Psychologist testifies convicted killer mentally retarded
A California psychologist testified Friday that a Point Marion man who was convicted of first-degree murder for killing his estranged girlfriend in 2004 is mentally retarded and has impaired adaptive function.
Dr. Kristine Jacquin of Santa Barbara testified that she tested James VanDivner, 64, and looked at various records, including those of his siblings and father. She noted that VanDivner was in special education classes starting in second grade, and would have needed to test with an IQ below 75 to be in those classes. Jacquin also told Fayette County President Judge Gerald R. Solomon that several of VanDivner’s siblings and his father tested in the mentally retarded range of intelligence.
“Some kind of genetic or biological abnormality was passed along,” Jacquin said.
She testified she gave VanDivner three tests, and relied upon an IQ test administered in 2006. She estimated his IQ is between 55 and 65, which is in the range for mental retardation.
VanDivner’s IQ is at issue because his defense attorney, Brent Peck, has argued that he cannot face the death penalty if he his mentally retarded.
VanDivner shot and killed Michelle Cable outside her Grindstone home on July 5, 2004. Testimony at his trial was that VanDivner held Cable by the hair and shot her. Peck is also asking for a new trial on the claim that witnesses are now saying that the shooting was not execution-style, and that VanDivner shot Cable from 10 to 12 feet away.
After he was convicted of first-degree murder, a jury sentenced VanDivner to death.
Friday’s testimony was the second daylong hearing in the appeal.
Questioned by Peck, Jacquin testified that IQ is generally stable throughout life. Although VanDivner had head injuries as an adult, medical records showed that those injuries did not have a lasting impact, Jacquin testified, noting that she does not believe they impacted his IQ.
Jacquin noted the testimony of Dr. Susan Rich, who testified last month that VanDivner has partial fetal alcohol syndrome, which has impaired him.
“There’s a strong, clear connection between fetal alcohol syndrome and mental retardation,” Jacquin said.
She disagreed with a doctor hired by prosecutors to refute that VanDivner was mentally retarded by age 18. One of criteria for determining mental retardation in adults is that it was diagnosed before age 18.
Looking at all of the factors, “There are clear indications of pre-18, or early onset, mental retardation in Mr. VanDivner’s case,” Jacquin said.
Assistant District Attorney Douglas S. Sepic asked Jacquin if her opinion about VanDivner’s impairment would change if she knew that after VanDivner shot Cable, he fled, and when police caught him, he immediately asked if she was dead.
Jacquin said that impairment doesn’t mean that VanDivner can’t function at all.
“He has a deficit in functioning. … It doesn’t mean he can’t reflect. It doesn’t mean he can’t tell right from wrong,” Jacquin said.
Solomon also heard testimony from Judy Joseph, VanDivner’s ex wife. Joseph testified that she worked with VanDivner over a period of two months so that he could pass his commercial driver’s license test. She said that he couldn’t read well, and she helped him by repeatedly going over questions with him before he took an oral test.
During last month’s hearing, a New York forensic pathologist testified during that part of the hearing that he did not believe that the physical evidence supported the conclusion that Cable was shot with the gun pressed up close to her skin. Dr. Charles Wetli said he believed the shot came from an “indeterminate range” or was a “distant gunshot.”
Solomon also heard testimony from a former employee of Intermediate Unit 1 in the Frazier School District who indicated that VanDivner would have been tested and had an IQ of 75 or lower to be part of the district’s special education program. If Peck can show that VanDivner was mentally retarded by the age of 18, he cannot be sentenced to death. The U.S. Supreme Court has held that it’s tantamount to cruel and unusual punishment to execute someone who is mentally retarded.