Jan 18, 2013 UNITED STATES OF AMERICA, Plaintiff, v. ALEXIS CANDELARIO-SANTANA, Defenda

25 Pages·2013·0.12 MB·English

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FOCUS-2of9DOCUMENTS
Analysis
Asof:Jan18,2013
UNITEDSTATESOFAMERICA,Plaintiff,v.ALEXIS
CANDELARIO-SANTANA,Defendant.
CriminalNo.09-427(JAF)
UNITEDSTATESDISTRICTCOURTFORTHEDISTRICTOFPUERTORICO
2013U.S.Dist.LEXIS3816
January8,2013,Decided
January8,2013,Filed
COUNSEL: [*1] For Alexis Candelario-Santana, also Washington,DC;JacabedRodriguez-Coss,UnitedStates
known as Congo, Defendant: Francisco Attorneys Office, District of Puerto Rico, San Juan, PR;
Rebollo-Casalduc, Francisco Rebollo Casalduc Law Marcela C. Mateo, United States Attorney's Office, San
Office, San Juan, PR; PHV David Arthur Ruhnke, PRO Juan,PR.
HAC VICE, Ruhnke & Barrett Law Office, Montclair,
NJ. JUDGES: JOSE ANTONIO FUSTE, United States
DistrictJudge.
For Carmelo Rondon-Feliciano, also known as Omi,
Defendant: Miguel Oppenheimer, Oppenheimer Rios & OPINIONBY:JOSEANTONIOFUSTE
Assoc,Carolina,PR.
OPINION
For Wilfredo Candelario-Santana, also known as Coper,
Defendant: Rafael Anglada-Lopez, Rafael Anglada
LopezLawOffice,SanJuan,PR. MEMORANDUMOPINION
For David Oquendo-Rivas, also known as Gordo, This matter comes before the court as a pre-trial
Defendant:JoseR.Aguayo,LEADATTORNEY,JoseR. determination whether the Defendant, Alexis
AguayoLawOffice,SanJuan,PR. Candelario-Santana ("Defendant" [*2] or
"Candelario-Santana"), 1 is mentally retarded for the
ForUSA,Plaintiff:JuliaDiaz-Rex,LEADATTORNEY,
purposes of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct.
United States Attorneys Office, District of Puerto Rico,
2242, 153 L. Ed. 2d 335 (2002), and the Federal Death
SanJuan,PR;BruceR.Hegyi,UnitedStatesDepartment Penalty Act, 18 U.S.C. § 3596(c). 2 The court held three
of Justice, Criminal Division, Capital Case Unit,
daysofevidentiaryhearingsonthismatter,onDecember
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6, 7, and 21. 3 Having carefully considered the parties' establishing MR/ID by a preponderance of the
arguments,theevidencebeforeus,andthepertinentcase evidence."(DocketNo.564at145.)
law,thiscourtnowissuesitsopinion.4 6 Weagreethatdecidingthisissuebeforetrialis
logical, but we have found no case that
1 Mr. Candelario-Santana Santana's brother, demonstrates it must [*4] be so as a matter of
WilfredoCandelario-Santana,isaco-defendantin law. A case might arise in which this issue is
this indictment. All references to deferred to the penalty phase. We also note that
"Candelario-Santana" are to Alexis there is no consensus as to whether the issue is
Candelario-Santanaunlessotherwisenoted. foreclosed once decided by the judge. We note
2 Consistent with Atkins, the Federal Death that it would make no sense for the issue to
Penalty Act provides that "[a] sentence of death remain open, other than on appeal. Nor do we
shall not be carried out on someone who is decide now whether Defendant may seek to
mentallyretarded."18U.S.C.§3596(c). introduce evidence of his low IQ as mitigating
3 The minute entries and transcripts of these evidenceduringthepenaltyphase.
hearings can be found at Docket Nos. 697; 698;
700; 706; 733; 734. Throughout this order, we B.DefinitionsofMentalRetardation
refer to the transcripts as "Dec. 6 TR," "Dec. 7
TR,"and"Dec.21TR." In Atkins, the Supreme Court held that execution of
4 OnDecember28,2012,weissuedalineorder, mentally retarded persons violates the Eighth
announcing our decision that Defendant is not Amendment's prohibition of "cruel and unusual
mentally retarded. (Docket No. 736.) This punishments." 536 U.S. at 311, 316-21 (quoting U.S.
memorandumopinionexplainsthereasonsforour Const. Amend. VIII). The Court twice discussed clinical
decision. definitions of mental retardation, see id. at 308 n.3, 318,
but did not provide a definition. Id. at 317. After
I. surveying a recent history of executions, the Court held
that a national consensus had developed against
Introduction executing persons with a "known IQ less than 70," a
practice that had become "truly unusual." Id. at 316. The
A. Standards [*3] and Burden of Proof for Pre-Trial
Court acknowledged that "[n]ot all people who claim to
Determination
be mentally retarded will be so impaired as to fall within
the range of mentally retarded offenders about [*5]
The government has notified the parties of its intent
whom there is a national consensus." 536 U.S. at 317.
to seek the death penalty in this case. (Docket No. 458.)
The Court therefore left "to the States the task of
Candelario-Santana argues that because he is mentally
developingappropriatewaystoenforcetheconstitutional
retarded, the government cannot seek the death penalty.
restriction upon their execution of sentences." Id.
(Docket No. 564 at 140-145.) Both parties agree that the
(quoting Ford v. Wainwright, 477 U.S. 399, 106 S. Ct.
Defendant bears the burden of proof on this issue by a
2595, 91 L. Ed. 2d 335 (1986)). The Court also cited a
preponderance of the evidence, and that logically, the
clinical definition of "mild" mental retardation, a
issue should be resolved before trial begins. 5 Every
condition "typically used to describe persons with an IQ
district court that has addressed the issue that we are
between 50-55 and approximately 70." Id. at 308 n.3
aware of has held the same. See, e.g., United States v.
(citing AMERICAN PSYCHIATRIC ASSOCIATION,
Smith, 790 F.Supp.2d 482, 484 (E.D.L.A. 2011)
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
(allocating burden of proof to defendant by
DISORDERS: DSM-IV 42-43 (4th ed. 2000) (hereinafter
preponderance of the evidence standard and resolving
DSM-IV)).
before trial); United States v. Sablan, 461 F. Supp. 2d
1239, 1242 (D.Colo. 2006) (establishing same burden of
In discussing two "similar" definitions provided by
proofandrulingthatdeterminationbemadebeforetrial).
the American Association on Mental Retardation
6
("AAMR") and the American Psychiatric Association
("APA"), the Court noted that "clinical definitions of
5 In his motion, Defendant requests a pretrial
mental retardation require not only subaverage
hearing"wherethedefendantbearstheburdenof
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intellectualfunctioning,butalsosignificantlimitationsin admitted into evidence as Defendant's Exhibit 2
adaptive skills such as communication, self-care, and ("Def.Exh.2"or"Marg.Rep.").
self-direction that became manifest before age 18." 7 Id.
at 318. When asked in court, both parties agreed that an Candelario-Santana was raised in Barrio Sabana
individual must meet each of these three prongs in order Seca, in Toa Baja, in an area known as "The Mangos."
tobeconsideredmentallyretarded.Weagree. Theneighborhoodhegrewupinwasfilledwithviolence,
drug sales, and frequent shootings. At one point,
7 Defendant's expert, [*6] Dr. Stephen Candelario-Santana watched his uncle, Jorge, die after
Greenspan, also refers to these two definitions as being shot in a dispute over a watch. The police would
"highly similar." (Def. Exh. 10 at 5.) Dr. frequently enter the home where Candelario-Santana
Greenspan also endorses Dr. Margarida's grew up, searching for fugitives. The home where
definitionofmentalretardationasinvolvingthese Candelario-Santana and his siblings lived was a
three"prongs."Id. two-bedroom dilapidated [*8] house made out of wood.
The house was located in a larger plot of land owned by
Itisimportanttonotethatwhile"theSupremeCourt Candelario-Santana's aunt. The aunt lived in a larger
in Atkins could have adopted the clinical standard" for house on the same plot of land. Conditions in
defining and evaluating mental retardation, "it explicitly Candelario-Santana's house were very poor; he says that
declined to do so." Hooks v. Workman, 689 F.3d 1148, hisfamilysufferedfromhunger.
1168(10thCir.2012).Thus,ouranalysisneednotrigidly
adhere to the clinical standards. Though the clinical There are very few school records available from
standards have informed our analysis, we emphasize that Candelario-Santana's childhood. Candelario-Santana
"a clinical standard is not a constitutional command." Id. apparently told Dr. Margarida that he dropped out of
InevaluatingDefendant'sclaim,therefore,wehavetaken schoolintheseventhgrade,becauseofhisfrustrationsas
our primary guidance from Supreme Court precedent in a "slow learner." In his interview with the government's
Atkins and helpful expert testimony. After extensive experts, Dr. Jaime Herrera Pino ("Dr. Herrera"), and Dr.
deliberation, and for the reasons explained below, we Jaime Grodzinski Schwartz ("Dr. Grodzinski"),
conclude that Candelario-Santana is not mentally Candelario-Santana provided an additional explanation
retarded. forhisdecisiontodropout,whichwashisdesiretowork
andhelphismotherovercometheirfamily'spoverty.9
II.
9 This explanation is provided in Dr.
Candelario-Santana'sBackground Grodzinski's report, entered as Defendant's
Exhibit11,atpages2-3.
Candelario-Santanaisaforty-oneyearoldmalefrom
PuertoRico.Thefollowingbackground,unlessotherwise Later during the hearing, the court saw a diploma
noted, is derived from pages seven through twelve of the indicating that Candelario-Santana had finished the ninth
reportbyDr.MaríaT.MargaridaJuliá("Dr.Margarida"). grade. 10 [*9] The few available records suggest that
[*7] 8 Candelario-Santana was the fourth of eleven Candelario-Santana likely repeated one grade in school,
childrenborntohismother,AdelaidaSantanaPinto,who though it is unclear which grade, or the reasons behind
produced children from five different unions. thatcircumstance.
Candelario-Santana's father, Hipólito
Candelario-Santana, abandoned Candelario-Santana's 10 Government'sExhibit4.
mother when Defendant was very young, and had very
little contact with him. When Candelario-Santana was There are also several indications that
twelve years old, his mother sent him to Florida to live Candelario-Santana never applied himself in school. He
with his father, but Candelario-Santana soon returned told Dr. Zahira Lespier Torres ("Dr. Torres"), a
home to Puerto Rico, because he and his father did not psychologist who interviewed him in 2008, that he used
getalong.Candelario-Santanahadverylittlecontactwith to "cut classes." 11 Candelario-Santana admitted to Dr.
hisfatherafterthat. Herrera that he was often reprimanded for misbehaving
and asked to leave the classroom. 12 Candelario-Santana
8 A copy of Dr. Margarida's report has been also indicated to Dr. Herrera that he often behaved in
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ways that were distracting to other students in the class. Puerto Rico after a year was voluntary and not as
To Dr. Grodzinski, Candelario-Santana admitted that his a result of any problems at work. This was
economic and family worries were continuously uncontradictedbythedefense.
distracting him from his studies and that his school 17 See Dr. Grodzinski's report, Def. Exh. 12 at
attendance dropped because of family-related concerns. 3.
HealsotoldDr.GrodzinskithathelikedtolearnSpanish 18 SeeDr.Grodzinski'sreport,whichstatesthat
andScience.Candelario-SantanatoldDr.Grodzinskithat Defendant worked for three years maintaining
despitehisfamily'spoverty,heremembersbeingplayful, horses in stables, from the ages of 12 to 15. Def.
having a lot of fun going out with friends, and enjoying Exh.12at3.
fightingotherkidsinhisneighborhood. 19 Defendant's work history was confirmed in
his 2008 mental health evaluation by Dr. Torres.
11 An English translation of Dr. Torres' report Thatevaluationisdiscussedbelow.Gov.Exhibits
[*10]isavailableasGovernment'sExhibit14. 4;14.
12 This can be found in Dr. Herrera's report,
produced as Defense Exhibit 13, page 3. (Def. Candelario-Santanaalsostatedthatbetweentheages
Exh.13at3.) of eleven and thirty-eight years, he enjoyed boxing and
would sometimes train every day. Even though he used
At some point between the ages of fifteen and protection, Candelario-Santana says that he received
seventeen years old, Candelario-Santana moved to New several head concussions during training [*12] and
York.13WhileinNewYork,heworkedforoneyearina fights.Heestimatesthathesufferedapproximatelytento
full-timejobatafactory.14HissisterMildredworkedat twenty concussions, which caused an altered state of
the same factory. 15 After a year, he returned to Puerto consciousness and brief confusion. Also, when
Rico. 16 In addition to his job in the factory, Candelario-Santana was twenty years old, he suffered a
Candelario-Santana has had an assortment of other head injury in a motorcycle accident in which he claims
part-time jobs, including working in construction, where to have temporarily lost consciousness. Upon regaining
he earned $120 per week after dropping out of the consciousness, he rode his motorcycle home. There are
seventh grade; 17 landscaping, when he lived in Detroit; nomedicalrecordsavailableregardingtheinjury.
performing odd jobs at stables, where he took care of
horses for three years; 18 and driving a truck to transport While the exact chronology is unclear,
merchandise. 19 On one occasion, Candelario-Santana Candelario-Santana has moved to and from Florida;
was able to save enough money to buy his own truck. Puerto Rico; Brooklyn, New York; and Detroit,
When he was twenty-two years old, Candelario-Santana Michigan, throughout his life. For most of his life,
obtained a driver's license, which he still has. Though he Candelario-Santana has lived either with his relatives or
has had no formal training, Candelario-Santana says he themothersofhischildren.
knowshowtofixacarandchangefiltersandbrakepads.
Atsomepoint,healsoreceivedalicensetooperateheavy Candelario-Santana has five children from two
equipment. differentunions.Whenhewassixteenorseventeenyears
old, Candelario-Santana married Sonia Benítez, with
13 Dr. Grodzinski's [*11] report indicates that whom he has two children, now twenty-three and
Defendant was fifteen years old when he moved twenty-twoyearsold.HissecondrelationshipwithIsabel
to Brooklyn. (Def. Exh. 11 at 3.) Dr. Margarida's Ocasioproducedthreemorechildren,allofwhomlivein
report suggests that Defendant was seventeen at Detroit. 20 Individuals who know Candelario-Santana
thetimeofhismovetoNewYork. indicate that he is "a good father as far as people can
14 Dr. Grodzinski's report describes this as a tell."21
windows factory, while Dr. Margarida's report
describes it as a packing factory. Def. Exh. 11 at 20 Def.Exh.2at6.
3;Def.Exh.2at11. 21 SeeDr.Herrera'stestimony.Dec.7TR [*13]
15 Def.Exh.2at11. at68.
16 The government's cross-examination
This court also received information from pretrial
suggestedthatthereasonforDefendant'sreturnto
services regarding Candelario-Santana's criminal
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background.WehaveseenreportsofDefendant'shistory contact.
from the National Crime Intelligence Center (NCIC), as
wellastheoriginalconvictionrecordsfromPuertoRico's TheresultsofDr.Torres'examsdidnotindicateany
commonwealth courts. In addition, a criminal history signs of mental retardation. On the Raven test, which
analysis, dated December 6, 2012, and provided by the measures intellectual capacity using nonverbal exercises,
Puerto Rico Police Department, confirmed that Candelario-Santana obtained a classification of
Defendant has been adjudged guilty of twelve murders. "Average," compared to his age peer group. On the
Defendant also has several more felony convictions on MMPI-2, which measures personality traits and clinical
his record, including for firearms violations and scales that may affect a person's functioning,
destruction of evidence. During the hearing, the Candelario-Santana exhibited a profile of "valid." The
government and a defense witness agreed that Defendant scales of validity indicated that Candelario-Santana
had been convicted of "some sixty felonies." 22 The list maintained a balance between self-protection and
of convictions and brushes with the criminal justice self-exposure, as well as a moderate pretense of looking
system is the longest and most impressive we have seen calm. In her discussion of the results, as well as in her
intwenty-sevenyearsonthebench. clinical observations, Dr. Torres noted repeatedly that
Candelario-Santana appeared to be anxious and reserved
22 Dec.6TRat115. during the interview. According to Dr. Torres,
Candelario-Santana accepted responsibility for criminal
In January 2008, while in Puerto Rico's behavior while invoking his right not to elaborate. She
commonwealth prison system, Candelario-Santana was drew associations between Candelario-Santana's
examined by mental health professionals. Clinical secretivenessandhislifestyleandsurroundings.
psychologistZahiraLespierTorres("Dr.Torres"),Psy.D,
performed the evaluation. 23 Dr. Torres performed a In her summary and recommendations, Dr. Torres
Minnesota Multiphasic Personality Inventory-2 [*14] again noted that Candelario-Santana had "proper average
(MMPI-2) and a Raven Progressive Matrices exam. She [*16] intellectual resources to work and produce." She
based her evaluation on a structured clinical interview indicated that clinically, Candelario-Santana did not
with Candelario-Santana, clinical observations of him, as suffer from any severe pathology. She observed that
well as on information contained in his referring report Candelario-Santana possessed a neurotic, rigid, distant
fromthecorrectionalinstitution. style, consistent with a person very concentrated on
himself. Among the "protective factors" that
23 AcopyofDr.Torres'reportwasenteredinto Candelario-Santana had in his favor, Dr. Torres included
evidence at the Atkins hearing as Government's three factors: An absence of severe pathology, family
Exhibit 4. An English translation of the report is support,and"intellectualresources."Amongthedynamic
availableasGovernment'sExhibit14. factors, Dr. Torres noted: A tendency to avoid managing
his emotions, poor introspection, restrictions on his
Dr. Torres' report begins with a short description of
ability to manage friendships, and location and stable
Candelario-Santana's legal background. She states that
work. Her ultimate recommendation, if
Candelario-Santana indicated he was the chief ("jefe") of
Candelario-Santana was considered for parole, was
a gang, and that after being implicated in a crime, he
preventive psychological follow-up and an occupational
moved to Michigan to live, where he stayed for several
adjustment. She also suggested working on
years until he was finally arrested there. She made the
Candelario-Santana's social/interpersonal relations with
following "relevant clinical remarks" about
friendsandacquaintances.
Candelario-Santana: he had a proper appearance and
personal neatness; he stated that he understood the While incarcerated in Puerto Rico's commonwealth
purposeoftheevaluation;andseemedtobewell-oriented prisons, Candelario-Santana went on to earn his GED. 24
in time, place, and self. His thought process was logical In January 2008, he was selected as the "Student of the
and coherent, pertinent to the questions asked. His work Month" in the educational program at the Zarzal
rhythm was normal, and he performed the tasks Correctional Institution, where he was serving prison
independently. His linguistic expression was clear and time.25
with appropriate [*15] language. The interview flowed
as anticipated, with Candelario-Santana maintaining eye 24 The report from Dr. [*17] Margarida
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indicates that he obtained his high-school Candelario-Santana as he and four other individuals
equivalency degree. During the hearings, the approached the shores of St. Thomas, U.S. Virgin
government repeated its assertion that Defendant Islands, [*19] in a private boat. Candelario-Santana
received his GED. This was uncontradicted, initially presented a false identification, providing a
except for the Defendant's qualification that Florida driver's license. Federal agents performed
Defendant got help to do so. Dr. Herrera's report biometrictestsanddeterminedthattheidentificationwas
alsostatesthatDefendantobtainedhisGED.Def. false. Another CBP Agent, Louis Penn, recognized
Exh.13at3. Candelario-Santana as a fugitive sought by authorities in
25 A copy of the ninth-grade equivalency Puerto Rico. Agent Don Severance then placed
certificate and the Student of the Month award Candelario-Santanaunderarrest.
were entered into evidence as Government's
Exhibit4. Following Candelario-Santana's arrest, federal and
commonwealth law enforcement officers held a press
A little more than one year later, after serving only conference describing the events. The news was widely
six years of a twelve-year murder sentence, reported throughout Puerto Rico at the time. One of
Candelario-SantanawasreleasedfromprisoninFebruary Puerto Rico's main television news stations, WAPA TV,
2009. Six months later, on October 17, 2009, the produced a television news announcement, available
massacre at La Tómbola occurred. On November 10, online, which included footage of the press conference
2009, the government filed a criminal complaint against held by law enforcement officials. In the video, U.S.
Candelario-Santana for two counts of being a felon in Attorney for the District of Puerto Rico, Rosa Emilia
possession of a firearm, in violation of 18 U.S.C. §§ Rodríguez-Vélez, is shown describing the arrest and
922(g)(1)and924(e).(Cr.No.09-mj-816,DocketNo.3.) charges against Candelario-Santana, including his status
In support of the complaint, the government attached an asanarmedcareercriminal.26RobertoEscobar,Director
affidavitfromFBISpecialAgentKristopherPagano.(Cr. of the Immigration and Customs Enforcement (ICE) in
No. 09-mj-816, Docket No. 3-2.) In his affidavit, Agent Puerto Rico, is also shown discussing the arrest. The
Pagano describes evidence that Candelario-Santana circumstancesofDefendant'sarrestwerealsoreportedby
illegally possessed [*18] a firearm on two occasions, the Associated [*20] Press 27 and Puerto Rico's leading
October 17 and November 4, 2009. (Cr. No. 09-mj-816, newspapers,includingElNuevoDíaandElVocero.28
Docket No. 3-2.) A confidential human source described
seeing Candelario-Santana in the Juana Matos Housing 26 En la Cárcel Federal Alexis Candelario,
Project in Cataño, Puerto Rico, on November 4, 2009. WAPA TV, Primera Plana, December 16, 2009
(Id.) The source said that he/she saw Candelario-Santana (available at
inpossessionofafirearmwithanextendedhighcapacity http://www.wapa.tv/noticias/primeraplana
magazineinplainview.(Id.) /en-manos-de-la-policia-alexis-candelari
o_20091216090248.html)(lastvisitedJanuary03,
OnNovember10,2009,U.S.MagistrateJudgeJusto 2012).
Arenas issued an arrest warrant for Candelario-Santana. 27 En la Cárcel Federal Alexis Candelario,
(Cr. No. 09-mj-816, Docket No. 4.) On December 16, Maritza Cñizares,_Associated Press, December
Candelario-Santana appeared before U.S. Magistrate 16, 2009 (available at
Judge Camille Vélez-Rivé, under custody of federal http://xposedmagazine.wordpress.com/tag/
agents.(Cr.No.09-427,DocketNo.10.)Wetakejudicial alexis-palo-de-goma/) (second article on page)
notice of the following facts surrounding Defendant's (lastvisitedJanuary03,2012).
captureandarrestonedayearlier,onDecember15,2009. 28 Alexis Candelario Podria Ser Extraditado en
SeeFed.R.Evid.201(b)(providingthatacourtmaytake Varios Dias, Osman Perez Mendez, EL NUEVO
judicialnoticeoffactsthat"canbeaccuratelyandreadily DIA, December 16, 2009 (available at
determined from sources whose accuracy cannot http://www.elnuevodia.com/alexiscandelar
reasonablybequestioned."). iopodriaserextraditadoenvariosdias-64899 5.html
(lastvisitedJanuary03,2012);seealsoEnLaIsla
On December 15, 2009, agents of the U.S. Customs Presunto Autor de Masacre de la Tombola,
and Border Patrol (CBP) apprehended LimarysSuarezTorresandRicardoTorresChico,
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EL NUEVO DIA, December 16, 2009 (available 30 Dr. Margarida's curriculum vitae was
at http://www.elnuevodia.com/enlaislapresun admitted into evidence as Defense Exhibit 1. Dr.
toautordemasacredelatombola-649295.html) (last Margarida also described her qualifications and
visited January 03, 2012); see also Arrestan a background to the court during her testimony on
Alexis Candelario-Santana, Miguel Puig, EL December6.(DocketNo.697at6.)
VOCERO,December16,2009,at22. 31 SeeDr.Greenspan's"Declaration,"Def.Exh.
10 at 1. On cross-examination, the government
In a 52-count third superseding indictment [*21] alsoestablishedthatmentalretardationhasbeena
returned in October 2012, defendants [1] Alexis fairly small part of Dr. Margarida's career. (Dec.
Candelario-Santana, [2] Carmelo Rondón-Feliciano, and 6.Tr.at83-89.)
[4]WilfredoCandelario-Santanaarechargedasmembers
of a criminal organization "whose members engaged in Dr. Margarida spent a total of twenty-seven hours
narcotics distribution and acts of violence, including with Candelario-Santana during seven separate sessions.
murder and attempted murder." (Docket No. 579 at 1-2.) 32Sheperformedabatteryoftestsusingseveraldifferent
The overt acts in furtherance of this conspiracy include instruments. Each [*23] of those instruments is listed in
twenty-one (21) murders and twenty-one (21) attempted her report ("Marg. Rep."). 33 The most important tests
murders. (Id.; Docket No. 590 at 3.) Defendants [1] were the "EIWA-III," a version of the Wechsler Adult
AlexisCandelario-Santanaand[5]DavidOquendo-Rivas Intelligence Scale III that has been normed for Puerto
are specifically charged with having committed violent Rico, 34 and the Vineland II Adaptive Behavior Scales
crimesinaidofracketeeringactivityfornine(9)murders ("Vineland" or "VABS-II" test), which she administered
andtwenty-one(21)attemptedmurders.(Id.)Nineofthe to two relatives of Candelario-Santana. 35 She testified
murders charged in the indictment occurred on October that Candelario-Santana was fully cooperative with the
17,2009,thedayofLaTómbolamassacre.(Id.at6-7.) testsandthatshefoundnoevidenceofmalingering.36
III. 32 A more complete version of the relevant
chronology regarding Defendant's Atkins defense
ExpertReports is set forth in a separate order, see Docket No.
627.Asweexplainedinthatorder,Defendanthas
The court heard testimony from the following four
had more than a year since we granted his first
experts in this case. Each of the experts was qualified as
motion to appoint a psychological expert in the
anexpertwithoutobjection.
case.Id.
33 AfullcopyofDr.Margarida'sreport,aswell
A.Dr.Margarida
as sealed copies of the raw data that formed a
Dr. María Margarida, Psy.D., was the first expert to basisforthereport,wereenteredintoevidenceas
testify, on December 6, 2012. 29 She was called by the Defense Exhibits 2-8. In this opinion, we refer to
Defendant. Dr. Margarida is a full-time Professor in the "Def.Exh.2"and"Marg.Rep."interchangeably.
NeurologysectionoftheUniversityofPuerto [*22]Rico 34 Dr. Margarida referred to this test the
School of Medicine. 30 In 1986, she received a Psy.D. EIWA-III during her testimony. (Docket No. 697
degree in clinical psychology from the Massachusetts at28.)
School of Professional Psychology. She also received a 35 A full list of the tests Dr. Margarida
M. Ed. From Harvard University in 1980. In 1986-1987, performed, including the NEUROPSI, can be
she was a post-doctoral fellow in neuropsychology at foundin [*24]herreport.
Harvard Medical School. Her current professional 36 The government disagreed with this, citing
activities today are wide-ranging, including teaching, Dr. Grodzinski's finding of malingering on the
research, consultation, clinical practice, and private Rey15.(Dec.6Tr.at95-96.)
practice. Dr. Margarida does not specialize in mental
On the EIWA-III comprehensive intelligence test,
retardation.31
Candelario-Santana obtained a full score of 75. (Marg.
29 A transcript of Dr. Margarida's testimony is Rep. at 16.) His verbal score was an 80 and his
availableatDocketNo.697(Dec.6TR). performance score was a 72. Broken down even further,
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Candelario-Santana's score was an 84 on verbal Regarding the third prong of mental retardation, Dr.
comprehension, 79 on perceptual organization, 77 on Margarida again relied heavily on her interviews with
working memory, and 59 on processing speed. These Candelario-Santana's sisters in Massachusetts, including
results are listed in a table at page 16 of Dr. Margarida's thetwoadministrationsoftheVinelandtest.(Marg.Rep.
report.37 at 30.) She also referred to her academic probes of
Candelario-Santana, available records, and interviews
37 Def.Exh.2at16. withCandelario-Santanaandhisrelatives,whichshesaid
indicatedtheonsetofmentalretardationbeforetheageof
Dr. Margarida testified that the EIWA-III was the
eighteen.(Id.)
only comprehensive intelligence test that she performed.
Nonetheless, the table of results on page 16 of her report B.Dr.Herrera
also lists scores scaled for the WAIS III intelligence test.
Dr. Margarida explained that even though she did not Dr. Jorge Herrera Pino ("Dr. Herrera") was the
actually perform the WAIS III, she saw it fit to include second expert to testify, on December 7. 39 Dr. Herrera
scores scaled to that test, because of her belief that the was called by the government. Among many other
EIWA-III overestimates scores. (Docket No. 697 at 31.) professionalroles,Dr.Herreraisthefounderanddirector
Dr. Margarida also applied the "Flynn effect" to her of the Miami Neurobehavioral Institute, where he
results, and provided two columns of "Flynn adjusted oversees a team of eleven licensed neuropsychologists.
scores."38(Marg.Rep.at16.) Recently he managed a five-year contract from the state
ofFlorida,inwhichheandhisteamwereresponsiblefor
38 As we discuss in our analysis section, [*25] evaluating 5,000 individuals for developmental disability
we disregard the Flynn-adjusted scores and the diagnoses. Dr. Herrera estimates that seventy to
WAISIIIscores. seventy-five percent of [*27] those individuals were
evaluated for mental retardation specifically. At the
Dr. Margarida's report also refers to the "second
beginning of his career, Dr. Herrera was involved in a
prong" of adaptive behavior. (Marg. Rep. at 19.) To
large-scale effort to rectify incorrect diagnoses of
assess Candelario-Santana's adaptive behaviors, she
Hispanic children as mentally retarded by the state of
relied heavily on two administrations of the Vineland II
Michigan.
Adaptive Behavior Scales, which were administered in a
"semi-structured interview format with two of Mr. 39 A transcript of Dr. Herrera's testimony is
Candelario-Santana's sisters, and score[] his performance availableatDocketNo.700(Dec.6TR).
ashefunctionedat17years,6monthsage."(Marg.Rep.
at 21.) To do this, Dr. Margarida flew to Worcester, A large portion of Dr. Herrera's career has also
Massachusetts, where eleven of Candelario-Santana's involved,uptothepresentday,internationalconsultation
twelvesiblingsarenowliving.(Dec.6.TRat41-42.)She withinstitutionsthroughoutSpainandLatinAmerica.He
spoke to Candelario-Santana's siblings about their sees patients one day a week in addition to his extensive
memories of Candelario-Santana when he was age teaching, supervision, consulting, and management
seventeen and one-half years old. Dr. Margarida also responsibilities, which he does for hospitals, universities,
performed informal adaptive probes of and private institutions. He is an Associate Professor and
Candelario-Santana, as well as academic probes, a founding member of the college of medicine at Florida
including the Woodcock Muñoz III Achievement Test, International University. 40 His involvement in the field
Spanish Version. (Marg. Rep. at 25-28.) In Dr. of neuropsychology stretches some "forty plus years." 41
Margarida's words, "the information gathered in the Hehasalsotestifiedforboththegovernmentanddefense
standardized assessment was validated by cross referring as an expert in Atkins hearings, including approximately
the informant's responses, with data gathered from ten times for the defense in habeas proceedings. 42 Dr.
informal adaptive probes with Alexis, interviews [*26] Herrera has a Ph.D. in Educational and Clinical
with collateral sources described earlier, and information NeuropsychologyfromWayneStateUniversity,aDoctor
from standardized achievement testing using the of Medicine from Universidad [*28] de Alcalá, Spain,
WoodcockMuñozSpanishAchievementBatteryIII."(Id. and was a post-doctoral fellow for two years in pediatric
at21.) and clinical neuropsychology, also at the Universidad de
Alcalá,Spain.43
Page9
2013U.S.Dist.LEXIS3816,*28
40 Dec.7Tr.at13. Dr. Grodzinski evaluated Candelario-Santana on
41 Dec.7Tr.at13. three separate occasions, November 13, 19, and 21,
42 Id.at14. [*30] for a total of ten hours. The evaluation included a
43 CopiesofDr.Herrera'scurriculumvitaewere clinical interview, an inquiry into Candelario-Santana's
admittedintoevidenceasGovernment'sExhibit5. medical and psychological history, and
Dr.Herreraisnotalicensedmedicaldoctor. neuropsychological testing. A complete list of the
eighteentestsadministeredbyDr.Grodzinskiisavailable
Dr. Herrera met with Candelario-Santana for in his report. While "the main source of information was
approximately two hours at the Metropolitan Detention Candelario-Santana himself," Dr. Grodzinski also
Center, where he performed a neuropsychological gathered information from the following sources: The
diagnosticinterview.Hepreparedareportofhisanalysis, indictment; Candelario-Santana' siblings; the report and
availableasDefenseExhibit13.Inhisreport,Dr.Herrera raw data by Dr. Margarida; the reports of Drs. Torres 46
also analyzed the findings of a 2008 psychological exam and Greenspan; Candelario-Santana's school records,
done by Dr. Torres (discussed above), and conducted prison records, and vaccinations records; interviews with
interviews with four individuals who had known four individuals who knew Candelario-Santana well; and
Candelario-Santana well for an extended period of time, transcriptofphonecallsmadebyCandelario-Santana.
including in adulthood. Each interview lasted
approximately one-and-a-half hours. Dr. Herrera also 46 Dr.GrodzinskireferstoDr.LespierTorresas
reviewed the tests performed by Dr. Margarida and Dr. "Dr.Lespier,"herfirstlastname.Thisisthesame
Grodzinski. (Dr. Grodzinski's background and findings report and doctor we refer to as Dr. Torres, see
are discussed below.) Dr. Herrera also performed an Government'sExhibit14.
"additional eclectic battery of neuropsychological
instruments"tocomplementthetestresultsperformedby Based on all of this information, Dr. Grodzinski
Dr. Grodzinski. [*29] As we discuss further below, Dr. concluded that Candelario-Santana was not mentally
Herreradeterminedwithahighdegreeofconfidencethat retarded. Dr. Grodzinski also concluded that
Candelario-Santanawasnotmentallyretarded. Candelario-Santana's available records and test results
were consistent with post-concussion syndrome and his
C.Dr.Grodzinski "psychosocial deprivation" [*31] that interrupted his
formaleducationatseventhgrade.
Dr. Jaime Grodzinski Schwartz ("Dr. Grodzinski")
was the second government expert to testify, also on D.Dr.Greenspan
December 7. 44 Dr. Grodzinski received a Psy.D. and M.
Sc. in clinical psychology, with an emphasis in Dr. Stephen Greenspan, the final expert, testified on
neuropsychology, from Carlos Albizu University in December 21. (Dec. 21 TR.) Dr. Greenspan received a
Miami, Florida. He has also received graduate degrees Ph.D. in developmental psychology from the University
and licensures in clinical psychology from institutions in of Rochester, and was a postdoctoral fellow in mental
Peru and Israel. Presently, Dr. Grodzinski serves as a retardation and developmental disabilities at UCLA. He
neuropsychologist examiner for the Veterans Hospital in is currently a Clinical Professor of Psychiatry at the
SanJuan,PuertoRico,andperformsclinicalandforensic University of Colorado Health Sciences Center, and
psychological services for several other government Emeritus Professor of Educational Psychology at the
entities. Dr. Grodzinski is also an adjunct professor at University of Connecticut. He has a long history of
Carlos Albizu University, and maintains a private involvement in the mental retardation field, including in
practice.45 the APA and AAIDD. His work has been cited in the
relevant manuals of the AAIDD, and he has testified in
44 A transcript of Dr. Grodzinski's testimony is several court cases involving mental retardation,
availableatDocketNo.700(Dec.7TR). includingseveralAtkinsdeterminationsinfederalcourts.
45 A more complete list of Dr. Grodzinski's Dr. Greenspan's curriculum vitae is available as
educationandprofessionalexperiencesissetforth Defendant'sExhibit10.
inhiscurriculumvitae,availableasGovernment's
Exhibit8. Dr. Greenspan did not directly examine or interview
Candelario-Santana. Instead, Dr. Greenspan provided a
Page10
2013U.S.Dist.LEXIS3816,*31
"Declaration." In his "Declaration," Dr. Greenspan testimony or evidence admitted . . . is reliable." Daubert
describeshisinvolvementinthecase: v.MerrellDowPharmaceuticals,Inc.509U.S.579,589,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). We enjoy
Although Dr. Margarida is a highly wide latitude in determining how to assess an expert's
qualified neuropsychologist, she does not reliability, and we are not limited to the specific factors
specialize in developmental disorders outlined in Daubert or any other case. See Kumho Tire
[*32] such as mental retardation. Co. v. Carmichael, 526 U.S. 137, 138, 119 S. Ct. 1167,
Therefore, Mr. Ruhnke engaged my 143L.Ed.2d238(1999);UnitedStatesv.Shay,57F.3d
services as a recognized authority on 126, 132 (1st Cir. 1995) ("A [*34] district court's
mental retardation, and asked me to decision to admit or exclude expert testimony is entitled
examine Dr. Maragrida's [sic] methods togreatdeference.");UnitedStatesv.Brien,59F.3d274
and findings, and opine as to whether or (1st Cir. 1995) ("[T]rial judges have traditionally been
not she is on firm ground in her afforded wide discretion to admit or exclude expert
conclusions. evidence.").
Def. Exh. 10 at 1. Dr. Greenspan says he has performed 47 Rule702provides:"Ifscientific,technical,or
similar services in other U.S. court cases, also without otherspecializedknowledgewillassistthetrierof
actually meeting or interviewing the defendants or any fact to understand the evidence or to determine a
witnesses. In his "findings", Dr. Greenspan states his fact in issue, a witness qualified as an expert by
professionalopinionthatDr.Margarida"usedappropriate knowledge, skill, experience, training, or
methods and information for assessing" the three prongs education,maytestifyintheformofanopinionor
of mental retardation, and that she "appears justified in otherwise. Fed. R. Evid. 702; see also Shay, 57
her conclusion that Mr. Candelario-Santana" meets the F.3dat132.
threeprongs.Dr.Greenspanbrieflydiscussesthereasons 48 Rule 703 provides: "The facts or data in the
for this professional opinion, and cautions against particular case upon which an expert bases an
adopting any stereotype of mentally-retarded people. He opinionorinferencemaybethoseperceivedbyor
also warns against using isolated competencies or madeknowntotheexpertatorbeforethehearing.
accomplishments as evidence of mental retardation. It is If of a type reasonably relied upon by experts in
not clear from Dr. Greenspan's "Declaration" what the particular field in forming opinions or
information he considered about Candelario-Santana inferencesuponthesubject,thefactsordataneed
asidefromDr.Margarida'stests. notbeadmissibleinevidence."Fed.R.Evid.703.
On December 18, days before his testimony, Dr. We found Dr. Greenspan's testimony suffered from
Greenspan produced a "Supplemental Declaration." extreme deficits to the extent that it was fundamentally
[*33] (Def. Exh. 10A.) At the hearing and in subsequent unreliable. We conclude that it cannot be used as
briefings, the defense made almost no reference to this evidenceinrenderingourdecisiontoday.
"Supplemental Declaration." We have reviewed the
First, [*35] Dr. Greenspan's testimony contained
SupplementalDeclaration,andfoundittobespeculative,
considerableerrorsthatsuggestacertaincarelessnessand
inconsistent, and unhelpful. The unhelpfulness of Dr.
slipshod disregard for the seriousness of our present
Greenspan's Supplemental Declaration is consistent with
inquiry.Forexample,Dr.Greenspan'sdeclaration,which
his otherwise limited, biased and unprofessional
he signed under penalty of perjury, states unequivocally
involvement in this case. The Supplemental Declaration
that he reviewed Dr. Margarida's final report. (Docket
reviews the reports of Drs. Grodzinski and Herrera and
No. 600.) Yet he admitted to the court that he was
adds additional thoughts about their reports. Our
actually not sure whether he had read her final report
determinationthatDr.Greenspaniscompletelylackingin
(dated the same day as his declaration) or an earlier,
credibility precludes us from giving any weight to the
non-finaldraft.(Dec.21TRat80.)Also,Dr.Greenspan's
assertionsinhisSupplementalDeclaration.
declaration states that he has personal knowledge of its
Under Rules of Evidence 702 47 and 703 48, this contents--including his laudatory endorsement of Dr.
court has a duty to "ensure that any and all scientific Margarida'sprofessionalqualificationsandreputation.In