REBECCA BEACH SMITH, Chief Judge.
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
On February 1, 2013, Salad filed a Notice of Atkins Filing,
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, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), later articulated the constitutional dimension to this prohibition, holding that execution of intellectually disabled defendants violates the Eighth Amendment's prohibition on "cruel and unusual punishments." Id. at 311, 122 S.Ct. 2242. Both Atkins and the FDPA, however, are silent on matters of procedure and substance; they provide neither the protocols for conducting an inquiry into, intellectual disability, nor a substantive, bright-line test. Thus, the legal principles in federal death penalty cases have developed, in common-law fashion, in various district courts.
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, 689 F.3d 1148, 1166 (10th Cir.2012); United States v. Wilson, 922 F.Supp.2d 334, 342-43 (E.D.N.Y.2013) (collecting and citing numerous federal cases holding same). Additionally, the finding of intellectual disability is a legal conclusion, but the underlying findings are factual issues. See Walker v. Kelly, 593 F.3d 319, 322-23 (4th Cir.2010) (construing Virginia law).
The substantive standards for determining intellectual disability are grounded in the "clinical definitions of mental retardation." Atkins, 536 U.S. at 318, 122 S.Ct. 2242. The clinical definitions, however, are not "constitutional command[s]." United States v. Candelario-Santana, 916 F.Supp.2d 191, 194-95 (D.P.R.2013) (citing Hooks, 689 F.3d at 1172). The clinical standards for measuring intellectual disability are derived from two primary sources: the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision ("DSM-IV-TR"),
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, 555 F.3d 1346, 1353 (11th Cir.2009) (citing Smith v. State, No. 1060427, ___ So.2d ___, ___, 2007 WL 1519869, at *8 (Ala. May 25, 2007)); see also United States v. Hardy, 762 F.Supp.2d 849, 881 (E.D.La.2010) (holding that the court must determine whether the defendant was intellectually disabled "at the time of the crime"). Thus, to assess the Defendant's claim of intellectual disability, the court must evaluate evidence of intellectual functioning and adaptive skills, both before and after age eighteen. See id.; see also Wilson, 922 F.Supp.2d at 342-43.
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 twentynine 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.
As noted above, the court is guided in its substantive analysis by the clinical standards for intellectual disability. See Atkins, 536 U.S. at 318, 122 S.Ct. 2242. Although those standards do not represent "a constitutional command," Hooks v. Workman, 689 F.3d 1148, 1172 (10th Cir. 2012), the court frames its analysis of the evidence in terms of those clinical standards. To prevail on the first prong of an intellectual disability claim, a defendant must prove, by a preponderance of the evidence, that he displays "significantly subaverage intellectual functioning," generally measured by IQ scores. See, e.g., Wilson, 922 F.Supp.2d at 343.
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
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, 922 F.Supp.2d at 344. Properly normed IQ test instruments are normalized and scaled to a mean of 100.
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.
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, 419 F.Supp.2d 891, 898 (E.D.La.2006). The higher scores on the second test might reflect a subject's familiarity with the testing instrument, not necessarily his or her true ability. As discussed infra at Part IV. D, neither party advocated application of the practice effect in evaluating the Defendant's scores, and the court does not deem its consideration appropriate here. With these statistical and legal principles in mind, the court next examines the record of testing and the evidence adduced at the hearing.
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 received
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.,
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 TON4. 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 unpersuasive. 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-4.
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.
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.
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 significant deficits in this area.
"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 1.
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, 611 F.Supp.2d 472, 491 (D.Md.2009) (describing prong two analysis as "amorphous"). Thus, an evaluation of adaptive functioning "involves significantly more subjective clinical judgment." United States v. Hardy, 762 F.Supp.2d 849, 883 (E.D.La.2010); see also AAIDD Manual at 29 (defining "clinical judgment" as "a special type of judgment rooted in a high level of clinical expertise and experience ... to enhance the quality, validity, and precision of the clinician's decision").
The AAIDD Manual provides 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, 762 F.Supp.2d at 881 (noting that, in the context of an Atkins claims, the analysis is always retrospective). Second, in the absence of standardized measurements, analysts should examine multiple sources of information for "convergence"; exercise "reasonable caution" in resolving conflicting reports; and avoid drawing conclusions from isolated performances. AAIDD Manual at 48. That is, an evaluation should not rely primarily on an individual's self-report of his skill level, but rather should rely on information gathered from third parties who are "very familiar with the person and have known him/her for some time and have had the opportunity to observe the person function across community settings and times." Id. at 47. Third, the analysis should focus on average ability, not peak functioning. Id. (describing this broader focus as a "critical distinction" between prongs one and two). And finally, clinicians should be mindful that subjects with mild intellectual disability present a complex picture of strengths and weaknesses, and analysts should not evaluate a subject's performance based on inaccurate stereotypes of disabled individuals. See id. at 7 ("[L]imitations often coexist with strengths.").
There exist no standardized instruments 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 regarding 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.,
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.ii., 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.
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:
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.
Practical adaptive functioning includes, inter alia, skills related to daily living, personal care, occupational skills, and safety. The shortcomings Dr. Patton identified
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 relationship
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 he 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 Atkins
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 codefendants 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, 593 F.3d 319, 334 (4th Cir.2010) (Gregory, J. dissenting). However, Salad's post-arrest behavior is not necessarily inconsistent with that of an individual without significant adaptive skills deficits. Thus, this evidence does not conclusively weigh for or against a finding of intellectual disability.
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, 611 F.Supp.2d 472, 494-95 (D.Md.2009); Def. Exs. 6M, 6R. In short, the United States overplays the case with respect to this evidence garnered while Salad has been incarcerated, and the court affords it little weight. Nevertheless, Dr. Patterson opined, and the court agrees, that none of Salad's behavior after arrest and while incarcerated affirmatively supports or indicates significant adaptive skills deficits.
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 appear 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.
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, 916 F.Supp.2d 191, 219-21 (D.P.R. 2013).
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
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.
