Julius Jerome Murphy #999279 Texas

[antionette]

Julius Murphy was granted a stay of Execution last January 2006 based on the Atkins issue.

http://www.cca.courts.state.tx.us/opinions/HTMLOpinionInfo.asp?OpinionID=13483



IN THE COURT OF CRIMINAL APPEALS


OF TEXAS






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WR-38,198-03


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EX PARTE JULIUS JEROME MURPHY




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ON SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. 97-F-462-102 FROM THE


102ND DISTRICT COURT OF BOWIE COUNTY



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Per Curiam.
Keller, P.J. and Meyers, J. dissent




ORDER




This is a subsequent application for habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he is mentally retarded and cannot be sentenced to death under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002).

Applicant was convicted of capital murder on 1998. We affirmed the conviction and sentence. Murphy v. State, No. 73,194 (Tex.Crim.App. May 24, 2000). On October 20, 2000, applicant filed his initial application for writ of habeas corpus pursuant to Article






MURPHY -2-

11.071. We denied relief. Ex parte Murphy, No. WR-38,198-02 (Tex.Crim.App. April 10, 2002).

We have reviewed this subsequent application and find that it has presented a prima facie case under our holding in Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App. 2004) and satisfies the requirements of Texas Code of Criminal Procedure, Article 11.071, section 5. Accordingly, we find that the requirements for consideration of a subsequent application have been met in his first claim and the writ should issue according to Article 11.071, section 6. The cause is remanded to the trial court to resolve the issue as set out in Article 11.071, sections 7 through 10. Our determination necessitates the granting of a stay of execution until this matter is resolved by order of this Court.

IT IS SO ORDERED THIS THE 18TH DAY OF JANUARY, 2006.

Do Not Publish

 

[antionette]

The TCCA are interested in the issue of the "Flynn Effect" and remanded his case back to trial court to have an evidentiary hearing, specifically addressing the issues of the "Flynn Effect" 

http://www.cca.courts.state.tx.us/opinions/HTMLOpinionInfo.asp?OpinionID=13484

IN THE COURT OF CRIMINAL APPEALS


OF TEXAS






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NO. WR-38,198-03


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EX PARTE JULIUS JEROME MURPHY, Applicant







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ON SUBSEQUENT APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 97-F-462-102 FROM THE


102ND DISTRICT COURT OF BOWIE COUNTY



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Cochran, J., filed a concurring statement in which Price and Hervey, JJ., joined.



CONCURRING STATEMENT




Based upon the affidavits attached to his application, I agree that applicant has made a prima facie showing of mental retardation under Atkins, (1) and thus we should remand this case to the trial court for further consideration. I am, however, concerned that applicant claims that he is mentally retarded even though the only intelligence test score that he relies upon is one that shows his over-all I.Q. as being 81. This score is well above the generally accepted cut-off score of 70 for the mildly mental retarded.

Applicant relies on a purported "Flynn effect" and the statistical margin of error to argue that his "true" I.Q. might be as low at 69. (2) It is on this basis that applicant asserts that he has made a prima facie showing of the first prong of mental retardation.

Discussion of the Flynn effect has, since the Atkins decision, suddenly come to the fore of death-penalty mental-retardation claims. (3) According to the description by one court,

"Ever since the introduction of standardized IQ tests in the early 20th century, there has been a systematic and pervasive rise in IQ scores all over the world, including the United States. Known as the Flynn effect ... , [it] causes IQ test norms to become obsolete over time [citations]. In other words, as time passes and IQ test norms get older, people perform better and better on the test, raising the mean IQ by several points within a matter of years. Once a test is renormed, which typically happens every 15-20 years, the mean is reset to 100, making the test harder and 'hiding' the previous gains in IQ scores." (4)




Thus, if the Flynn effect is credited, "[g]ains on the Wechsler scales are approximately 0.311 points per year; '[a]lthough there is not a consensus among professionals as to why these gains are occurring or what these gains actually mean (e.g., are we really getting smarter?), all are in agreement that the gains occur ... .'" (5) However, at least one court has stated that the American Association of Mental Retardation (AAMR) "does not suggest that an IQ score must reflect adjustment for the Flynn effect." (6) Furthermore, "[t]he scientific community does not agree on the cause of this phenomenon." (7)

Mr. Flynn, a political scientist residing in New Zealand, attributes his namesake effect to environmental factors such as "the advent of television and the greater cognizant demands of industrial development." ( Mr. Flynn states that "[t]he hypothesis that best fits the results is that IQ tests do not measure intelligence but rather correlate with a weak causal link to intelligence." (9)

According to one unscientific source, Mr. Flynn "concluded that someone who scored among the best 10% a hundred years ago, would nowadays be categorized among the 5% weakest. That means that someone who would be considered bright a century ago, should now be considered a moron!" (10)

There is something intuitively illogical about this argument, but perhaps there is a sound scientific basis for it. (11) If so, what impact, if any, does (or should) this Flynn effect have upon the determination of whether a person standing trial today is so mentally retarded that it would violate the Eighth Amendment to execute him regardless of all other facts that might militate in favor of the death penalty? Do, as Mr. Flynn posits, I.Q. tests have merely a "weak correlation" with actual intelligence? Do I.Q. tests accurately reflect a person's ability to function in society? To be morally cognizant and culpable for his criminal conduct? Should the legal standard for determining mental retardation for Eighth Amendment purposes rely upon I.Q. test scores (and if so should that reliance be based upon the highest score, the lowest, the most recent, an average of all scores, the raw score, a score that has been recalculated by taking into account the Flynn effect and/or the standard deviation of error, one that is a specific number or that falls within a range- and, if so, what range) as part of its definition or should the fact-finder focus solely upon a person's childhood or adult behavior and cognitive abilities? For if, in fact, I.Q. scores are so unreliable in measuring actual mental functioning that an over-all test score of 81 may be equivalent to an actual I.Q. of 69, perhaps the use of I.Q. test scores is a scientifically inappropriate means of measuring mental retardation. The result may be that, for purposes of Atkins, what juries and courts need is a "reasonable man" assessment of mental competence as opposed to a statistician's.

These are questions upon which the parties in this case might wish to offer documentary evidence and testimony so that the trial court and this Court may make the ultimate factual determination of whether applicant is so mentally impaired that he is exempt from the death penalty under the Eighth Amendment to the United States Constitution. The ultimate question that must be decided is not whether a person has a certain specific I.Q. test score or whether that person's measured I.Q. score might qualify him for the receipt of additional social services or special educational assistance, but rather whether he is so mentally deficient that he ought not be held fully morally accountable for his criminal conduct.

I therefore join in the Court's decision to grant applicant's request for a stay of execution and to remand this case to the trial court for further evidentiary development on these issues.




Filed: January 18, 2006

Do Not Publish

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

2. Applicant asserts that approximately 6 points should be shaved off of his 1998 I.Q. test score because the version of the test he took, the WAIS-R, was normed twenty years earlier and thus reflected a person's "true" intelligence level only at the time it was normed. He claims that another 5-6 points should be shaved off to account for the possible statistical margin of measurement error. And then, because that brings his I.Q. score down into the possible range of 69-75, he may be considered mentally retarded as falling within the range of those considered mildly mentally retarded under the first American Association for Mental Retardation criterion.

3. See, e.g., Walton v. Johnson, 407 F.3d 285, 295-97 (4th Cir. 2005) (capital murder defendant claimed that his I.Q. tests of 90 and 77 were really within range of mental retardation taking into account "the Flynn effect" and the statistical margin of error); Walker v. True, 399 F.3d 315 (4th Cir. 2005), after remand, 401 F.3d 574 (4th Cir. 2005); In re Hicks, 375 F.3d 1237 (11th Cir. 2004); People v. Superior Court (Vidal), 129 Cal. App. 4th 434, 28 Cal. Rptr. 3d 529 (5th Ct. App. 2005), vacated and later proceeding at People v. S.C., 2005 Cal. LEXIS 13290 (Cal., Nov. 17, 2005); Bowling v. Commonwealth, 163 S.W.3d 361, (Ky. 2005); State v. Burke, 2005 Ohio 7020 (2005); State v. Murphy, 2005 Ohio 423 (2005); Myers v. State, 278 P. 1106 (Okla. 2005); Black v. State, No. M2004-01345-CCA-R3-PD, 2005 Tenn. Crim. App. LEXIS 1129 (Tenn. 2005).

4. People v Superior Court, 129 Cal. App. 4th at 471 (quoting Kanaya et al., The Flynn Effect and U.S. Policies: The Impact of Rising IQ Scores on American Society Via Mental Retardation Diagnoses, American Psychologist, at 778 (Oct. 2003)).

5. Id.

6. Burke, 2005 Ohio 7020, P51.

7. Bowling, 163 S.W.3d at 374, n. 12.

8. Id. (citing James R. Flynn & William T. Dickens, Heritability Estimates Versus Large Environmental Effects: The IQ Paradox Resolved, 108 Psych. Rev. 346 (April 2001)). Others have attributed it to better nutrition. Id. (citing Richard Lynn, The Role of Nutrition in Secular Increases in Intelligence, 11 Personality & Individual Differences 273-85 (1990 No. 3).

9. Flynn, J. R., Massive IQ Gains in 14 Nations: What IQ Tests Really Measure, Psychological Bulletin, 101,171-191 (1987) (found at http://www.indiana.edu/~intell/flynneffect.shtml#Flynn87) (last visited on Jan. 18, 2006).

10. F. Heylighen, Increasing Intelligence: The Flynn Effect, Principia Cybernetica Web (Aug. 22, 2000) at http://pespmc1.vub.ac.be/FLYNNEFF.html (last visited January 18, 2006). This same source explains that

Older people tend to have lower scores on IQ tests than younger people. Until now, it was always assumed that this means that intelligence diminishes with age. However, this observation can be explained as well by noting that older people were raised in a period when the general level of intelligence was lower. Flynn showed that if people's IQ is evaluated with tests calibrated for the period during which they grew up, an old person scores as well as a young one. The reason that older people do less well on IQ tests is not that they have become more stupid with age, but that the younger generation simply got a head start.

Id.

11. See generally, Stephen J. Ceci, So Near and Yet So Far: Lingering Questions About the Use of Measures of General Intelligence for College Admission and Employment Screening, 6 Psych. Pub. Pol. and L. 233, 245-46 (March 2000) (discussing Flynn effect and reasons why, even when I.Q. tests are re-normed, the number of mental retardation classifications do not immediately increase); see also Linda Knauss & Joshua Kutinsky, Into the Briar Patch: Ethical Dilemmas Facing Psychologists Following Atkins v. Virginia, 11 Widener L.Rev. 121, 127-28 (2004) (noting the Flynn effect and stating that "[e]ach time an IQ test is re-normed, a generalized lowering of IQ scores occurs because the new norms recalibrate the average IQ. This removes the increases that accumulated over the previous norming cycle. So, if 2.27% of the population is diagnosed as MR in the year an IQ test is normed, then each subsequent year fewer people will score in the MR range due to the tendency for scores to rise. This will continue until new norms once again come into use. Thus, we can expect an increase in MR diagnoses each time new IQ norms are published[,]" but concluding that "these documented changes in IQ scores occur in the absence of any meaningful change in the intellectual ability of the individuals affected. Any inconsistencies most likely result from imperfections in our tools and data, rather than from actual changes in the intellectual abilities of those being tested") (footnotes omitted).
 

[ScoopD (aka: Pam)]

I'm going to open this up for debate...   so according to this "flynn effect" we get smarter by 0.311 IQ points per year?   I'm curious as to how this affects a man who is NOT mentally retarded. He was smart enough to commit robbery with his buddies..    In August 1998 Murphy was convicted and sentenced to death for the capital offense of murdering Jason Erie during the commissionof a robbery.  He is smart enough to be preaching the word of God in prison..  I've read his writings, they are not the writings of a mentally retarded person.  Maybe he might have had low test scores at one point in his life but this man is NOT retarded. 
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[Murphy] was in a car riding with friends around Texarkana during the early morning hours of September 19, 1997. There had been heavy consumption of alcohol and marijuana throughout the previous day.The group passed anindividual who appeared to be having car trouble and whohad attempted to elicit their help. At the suggestion of a friend, [Murphy] agreed to drive back with an aim to“jack” or rob the stranded driver. After returning tothe stranded motorist, [Murphy] and his friends helpedjump-start the broken-down vehicle. The driver, Jason Erie, provided a small reward to [Murphy] and his friends for their help and returned to his car. [Murphy] then stepped from his vehicle, and, armed with a gun, demanded Erie’s wallet. Initially, Erie protested and refused tohand over his property. As he finally began to comply,[Murphy] fired a single shot from close range into the victim’s forehead and retrieved the stolen wallet fromthe spot it had fallen. It was later discovered along a nearby road where [Murphy] told investigators it had been discarded. Erie was alive when rescue workers arrived, but died a short time later.

[Murphy] and his friends fled through Arkansas, to Tennessee, and finally ended up in Arlington, Texas, where they were apprehended by police. [Murphy’s] girlfriend, Christina Davis, who was with [Murphy] throughout the duration of these events, testified that she had fought with [Murphy] on the day prior to the murder in which he struck her several times. She also explained to the jury how she and [Murphy] had fought theday they were arrested and how [Murphy] continued to hither and threatened to shoot her in the leg to keep herfrom leaving.

[ScoopD (aka: Pam)]

Here's some more FACTS of this case from Christopher Solomon (Murphys co-defendant) appeals:

According to all three witnesses, appellant, Julius Murphy, Young, Wood, and Davis attended a party at Murphy's mother's home on the afternoon of September 17, 1997. Young testified that appellant engaged him in a conversation about a robbery. Murphy was present during this conversation but did not talk. Appellant later proceeded to show Young a pistol from the glove compartment of Wood's car. Appellant then passed the gun around to several others, including Young and Murphy. The gun was subsequently returned to appellant, who pocketed it.

Young, Wood, and Davis all testified that two vehicles of people traveled together to visit some out-of-town friends. One of the vehicles, a truck, was driven by Young's girlfriend and contained as passengers Young, Young's daughter, and a friend named Phil. The other vehicle, a car, was driven by appellant and contained as passengers Murphy, Wood, and Davis. Upon returning from their out-of-town trip, the two vehicles stopped at a gas station. Young testified that he conversed with appellant. Appellant related that he had seen a man with car trouble on the side of the road, and the man had waved, indicating he needed assistance. Appellant told Young that he was going to "jack him" - a statement Young interpreted as meaning appellant was going to rob the man on the road. Young declined to get involved in the robbery but told appellant "to do what they got to do, and go." Wood and Davis saw appellant engage in a conversation but did not hear what transpired.

Young saw appellant's car stop by the man's car on the side of the road. Young then drove his truck to a different gas station and waited. When appellant's car failed to appear after twenty to thirty minutes, Young drove his truck towards town. On the way, he saw the victim, Jason Erie, lying on the ground. Young flagged down a passing ambulance and directed it to the scene. Later, he talked to the police.

According to Wood and Davis, appellant drove Wood's car, Wood sat in the front passenger seat, Murphy sat behind appellant, and Davis sat behind Wood. Murphy and Davis were not getting along because they had been fighting earlier on the trip. Appellant pointed to the side of the road to Erie, who was apparently having car trouble. Appellant gave Erie's car a "jump," and Erie paid appellant five dollars. According to Davis, as Erie headed away, appellant told Murphy that Erie had a lot of money in his wallet and said something to the effect of "we should jack him." At first, Murphy resisted the idea, but appellant goaded Murphy until he agreed. Murphy then said, "Okay, give me the gun. I'll do it." Appellant then told Wood to take the gun out, Wood removed the gun from the glove compartment, and Murphy grabbed the gun. According to Wood, after Erie paid appellant five dollars, Murphy told her to hand him the gun and she complied.

Wood heard appellant tell Murphy that he should shoot and kill the man because "that's how I got caught the last time." Davis was not listening to the conversation but she heard the last phrase "that's how I got caught the last time." Davis testified that she grabbed Murphy and told him not to go, but Murphy pushed her away and exited the car. Davis put her head down and heard a gun fire. Wood saw Murphy shoot the victim and take his wallet. According to Wood, appellant and Murphy later bragged about the bullet shell remaining inside the gun's chamber, and appellant coldly bragged that he was going to keep the five dollars given by Erie as a souvenir. Both Davis and Wood testified that, sometime after the incident with Erie, Davis ran from the car and contacted the police.

Appellant, Murphy, and Wood were subsequently charged with capital murder.

source: straight from the courts...  http://www.cca.courts.state.tx.us/opinions/73459a.htm

[john]

It never ceases to amaze me how many of them become retarded when they come close to a date with the gurney.

[ScoopD (aka: Pam)]

I know this one personally and I KNOW he is not retarded. Just another lame excuse to try to save his sorry ass from the gurney.

[Cynthia]

I know this one personally and I KNOW he is not retarded. Just another lame excuse to try to save his sorry ass from the gurney.

Abused as a child?  Addicted to narcotics?  There has to be SOME reason he did it.

[ScoopD (aka: Pam)]

He did it because Mr. Erie wouldn't give up his wallet.  If Mr. Erie had just given him the wallet it is said that Murphy would not have killed him. 

Typical blame the victim nonsense.   Murphy was and is a thug and definately deserves his anti-crime vaccine.

[JulieJS33]

So a man dies so he can show off for his buddies!!!   How f'in sweet!!  Makes me sick!!!!!

He is an idiot - not mentally challenged - just a selfish idiot!

[john]

So a man dies so he can show off for his buddies!!!   How f'in sweet!!  Makes me sick!!!!!

He is an idiot - not mentally challenged - just a selfish idiot!

Yup, that description fits most murders.

[Cynthia]

Maybe he might have had low test scores at one point in his life but this man is NOT retarded. 

I had low ACT test scores the first time I took that test.  I was drunk though. 

[Cynthia]

Ok, fun over.  I'm not reading all the same boring "I didn't do it cause I'm a tard" shit over and over.  Date or no?

[ScoopD (aka: Pam)]

no date yet, buy hopefully the courts won't spin their wheels much longer on this one and he can take his vaccine and we can be done with it.

[Jeff1857]

Though there might be some Jeromeo action going. Oh well, can't wait for the day he gets to say.....Biatch bring my bestest suit over heah to the funeral parlor so I can look goodddddddd. 

[murphy]

Though there might be some Jeromeo action going. Oh well, can't wait for the day he gets to say.....Biatch bring my bestest suit over heah to the funeral parlor so I can look goodddddddd. 

Do as I say, not as I do.  Personal attack because you are calling me a biatch.  What does this post have to do with the discussion about the flynn effect?  nothing. 
Posted on: July 21, 2007, 08:12:15 PMThe Texas Court of Criminal appeals is questioning the Flynn Effect and are wanting to answers to the following questions:

There is something intuitively illogical about this argument, but perhaps there is a sound scientific basis for it. (11) If so, what impact, if any, does (or should) this Flynn effect have upon the determination of whether a person standing trial today is so mentally retarded that it would violate the Eighth Amendment to execute him regardless of all other facts that might militate in favor of the death penalty? Do, as Mr. Flynn posits, I.Q. tests have merely a "weak correlation" with actual intelligence? Do I.Q. tests accurately reflect a person's ability to function in society? To be morally cognizant and culpable for his criminal conduct? Should the legal standard for determining mental retardation for Eighth Amendment purposes rely upon I.Q. test scores (and if so should that reliance be based upon the highest score, the lowest, the most recent, an average of all scores, the raw score, a score that has been recalculated by taking into account the Flynn effect and/or the standard deviation of error, one that is a specific number or that falls within a range- and, if so, what range) as part of its definition or should the fact-finder focus solely upon a person's childhood or adult behavior and cognitive abilities? For if, in fact, I.Q. scores are so unreliable in measuring actual mental functioning that an over-all test score of 81 may be equivalent to an actual I.Q. of 69, perhaps the use of I.Q. test scores is a scientifically inappropriate means of measuring mental retardation. The result may be that, for purposes of Atkins, what juries and courts need is a "reasonable man" assessment of mental competence as opposed to a statistician's.

Does anyone want to discuss the scientific parts that are questioned here?