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IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

No. 696 CAP

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

JAMES VAN DIVNER,

Appellant

BRIEF FOR AMICUS CURIAE THE NATIONAL ORGANIZATION ON

FETAL ALCOHOL SYNDROME (“NOFAS”)

Respectfully Submitted,

Katharine R. Boyce, Esq. Chair, Board of Directors, National Organization on Fetal Alcohol Syndrome September 29, 2014

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................... ii

INTEREST OF AMICI ................................................................................. 1

ARGUMENT ............................................................................................... 3

I. Prong Three of an Intellectual Disability Assessment. .......................... 3

II. Post-Conviction Court’s Analysis Misconstrued Prong Three. ............ 8

CONCLUSION .......................................................................................... 12

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TABLE OF AUTHORITIES

Cases

Atkins v. Virginia, 536 U.S. 304 (2002) ....................................................... 3

Commonwealth v. Van Divner, 962 A.2d 1170 (Pa. 2009) ...................... 6, 7

Hall v. Florida, --- U.S. ---, 134 S. Ct. 1986 (2014) ............................. passim

Other Authorities

American Association on Intellectual and Developmental Disability

Intellectual Disability: Definition, Classification, and Systems of Support,

11th ed. (2010) ..................................................................................... 8, 9

American Psychiatric Association Diagnostic and Statistical Manual of

Mental Disorders (2013) (DSM-5) ...................................................... 8, 10

Polloway, “The Death Penalty and Intellectual Disability: A Guide

(forthcoming). ..................................................................................... 9, 10

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INTEREST OF AMICI

Amici THE NATIONAL ORGANIZATION ON FETAL ALCOHOL

SYNDROME (“NOFAS”), operates now and has for the last twenty five (25)

years as the only 501 (c)(3) non-profit public health advocacy organization

in the United States with the mission and commitment to raise awareness

of the risks associated with alcohol consumption during pregnancy and to

support individuals and families living with Fetal Alcohol Spectrum

Disorders (“FASD”), an umbrella term describing the range of effects that

can occur in an individual whose mother drank alcohol during pregnancy.

Fetal Alcohol Syndrome (“FAS”) is the most extreme condition within

FASD. An FAS diagnosis includes growth deficiency, a constellation of

facial dysmorphology, and central nervous system dysfunction resulting in

developmental disabilities. An individual with a Partial FAS (“PFAS)

diagnosis may not present with either growth deficits or facial

abnormalities, but has central nervous system damage just as severe as an

individual with the FAS diagnosis.

NOFAS represents children and adults seeking medical, mental

health, education, rehabilitative, and other therapeutic services for the

spectrum of effects associated with prenatal alcohol exposure. FASD is

the leading known preventable cause of intellectual disabilities and

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neurobehavioral disorders in the developed world, and in the United States

alone, adversely afflicts as many as 40,000 newborns each year.

Studies demonstrate that 90% of individuals with FAS have

experienced mental health problems, 60% have been in trouble with law

enforcement, and 50% have been confined for mental health problems or

incarcerated for a crime. Accordingly, NOFAS believes that this case has

important implications for the appropriate consideration of the disability

during judicial proceedings, including sentencing (especially the death

penalty) and confinement, as well as the standards of decency for the

treatment of the developmentally disabled.

NOFAS asserts its strong institutional interest in having courts, at

every level, adopt legal standards that accept current medical community

criteria for determining intellectual disability (“ID”), including evidence of

FASD as satisfying the criterion of onset of ID during the developmental

(indeed, fetal) period.

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ARGUMENT

I. Prong Three of an Intellectual Disability Assessment.

In its recent decision in Hall v Florida, --- U.S. ---, 134 S. Ct. 1986

(2014), the Supreme Court of the United States confirmed the substantial

latitude that states have in how they determine intellectual disability (“ID”) in

proceedings pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), but also

made quite clear that states are not free to ignore the scientific and medical

professionals’ consensus within the ID field regarding: (a) the meaning of

ID and its constituent elements; and (b) the procedures to be used in

determining whether those elements are met. “The legal determination of

intellectual disability is distinct from a medical diagnosis, but it is informed

by the medical community’s diagnostic framework.” Hall at 2000.

In Hall, the focus was on the medical community’s first criterion for

defining ID—significant intellectual impairments—and whether a state could

use a “bright line” IQ cut-off such as 70, or whether (as argued by the two

main diagnostic manuals in the ID field), one should interpret scores with

some degree of flexibility, in order to take into account the various sources

of unreliability that can affect any given test score. The Hall court -- issuing

the dramatic quote, “[i]ntellectual disability is a condition, not a number,”

134 S. Ct. at 2001 -- required that the more flexible approach, supported by

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the consensus of professional organizations, must be used, and that states

cannot completely ignore this consensus of expert opinion. Id. at 2000. As

the Court put it: “In determining who qualifies as intellectually disabled, it is

proper to consult the medical community’s opinions.” Id. at 1993.

The James Van Divner case raises a similar issue as in Hall, but

focuses on the medical community’s third criterion, or prong three,

generally referred to as the “age of onset” or “developmental” criterion.

In pre-trial proceedings, the trial court decided Van Divner did not

meet the Pennsylvania standard for a diagnosis of ID, because the third

criterion, or prong three, had not been satisfied. The court’s approach was

very specific and narrow:

…documented IQ test results are the best indicator of limited intellectual capability and mental retardation. It follows logically, therefore, that IQ testing results prior to age 18 would be the best evidence to establish the existence of the defendant’s mental retardation prior to age 18. Here the defendant has failed to introduce any IQ testing results obtained prior to age 18. Therefore, the defendant has failed to offer the best evidence to establish the existence of the ‘age of onset’ prong of either [AAIDD or DSM] mental retardation definition.

Judge Solomon opinion and order, January 24, 2007, page 9 (footnote

omitted).

The court thereafter acknowledged that other sources of information,

such as “school records, social services records, and other psychological

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records [could be used] to prove that his mental retardation manifested

before age 18.” Id. at 10. See also Hall, 134 S. Ct. at 1194 (stating that the

medical community accepts medical histories, behavioral records, school

tests and reports, and testimony regarding past behavior and family

circumstances as “probative of intellectual disability….”). Yet the trial court

ruled that, while school records showed that young Van Divner had

academic problems and was placed in special education, “[t]he school

records, however, do not identify the Defendant as mentally retarded” and

“[f]urther, there is no indicia that the Defendant was placed in special

education for mental retardation.” Id. at 10-11. In other words, the court

listed certain historical documentation that could be used to establish ID,

but not here, given the absence of any reference to “mental retardation.” In

dictum, the court then speculated that Van Divner “may have been placed

in special education for a number of reasons, including poor attendance or

behavior problems” and that his “poor grades may reflect his poor

attendance rather than any mental impairments or learning disabilities.” Id.

at 11.

In a similar vein, the trial court noted that, while lay witness opinions

about adaptive behavior of the defendant before age 18 may be relevant in

Atkins proceedings, it gave no weight to such testimony in this case (which

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did not present a diagnosis but pointed to various childhood signs of

impairment), because those lay witnesses “have no special training or skill

to identify or diagnose learning disabilities or mental retardation.” Id.

On direct appeal, this Court affirmed, stating that there was no error

in the trial court’s findings that appellant’s evidence failed to establish that

the onset of his alleged mental retardation predated age eighteen (18),

echoing that “there were no IQ tests from appellant’s childhood produced;

and his school records do not establish that he was placed in special

education classes as a result of mental retardation.” Commonwealth v. Van

Divner, 962 A.2d 1170, 1186 (Pa. 2009).

The dissent recognized that the majority’s decision imposed “an

impossible standard on certain defendants for whom there is no objective

evidence originating prior to age eighteen.” Commonwealth v. Van Divner,

962 A.2d at 1191 (Baer, J., dissenting, joined by McCaffrey, J.). The

dissent concluded that the age-of-onset criterion “was never intended to be

the draconian standard established by the Majority to eliminate the benefit

of Atkins for legitimately mentally retarded individuals.” Id. at 1192.

In post-conviction proceedings, Van Divner offered additional and

new evidence to support his Atkins presentation. Van Divner presented an

expert psychologist who specializes in ID diagnosis and assessment. Also

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presented were records showing that young Van Divner repeated the first

grade and was sent to special education classes after his second failed

attempt at first grade. Another presentation was of a school psychologist

working at the time Van Divner was in school, who said that the youngster

would only have been placed in special education for scoring below 75 on a

Stanford Binet IQ test. According to the school psychologist and records,

state regulations then in effect governed the placement of students in

special education, and no one was sent to special education classes solely

because of poor attendance or behavioral problems.

Most important to NOFAS, James Van Divner received a diagnosis

by Susan Rich, MD (a recognized authority on FAS and FASD) that he was

born with a variety of FASD known as PFAS (a diagnosis buttressed with

MRI evidence of an abnormal mid-brain). Surprisingly, this additional

evidence did not alter the post-conviction court’s view that “no credible

evidence exists to establish Petitioner’s intelligence quotient or mental

retardation prior to the required pre-eighteen age of onset.” Judge

Solomon opinion and order, January 17, 2014, p.31.

Even though the court agreed with Dr. Rich’s diagnosis of Van

Divner’s PFAS, the court made no mention of this acknowledged medical

condition in its ruling on prong three. The court’s omission here further

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exposes the fatal flaw in its prong three conclusion, because FASD, by

definition, occurs in utero, which, for purposes of an ID diagnosis, comes

before age 18.

II. Post-Conviction Court’s Analysis Misconstrued Prong Three.

This brief is not intended to comment on the strength of the evidence

supporting a diagnosis of ID, or the validity of the trial court’s analysis of

alternative explanations for James Van Divner’s current test scores. Nor do

we comment on how the court weighed conflicting expert opinions about

developmental onset, or about possible adult-onset or malingering of

symptoms. We focus here on the court’s prong three analysis, which we

view as fundamentally flawed.

According to this Court, mental retardation can be established only

by (a) a childhood diagnosis of ID (e.g., a school classification), or (b) an IQ

score obtained during childhood. This analysis constitutes a rigidity that

runs counter to current scientific and medical analysis and should be

rejected.

There are two widely accepted diagnostic manuals for classifying ID.

One manual’s title is Intellectual Disability: Definition, Classification, and

Systems of Support (11th ed., revised in 2010), published by the American

Association on Intellectual and Developmental Disability (AAIDD, formerly

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AAMR). The second manual is Diagnostic and Statistical Manual of Mental

Disorders (known commonly as DSM), published by the American

Psychiatric Association (APA). In 2013, the APA published its manual’s

fifth edition, generally referred to as DSM-5. These two manuals both

approach the third criterion, or prong three, in general terms. More telling,

neither manual imposes any requirement that specific test scores or

diagnoses be obtained prior to any specific age in order to satisfy this third

diagnostic criterion. Notably, DSM-5 no longer gives any specific age-of-

onset (consistent with the fact that several states, as well as federal

developmental disability legislation statutes, use 22 as an onset age).

Instead, the DSM-5 simply requires evidence of “onset . . . during the

developmental period,” without delineating a specific age. The DSM-5

discusses the third criterion, or prong three (referring to it as “Criterion C”)

with considerable emphasis on the diagnostic importance of clinical

judgment and social history, as reflected in the statement that “all criteria

(including Criterion C) must be fulfilled by history or current presentation.”

Id. at 38.

AAIDD is the oldest and most respected professional organization in

America (and well beyond) that specializes in defining ID. Apart from its

classification manual, AAIDD publishes the leading research journal in the

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field, titled the American Journal on Intellectual and Developmental

Disabilities. Many leading experts in Atkins cases play prominent roles in

the organization. Together they have published a book, edited by Edward

Polloway, that AAIDD will release later in 2014, titled “The Death Penalty

and Intellectual Disability: A Guide,” to provide guidance to experts,

attorneys and judges in the proper conduct of Atkins evaluations and

proceedings.

One chapter in this AAIDD Atkins guide focuses on the third criterion

or prong three. Authored by Greenspan, Woods and Switzky, the chapter is

titled “Age of Onset and the Developmental Period Criterion,” and

emphasizes the critical importance of applying a flexible approach:

The most useful and valid approach to establishing whether ID manifested during the developmental period is to see if there is evidence of what has been termed a ‘continuity of concern’…The key thing here is not whether the person was seen as having ID … but rather whether there were clear signs that the person’s post-18 incompetence did not emerge suddenly (perhaps because of an illness or injury) in adulthood and without earlier signs of, and related concerns about, a failure to develop in an age-expected manner. . . . [T]his recommended flexible approach to establishing prong three in Atkins proceedings is, in fact, the way ID diagnosis is already approached for non-forensic purposes, such as eligibility for human services.

Publication forthcoming. The chapter underscores the utility of a known

physical condition associated with ID, as in this quote:

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Although there are hundreds of known biological causes of ID, in most cases of mild ID a cause is unknown or can only be speculated about. Thus, ID can be described as a ‘functional’ disability, in that unlike most medical disorders, evidence of a specific etiology is not needed to establish the diagnosis. However, where there is evidence of a biological etiology that is associated with ID, then prong three may be virtually automatically established.

Publication forthcoming.

Fetal Alcohol Spectrum Disorders (“FASD”) -- that the court conceded

applies in Van Divner’s case -- is the largest, wholly preventable biological

cause of ID. FASD significantly overlaps with ID and can help explain most

of the behavioral signs, such as low IQ and adaptive functioning diagnosed

in those suffering ID. While a diagnosis of a medical condition under the

FASD umbrella, such as PFAS, in itself does not establish Atkins eligibility

(because not all those afflicted with FASD have sufficiently severe

limitations in prongs one and two), once prongs one and two are met, a

court-accepted diagnosis of an FASD alone should suffice to satisfy prong

three. The reason is that FASD -- termed “Neurobehavioral Disorder

Associated with Prenatal Alcohol Exposure (ND-PAE)” in the DSM-5 --

reflects brain damage caused in utero by maternal consumption of alcohol.

FASD effects become evident early in childhood and throughout the

developmental years, continuing into adulthood. While additional brain

damage (with cognitive regression and dementia) is possible due to post-

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adulthood brain trauma, this is not an either/or situation. Evidence of adult

regression hardly rules out the likelihood of developmental onset,

especially when the evidence is strong as to a brain disorder such as

FASD, supported by a clear developmental etiology.

CONCLUSION

The U.S. Supreme Court in Hall observed “That this Court, state

courts, and state legislatures consult and are informed by the work of

medical experts in determining intellectual disability is unsurprising. . . . In

determining who qualifies as intellectually disabled, it is proper to consult

the medical community’s opinions.” Id. at 1993.

In James Van Divner’s case, the court so far has failed to interpret

prong three in a manner consistent with the consensus and best practices

in the medical community. The court introduced a rigidity unequivocally

rejected by the medical community, and did so by demanding a school-age

IQ test, or the actual words “mentally retarded” recorded in a school record.

We note that the U.S. Supreme Court in Hall disfavored use of the term

“mentally retarded” and rigidity in making ID determinations that disregard

the medical community’s criteria and considerations.

By engrafting a rigid age-of-onset requirement for James Van Divner,

the court completely ignored evidence of his congenital brain-based

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disorder, FASD. It also dismissed evidence from as early as first grade of

indicators that young Van Divner was not developing in an age-expected

manner. Totally ignored was the most obvious fact: that as a child, Van

Divner was placed in special education classes after repeating the first

grade because he was intellectually disabled.

The third developmental criterion, or prong three, is intended to be

applied flexibly, so as to determine whether a person did not develop

normally through childhood, or whether the person suddenly became

impaired for the first time as an adult. There are many ways, other than

being labeled ID as a child (an example being early and multiple grade

retentions), to establish abnormal pre-adulthood development. Certainly

several indicators of abnormal early development are present in boyhood

documents pertaining to James Van Divner. Furthermore, his diagnosis of

an FASD, a neurobehavioral disorder associated with prenatal alcohol

exposure, establishes onset in earliest childhood, long before age 18. We

know of dozens of successful Atkins petitions throughout the U.S. where

evidence of developmental onset was not nearly as strong as the evidence

presented in this case.

NOFAS respectfully requests that the Pennsylvania courts adopt

legal standards that accept current medical and scientific consensus

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regarding the meaning of developmental onset. No other ruling would be

consistent with the intent of the U.S. Supreme Court in its Atkins decision,

namely to prevent the execution of people who truly suffer from an

Intellectual Disability.

Respectfully submitted,

Katharine R. Boyce, Esq. Chair, Board of Directors National Organization on Fetal Alcohol Syndrome September 29, 2014

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COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

JAMES VAN DIVNER,

Appellant

CERTIFICATE OF SERVICE

I, hereby, certify that on this the 29th day of September, 2014, served two copies of the within document by first-class mail upon the persons indicated below:

Jack Heneks Fayette Co. District Attorney’s Office

Fayette County Courthouse 61 East Main Street

Uniontown, PA 15401

Amy Zapp Pennsylvania Office of Attorney General

Strawberry Square 16th Floor

Harrisburg, PA 17120

Brent Eric Peck Peck Law Offices, LLC 111 East Main Street Uniontown, PA 15401

Respectfully Submitted,

Katharine R. Boyce, Esq. Chair, Board of Directors, National Organization on Fetal Alcohol Syndrome