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Faking Retardation


Federal prosecutors allege that Pete Costello faked retardation for nearly 20 years, since the age of 8, in order to defraud the government of disability benefits, according to this AP story. The fraud was discovered when the man who supposedly can't drive represented himself in court to contest a traffic ticket, and apparently did pretty well.

Somewhat similarly, LaRoyce Smith, whose case is presently before the Supreme Court, took the stand at his capital murder trial and held his own against the prosecutor on cross-examination. His lawyers claim he has an IQ of 78, which is not retarded but slow enough to be mitigating, if believed.


"One need only read the definitions of mental retardation adopted by the American Association on Mental Retardation and the American Psychiatric Association (set forth in the Court's opinion, ante, at 2245, n. 3) to realize that the symptoms of this condition can readily be feigned." Atkins v. Virginia, 536 U.S. 304, 353 (2002) (Scalia, J. dis.).

It would be interesting to take a look at death row inmates who have gotten off the row on account of their alleged retardation. Dollars to donuts says that some of them have miraculously gotten smarter after getting off the row.

Query: if proof of fraud arises in one of these cases, could the state get the judgment undone through a Rule 60 motion.

The IQ tests we have are pretty good (of course, MR requires an IQ of below 70 AND adaptive functioning impairment). The problem lies in their administration. Poorly trained clinicians or administration of the IQ tests multiple times are lead to error. Additionally, few clinicians concomitantly administer the various tests that can detect malingering of cognitive functioning. The tendency, I think, is for clinicians (especially non-forensically trained ones) to err on the conservative side in scoring IQ tests, which means IQ scores tend to underestimate true IQ.

Steve, how's this for a real life example?

Several years before he raped and murdered his six year old stepdaughter, Ohio death row inmate Fred Mundt had for a period of time been receiving Social Security benefits, on account of supposed mental retardation.

In a post-Atkins pre-trial hearing to determine whether Mundt was death-eligible, his brother testified of the family consternation when Mundt was initially denied benefits. They decided that Mundt had been too cooperative, and insufficiently ignorant, during his evaluation by the psychologist. When evaluation number two came up a couple of years later, Mundt made a point of throwing a tantrum, and pretending to not know the relationship between a sock and a shoe. This time, Mundt received his benefits.

Later, Social Security wised up, and Mundt was taken off benefits. Mundt had to get a real job, first working at McDonalds, then at a warehouse, and eventually passing a test to become a certified nurse's aide.

The defense attorneys had forgotten to give their psychologist Mundt's subsequent work records, so their psychologist had rendered an expert opinion that Mundt was retarded, corroborated with Mundt's fresh IQ score of 52, in conjunction with Mundt drooling during the IQ test. The psychologist was chagrinned on cross-examination to see Mundt's subsequent work records the defense attorneys had forgotten to give him, and was unable to reconcile a 52 IQ with Mundt's earlier ability to pass a standardized test to be certified as a nurse's aide. Mundt's brother reluctantly testified about the testing scam, where the brother had been caught destroying evidence at Mundt's urging, all recorded with digital clarity over a monitored county jail phone line.

This scam was busted before Mundt was able to beat death-eligibility with a court decision that he was retarded. Were any adverse consequences visited upon the many scam-meisters? Of course not, which suggests why scamming can be a viable option for those so inclined in the anti-death penalty crowd.

Undoing a completed scam with a state-side 60(B) motion seems a far-fetched dream, where those caught scamming before judgment suffer no adverse consequences.

The brother should have spent a lot of time in jail for that stunt.


In addition to deliberate faking, isn't it also true that one can get a falsely low score on an IQ test simply by not trying hard? Many of the people who end up in criminal court years later had "attitude problems" as kids, and it would not be surprising at all if they failed to put out full effort in a test given by a school psychologist on which they had no tangible incentive to do well.

A good psychologist can determine if someone is not putting forth his best effort by judiciously scoring the various subtests of the IQ measure, observing the examinee’s behavior, and most importantly, when malingering is suspected – administering assessment tools specifically designed to detect cognitive malingering. But above all, there is no substitution for doing a thorough background investigation (but Clark v. AZ and People v. Goldstein argue against this in differing respects). People who are MR usually have a long documented history of such impairment. It’s the totality of the evidence, not an IQ score alone, that gives the most accurate picture of MR. Of course, there are always the few cases that cause the profession much embarrassment.

The "adaptive skills" component of the Atkins test receives too little attention, possibly because it's easier to yakk about an IQ test, instead of launching an investigation into the actual street activity of an Atkins candidate.

Sometimes, the Atkins candidate makes the investigation easier. Sitting on Ohio's death row for admittedly executing an innocent 16 year old girl during a drug house robbery, Michael Stallings got to feeling retarded, and had a psychologist diagnose him as such, where the diagnosis was bolstered by a ridiculously low IQ score. Michael unfortunately forgot to laser off his "OG" gangster tattoo, which is not awarded to the mentally challenged. Of course, the psychologist did a "pick and choose" for the adaptive skills test, somehow not picking up on Michael's ability to function effectively, and at a high rank, in an ultra-violent criminal enterprise.

Whether a high ranking member of an ultra-violent criminal enterprise can also be MR has yet to be decided by the District Court.

During Johnny Paul Penry's 2002 trial we put together a video for the jury juxtaposing a jailhouse interview in 1990 with one in 2001. In 1990, discussing the Supreme Court's recent reversal of his death sentence, Penry was lucid and reasonably articulate. In 2001, with a second Supreme Court argument approaching, he was interviewed on video again. This time Penry talked like a baby, misusing words and mispronouncing "r"s and "l"s as "w"s, like Elmer Fudd. He was well coached and appeared to be sginificantly impaired. Of course, when the jury saw this performance compared to the uncoached Penry of 11 years earlier, it really drove the nail home. That was his 3rd death sentence. We'll begin working on the 4th this spring.

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