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The Jessica Lunsford tragedy

Which Couey will they sentence?

Jurors in the Citrus case will navigate a debate over mental capacity.

By ELENA LESLEY
Published March 12, 2007

This week, defense lawyers will argue that John Couey is too mentally stunted to be put to death. They will cite his consistently low IQ scores, delayed mental development, abusive childhood and alleged mental illness.

It's an unenviable task. Just because someone is cognitively slow doesn't mean he can't distinguish between right and wrong. And Couey's history and tests suggest he could either be mildly mentally retarded or just on the low end of normal.

"It's a real tough call," said Charles Morris, a former professor of psychology at Denison University in Ohio. "There's going to be lots of debate because he's right on the cusp."

After considering evidence, testimony and argument from the lawyers, the jury will recommend the death penalty or life in prison for the murder of 9-year-old Jessica Lunsford.

Circuit Judge Ric Howard will have the final say. He will convene a separate hearing later to determine whether Couey is retarded.

More than IQ

According to the law, an IQ score of 70 100 is average is generally the cutoff for mild mental retardation. A 2002 U.S. Supreme Court case, Atkins v. Virginia, bars execution of retarded people, saying the practice is "cruel and unusual punishment."

But IQ measurement is a murky process, and classifying someone as retarded, legally, requires weighing a number of factors.

If IQ were the only consideration, people "could just mess up the test," said Linda Gottfredson, co-director of the University of Delaware - Johns Hopkins Project for the Study of Intelligence and Society. To prove retardation in court, there must be evidence that the person was mentally delayed before age 18.

Couey's defense is trying to do just that.

In a motion filed Feb. 12, the defense asserted that Couey, 48, is ineligible for the death penalty based on an assessment by psychologist Robert Berland. In addition to IQ testing, Berland searched Couey's prison and school records, and conducted interviews with those who knew him as a child.

When enrolled in Orange County schools, Couey was designated "educably mentally retarded." Records show that the Department of Corrections could not administer psychological screening tests to Couey in 1978 or 1991 because of his limited reading ability.

Relatives with whom Couey lived as a child said his "problems with being slow and having trouble learning were broadly accepted by the whole family," according to Berland's report. Many said he had trouble speaking intelligibly and attributed his dullness to an incident where his head had been repeatedly slammed in a doorjamb.

A hospital evaluation in DeLand when Couey was 14 concluded that he had the mind of an 8-year-old.

"It appears reasonable and appropriate to conclude that the low IQ (in the retarded range) found for the defendant recently reflects a pattern which has continued in the same manner since early childhood," Berland wrote. "The defendant therefore appears to meet the criteria for retardation as defined under Florida law."

Results are relative

Still, of the four IQ tests given to Couey over the course of his life, only one score was lower than 70.

The Kent test, administered by the Department of Corrections in 1978, put Couey's IQ at 71, and another DOC test, the Beta II R, given to Couey in 1991, scored him at 78.

Most experts agree that these tests are probably not as accurate as the Wechsler Adult Intelligence Scale, which has been administered to Couey twice since Jessica's death.

Berland first assessed Couey using a 1955 version of the WAIS, yielding a score of 85.

He referred Couey to another psychologist in early February who administered the most recent version of the WAIS. He scored a 64.

This may seem to some like a wide spread, said Gottfredson, from the Project for the Study of Intelligence and Society, but the disparate scores could be explained by the imprecise nature of IQ testing.

IQ assessments rate a person's ability to deal will cognitively complex tasks relative to their peers at a given point in time.

This is a key point. IQ scales are not absolute. They change with time and are organized using a bell curve distribution.

"What matters most is comparing peers at a particular point in time," Gottfredson said. "The problem comes when you're not just ranking people in relation to one another, but when you want a definite cutoff."

The decision to classify those with an IQ less than 70 as legally mentally retarded is relatively arbitrary, Morris said.

Further complicating the issue, IQ scores have risen over time. Every decade, the average number of correct answers has increased by a few points, and tests are adjusted accordingly.

The reasons for this phenomenon are unclear.

But such discrepancies make comparing tests over the decades very difficult. People today will generally score higher on old tests - where they are being compared to a peer group that scored lower on average - and won't do as well on current tests.

"If you wanted to load the dice and make someone look brighter, you'd give them an old test," Gottfredson said.

In that light, Couey's divergent WAIS scores make sense. He performed better on the 1955 test, but when given a test with an updated scale, his score sank to 64.

"It was the same Couey, but a different population," Gottfredson said.

According to Gottfredson, someone who scored a 64 on a modern IQ test would "typically have a very difficult life. They would have trouble understanding written instructions, filling out bank deposit slips, following doctor's orders."

Few employers routinely hire people with IQs below 80 and an individual with a score of 64 would likely live with a relative or on social assistance, she said.

But whether such retardation exonerates a person from moral responsibility is up for debate.

'Cloying vulnerability'

While those with low IQs can certainly develop a code of ethics, they are abnormally susceptible to outside influences. Part of the nature of retardation is the desire to please those around you, said Jim Ellis, a defense lawyer in the Atkins v. Virginia case.

Someone with a low IQ who has a stable and nurturing support network may try to impress others through good behavior. Conversely, someone from a turbulent and abusive background, like Couey, will be less able to distance themselves from negative influences.

"If someone is vulnerable to making bad decisions, it helps to be in a good environment," Gottfredson said. "It certainly doesn't help to be in an environment where such behavior is encouraged or allowed."

The "cloying vulnerability" of someone like Couey, as Berland described it, is evident as low IQ individuals travel through the judicial system.

They are more likely than others to make false confessions to please figures of authority, Ellis said. And they can further damage themselves by trying to appear smarter than they are.

"It doesn't make sense to us that someone would try to do this when they're facing a capital charge," Ellis said. But "a lot of it has to do with the fact that they're motivated by making sure people don't understand how disabled they are."

Berland emphasized in his assessment - and his testimony in court - that he believes Couey truly put forth his best effort when completing the IQ tests.

"I have never seen someone who has apparently faked WAIS results produce an IQ value so close to normal functioning as this defendant's IQ was," Berland wrote.

The prosecution

Despite this evidence, the state is confident that Couey's intelligence is not an issue. He reads the newspaper regularly and completes sudoku puzzles, prosecutors have noted. Plus, they say, he was smart enough to flee to Georgia after killing Jessica.

Jurors will have to ponder these arguments and try to settle debates that remain unresolved among scholars.

"In class, I can raise questions and not answer them," Gottfredson said. "But the law will have to decide, and that's going to be very difficult."

Elena Lesley can be reached at elesley@sptimes.com or (352)564-3627.

Fast Facts:

The Couey case

What has happened: The jury last week found Couey guilty ascharged.

What is next: The penalty phase of the trial is Tuesday in Miami.

What will happen: The jury will recommend either life in prison or the death penalty.

- The state must prove aggravating factors about the crime - for example, that the crime was especially heinous, atrocious and cruel - that make Couey eligible for the death penalty. The defense will present mitigating evidence - such as his mental capacity and the abuse he suffered as a child - in hopes of saving his life.

- The jury will vote and provide a sentencing recommendation tothe judge. The vote need not be unanimous.

- The ultimate sentencing decision rests with the judge, who also will hear additional testimony about Couey's mental state.

- Actual sentencing will come later, probably back in Inverness.

[Last modified March 12, 2007, 07:36:59]