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June 19, 2018

"Whether the Bright-line Cut-off Rule and the Adversarial Expert Explanation of Adaptive Functioning Exacerbates Capital Juror Comprehension of the Intellectual Disability"

The title of this post is the title of this new paper on SSRN authored by Leona Deborah Jochnowitz.  Here is its abstract:

This paper examines a sample of Capital Jury Project (CJP 1) cases with available trial transcripts in which jurors were presented with mitigating intellectual disability evidence and may have been confused by issues of proof, definitions, and extralegal factors.  It tests the hypothesis that jurors’ receptivity to mitigating intellectual disability (ID) was limited by their difficulties with the adversarial mental proof and clinical definitions needed to establish it.  Further the juror decision-making may have been obscured by distractions from extralegal factors, unrelated to the evidence like premature decision-making and heuristic shortcuts, pro-death bias, and racial prejudice.  It also examines whether the bright line cut-off rule, followed in some sample states prior to the Supreme Court decision in Hall v. Florida (2014), exacerbated jurors’ understanding of the disability, and encouraged popular stereotypes and misconceptions about intellectual disability.

In Kentucky, a state with the bright line cut-off rule, at the time these cases were decided, jurors were confused about a range of IQ scores and intellectual declines during developmental years. “IQ was perhaps not above what we consider a moron? I think they were contending that he had an IQ of 70 or 76 or so, had been tested as high as the 80s I recall.” (CJP KY death case #531, juror #725).  Even in non-bright line sample States like South Carolina, with no ID exemption at the time, jurors misunderstood the range of numerical IQ evidence. The study concludes that juror assessment of intellectual disability (ID) is variable.  Some jurors view ID as a more “organic” sympathetic disorder than other mental disorders, and they seem to understand it in practical, lay terms.  Yet, capital juror decision making is marred by extra-legal factors that impair consideration of the mitigating evidence.

The study concludes that juror misunderstanding regarding mitigating evidence has stubbornly persisted throughout the history of the Capital Jury Project and arises from shortcomings in human cognition which impede jurors’ moral consideration of intellectual disability evidence.  In light of these flaws, it may be impossible to avoid the unacceptable risk that persons with intellectual disability will be executed.  This study suggests that mildly intellectually disabled persons were indeed executed because jurors misunderstood the ID evidence and were persuaded by extralegal racial biases and premature decision making.

June 19, 2018 at 11:08 AM | Permalink



(if you click that link and still don't understand, click this one)


Posted by: Daniel | Jun 19, 2018 12:45:02 PM

More lawyer quackery. These are tests of education being misapplied for the purpose of determining culpability. Quackery should be an impeachable offense for all the Justices of the Supreme Court, being a fraud.

Atkins had a lucrative business running drugs at age 9. He lured and shot a competitor. These abilities are just beyond those of the Justices of Supreme Court. They are to stupid to match the high level of skill of Atkins. He did not attend school because each day in school would have cost him $hundreds in lost earning in the lucrative drug dealer business. He was brighter than all the Justices on the Supreme Court. They are all extremely stupid people, who cannot read the plain high school level English of the constitution. Atkins fell behind in book learning, and scored poorly on a test of education attainment and ability to do school work.

Posted by: David Behar | Jun 19, 2018 11:47:05 PM

To misquote Shakespeare, is the problem in our stars or in ourselves.

My own experience with mental health experts at trial is that many of them are unable to explain their conclusions to the jury or, to in any halfway concise manner, to link their test results and the real world acts of their clients to their conclusions. A direct exam that should take no more than 20-30 minutes often takes over two hours as the expert wants to discuss (or the lawyer wants them to discuss) in detail everything that went into their opinions.

Similarly, when legislators, lawyers, and judges try to define what makes a person too mentally ill to be executed, they typically end up writing very complicated statutes and instructions that confuse the issue that the jury is to decide,

Given that the law on mental health issues is not as clear cut as the folks who have pushed this issue wish it were, and that they and their experts simply refuse to talk to jurors in plain English, it should not be a surprise that juries aren't buying the defense evidence in these cases.

Posted by: tmm | Jun 20, 2018 2:30:04 PM

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