U.S. v. HARDY

ing.

Rec. Doc. 2123 at 165; under the Barona Study calculations, the IQ begins with a starting point of almost 55, which already assumes the person is at least no more than Mildly Mentally Retarded. Rec. Doc. 2123 at 166. Again, this may well be realistic in the typical civil context when someone has suffered a brain injury and an attempt is being made to estimate their post-injury IQ.

See Barona Study, supra n. 139 at 886-87. Dr. Cunningham performed a sample calculation using his estimates of Hardy's education and occupational skills. Rec. Doc. 2123 at 166-67.

Second, the standard error of measurement for this demographic method is very large, slightly over 12 points. Therefore, the 95 percent confidence interval for this method's estimate of Hardy's IQ ranges from the high 40s up to the upper 90s. When Dr. Hayes declared Hardy to be in the Low Average Range according to this method, she said nothing about this being, at best, a very gross estimate with a huge margin of possible error.

Barona Study, supra n. 139 at 886.

Rec. Doc. 2123 at 165. In order to determine the 95 percent confidence interval for the hypothetical 27 year old African-American male, whose lowest possible score is a 72.57, the standard error of 12.14 is multiplied by 1.96 which is 23.79. That figure is then subtracted from 72.57 to give the bottom cut off for the confidence interval, and then added to 72.57 to give the upper cut off for the confidence interval.

The Court does not know if Dr. Hayes was simply unaware of the limitations attendant to this method and its obvious inapplicability, or whether she knew and testified as she did anyway. In either case, her use of and testimony concerning this method further case doubts on her credibility in the eyes of the Court.

APPENDIX C Defense Diagnoses in 1996 and Their Similarities to Mild Mental Retardation

Having accepted Hardy's IQ score as an under-representation of his cognitive strength, Dr. Cunningham naturally did not consider mental retardation as a possible diagnosis in 1996. Nevertheless, after interviewing Hardy and various family members over an extensive period of time, Dr. Cunningham diagnosed Hardy with possible disorders that parallel many of the characteristics of mental retardation. One was an Axis II, Personality Disorder Not Otherwise Specified under the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FOURTH EDITION (1994) ("DSM-IV"). The diagnostic criteria for a Personality Disorder is as follows:

A. An enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture. This pattern is manifested in two (or more) of the following areas:

(1) Cognition (i.e., ways of perceiving and interpreting self, other people, and events)

(2) Affectivity (i.e., the range, intensity, lability, and appropriateness of emotional response)

(3) interpersonal functioning

(4) impulse control

B. The enduring pattern is inflexible and pervasive across a broad range of personal and social situations.

C. The enduring pattern leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning.

D. The pattern is stable and of long duration and its onset can be traced back at least to adolescence or early adulthood.

E. The enduring pattern is not better accounted for as a manifestation or consequence of another mental disorder.

F. The enduring pattern is not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., head trauma).

In Atkins, the Supreme Court noted that mentally retarded persons "have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others," and "their demeanor may create an unwarranted impression of lack of remorse for their crimes."

536 U.S. at 318.

Id. at 321.

As already noted, the DSM-IV-TR diagnostic criteria for Mental Retardation includes:

B. . . . deficits or impairments in present adaptive functioning (i.e. the person's effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.

C. The onset is before age 18 years.

Dr. Cunningham also gave serious consideration to diagnosing Hardy with Attention Deficit Disorder. Hardy reported to him that he had difficulty paying attention in school, he disliked reading and puzzles and "things that took sustained and kind of low-stimulation concentration," and he was easily bored and distracted. In assessing Hardy, Dr. Cunningham found evidence of restlessness, under-achievement, insecurity, low frustration tolerance, employment relationship instability and, of course, criminal activity, all of which are consistent with Attention Deficit Disorder. At the same time, the first diagnostic definition of that disorder likewise shares characteristics with mental retardation:

Deft. Exh. 18-6 at 19-20.

Id. at 19-20.

Id. at 20.

(1) inattention: six (or more) of the following symptoms of inattention have persisted for at least 6 months to a degree that is maladaptive and inconsistent with developmental level:

(a) often fails to give close attention to details or makes careless mistakes in schoolwork, work, or other activities

(b) often has difficulty sustaining attention in tasks or play activities

(c) often does not seem to listen when spoken to directly

(d) often does not follow through on instructions and fails to finish school work, chores, or duties in the workplace (not due to oppositional behavior or failure to understand instructions)

(e) often has difficulty organizing tasks and activities

(f) often avoids, dislikes, or is reluctant to engage in tasks that require sustained mental effort (such as schoolwork or homework)

(g) often loses things necessary for tasks or activities (e.g., toys, school assignments, pencils, books, or tools)

(h) is often easily distracted by extraneous stimuli

(i) is often forgetful in daily activities

Dr. Swanson likewise testified at the Atkins hearing that frequently mild mental retardation is associated with hyperactivity and inattentiveness similar to Attention Deficit Disorder.

Rec. Doc. 2125 at 679.

Finally, a third consideration for Dr. Cunningham in 1996 was that Hardy suffered from a mild brain injury from multiple head trauma. He then recited six separate incidents reported by Hardy or family members where Hardy was struck in the head prior to the age of 18, including at least one with a loss of consciousness. This is significant because if Hardy is mentally retarded and it is as a result of head injuries, a substantial number occurred prior to the age of 18, the third criteria for a diagnosis of mental retardation.

Deft. Exh. 18-6 at 21.

Dr. Bianchini was retained in 1996 to assess Hardy for possible brain damage. He concluded that Hardy suffered from "significant neurocognitive residual" brain damage which he assumed was caused by multiple head injuries. He did not give him an IQ test, but did review the test results of Dr. Tetlow. He detected problems with Hardy that also parallel some of the characteristics of mild mental retardation. He noted that Hardy's "common sense reasoning and social judgment" scored at the lst percentile, indicating that 99 percent of the population exceeded him. He also observed that Hardy's Wechsler Memory Scale-Revised Attention and Concentration Index score was below expected levels, "given his obtained IQ scores." Of course, Hardy's 1996 IQ score had not been adjusted for the Flynn Effect, and consequently was inflated. The Wechsler Memory Scale results may well have been consistent with Hardy's true IQ of below 70. Dr. Bianchini also commented that on another of the tests he gave Hardy that his scores were unreliable "due to variation between trials which is common with individuals whose intellectual functioning is below average." Later in his report, he noted Hardy was below average in word knowledge, language comprehension, reading and spelling, some of which he attributed to his lesser education, but he also found deficits that "wouldn't be explained by his impoverished educational background alone." His best score was in the Wisconsin Sort Test, but that was a test he had done with Dr. Martell two weeks earlier, and Dr. Bianchini attributed some of that success to practice effects. Like Dr. Cunningham, Dr. Bianchini also saw signs of Attention Deficit Disorder, but likewise could not make that a definitive diagnosis.

Deft. Exh. 18-4 at 221-22, 229.

Deft. Exh. 18-5 at 12; Deft. Exh. 18-4 at 227, 229.

Deft. Exh. 18-5 at 5.

Id. at 7.

Id.

Id. at 9; Deft. Exh. 18-4 at 239.

Deft. Exh. 18-4 at 230.

Deft. Exh. 18-5 at 11; Deft. Exh. 18-8 at. 2; Deft. Exh. 18-4 at 240-41.

Deft. Exh. 18-5 at 12; Deft. Exh. 18-4 at 243-244, 249.

The Court finds that, once attention is focused on the issue, it is easy to see other indicators of mild mental retardation in the results of Hardy's 1996 evaluations. A Rorschach test administered by Dr. Tetlow, for which Hardy's "cooperation" was noted as "excellent," was scored using a computer-based interpretation. Much of Hardy's assessment was consistent with mild mental retardation.

Govt. Exh. 1, att. 2.5 at 31.

The subject is in considerable stimulus overload and, as such, is highly vulnerable to loss of control and becoming disorganized under stress. People in this psychological situation usually have histories that include numerous events marked by faulty judgment, emotional disruption, and/or ineffective behavior. They are chronically vulnerable to ideational and/or affective impulsiveness and typically function adequately for extended periods only in environments that are highly structured and routine and over which they have some sense of control.

***

He does not seem to be very introspective. In other words, he is less involved with self awareness than is usually the case . . . His self image and/or self value tend to be based largely on imaginary rather than real experience. People such as this are often less mature and frequently have very distorted notions about themselves.

***

He apparently is less socially mature than might be expected. . . . As a result, his relationships tend to be more superficial and less easily sustained.

***

It is likely that he will manifest many more dependency behaviors than usually is expected. He is prone to rely on others for direction and support and his expectations concerning relationships tend to be somewhat naive. People such as this usually expect others to be more tolerant of their needs and demands and also expect them to act in accord with those needs and demands.

***

His (information) processing activity is marked by underincorporation, that is, he tends to scan stimulus fields hastily and haphazardly, often neglecting critical bits or cues in a stimulus field. Underincorporation creates a potential for faulty mediation that can lead to less effective behavior patterns.

***

The quality of his processing is not very complex or sophisticated. Instead, it tends to be simplistic and quite conservative. In fact, the quality of his processing activity often falters significantly to an unsophisticated, less mature level. This is common only among very young children or older subjects who have notable cognitive deficits. Such processing difficulties often lead to mistranslations of inputs and can produce adjustment problems. A careful evaluation of his cognitive functioning is warranted.

***

His approach to processing, especially during problem solving and/or decision making activities, tends to be irregular. This is more common among young children and its presence here suggests a failure to develop economical or efficient processing habits.

APPENDIX D Interviews and Other Information Relevant to Adaptive Behavior

With the exception of Tony Minor, Dr. Hayes also interviewed the other informants that Dr. Swanson relied upon. These interviews were videotaped, which provided the Court the advantage of direct assessment of credibility as well as additional helpful information, unfiltered by Dr. Swanson.

a. Dr. Hayes' Interview with Theresa Minor

The Court viewed Theresa Minor's video tape and found her recollections of Hardy's abilities to be credible. She recalled that Hardy, as a child and compared to her son, did not understand how to play various children's games, including checkers, let alone a more complex game like chess. She said that Hardy would become "flustered" and then "would get disgusted and leave, or go in another room." She thought at the time he perhaps was just being defiant, but in retrospect, she now believes he felt ashamed and was unable to open up and admit he did not know how to play the particular game. She also stated several times that Hardy could not communicate effectively. If she asked him something, he would just stare at her or could not answer. When asked what Hardy liked doing, she answered, "I guess watching TV."

Govt. Exh. 1, att. CD-3; Deft. Exh. 15.

Govt. Exh. 1, att. C at 5-6. At the hearing, Theresa Minor also related bringing home a pre-school toy shoe to teach a child how to tie a shoe. Her son, Tony, was able do it but Hardy could not figure out how to do it. Rec. Doc. 2124 at 430-432.

Govt. Exh. 1, att. C at 6-7.

Id. at 6.

Id. at 18, 20.

Id. at 20.

Id.

Minor felt something "was wrong" with Hardy, and she tried talking to Hardy's mother, Marie, perhaps to have Hardy tested, but since Marie herself dropped out of school, Minor realized she was wasting her energy and effort. At the hearing, Minor elaborated that Hardy was "slower" than the other children his age.

Id. at 16, 17. Greg Williams said that Hardy's mother was "a few cans short of a six-pack herself" and that the "elevator got stuck in between floors," which the Court understands to indicated she had limited intellectual abilities. Govt. Exh. 1, att. B at 51.

Rec. Doc. 2124 at 434, 435.

Minor reported to Dr. Hayes that Hardy was passive and easily influenced by others. When asked to elaborate, she said that if someone else wanted to get into trouble, Hardy would go along with it. She stated repeatedly her regret that she was unable to "reach him." b. Dr. Hayes' Interview with Vance Ceaser

Govt. Exh. 1, att. C at 19.

Id. at 16, 21.

Dr. Hayes' also conducted a videotaped interview with Hardy's childhood friend Vance Ceaser, who was the same age as Hardy and attended the same elementary schools and high school. Notably, Ceaser has not spoken to Hardy since the early 1980's, and therefore has no ongoing current friendship with him. The Court viewed the videotape of Ceaser's interview and found him very credible.

Govt. Exh. 1, att. D at 5-6; id at CD-D; Deft. Exh. 16.

Govt. Exh. 1, att. D at 7-8.

Ceaser reported that while he and Hardy started in the same elementary school classes, they were subsequently separated based on standardized test results. Hardy was placed in the "lower level classes," not special education, but classes for "slower" students. Ceaser himself was not in gifted classes, but above average classes, while Hardy was in "below average" classes. Ceaser also noted that Hardy tried out for the band in junior high school, playing the trumpet, but he "just couldn't . . . he didn't really do well at all."

Id. at 17, 24.

Id. at 28.

Id. at 29.

Id. at 38.

Around 1983-84, when Ceaser was a junior in high school and after Hardy had dropped out, Hardy approached him about tutoring him in math to help him get back into school. Hardy has been placed in an algebra class that Ceaser said was "ridiculous" because Hardy did not have the ability to understand algebra. One night, Ceaser tried to tutor Hardy in algebra, but "the more I tried to explain it to him, the more he didn't get it, the more he sort of joked around and goofed around." Since Hardy did not seem to be "catching on," Ceaser gave up on tutoring him after that one attempt.

Id. at 8.

Id. at 27-28.

Id. at 29-30. Dr. Swanson noted that one of Hardy's arguable strengths was that he turned into "the class clown" which allowed him to mask what he did not know or understand. Rec. Doc. 2125 at 649.

Govt. Exh. 1, att. D at 30.

Ceaser also reported that Hardy never played football or basketball, and that Hardy "basically sat around the neighborhood . . . chatting with other guys." He said Hardy did not really participate, but mostly joked around, sat back and watched. When asked if Hardy ever played Monopoly with Ceaser (a relatively complex game), Ceaser responded with an adamant "No, no, no. No." c. Dr. Hayes' Interview with Greg Williams

Id. at 9-10.

Id. at 22.

Id. at 12.

Dr. Hayes' videotaped interview of Greg Williams provided substantial additional information. The Court notes that Williams was relaxed, forthcoming, and credible. Williams took Hardy to Atlanta for several New Orleans Saints games. Williams was the one to rent the car, do all the driving and arrange for the hotel. When asked why Hardy never drove, Williams laughed and said, "He didn't know where he was going." As far as going out of town in general, Williams insisted that Hardy "never went nowhere by his self."

Govt. Exh. 1, att. CD-5; Deft. Exh. 14.

Govt. Exh. 1, att. B at 22. As with Toni Van Buren, Dr. Hayes included in her report, a criminal history of arrests for Greg Williams. Criminal history notwithstanding, the Court found Williams to be credible in his recollections of Paul Hardy. Govt. Exh. 1 at 73, n. 57.

Govt. Exh. 1, att. B at 28.

Id. at 34.

With regard to checking into a hotel, "he couldn't do that. He didn't do it." On one occasion when they did not have a prior reservation, Williams told Hardy to check in. But Hardy demurred, asking Williams to go ahead and take care of the check-in for them both.

Id. at 32.

Id. at 33.

Williams was genuinely surprised when Dr. Hayes told him that Hardy continued into the 11^th or 12^th grade. He told her that Hardy "wasn't that bright" and suggested he got caught in "that cycle where they just pass you on." As has already been discussed, Hardy's actual academic abilities peaked around the 5^th or 6^th grade level, and the evidence in the record suggests that he was otherwise socially promoted without completing the work. Williams also said that Hardy occasionally would bring something written to him and ask him to explain what it meant.

Id. at 51.

Id. at 52.

Id. at 41-42.

Williams said he did not think Hardy knew how to play any sports, nor did they play cards. While Williams took Hardy to several Saints' games in Atlanta, he said that Hardy did not really follow the game — "He just wanted to be there." Williams did not know Hardy to have any hobbies except women, and said that he had four or five girlfriends, and always kept one with him.

Id. at 25.

Id. at 9, 33.

Id. at 9, 35, 46.

Williams reported that Hardy could not fill out an application form, such as a job application. He would bring it home for Van Buren to fill it out. Hardy also owned a 1985 Cutlass which he continued to take to the dealer to fix, even into the 1990's. Williams told him how that was not necessary, but Hardy "had in his mind that nobody was going to fix the car right but the dealer", and whoever told Hardy that had misled him.

Id. at 39.

Id. at 45.

Finally, Williams described Hardy as having "a good heart. If you ask him for something, there's nothing he wouldn't do for ya." He also said that if he called Hardy, needing something, "he wouldn't question it, he'd do whatever I ask him to do for me." He indicated that Hardy was gullible with his friends, saying that "he was a believer in whatever you told him"; "if he called you his friend . . . he would believe everything you'd tell him."

Id. at 5.

Id. at 38.

Id. at 49.

Williams' also told Dr. Hayes that Hardy had a "lil' prepaid (credit) card" and he was so excited to have it, he would show it to everyone. Williams was also asked if Hardy was gregarious and talkative, and Williams said no — "Paul was more like to his self"; he did not like "hanging out" or going to clubs. When asked why, Williams surmised that Hardy could not "relate to you on a certain level" and so stayed to himself.

Id. at 20-21, 46, 49.

Id. at 49.

Interestingly, Williams knew Len Davis, considered him very arrogant and bossy. Williams told Hardy that he did not like Davis, and he did not want Hardy bringing him around. Hardy however insisted that Davis was "cool." d. Dawn Dedeaux Videos

Id. at 40.

Id. at 41.

Several videos were introduced into evidence. One is entitled "Drive By Shooting." The Court has viewed this video. In it, Hardy is driving a vehicle with his younger brother, Wayne Hardy, in the back seat. Hardy is driving rather slowly, but competently. Noteworthy to the Court is that Wayne Hardy does the vast majority of the voice over for the video. Noteworthy also is that two rap songs are played during the video, with Wayne singing not only the chorus, but individual verses as well. Hardy, on the other hand, is silent except for an occasional chime in to snippets of the chorus of the songs.

Govt. Exh. 1, att. CD-6.

A second video is entitled "City Park." The Court has also viewed this video. It features Wayne Hardy initially driving the vehicle, then Wayne Hardy, Paul Hardy and another man leaving the car to sit at a table in City Park to continue the filming. What is noteworthy to the Court about this video is that Wayne Hardy again completely dominates the conversation. After about sixteen minutes of a Wayne Hardy monologue, the videographer specifically asks some questions of Paul Hardy. Paul Hardy responds but then within a minute or two, Wayne Hardy interrupts and once against monopolizes the conversation. This is consistent with an observation by Dr. Swanson — that Wayne Hardy, even though younger than Hardy, learned to "stand up and answer for him and do for him," as did others in the family when they anticipated it was something Hardy could not do.

Govt. 1, att. CD-7.

The prosecution identified Wayne Hardy as the person in the New York Yankees shirt and Hardy wearing the cap. Rec. Doc. 2129 at 1189.

Rec. Doc. 2125 at 639.

The videos portray Paul Hardy as passive, barely communicative, and content to have his younger brother speak for him. This is consistent with his tendency to depend on others and is not inconsistent with mild mental retardation.

e. Hardy's Telephone Calls from Jail

The government presented as evidence two discs of telephone calls made by Hardy from jail to various friends and family members over the past several years. One disc contained twenty-eight calls from St. Bernard Parish Jail made in a little over a month in 2009. The other disc contained sixty telephone calls from Orleans Parish Prison, the dates unspecified, of which approximately half were not actually completed calls. The Court has listened to all the calls, several of them more than once.

Govt. Exh. 1, att. CD-14.

Govt. Exh. 1, att. CD-15. In most of those instances, Hardy was able to give a brief message before the phone call was terminated.

Unfortunately, transcripts do not exist for the calls nor are they identified other than by the phone number called, virtually all of which are repeat numbers. Consequently, it is not feasible to identify each call cited.

With an IQ of approximately 68, adjusted for the Flynn Effect, or an unadjusted IQ of 73, Hardy falls within the category identified by the AAIDD as "Individuals with Mental Retardation with a Higher IQ."

These individuals . . . manifest subtle limitations that are frequently difficult to detect, especially in academic skills, planning, problem solving and decision making, and social understanding and judgment.

As already noted, Hardy's academic skills were clearly deficient and consistent with mental retardation. These phone calls are relevant to his planning, problem solving, decision making, social understanding and judgment. The phone calls evidence similar deficiencies in those areas that are consistent with mild mental retardation.

Hardy's telephone conversations are simplistic, inarticulate and frequently rambling and repetitive. His vocabulary is limited, his thinking concrete. He asks simple open ended questions about what various people are doing day to day and give very basic advice. For example, in one conversation, he advises one of his daughters, several times, to talk to her big sister and, on another occasion, to obey her mother. He advises one daughter that "money isn't everything." and tells his son that "Don't get in trouble as it's hard as hell to get out of it." On several occasions he tells several of his children "Don't do stupid ass shit" or "crazy ass shit."

Some of his advice is sexual in nature, essentially telling his daughters to not let men take advantage of them ("Don't give your power to no man."). Considering Hardy's early life of maintaining sexual relationships with several women at one time, this advice presumably comes from his own experience, rather than any abstract notions of appropriate sexual relations. In fact, Hardy's most detailed advice regarding sexuality is startlingly explicit. It occurs when he is advising a young man, perhaps his son, on what he should do to sexually satisfy his partner. Hardy even jokes with the young man's girlfriend to find out if in fact the young man has followed his advice.

Hardy does evidence genuine affection and concern for his children, often asking how they are doing in school, encouraging them to study, and also to go to church, and telling them frequently that he loves them. On a few occasions, when one of his children is monosyllabic, he asks if something is wrong. However, on at least one occasion, he seemed to unreasonably lose his temper with one of his daughters, misreading her reserve as an affront to him personally. On the other hand, at times he appears to have forgotten relevant details about his children, such as whether one of his children has a job.

One of the few in depth conversations appears to be with his oldest daughter. She is critical of men, saying they are "weak" and Hardy defends them on the basis that they get "put into predicaments" where they "had no choice." He cites his own upbringing in the housing project, and not having a father. His daughter answers that that is an excuse for a child but not later. Hardy explains that talking to his psychologists made him understand how his upbringing affected him. It is unclear whether Hardy is simply parroting back what the doctors and lawyers have told him or whether he has actual insight.

A number of Hardy's comments are religious in nature, although again simplistic and concrete. He declares that "God's got all power" and that "Satan comes to destroy." He claims to have asked God to "guide me true" and that his goal is to "do right and get my life together." Tellingly, he describes how he went to church when he was younger but "didn't understand it." He says at the jail he watched videos that "would break it down" to where he could understand it. Along the same lines, he recalls his mother telling him that he had "too many irons in the fire" and he did not understand what that meant either at the time. This is consistent with Hardy's difficulty with abstract concepts, a characteristic of mental retardation.

In a significant number of the conversations, Hardy largely listens while others talk In that capacity, with a few very rare exceptions, he affirms what the speaker is saying, acquiescing to their view, another characteristic of those who are mildly retarded. On another occasion, he has a series of conversations with his son who is furious that his car has not been properly repaired by apparently a friend of Hardy's. Hardy repeatedly tries to calm his son down, but is utterly ignored while his son continues to rant and rage over the treatment. Hardy is unable to get him to listen.

On the other hand, Hardy is successful at directing whoever he has called to hook in other phone numbers so he can talk to more people in the one call. He also repeatedly requests that money be put into his jail account and that his children bring him items, such as soap, creams and over the counter medicines. While he asserts himself in these conversations, the goals are basic, concrete material needs.

At one point, Hardy shows very poor judgment in being highly critical of one of the sergeants at the St. Bernard Parish Jail, calling her a liar and "a bitch" when he had to know the conversation was recorded (at the beginning of each phone conversation, an automatic voice advises both speakers that the conversation is being recorded). He had already stated that his lawyer told him to not talk about his case on the telephone, presumably because it is recorded, but he was unable to abstract that advice to the lack of wisdom in criticizing one of his overseers. In fact, in a later conversation with one of his attorneys, he again complains about the same sergeant and his lawyer advises him, again, that they should not be having this discussion on the telephone.

Finally, it is worth noting with respect to Toni Van Buren, that she is frequently the conduit for Hardy's conversations with his children, handing the phone to them after accepting the call. On one occasion when Hardy attempts to talk with her, she cuts him off, clearly indicating that her relationship with him is edgy at best. This is relevant to whether Van Buren can be considered biased or unbiased in her view of his abilities.

In summary, in these numerous conversations, Hardy's "planning" consists largely of simple requests for items to be brought to the jail. His "problem solving" is likewise simplistic pieces of advice to his children. The phone conversations deal with very little "decision making." He does appear to have a healthy relationship with most of his children, which indicates "social understanding" of familial relationships. Finally, his "judgment" is again simplistic and unsophisticated and at times questionable, such as discussing intimate sexual matters with his son's girlfriend, and speaking derogatorily about jail employees on the telephone, which he knows are recorded.

Dr. Hayes testified that Hardy was able to stay on topic in the phone conversations, as well as switch topics, that telling his daughter "don't give your power to no man" and other such expressions indicated a capacity to use idioms, that he modulated his tone appropriately, could give directions, ask appropriate questions, express concern, indicate he had learned from his mistakes and had overall maintained relationships with his children and others even while incarcerated. The Court concurs with Dr. Hayes that Hardy evidenced these capacities, but well within the capabilities of persons with a higher IQ in the mild mental retardation range. As the DSM-IV described, adults with mild mental retardation "usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings." Dr. Cunningham also testified that "on a continuum" mildly mentally retarded people are capable of abstract thinking, including understanding some idioms, can experience "at least superficial insight" and can feel empathy and establish emotional bonds.

Rec. Doc. 2128 at 1132-35, 1137-40.

DSM-IV-TR at 43.

Rec. Doc. 2124 at 233-36.

The Court finds the telephone conversations from jail to be consistent with the diagnosis of mild mental retardation.

APPENDIX E Dr. Hayes' List of Additional Facts Relevant to Hardy's Adaptive Behavior

The following is a summary of various facts, not subsumed within the Court's discussion elsewhere, that Dr. Hayes cited in concluding that Hardy does not have the required deficits in adaptive behavior.

a. Communication

Govt. Exh. 1 at 111-16.

A family friend testified during the penalty phase at Hardy's trial that he had no trouble speaking to her and seemed like a "normal kid";

Dr. Bianchini reported that Hardy had normal fluency, articulation, animation and word formation;

When questioned by the FBI, Hardy was able to understand their questions and provide answers tending to exculpate himself or showing that a case could not be made against him;

Hardy has written letters on specific topics and completed telephone number requests while in prison;

b. Self Care

Id. at 116-18.

Hardy wore fashionable clothes at the time he met Van Buren;

Hardy wore clothing appropriate to the weather;

If Hardy saw someone shaving, he could do it as well;

Hardy has purchased grooming items while in prison, some of which he keeps in his cell;

In October 1994, the FBI noted that Hardy stopped at a business called Family Dentistry for an hour;

c. Home Living

Id. at 118-25.

Hardy ironed his brother's clothes for him;

Hardy's chores around the family home were limited to possibly cleaning up the mess in the backyard caused by his family's dogs;

Although never for long periods of time, Hardy helped a friend sew his Mardi Gras Indian outfits after the friend showed him how to do it;

Hardy could use or was at least aware of the proper use of Ajax, Comet, Windex, Pine Oil/Pine Sol, and Raid;

If he saw someone hammer a nail, Hardy could do the same;

Hardy occasionally cooked for Cooper, liked a clean home, and would help with cleaning;

During the clinical evaluation, Hardy indicated how to heat a canned meal, heat and test baby formula, and change a diaper;

He was able to measure units of cocaine;

Hardy knew to keep meats in the freezer and milk in the "icebox";

He knew that, if one smells smoke or suspects fire, one should leave the house and call 911;

Believed ADT installed an alarm system at his home;

He had difficulty assembling items that came with instructions and connecting audiovisual equipment;

d. Social/Interpersonal Skills

Id. at 125-30.

Hardy and his family regularly attended church;

Hardy would, according to a social history prepared by Dr. Cunningham, video tape the frequent outings on which he took his children for them to have fun;

He would not open doors for Van Buren even when her hands were full, but would do so for an elderly person;

Hardy attended to an elderly friend with cancer, going so far as to giving her a ride and sitting with her at the clinic;

He was not a sore loser;

He was erratic in his behavior with Van Buren, but typically followed through on promises if he made them;

Hardy bought Mother's Day cards while in prison and was generally thoughtful and considerate of others;

He was good with children, as attested to by a number of different people;

A woman would usually travel with Hardy to maintain possession of his gun;

e. Use of Community Resources

Id. at 130-39.

Hardy purchased guns, insurance, and a Sam's Club membership;

He was registered to vote and has a driver's license;

Hardy kept current on several charge accounts and made deposits at a bank;

He reportedly bought a house for his brother and put it in the brother's name, bought another house with an acquaintance, and owned yet another;

Len Davis needed to remind Hardy to press the "End" button after concluding a cell phone call;

Hardy was able to use a beeper with some of the contacts using codes instead of their names;

He was observed driving distances of up to 30 miles;

It was not certain whether Hardy knew his zip code; Van Buren thought he did not, yet several gun license applications in his name listed the correct zip code;

He provided for his children;

Hardy made a warranty claim after ear buds he bought with an audio device while in prison broke; f. Self Direction

Id. at 139-51.

Hardy was allowed to get food stamps for his mother at a time when Lionel and Wayne Hardy were also living at home;

He took an active leadership part, with apparent understanding of the fact, in the crimes for which he was convicted (along with others), and he was a careful drug dealer;

None of Hardy's defense attorneys have argued that he is incompetent to stand trial;

Hardy was able to find his brother's gravesite without directions; Van Buren thought Hardy was impulsive, but Dr. Bianchini did not;

g. Functional Academic Skills

Id. at 151-56.

(All substantially summarized elsewhere)

h. Work

Id. at 156-61.

In exchange for quarters with which to play, Hardy helped a family friend out at her game room after school for several years;

Dr. Tetlow was of the opinion that Hardy could run an organization;

He held a number of odd jobs for short periods or time or performed them intermittently, with his longest employment being as a porter/busboy/kitchen helper at a restaurant in New Orleans;

Hardy applied for several jobs for which he was not hired, but knew his date of birth, social security number, telephone number, and address;

He learned to play Three Card Monte to take people's money; Hardy stretches allotted time limits in prison;

He was usually able to support himself except for a few "lean times" when Van Buren supported them;

Hardy had a safe in his home for part of the time that he lived with Van Buren, and he kept money in it instead of a bank;

i. Leisure

Id. at 161-66.

Hardy eluded "the feds" by jumping out of a car and playing football in the projects;

Hardy went to a gun range with Van Buren once and visited another shooting range on a number of occasions;

He played Pac Man, but not Nintendo;

Jail deputies have observed Hardy playing spades, rummy, poker, and "down the river," in addition to playing checkers and dominoes;

He communicated with another inmate by passing notes through a window when they were playing basketball;

Hardy had a half-priced hotel card, church membership card, Blockbuster video card;

He apparently listens to music;

j. Healthy Safety

Id. at 166-75.

After he was stabbed, Hardy went to "Toro [sic] Hospital";

Hardy was able to follow hospital discharge instructions for himself and his children;

The reason Hardy carried guns was to protect himself, which, in addition to protecting his children, was also the reason he bought a guard dog;

He has sought medical care for himself while in prison, including filling out forms;

Hardy was in several motor vehicle accidents within a short span of time in the mid-1980s, which led to a number of follow-up appointments for his injuries that included head trauma;

He has long-standing ear and sinus troubles;

When treated for a rash, he reported that he had been putting Calamine lotion on it;

Hardy has had dental work;

He has survived five attempts to kill him;

He has not been adjudged mentally defective or committed to a mental institution;

In 1989, Hardy required stitches to his head after getting into fights;

Hardy has sought treatment for a number of minor ailments and has filled prescriptions for himself before.