and became a member of the group that hijacked the Quest in February 2011. He has been imprisoned in the United States since March 2011.
Salad’s brother was murdered approximately six years ago. Thereafter, Salad married his brother’s widow, Bisharo, also known as Zahra. He assumed responsibility for Bisharo and his brother’s three children, and he and Bisharo had one child together in approximately 2010. It is unclear if, at present, Salad is still married to Bisharo.
Given the Defendant’s nation of origin and his upbringing, there are no formal records of any kind — educational, medical, employment, or otherwise — in this case. Additionally, Salad does not speak or read English; thus, the vast majority of the evidence before the court, including the intelligence quotient (“IQ”) testing, was obtained through use of interpreters. Moreover, as recognized by both parties and the court at the Atkins hearing, there are no formal tools, to assess either intellectual functioning or adaptive skills, normed to evaluate a nomadic Somali man of the Defendant’s age, or a Somali of any age for that matter. With this background in mind, the court addresses each of the three prongs of intellectual disability in turn.
IV. PRONG ONE: INTELLECTUAL FUNCTIONING
As noted above, the court is guided in its substantive analysis by the clinical standards for intellectual disability. See Atkins,
A. Definitional Standards
Assessing intelligence, even with the aid of standardized instruments, is an inexact science. See AAIDD Manual at 31. Nevertheless, IQ tests are the best available tools for measuring intellectual functioning. Id. Accordingly, both the AAIDD and the APA frame prong one criteria in terms of IQ scores. See id. (“The ‘significant limitations in intellectual functioning’ criterion for a diagnosis of intellectual disability is an IQ score that is approximately two standard deviations below the mean, considering the standard error of measurement for the specific instruments and the instruments’ strengths and limitations.”); DSM-IV-TR at 41 (“Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean).”).
As the definitions indicate, analysis of prong one cannot proceed by simply
B. Statistical Principles
Because the evidence in this case consists of varying interpretations of widely divergent IQ scores, the court briefly reviews the relevant statistical principles and their effects on the legal analysis. As the definitions indicate, IQ is measured by standardized instruments, and assessed relative to the mean of a representative population. A standardized test is one that was “administered to a large, representative sample of the population in order to predict the distribution of results that the general population would likely obtain.” Wilson,
Intellectual disability is measured in terms of standard deviations from the mean. The standard deviation, which measures “the dispersion of scores in a distribution,” is 15 points. AAIDD Manual at 224. Two standard deviations from the mean, the working definition of a significant deficit in intellectual functioning, equates to an IQ score of approximately 70. Id. at 31, 39; DSM-IV-TR at 41. As noted above, the parties agree that no IQ test has been properly normed for administration to a Somali nomad like the Defendant. In addition, language barriers prevented the application of the verbal component of several full-scale IQ tests, so the testing in this case was confined to non-verbal measures of IQ.
Apart from the concerns about the normative sample, the court must also consider the standard error of measurement (“SEM”) inherent in any test administration, even those tests which have been properly normed by reference to a representative sample population. The SEM is expressed as a “plus-or-minus” point spread around the reported score, and it is used to calculate the confidence interval of the result: “[t]he statistical interval, or range, within which the person’s true score falls.” AAIDD Manual at 218.
[T]he application of a 95% confidence interval would permit diagnoses of mental retardation well above what has previously been considered the approximate upper bound for a finding of subaverage intellectual functioning.... If the court were to apply a 95% confidence interval to an IQ test with аn SEM of 5, then a person could conceivably be diagnosed with mental retardation if his observed IQ score were 80 — i.e., two SEMs above 70. So far as the court is aware, no court or clinician has made a finding of mental retardation based on such a high IQ score, and neither the AAIDD nor the APA has ever suggested that such an IQ score would be an indication of significantly subaverage intellectual functioning____ [T]he court considers the use of a 95% confidence interval to be particularly inappropriate in the context of an Atkins claim [because] the law places the burden on the defendant to prove his mental retardation by a preponderance of the evidence.
Id. at 347-48. As discussed further infra at Part IV.D., the court finds no reason to relax the standard so substantially as to allow the Defendant to carry his burden by proffering a figure that might be two SEMs below the true score. See id.
Additionally, the court should be cognizant of the “practice effect.” This phenomenon describes the likelihood of inflated scores on re-administrations of similar IQ tests within a short period of time. See, e.g., AAIDD Manual at 38; see also United States v. Nelson,
C. Testing History and Evidence
The first round of IQ testing was administered by Dr. Mark Schuler, a licensed psychologist based in St. Louis Park, Minnesota. See Mot. Continue Att. 2 at 4 (ECF No. 589). This testing predated the Defendant’s Atkins notice and, in fact, likely precipitated it. See id. (“After additional conversations between defense team and both [Dr. Schuler] and the [second psychologist] who saw [Salad] in November, the team looks further into [intellectual disability] issues, with specific emphasis on Atkins ‘prong one’ issue of significant cognitive deficit as measured by IQ test.”). Dr. Schuler interviewed the Defendant on or about August 27 and 28, 2012. See id. He administered two tests: the Test of Nonverbal Intelligence, Fourth Edition (“TONI-4”), and the Test of Nonverbal Intelligence, Third Edition (“TONI-3”). Dr. Schuler reported in October of 2012 that the Defendant scored 76 and 68, respectively. Id. The court re
The Defendant was next examined by Evan Nelson, Ph.D., a forensic psychologist retained by the defense team. See Mot. at 4.
The Defendant scored a 75 on the TONI-4, which Dr. Nelson characterized as statistically indistinguishable from the 76 Salad obtained on the TONI-4 Dr. Schuler administered. On the WASI, the Defendant’s scores on two sub-scales (“Block Design” and “Matrix Reasoning”) yielded a Performance IQ of 63. Finally, on the SB-V, the Defendant scored a Nonverbal IQ of 48. The Nonverbal Scale of the SB-V comprises five subtests: “Fluid Reasoning,” “Knowledge,” “Quantitative Reasoning,” “Visual Spatial,” and “Working Memory.” The Defendant scored comparatively well on the Quantitative Reasoning and Working Memory subtests. In his report, Dr. Nelson also acknowledged three instances of possible cultural bias in questions in the “Knowledge” subtest but noted that, even accounting for those points, the Defendant’s score would rise only to 51.
The United States retained Paul Montalbano, Ph.D.,
D. Analysis
The foregoing evidence offers, at best, an inconsistent picture of the Defendant’s intellectual functioning, even though the Defendant adduced all of the scores at issue. On one hand, the Defendant offers scores from the nonverbal portions of the WASI and SB-V that fall substantially below the general threshold for intellectual disability, even after accounting for the standard error of measurement. On the other hand, the Defendant presents scores on various versions of the TONI that are consistently above that threshold, including two scores of 75 and 76 on the TONI-4. From this evidence, Dr. Nelson concluded that Salad “probably” has significant limitations in intellectual functioning, and that he “probably” had them before the age of eighteen as well. See Hr’g Test, of Dr. Nelson (May 7, 2013); Def. Supp. Mem. Att. 1 ¶ 51.
The Defendant places great weight on the absence of separate testing by Dr. Montalbano. See, e.g., Def. Supp. Mem. at 2. Such reliance is misplaced; the Defendant bears the burden of presenting evidence of intellectual disability. Although a larger sample of IQ scores might have been helpful to the court, as it would in most cases involving IQ, their absence is not a failure of proof by the United States, as the burden here rests with the Defendant. Moreover, Dr. Montalbano thoroughly explained his reasons for declining to administer any tests,
Both parties agree that clinical judgment is a critical factor in analyzing IQ scores, particularly in these circumstances, in which the test instruments are concededly poorly suited to the task. See Def. Supp. Mem. at 2; Gov’t Supp. Mem. at 13. The court’s role is not, at this juncture, to apply another level of clinical judgment or diagnosis. Instead, its role is to evaluate the evidence and testimony provided by the expert witnesses, and to determine whether the Defendant has carried his burden of demonstrating, in light of the foregoing standards, that he suffers from significantly subaverage intellectual functioning. The court finds that the Defendant has not carried that burden.
The court first addresses the relative persuasive value of each of the IQ tests administered to the Defendant. On this point, the evidence indicates that the variants of the TONI, however imperfect under the circumstances, provide the most reliable indicators of the Defendant’s intellectual functioning.
The scores obtained from the nonverbal portions of the WASI and Stanford-Binet, by contrast, require more extrapolation. Dr. Nelson conceded on cross-examination that the nonverbal score, standing in isolation, might underestimate the subject’s IQ. See Hr’g Test, of Dr. Nelson (May 7, 2013) (responding that incorporating the verbal IQ “could lead to a higher overall IQ”). Although Dr. Nelson testified that, by the same token, a low verbal score could cause a decrease in the overall IQ, subsequent inquiry by the United States suggests that, in the particular circumstances of this case, such an effect is unlikely. Id. Salad demonstrated relative strengths in the areas of verbal memory and verbal reasoning, as indicated both in Dr. Schuler's report and in Dr. Nelson’s own administration of the SB-V subtests. The United States argues, and the court agrees, that such results are unsurprising in light of Somalia’s oral tradition.
Having failed to establish the strength of the scores from the WASI and SB-V, Dr. Nelson’s arguments for averaging all of the scores is likewise unpеrsuasive. See Nelson Report at 6, Mot. Att. 2. Dr. Nelson admitted that such a simplistic approach has no basis in clinical standards; he described it, instead, as “common clinical sense.” Hr’g Test, of Dr. Nelson (May 7, 2013). The court respectfully disagrees, and finds nothing sensible about according
The Defendant’s consistently higher scores of 75 and 76 on the TONI-4 constitute evidence against a finding of intellectual disability, and the Defendant failed adequately to explain how those scores overestimate his intellectual functioning.
These relatively high scores on the TONI-4 diminish the importance of the heated debate between the parties about the legal propriety of deriving an IQ score for Salad by reference to the United States population. See Resp. at 18-20; Reply at 8. The United States maintains that comparison of defendants like Salad to American
The Defendant’s logic is sound, but only to a point. The most reliable test results in this case are those that were, in fact, scored against American norms: the TONI-3 and, more importantly, the two administrations of the TONI^l.
The court understands the clinical challenges associated with applying and interpreting IQ tests in the context of a case such as this one. The court is also mindful of the serious legal and policy arguments raised by both parties, but the court need not resolve those issues today. The United States does not argue, and this court does not hold, that individuals like Salad can never succeed on prong one of an Atkins claim. The court simply holds that this Defendant failed to meet his burden of proving that he suffers from significantly subaverage intellectual functioning, based on the IQ testing administered and his results thereon.
E. Synopsis
To summarize, the court concludes that Salad has not met his burden of proof with respect to prong one. Although no existing standardized test is ideally suited to measuring the Defendant’s IQ, the most reliable measures are those obtained by Drs. Nelson and Schuler on the TONI-4: scores of 75 and 76, respectively. Even after accounting for one standard error of measurement to compute a confidence interval of 67%, those scores are not supportive of a finding of intellectual disability.
V. PRONG TWO: ADAPTIVE FUNCTIONING
Turning to the adaptive functioning prong, for the reasons addressed below, the Defendant fails to carry the burden of showing by a preponderance of the evidence that he has signifiсant deficits in this area.
A. Definition and Assessment of Adaptive Functioning
“Adaptive functioning refers to how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting.” DSM-IV-TR at 42. The AAIDD Manual requires proof of significant limitation in one of the areas of “conceptual, social,' and practical adaptive skills.” AAIDD Manual at l.
Prong two generally requires a more expansive investigation of a defendant’s life history and skill levels than could be fully evaluated through use of a normed instrument. See United States v. Davis,
The AAIDD Manual providеs several important guidelines for -analyzing adaptive behavior. First, the analysis is often retrospective, in that it examines past behavior for evidence of conformity or non-conformity to the baseline standards for the subject’s age and background. AAIDD Manual at 46; see also Hardy,
B. Strategy to Evaluate Salad’s Adaptive Skills
There exist no standardized instrumеnts for measuring adaptive functioning that would be remotely applicable to Salad due to his unique background and upbringing. As such, the Defendant’s adaptive skills expert, James Patton, Ed.D.,
Together, Drs. Patton and Johnson crafted an extensive list of questions used by Bridget Prince, a principal investigator with One World Research, and Farah Hussein, a Somali investigator retained by One World Research, to interview some of Salad’s family members, teachers, and friends in Somalia. See Def. Ex. 60. The interview reports generated by One World Research, along with Dr. Patton’s interview of the Defendant, form the foundation for his two declarations, and his testimony at the hearing that Salad is deficient in the conceptual and practical areas of adaptive functioning, and that those limitations existed before the age of eighteen.
Both of the United States’ experts addressed prong two. Dr. Montalbano’s report analyzed the limited evidence before him regаrding Salad’s adaptive skills and concluded generally that he “did not believe the data reliably support a conclusion that [Salad] meets criteria for intellectual disability.” Montalbano Report at 27, Gov’t Ex. A. Raymond F. Patterson, M.D.,
i. Interview Reports
As a threshold matter, the court has serious reservations regarding the reliability of the Somalia in-country and Somali co-defendant interview reports, Def. Ex. 6P, which are the key pieces of evidence upon which Dr. Patton’s opinion relies.
Farah Hussein, the in-country investigator found by Ms. Prince, conducted interviews of fourteen individuals in Somalia, utilizing a lengthy list of questions prepared by Dr. Patton. See Def. Supp.
In addition to the in-country interview reports, Dr. Patton relied upon reports from three cooperating co-defendants, Messrs. Omar, Mohammed, and Ali, all of whom testified at the Atkins hearing. As discussed further infra at Part V.C.Ü., the testimony of these witnesses underscore the court’s reliability and credibility concerns regarding the interview reports from Mr. Hussein through Ms. Prince to defense counsel, because the testimony heard at the hearing conflicted, in sometimes significant respects, with, or otherwise undermined, statements introduced into evidence through the reports of the co-defendants.
C. Analysis of the Defendant’s Adaptive Skills Claims
As noted above, Dr. Patton found significant deficits in the Defendant’s conceptual and practical adaptive functioning before the age of eighteen. At a threshold level, it is unclear the extent to which Dr. Patton believes these pre-age eighteen deficits endure, and the defense provided scant evidence regarding Salad’s post-age eighteen adaptive skills. Regardless, the court will now address the defense’s primary claims regarding both of the areas in which Dr. Patton identified significant deficits.
Dr. Patton relied upon statements in the interview reports to conclude that (1) Salad required additional supervision for the basic tasks of herding and finding sustenance for the family’s goats and camels; (2) he failed to learn the songs and poetry typical in nomadic cultures; and (3) he struggled to learn and memorize the Quran at the madrassa in Qardho. Setting aside for a moment the court’s grave concerns regarding the reliability of the information in the multiple-level hearsay interview reports, the court does not find this evidence sufficient to establish that Salad’s adaptive skills functioning is significantly deficient in the conceptual area, which includes language, reading and writing, money and time/number concepts, and a range of skills related to self-direction. See Mot. Att. 3, Patton Letter Report at 2 (ECF No. 608). As an initial matter, it is unclear from Dr. Patton’s declarations and his testimony on what foundation he could determine that Salad’s functioning deviated so significantly from Somali community norms. See Gov’t Supp. Mem. at 27. Although there are many references in the interview reports to the fact that Salad was “slow” or, for example, that he was not given as much responsibility as other nomadic boys his age, it is unclear to the court how Dr. Patton could determine from those statements, even if they are accurate, that Salad’s conceptual adaptive skills fell short of all but approximately three percent of the Somali population. See supra Part V.A.; AAIDD Manual at 10. The court’s larger concern, however, is with the conflicting, and at times completely contradictory, evidence in the interview reports, and Dr. Patton’s lack of explanation of his treatment thereof. See AAIDD Manual at 48 (“Use reasonable caution when weighing qualitative information obtained from respondents, especially in the presence of conflicting information.”).
Specifically, with respect to Salad’s reported lack of independence and self-direction while living in the bush, Dr. Patton relied, in part, upon the interview report of Hawa Farah Shaacuur, the Defendant’s step-grandmother who did not live with the family, but visited from time to time. See Patton Letter Report at 2; Def. Ex. 6P, “Second Interview of Hawa Farah Shaacuur” at 1. Ms. Shaacuur’s report indicates that Salad, unlike other boys, was supervised while herding goats at a young age, and was given less responsibility in caring for the camels when he was older. Def. Ex. 6P, “Second Interview of Hawa Farah Shaacuur” at 1-2. The report also states multiple times that Salad was deeply affected by his mother’s death when he was approximately six years old. Id. As Dr. Patterson indicated, this alternative explanation for Salad’s shortcomings while in the bush may be just as logical an inference to draw as that his deficits were due to intellectual disability, especially given the defense’s admission that it was an extreme hardship to not have a mother in a nomadic society. See Hr’g Test, of Dr. Johnson, Tr. at 74-76 (May 8, 2013).
Moreover, Salad’s own sister stated that “[b]ecause Ahmed lost his mother when he was 6 years old he did not get opportunity [sic] to learn life skills, so he developed slowly.” Def. Ex. 6P, “Second Interview of Hawa Muse Salad.” Similarly, Salad’s father stated:
The mother is the base of the family, she is the one who teaches a child life skills ... a child always feels weak when they don’t have their mother around. My*882 son did not learn the proper life skills because of this reason.
Def. Ex. 6P, “Second Interview of Muse Salad Hasan.” Thus, the court is perplexed as to Dr. Patton’s confidence that the Defendant’s alleged shortcomings at performing various nomadic duties are attributable to intellectual disabilities, rather than, as multiple interviewees, including the Defendant’s father and sister, stated, the loss of his mother at a young age. See AAIDD Manual at 47 (“Parents are often the best respondents available because they have known the individual the longest and observed attainment of developmental milestones, maturation, and the achievement of adaptive skills.”).
This reservation similarly applies to Dr. Patton’s conclusion that Salad’s reported struggles at the madrassa in Qardho were due to intellectual disabilities, rather than, as Dr. Patterson opined, learning disabilities, trouble transitioning to life in the city, or the fact that he was ostracized and mocked by other students because he was from the bush region. This is especially true in light of the fact that, at the school, students were beaten if they failed to respond correctly. Salad was physically abused by his step-mother, prior to moving to Qardho. See Def. Ex. 6P, “Second Interview of Hawa Muse Salad” (“[Our step-mother] beat us and she yelled at us all the time---- [She] threw stones [at Salad] which hit his face just above the eyes. He was bleeding very badly.”). Thus, his challenges in the madrassa environment could be related to fear of further physical abuse, amongst other plausible explanations, including lack of motivation. See Def. Ex. 6P, “Second Interview of Sheikh Nuur” (“Ahmed did not like school, because he. missed a lot of classes and his aunt was always pushing him to come to the school.”); id., “Interview of Osman Bare Salad” (“[Ahmed] never liked [the Quran] and he started to skip school. He skipped school more than the other students.”); id., “Interview of Abdifatah Shiikh Nuur” (“[Ahmed] was hyper and a complainer ... [he] skipped school many times.”). Fundamentally, the court is circumspect of Dr. Patton’s failure to examine alternative explanations for Salad’s reported difficulties, and credits Dr. Patterson’s caution in refraining from necessarily attributing such deficiencies to intellectual disability.
In sum, the court finds that the interview reports provided insufficient evidence to support Dr. Patton’s opinion that Salad’s conceptual adaptive skills functioning was “significantly deficient” as compared with the relevant Somali population preage eighteen.
ii. Practical Adaptive Functioning
Practical adaptive functioning includes, inter alia, skills related to daily living, personal care, occupational skills, and safety. The shortcomings Dr. Patton identi
As with Dr. Patton’s assessment of Salad’s conceptual skills deficits, he did not indicate to the court on what foundation he could claim Salad’s skills fell significantly short of the average Somalis, beyond the baseline he and Dr. Johnson generated.
Regarding the deficits in self-care Dr. Patton indicates support a finding of practical adaptive skills deficits, the evidence before the court is entirely contradictory as to whether any such deficits actually existed, and whether, if they did exist, their origin is related to intellectual disability or other life factors and experiences. Indeed, the very report Dr. Patton relied upon to state that the Defendant “did not develop well in terms of personal care” attributes this shortcoming to “the absence of his mother,” and then goes on to state that, by age ten, Salad “started looking after himself better such as eating better, washing and telling us when he was sick.” Def. Ex. 6P, “Second Interview of Hawa Farah Shaacuur” at 2; Patton Letter Report at 4. The fact that Salad improved in these areas in a few years after his mother’s death, which is estimated to have occurred when he was age six, cuts against attaching any weight to the fact that he previously may have struggled with self-care at some earlier point before age ten.
Moreover, the statements upon which Dr. Patton relies were made by Salad’s step-grandmother, who “did not live with the family, but ... used to visit them some times.” Def. Ex. 6P, “Second Interview of Hawa Farah Shaacuur” at 1. Salad’s own sister stated that he “did not have any problem with his personal care. He did not have problems with eating, dressing or his safety.” Def. Ex. 6P, “Second Interview of Hawa Muse Salad.” His sister’s statements are further corroborated by one of Salad’s friends who reported that he “was clean.” Def. Ex. 6P “Second Interview of Abdirisaq Said Bare (Madoobe Bakayle).” The court is dubious of the weight Dr. Patton apparently attributed to a single sentence in an interview report of an individual who seemed to have limited contact with Salad, especially in light of contradictory reports that may logically, be seen as more reliable, given the rela
Similarly, Dr. Patton’s reliance on Salad’s. reported failure to learn how to fish is suspect due to conflicting evidence, and warrants further examination as to whether his failure to do so is properly attributed to intellectual disability. As an initial matter, the interview reports are contradictory as to whether Salad failed to learn how to fish, or that hе could fish, but was not good at it. Compare Def. Ex. 6P, “Interview of Mohamed Farah Bile” (“Ahmed did not know how to fish and we never let him go to sea because of fears for his safety.”), and id., “Interview with Muhidi Salad Omar aka ‘Gurdan’ ” (“Gurdan and [Ahmed] were both fishermen, but [Ahmed] was not good at fishing.”) with Gov’t Ex. S, Narrative Background of Salad, 11 (“Ahmed said he was a good fisherman and had taught himself how to swim on the coast.”). Assuming arguendo that Salad could not fish,
With respect to Salad’s service in the Puntland militia, the Darawish, and the Presidential Guard, the defense attempts to paint Salad as an unskilled guard who learned little more than how to hold and clean an AK-47. See Def. Supp. Mem. at
Additionally, the court can draw no conclusion in the Defendant’s favor with respect to adaptive skills functioning from the assertion that he was not a leader in the militia and did not receive specialized training,
Thus, granting the proposition that Salad’s roles in the militia and the Presidential Guard are not necessarily incompatible with one who has significant deficits in practical or conceptual adaptive skills, this evidence fails to further the defense’s At
iii. Evidence of Post-Arrest Adaptive Skills
Having considered Dr. Patton’s conclusions regarding Salad’s adaptive skills before the age of eighteen, the court will now briefly address the evidence, largely presented by the United States, regarding Salad’s adaptive skills as observed after his arrest. Dr. Patterson considered this evidence, along with a variety of additional information and his interview of the Defendant, in opining, to a reasonable degree of medical certainty, that Salad does not demonstrate deficits in adaptive functioning due to intellectual disability. See Gov’t Supp. Mem. at 13.
First, as Federal Bureau of Investigation (“FBI”) Special Agent Eric Perry testified at the hearing, in Salad’s initial interview with the FBI following his arrest, he responded, through an interpreter, to a variety of personal background questions. He provided information regarding his entire family, including clan and sub-clan affiliation; his cell phone number, including the service provider; and the area in which he lived in Somalia. See Gov’t Supp. Mem. at 2. He also requested he be permitted to divorce his wife because he knew he was in trouble and would be absent for some time. Id.
In a subsequent interview, after Salad had waived Miranda warnings and signed a translated document to that effect, he responded to questions regarding his involvement in the attack of the Quest, stating that he was merely a guard, that he was asleep when shooting began on the final day, and he identified a number of co-defendants by name. Id. A few days later, Salad refused to speak with the agents when they attempted to conduct a second interview. Id. The court is mindful that an invocation of Miranda rights is not inconsistent with intellectual disability. See Walker v. Kelly,
Likewise, the United States places great emphasis on Salad’s abilities while in jail to (1) procure a trustee job, assisting with janitorial tasks; (2) place international phone calls to his wife and others in Somalia; and (3) make various requests (to be placed in an English as a Second Language class, attend Muslim prayer classes, etc.). The court does not find that this evidence precludes a finding of intellectual disability, nor does it compel a conclusion to the contrary. Given the weight of case law and the AAIDD User’s Guide’s admonitions that “diagnosis of [intellectual disability] is not based on the person’s ‘street smarts’, behavior in jail or prison, or ‘criminal adaptive functioning[,]’ ” the court finds the United States’ emphasis on these factors misplaced. AAIDD, User’s Guide 20 (11th ed. 2012); see also United States v. Davis,
The evidence before the court regarding Salad’s adaptive skills falls far short of establishing that he has deficits in any area of adaptive functioning. Although the court commends Dr. Patton for his ambitious efforts to create a baseline understanding of a nomadic Somali’s skill level, the significant inconsistencies throughout the interview reports and their inherent unreliability cast a long shadow on the conclusions Dr. Patton draws therefrom. See supra Part V.B.i; notes 31, 37, 38 and accompanying text (describing inconsistencies in testimony from co-defendants at the hearing and statements in the interview reports). Moreover, Dr. Patton claims to have focused on the convergent validity of statements in the reports; however, the record before the court suggests that he may have selectively focused on statements favorable to a determination of adaptive skills deficits, while not affording adequate consideration to those that did not comport. Nor does it appеar that he adequately considered alternative explanations for the Defendant’s reported shortcomings, as offered by Dr. Patterson’s credible testimony. Salad has not met his burden with respect to adaptive skills deficits.
VI. PRONG THREE: ONSET BEFORE AGE EIGHTEEN
Having concluded that the Defendant does not have significant limitations in adaptive skills or intellectual functioning, the court does not address prong three. See, e.g., United States v. Candelario-Santana,
VII. CONCLUSION
To summarize, the court finds that Salad failed to prove by a preponderance of the evidence that he suffers from significant deficits in intellectual functioning or adaptive skills. Thus, he is determined not to be intellectually disabled, and is, therefore, eligible for the death penalty, if so imposed by the jury. See 18 U.S.C. § 3593 (jury determines a sentence of death or life imprisonment without the possibility of release pursuant to federal statute). Accordingly, the Defendant’s Atkins Motion is DENIED. The Clerk is directed to forward a copy of this Opinion to counsel for the Defendant and to the United States Attorney at Norfolk.
IT IS SO ORDERED.
Notes
. The court uses the term “intellectual disability” rather than "mental retardation” throughout this Opinion; however, at the hearing and in filings the terms were used interchangeably. See American Association of Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports 3 (11th ed. 2010) ("AAIDD Manual”); United States v. Northington, No. 07-550-05, 2012 WL
. See Atkins v. Virginia,
. Hereinafter, the court refers to the first round of supplemental briefs filed after the hearing as "Def. Supp. Mem." and "Gov't Supp. Mem.” The replies are referred to as "Def. Supp. Reply” and "Gov’t Supp. Reply.”
. Between the hearing and the date of this Opinion, the American Psychiatric Association ("APA”) released the newest (fifth) version of the Diagnostic and Statistical Manual
. The AAIDD was known formerly as the American Association on Mental Retardation, or “AAMR.”
. Neither party disputes the general facts included in this summary- See Mot. (ECF No. 608); Resp. (ECF. No. 614); Reply (ECF No. 618); Def. Supp. Mem. (ECF No. 653); Gov’t Supp. Mem. (ECF No. 652).
. The Defendant’s exact age is unknown as he has no birth certificate. His birth was reportedly during a severe drought in the region in which he was born in approximately 1986. All parties agree that the Defendant is at least twenty-seven years old.
. A Somali family is part of a larger historic clan, which can be traced back for generations.
. For example, given a score of 73 on a test with a SEM of 3 points, such as the Test of Nonverbal Intelligence, Fourth Edition ("TONI-4”), one can say with 67% confidence that the true score falls between 70 and 76 (one SEM above and below the score), and with 95% confidence that the true score falls between 67 and 79 (two SEMs above and below the score). See AAIDD Manual at 36.
. After adjusting for the SEM, courts must also consider whether to accоunt for the “Flynn Effect.” See Walker v. True,
. Dr. Nelson earned a Ph.D. in clinical psychology from the University of North Carolina at Chapel Hill in 1991. He completed postdoctoral residency at Central State Hospital in Petersburg, Virginia, in 1992. Since 1995, he has been a partner in the firm of Forensic Psychology Associates, P.C., based in Midlothian, Virginia. Dr. Nelson testified at the hearing on May 7, 2013.
. Dr. Montalbano earned a Ph.D. in Clinical Psychology from Adelphi University in 1990. He is currently the Deputy Chief for Forensic Psychology Services and Postdoctoral Fellowship in Forensic Psychology at the Walter Reed National Military Medical Center in Bethesda, Maryland. Dr. Montalbano examined the Defendant on March 15, 2013. Pursuant to the Atkins Procedures Order (ECF No. 570), that interview was videotaped. Dr. Montalbano filed a report on April 1, 2013, and testified at the hearing on May 9, 2013.
. Dr. Montalbano also considered an alternative test, the nonverbal portion of the Validity Indicator Profile (''VIP”). Because of the Defendant's "perceived inability to grasp the instructions of the TOMM or CTONI-2,” however, Dr. Montalbano declined to administer the VIP. Montalbano Report at 15, Gov’t Ex. A.
. Dr. Nelson did not opine to a reasonable degree of scientific certainty in his professional opinion as a clinical psychologist that Salad has significant limitations in intellectual functioning. Although the court acknowledges the burden of proof on an Atkins claim is a preponderance of the evidence, it is indicative of Dr. Nelson’s confidence in his conclusion that he did not find with a reasonable degree of scientific certainty, in his professional opinion, that Salad’s intellectual functioning is significantly impaired. Rather his conclusions were stated as "probably,” which he then defined during his hearing testimony as "more than likely.” Hr’g Test, of Dr. Nelson (May 7, 2013).
The court notes that citations to filed hearing transcripts are used in this Opinion where available. Otherwise, the citations are only to the date of the individuals’ hearing testimony and are based on the court's notes thereof. The court reserves the option to add transcript citations where appropriate, if and when available.
. See supra Part IV.C, pp. 16-17. In fact, Dr. Montalbano's reluctance to continue test
. Although, for various legitimate reasons, neither expert administered the CTONI-2, both Drs. Montalbano and Nelson agreed that it was the gold standard test. See Hr’g Test, of Dr. Montalbano, Tr. at 108-109 (May 9, 2013); Hr’g Test, of Dr. Nelson (May 7, 2013).
. The Defendant offered testimony from Dr. Patricia Johnson, who lived and worked in Puntland for approximately twelve years, on the strong oral tradition of the Somali people, particularly in the nomadic bush culture. See infra Part V.B.
. Although the two forms of the TONI-4 were administered over a relatively short period of time, the Defendant presented no, evidence that would attribute either the 75 or the 76 to the "practice effect.” See supra Part IV.B.
. American, in this context, refers to the population of the United States, and is used to avoid confusion with the United States as a party to this case.
. Even if, as urged by the United States, the court were to engage in speculation about the Defendant's scores relative to a hypothetical Somali-normed test, the reasonable inference to draw would be that Salad’s intelligence may be much higher than what the administered tests suggest. See Resp. at 20. This inference is supported by the fact that the American-normed test for Salаd’s age group, twenty-five to twenty-nine, contained no individuals that had less than an eighth grade education. Gov’t Ex. Y; Hr'g Test, of Dr. Montalbano, Tr. at 39 (May 9, 2013). In light of the fact that Salad's scores were normed against a population that had at least some level of formal schooling, the strength and consistency of Salad's scores on the TONI-4 are remarkable. Fortunately, in this case, the court need not rely upon such speculation.
. As noted above, a defendant's failure to prove any one prong results in a failure of the entire Atkins claim. See DSM-IV-TR at 49 (discussing prongs one and two as “[cjoncurrent” limitations). Given the complex and unique circumstances of this case, despite the court’s finding with respect to prong one, the court will fully evaluate the arguments made on prong two. See Walker v. Kelly,
. The DSM-IV-TR diagnoses limited adaptive functioning if a subject demonstrates "deficits or impairments” in two of ten areas: "communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.” DSM-IV-TR at 49. Drs. Patton, Montalbano, ánd Patterson agreed that the AAIDD Manual and the DSM-IV-TR require evaluation of the sаme substantive areas.
. Dr. Patton is an author and professor with a post-graduate degree in education from the University of Virginia. He is, at present, an adjunct associate professor in the Department of Special Education at the University of Texas at Austin. His work focuses on the field of intellectual disability. He filed two reports, which the court refers to as “Patton Declaration," signed April 1, 2013, and "Patton Letter Report,” signed April 10, 2013. Mot. Att. 3 and 4 (ECF No. 608). Dr. Patton testified at the hearing on May 8 and 9, 2013.
. It is notable that this baseline was created with the input of only one individual with in-country experience, and that she had not formally studied nomadic Somalis or previously attempted to assess developmental milestones of relevance for an adaptive skills assessment. While Dr. Johnson proved highly knowledgeable regarding cultural and political aspects of Somali life, the court cannot ignore that it was her singular perspective that was brought to bear in creation of the baseline.
. Dr. Patton states in both declarations that he has “reason to believe” Salad is deficient in those two areas; however, at the hearing, he testified that, due to analysis of additional information in updated interview reports received after the date of his declarations, he does, in fact, believe Salad is deficient in the conceptuаl and practical areas of adaptive functioning. The court allowed Dr. Patton’s revised opinion into evidence, but the reliability of the updated interview reports is quite questionable. See infra Part V.B.i.
. Dr. Patterson is a highly qualified board-certified forensic psychiatrist with over twenty years of experience in clinical and forensic psychiatry. He received a doctor of medicine degree from Howard University College of Medicine, and completed his psychiatric residency at Howard University and St. Elizabeth's Hospital, both in Washington, D.C. He is currently in private practice in Washington, D.C., and has been since 1981. He is an associate professor of psychiatry at both Georgetown University and Howard University College of Medicine. Dr. Patterson testified at the hearing on May 10, 2013.
. At the hearing, the court admitted the interview reports into evidence over strong objection from the United States. Despite the inherent multiple levels of hearsay, the court deemed their consideration appropriate, but deemed they would be afforded proper weight given the reliability of the information therein.
. Although Mr. Hussein speaks English with some fluency, see Def. Ex. 4J, the interviews were conducted in the primary language of both Mr. Hussein and the interviewees. It is unclear if any of the interviewees speak English.
. Mr. Hussein's original notes were not available for review by the court or counsel through a certified interpreter to compare with the English version admitted into evidence at the Atkins hearing. Nor were the original English notes Mr. Hussein sent to Ms. Prince available. Only Ms. Prince’s "corrected” interview reports were available and introduced, into evidence, over the objection of the United States. See supra note 27.
. See supra note 29 and accompanying text.
. The reports of the cooperating co-defendants’ interviews were prepared by the Federal Public Defender’s investigators, Linda McGrew (Ali) and Kevin Ridgley (Omar and Mohammed), who were present at the interviews and took notes. They then typed their notes and forwarded them to defense counsel, who in turn made some changes to the final reports submitted into evidence. Given those witnesses’ availability, the court required their appearance at the hearing, in addition to the reports. See infra note 37 and accompanying text.
. It is the opinion of Dr. Patton and the United States’ experts that Salad is not significantly deficient in the social skills area, which inter alia includes interpersonal skills, social responsibility, self-esteem, and gullibili
. Although Dr. Patton admitted upon inquiry by the court that such an explanation was indeed plausible, he maintained his opinion that such deficits are, in fact, due to intellectual disability. See Hr’g Test, of Dr. Patton (May 9, 2013).
. As noted above, conceptual skills also include reading and writing abilities. Dr. Patton noted in his preliminary declaration that Salad "remains illiterate in any written language." Patton Declaration, Mot. Att. 3, ¶ 15. Although an interview report from the Defendant's wife states Salad reads Somali books, see Gov’t Ex. V, the court finds the video footage of Salad attempting to read during his evaluation with Dr. Montalbano compelling evidence that he is, in fact, illiterate in any language. However, this by no means indicates intellectual disability, as only an estimated thirty-eight percent of Somalis are literate. See Central Intelligence Agency World Factbook, Somalia, available at https:// www.cia.gov/library/publications/theworldfactbook/geos/so.html.
. See supra note 24 and accompanying text.
. Fishing, in this context, appears to refer to lobster fishing, which involves putting nets and equipment in the sea and retrieving them at a later time. As the defense’s own narrative background, prepared by Linda McGrew, an investigator with the Federal Public Defender, describes it, "[Qobster fishing is tough work and sometimes risky when you are putting your nets and equipment down under water. Men do not always come back up again if they dive too deep or do not know how to swim.” Gov't Ex. S at 11.
. Mr. Omar's testimony provides one of the most striking examples of the unreliability of statements found in the interview reports of the co-defendants submitted by the Federal Public Defender. See supra note 31. The interview report of Mr. Omar stated "[l]ots of [other men] came ... and learned how to fish and became very good at it;” however, when questioned during the hearing, Mr. Omar stated that "there were some who learnеd how to fish and there were others who were just about the same, like [Salad].” Compare Def. Ex. 6P, "Interview with Muhidin Salad Omar aka 'Gurdan' ” with Hr'g Test, of Mr. Omar (May 10, 2013). In the same vein, the defense offered co-defendant Ali's interview report as support for the claim that Salad was slower than the other pirates on the mission because he could not operate the GPS unit he brought to the Quest, nor could he help fix mechanical problems on their boat. See Def. Ex. 6P, "Interview with Mohamud Salad Ali.” However, when questioned at the hearing, Mr. Omar admitted that he also was ignorant of how to use the GPS unit, nor could he assist in boat repairs; thus, it is unremarkable that Salad possessed these same limitations. Mr. Ali’s testimony also contradicted statements in his interview report with respect to whether he had awareness of how soldiers are promoted within the militia. His interview report states that "[o]ne could get promoted quite easily if you could adapt to learning new things;” however, at the hearing, Mr. Ali stated he was unfamiliar with the Darawish and had no knowledge of requirements for promotion. Compare id. with Hr'g Test, of Mr. Ali (May 10, 2013). Such inconsistencies permeated the co-defendants’ testimony at the hearing, and cast further doubt on the reliability of the interview reports. See supra Part V.B.i.
. With respect to the fact that Dr. Patton highlighted, in his second report, the incident when Salad was a young teenager living in Qardho and accidentally fired an AK-47, he uses this as an illustration that the Defendant “did not display safe behavior” and stаtes it is "reflective of and consistent with someone who shows poor insight and judgment.” Patton Letter Report at 4. Although this may be the case, it is not dispositive or convincing to the court when viewed in light of numerous contradictory statements. See Def. Ex. 6P, "Second Interview of Hawa Muse Salad” at 2 ("Ahmed did not have any problem with ... his safety[.]”); id., "Second Interview of Abdirisaq Said Bare (Madoobe Bakayle)” at 1 ("Ahmed did his best to look after his safety even though sometimes we saw him forget to unload his gun so we reminded him, but this was not very frequent that this happened.”); id., "Interview of Nasro Abdi Mohamed” at 2 ("[Ahmed] was safe in traffic”). The accidental firing of the AK-47 may be merely an isolated instance of irresponsible behavior, and, even given the challenges of this case, the court is mindful of the AAIDD Manual's admonition against drawing conclusions from such events. See AAIDD Manual at 48.
. Presumably hundreds of Somali soldiers are similarly situated to the Defendant.
. The description of Salad’s time in the Presidential Guard included in the narrative background created by the defense team weighs against this assumption: “In August 2007, [Ahmed] was part of the presidential guard that accompanied President Adde Muse by plane to Mogadishu for a meeting with the Somali President Abdulahi Yusuf. Ahmed said the pay for the presidential guard was higher than the regular [militia]____This trip was the first and only time Ahmed traveled outside of Puntland. He had never been on an airplane before and thought Mogadishu was a beautiful city.” Gov’t Ex. S at 12. The court is dubious that an intellectually disabled guard would accompany the President of Puntland on a diplomatic mission to another region.