ENTRY ON INTELLECTUAL DISABILITY
WILLIAM T. LAWRENCE, Senior District Judge.
This cause is before the Court to determine whether Bruce Webster is entitled to relief under 28 U.S.C. § 2241. For the Court to grant the relief that Webster seeks, Webster must show by a preponderance of the evidence that he is intellectually disabled1 and thus categorically ineligible for the death penalty. The parties have fully briefed the relevant issues and presented evidence at a hearing. The Court, being duly advised, finds that Webster has satisfied his burden of proving his intellectual disability by a preponderance of the evidence and is thus ineligible for the death penalty.
I. BACKGROUND
On November 4, 1994, Bruce Webster was indicted in the United States District Court for the Northern District of Texas on six counts, including kidnapping in which a death occurred in violation of 18 U.S.C. §§ 1201(a)(1) and (2). Webster was convicted and was sentenced to death on June 20, 1996. United States v. Webster, 162 F.3d 308 (5th Cir. 1998).
Webster filed his initial Motion to Vacate Conviction and Sentence under 28 U.S.C. § 2255 on September 29, 2000. This motion was subsequently amended and was denied in full on September 20, 2003. Webster v. United States, No. 4:00-CV-1646, 2003 WL 23109787 (N.D. Tex. Sept. 30, 2003). The Fifth Circuit rejected Webster's motion for relief under section 2255, United States v. Webster, 421 F.3d 308 (5th Cir. 2005), and his application for an order authorizing a successive § 2255 proceeding, In re Webster, 605 F.3d 256 (5th Cir. 2010).
On April 6, 2012, Webster filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 in this Court,2 challenging his death sentence based on what he argued was previously unavailable evidence—specifically, evidence from Social Security records—that establishes he is intellectually disabled and therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002) and Hall v. Florida, 572 U.S. 701 (2014). On November 13, 2013, this Court issued an order denying that petition. The Seventh Circuit affirmed this Court's ruling on August 1, 2014. Webster v. Caraway, 761 F.3d 764 (7th Cir. 2014). However, en banc review was granted, and the en banc court reversed this Court's decision and remanded for further proceedings. Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc). This Court held a hearing in June 2018 pursuant to the Seventh's Circuit directive and found that the Social Security records at issue were unavailable to Webster and his counsel at the time of trial despite trial counsel's due diligence.
The Seventh Circuit provided the following summary of the Social Security records' contents:
The newly produced records, which Webster's current lawyers received on February 9, 2009, showed that Webster applied for Social Security benefits based on a sinus condition when he was 20 years old, approximately a year before the crime. The agency's attention was evidently quickly redirected to Webster's mental capacity. Two psychologists and one physician examined him. On December 22, 1993, Dr. Charles Spellman, a psychologist, evaluated him for the purpose of ascertaining his eligibility for Social Security benefits. He noted that "[i]deation was sparse and this appeared to be more of a function of his lower cognitive ability than of any mental illness." Dr. Spellman also observed that Webster's intellectual functioning was quite limited: he could not register three objects (meaning that he could not remember three objects a short time after they were shown to him); he could not do simple calculations; and he did not know what common sayings meant. With respect to adaptive functioning, Dr. Spellman stated that Webster lived with his mother; that he watched television, listened to the radio, and went walking; that he did no chores around the house; and that he was idle both in the house and on the streets. Taking into account both his estimate that Webster's I.Q. was 69 or lower and his assessment of adaptive functioning, Dr. Spellman concluded that Webster was mentally retarded and antisocial. He found no evidence of exaggeration or malingering.
A few months earlier, in October 1993, Dr. Edward Hackett conducted a full-scale WAIS I.Q. test on Webster. He came up with a verbal I.Q. of 71, a performance I.Q. of 49, and a full-scale I.Q. of 59. He evaluated Webster as "mildly retarded, but . . . also antisocial." Pertinent to the central question of adaptive functioning, Dr. Hackett noted in a later report that "[Webster] was viewed as a somewhat mild[ly] retarded con man, but very street wise. . . . [H]e could not be functional in a community setting. . . . He would also not function well in the work place." Dr. Hackett did not believe that Webster was capable of managing his own benefits. He found Webster's behavior somewhat bizarre. Finally, he commented that on the I.Q. tests, Webster's performance was estimated to be lower than his verbal score, and that some organic function might be involved.
The last professional to examine Webster in conjunction with the 1993 Social Security application was Dr. C.M. Rittelmeyer, a physician. Dr. Rittelmeyer found Webster's physical health to be fine, but he also had this to say: "Mental retardation. Flat feet. Chronic sinus problems and allergies by history."
The Social Security records included an intriguing letter that strongly suggested that Webster in fact had been in special education classes. It was dated November 8, 1993, and had been written by Lou Jackson, the Special Education Supervisor for the school system Webster had attended, Watson Chapel Schools. Jackson's letter explained that Webster's special education records had been destroyed in 1988, after the family did not respond to a letter "telling them they could have the records if they wanted them."
The Social Security records also provide some direct evidence about Webster's abilities. The form Webster completed, for example, is rife with errors in syntax, spelling, punctuation, grammar, and thought. In response to a question asking him to describe his pain or other symptoms, Webster wrote "it causEs mE to gEt up sEt Easily hEadhurtsdiffiErnt of brEdth." When asked about the side effects of his medication, he wrote "Is lEEp bEttEr." When asked about his usual daily activities, Webster wrote (consistently with the comments from his teacher and employer) "I slEEps look at. cartoon." He reported that he "ain't got no chang" in his condition since its onset.
Webster, 784 F.3d at 1133-34.
The undersigned held a five-day hearing in April 2019 on the issue of whether Webster is intellectually disabled and thus constitutionally ineligible for the death penalty. The Court heard live testimony from the following witnesses: Dr. Mark Tassé; Dr. Daniel J. Reschly; Dr. John Fabian; Dr. Robert Denney; Dr. Erin Conner; John S. Edwards, III; and Phil Woolston. The Court also received the deposition testimony of Dr. Charles Spellman (video and transcript); Dr. Jacqueline Blessinger (transcript); and Larry Moore (video and transcript). Each party also introduced numerous exhibits.3
II. DIAGNOSTIC CRITERIA FOR INTELLECTUAL DISABILITY
In determining whether Webster is intellectually disabled, the Court will rely on the clinical definitions of intellectual disability promulgated by the American Association on Intellectual and Developmental Disabilities ("AAIDD") and the American Psychiatric Association ("APA") manuals: (1) AAIDD, Intellectual Disability: Definition, Classification, and Systems of Supports (11th ed. 2010) ("AAIDD-11"); and (2) APA, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) ("DSM-5"). See Moore v. Texas, 137 S.Ct. 1039, 1045 (2017) (relying on AAIDD-11 and DSM-5).
As the Supreme Court has explained,
the generally accepted, uncontroversial intellectual-disability diagnostic definition. . . identifies three core elements: (1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean— i.e., a score of roughly 70—adjusted for the standard error of measurement); (2) adaptive deficits (the inability to learn basic skills and adjust behavior to changing circumstances); and (3) the onset of these deficits while still a minor.
Moore, 137 S. Ct. at 1045. Each of these three prongs must be met for a person to be intellectually disabled.4
The APA defines intellectual disability as "a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains." DSM-5 at 33. The following three criteria must be met before an individual may receive a diagnosis of intellectual disability:
A. Deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized intelligence testing.
B. Deficits in adaptive functioning that result in failure to meet developmental and sociocultural standards for personal independence and social responsibility. Without ongoing support, the adaptive deficits limit functioning in one or more activities of daily life, such as communication, social participation, and independent living, across multiple environments, such as home, school, work, and community.
C. Onset of intellectual and adaptive deficits during the developmental period.
Id.
The AAIDD provides a similar explanation, stating that intellectual disability is "characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18." AAIDD-11 at 6. Deficits in intellectual functioning are established by "an IQ score that is approximately two standard deviations below the mean, considering the standard error of measurement for the specific assessment instruments used and the instruments' strengths and limitations." Id. at 27. Deficits in adaptive functioning are measured by:
performance on a standardized measure of adaptive behavior that is normed on the general population including people with and without [intellectual disability] that is approximately two standard deviations below the mean of either (a) one of the following three types of adaptive behavior: conceptual, social, and practical or (b) an overall score on a standardized measure of conceptual, social, and practical skills.
Id.
A. Intellectual Functioning
The first prong requires an assessment of an individual's intellectual functions that "involve reasoning, problem solving, planning, abstract thinking, judgment, learning from instruction and experience, and practical understanding." DSM-5 at 37. Intellectual functioning is typically measured by intelligence quotient (IQ) tests. Id. The APA describes this prong, in relevant part, as follows:
Intellectual functioning is typically measured with individually administered and psychometrically valid, comprehensive, culturally appropriate, psychometrically sound tests of intelligence. Individuals with intellectual disability have scores of approximately two standard deviations or more below the population mean, including a margin for measurement error (generally +5 points). On tests with a standard deviation of 15 and a mean of 100, this involves a score of 65-75 (70 ± 5). Clinical training and judgment are required to interpret test results and assess intellectual performance.
DSM-5 at 37. The AAIDD Manual provides:
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 used and the instruments' strengths and limitations.
AAIDD-11 at 31.
B. Adaptive Functioning
The second prong involves an assessment of an individual's adaptive functioning to determine whether "adaptive deficits limit functioning in one or more activities of daily life, such as communication, social participation, and independent living, across multiple environments, such as home, school, work, and community." DSM-5 at 33. The APA indicates that adaptive functioning involves adaptive reasoning in three broad domains:
The conceptual (academic) domain involves competence in memory, language, reading, writing, math reasoning, acquisition of practical knowledge, problem solving, and judgment in novel situations, among others. The social domain involves awareness of others' thoughts, feelings, and experiences; empathy; interpersonal communication skills; friendship abilities; and social judgment, among others. The practical domain involves learning and self-management across life settings, including personal care, job responsibilities, money management, recreation, self-management of behavior, and school and work task organization, among others.
DSM-5 at 37-38.
A person's adaptive functioning in at least one of these three domains must be "sufficiently impaired that ongoing support is needed in order for the person to perform adequately in one or more life settings at school, at work, at home, or in the community." Id. at 38; Moore, 137 S. Ct. at 1046 ("In determining the significance of adaptive deficits, clinicians look to whether an individual's adaptive performance falls two or more standard deviations below the mean in any of the three adaptive skill sets (conceptual, social, and practical)."). The AAIDD defines the second prong as "significant limitations . . . in conceptual, social, and practical skills." AAIDD-11 at 43. Further, "the deficits in adaptive functioning must be directly related to the intellectual impairments described in [the first prong]." DSM-5 at 38.
Both the DSM-5 and the AAIDD-11 direct clinicians to use standardized measures of adaptive functioning when possible. See DSM-5 at 37 ("Adaptive functioning is assessed using both clinical evaluation and individualized, culturally appropriate, psychometrically sound measures."); AAIDD-11 at 43 ("[S]ignificant limitations in adaptive behavior should be established through the use of standardized measures normed on the general population . . . .").
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court will address Webster's intellectual functioning and adaptive functioning in turn.
A. Webster's Intellectual Functioning
The Court finds that Webster has proved by a preponderance of the evidence that he has significant limitations in intellectual functioning and thus satisfies the first prong of the intellectual disability definition. He has produced reliable evidence that he has an IQ at least two standard deviations below the mean.5
Webster has produced the following IQ test scores:
Psychologist Year Score
Dr. Patrick Caffey (Arkansas 1992 48 (Full scale)
Department of Mental Health) 56 (Verbal)
48 (Performance)
Dr. Edward Hackett (Social Security 1993 59 (Full scale)
Administration) 71 (Verbal)
49 (Performance)
Dr. Raymond Finn (Defense trial 1995 59 (Full scale)
expert) 59 (Verbal)
60 (Performance)
Dr. Dennis Keyes (Defense trial 1995 55 (Composite)
expert) 67 (Crystalized)
46 (Fluid)
Dr. Raymond Finn (Defense trial 1996 65 (Full scale)
expert) 72 (Verbal)
59 (Performance)
Dr. Dennis Keyes (Defense trial 1996 51 (Full scale)
expert) N/A (Verbal)
N/A (Performance)
Dr. George Parker (Government trial 1996 72 (Full scale)
expert) 77 (Verbal)
67 (Performance)
Dr. Robert Denney (Government 2018 61 (Full scale)
expert) 63 (Verbal)
69 (Performance)
Dr. Daniel Reschly (Webster expert) 2018 53 (Full scale)
N/A (Verbal)
N/A (Performance)
Additionally, as noted above, as part of the Social Security process in 1993, Dr. Spellman estimated that Webster's IQ was 69 or lower, and Dr. Rittelmeyer commented that Webster was mentally retarded.
All of Webster's full-scale IQ tests fall below 75. The parties agree that some of the tests are invalid and should not be considered.6 Eliminating those scores, the remaining scores are as follows: 59, 59, 65, 51, 55, 61, and 53.7 Thus, if these scores are valid, they demonstrate that Webster satisfies the intellectual deficit prong of intellectual disability.
The scores themselves were obtained over a period of twenty-five years and consistently demonstrate that Webster has an IQ that falls within the range of someone with intellectual deficits. In reaching this conclusion, the Court finds that the evidence does not support a finding of malingering8 such that the tests are invalid. The Court relies on the testimony of Dr. Fabian, who is board certified in forensic psychology and clinical psychology and fellowship trained in neuropsychology.9 Specifically, Dr. Fabian explained that the effort testing10 showed, at most, that Webster at times had variable effort.11 He also distinguished malingering from poor effort and pointed to Webster's "base foundation of complex trauma" and the atypical testing conditions. Dkt. No. 192 at 145. Dr. Fabian also testified that low IQ creates a risk of false positives for poor effort on effort tests and that Webster passed most of the Reliable Digit Span tests and other later effort tests. The Court credits Dr. Fabian's testimony that, considering all of these factors, Webster was not malingering.12
Further, the Court credits the testimony of Dr. Reschly, a school psychologist who is currently a professor emeritus of Education and Psychology at Vanderbilt University, that it would be "extremely difficult" to consistently fake IQ scores in that range over the course of twenty-seven years.13 Dkt. No. 189 at 173. The Court also credits the testimony of Dr. Reschly that it would be "extremely unusual" for a person to have the same performance across multiple subtests; rather, what happens frequently "is that there are fairly wide variations across different subtests." Dkt. No. 189 at 178.14 The Court also credits the testimony of Dr. Fabian that Webster's IQ scores were consistent and indicated mild intellectual disability. Dr. Fabian's own testing to assess Webster's general reasoning ability was also consistent with the IQ testing that Drs. Denney and Reschly conducted.
Looking first at the tests that were performed before the crime, the weight of the evidence supports a finding that Webster was not motivated to underperform on the testing performed as part of his application for Social Security.15 In the form Webster filled out, he described his symptoms as follows:
Hrg. Ex. 21 at 63.16 In additional Social Security documents, Webster also referred to sinus symptoms as the basis for his disability claim.
Further, Dr. Charles Spellman,17 a psychologist who conducted a mental status evaluation of Webster at the request of the Social Security Administration in 1993 and who found that Webster's total presentation was of someone who was mentally retarded, with an IQ of 69 or lower, testified that he is "always hyper vigilant for malingering" Dkt. No. 164-1 at 31, yet he found no evidence of exaggeration or malingering.18
With regard to the testing that was performed after the crime and before Webster's trial, the testimony of Larry Moore, Webster's trial attorney, which the Court finds to be credible, established that Webster did not know the purpose of the testing that was conducted between the time of the crime and Webster's trial and that Moore told Webster to do his best because the better Webster did, the more it would help him. Moreover, Moore testified that he purposely avoided telling Webster that he planned to argue that Webster was mentally retarded until right before jury selection because he knew that Webster did not like the term and "didn't want to be stigmatized as being retarded." Dkt. No. 164-2 at 25. Accordingly, the Court finds that Webster has presented convincing evidence that he was not motivated to malinger on the IQ tests given in 1995 and 1996 and that the results of those tests are valid.
The Court finds that Webster has shown by a preponderance of the evidence that his IQ scores were valid, and, after considering the evidence as a whole, the Court finds that Webster has shown by a preponderance of the evidence that he has deficits in intellectual functioning.19
B. Webster's Adaptive Functioning
The Court finds that Webster also has proved by a preponderance of the evidence that he has significant limitations in adaptive functioning and thus satisfies the second prong of the intellectual disability definition.
The Court gives great weight to the testimony of Dr. Fabian that Webster has significant deficits in adaptive behavior. Dr. Fabian administered a series of tests to Webster and considered adaptive functioning assessments administered by other psychologists. Dr. Fabian also spent a great deal of time interviewing Webster and reviewed numerous records, including Webster's school records and the Social Security records. Additionally, Dr. Fabian's explanation of why he gave weight to some evidence while giving little weight to other evidence was especially persuasive. In particular, the Court found Dr. Fabian's explanation of why he gave little weight to Webster's adaptive functioning in prison to be very convincing. Dr. Fabian explained that a prison environment is very structured, and everything is available to an inmate.
The Court also credits the testimony of Dr. Reschly that Webster meets the second prong. Dr. Reschly considered a wide variety of information in reaching his decision, and he interviewed many people who knew Webster during the developmental period, including people who are not his direct relatives. Dr. Reschly also considered standardized adaptive behavior assessments, and the Court finds his explanation of why the more recent adaptive behavior assessments should be viewed with caution to be persuasive. Dr. Reschly explained that someone with an intellectual disability does not likely function in the "predictable, very rigid structure" of prison the same way that person would function outside of that environment. Dkt. No. 190 at 43. The Court also credits the testimony of Dr. Reschly that Webster has deficits in the conceptual, social, and practical domains.
In reaching this conclusion, the Court also has looked to the Social Security records that were not available to Webster at the time of his trial. As the Seventh Circuit pointed out, the application materials revealed that Webster was barely literate.20 For example, for information about his job duties, Webster listed his job title as "Cement" and provided the following description:
I really did not what I was doing I had help from the other worker that work with me. I help spread the cement out.
Hrg. Ex. 21 at 66. He listed this same job on four separate pages, although the instructions indicated that the applicant should provide the information for each job he had listed, and Webster had listed only one job.
Webster's answers to the section on Recreational Activities and Hobbies also supports the conclusion that Webster was barely literate:
Hrg. Ex. 21 at 19.
The Government has pointed to evidence that Webster does exhibit areas of strength, including, but not limited to, his musical ability, excellent hygiene, ability to drive, achievement test scores, and ability to engage in conversation.21 The Government also has argued that the facts of the crime demonstrate that Webster does not have deficits in adaptive functioning.22 However, in accordance with guidance from the medical community and as instructed by the Supreme Court, the Court has focused its adaptive-functioning inquiry on adaptive deficits. See Moore I, 137 S. Ct. at 1050 (citing AAIDD-11, at 47 ("significant limitations in conceptual, social, or practical adaptive skills [are] not outweighed by the potential strengths in some adaptive skills"); DSM-5, at 33, 38 (inquiry should focus on "[d]eficits in adaptive functioning"; deficits in only one of the three adaptive-skills domains suffice to show adaptive deficits); see Brumfield [v. Cain, 135 S.Ct. 2269, 2281 (2015)] ("[I]ntellectually disabled persons may have `strengths in social or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation.'" (quoting AAMR, Mental Retardation: Definition, Classification, and Systems of Supports 8 (10th ed. 2002))).
Over Webster's objections, the Court has considered evidence about Webster's behavior, education, work, and mental health in prison, including all of the Bureau of Prisons records23 introduced by the Government and the testimony of Dr. Jacqueline Blessinger; John S. Edwards, III; and Phil Woolston.24 The Court also considered much of the testimony of Dr. Erin Conner.25 The Court gives little weight to this evidence, relying on Dr. Fabian's cautions as to the use of such evidence. See also Moore I, 137 S. Ct. at 1050 ("Clinicians, however, caution against reliance on adaptive strengths developed `in a controlled setting,' as a prison surely is. DSM-5, at 38 (`Adaptive functioning may be difficult to assess in a controlled setting (e.g., prisons, detention centers); if possible, corroborative information reflecting functioning outside those settings should be obtained.'); see AAIDD-11 User's Guide 20 (counseling against reliance on `behavior in jail or prison'").). Additionally, the Court would give little weight to the testimony of Drs. Conner and Blessinger even had their interactions with Webster not taken place in a prison setting. Neither the quantity nor depth of their interactions with Webster would lead the Court to find their testimony to be more persuasive than that of Drs. Fabian and Reschly. The Court did consider Edwards' testimony as to his conversations with Webster, observations of Webster's behavior and performance as an orderly, and emails that he received that he believed to be from Webster but finds that this testimony is outweighed by other evidence discussed above.
Weighing the evidence as whole, the Court finds that Webster does have deficits in his adaptive functioning.26 Further, the Court finds that the evidence supports a finding that Webster's deficits are related to intellectual functioning.27 In making this decision, the Court has considered, over Webster's objection, evidence of Webster's other psychological conditions.28 Therefore, the Court finds that Webster has shown by a preponderance of the evidence that he has significant deficits in adaptive functioning and as such satisfies the second prong of intellectual disability.
IV. CONCLUSION
The Court finds that Webster has met his burden and shown by a preponderance of the evidence that he is intellectually disabled, as he meets all three prongs of intellectual disability: 1) Webster has intellectual-functioning deficits; 2) Webster has adaptive deficits; and 3) the onset of these deficits was while Webster was a minor. In making this ruling, the Court has carefully considered the totality of the evidence and weighed the testimony in accordance with its credibility assessment of each witness.
Accordingly, Webster's petition for a writ of habeas corpus is GRANTED. Webster's death sentence is vacated under 28 U.S.C. § 2241. The Attorney General has 120 days from the Entry of Final Judgment to take appropriate action in light of the writ. Further sentencing proceedings shall occur in the Northern District of Texas.
SO ORDERED.
