Denver Bar Association
April 2005
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Man's Rising IQ May Mean Death

by Paul Kennebeck

"Virginia Man’s Rising IQ May Mean Death," was the headline in a Denver Post news story.

To a lot of us who feel our IQs lowering daily, this headline will have no impact. Death by IQ has never been a problem, never will.

To younger attorneys reading this, the news article may provide a cautionary, tragic tale. One conclusion quoted in the story is that the Virginia man’s IQ scores "shot up … thanks to the mental workout his participation in years of litigation gave him." In other words, those people who prowl the corridors of your firm looking for victims and raw meat — the litigators — might actually be getting smarter the more they litigate. This notion is, of course, laughable and brings the whole Denver Post article into question.

C’mon. Do they get smarter if they settle the case early? How about if they go to arbitration?

Nevertheless …

The poor guy with the low IQ is named Atkins. (Apparently no relation to the now dead non-carb king of meaty eats.) As with a lot of stories about low IQs, Atkins is a defendant in our criminal justice system. Atkins robbed and killed a man. (Dumb thing to do.) A prosecutor (a litigator, therefore a high IQ-er) wanted Atkins to be executed. In Virginia, mental retardation is defined as having an IQ below 70.

The U.S. Supreme Court (no information is available regarding their IQs) held that mentally retarded defendants could not be executed and held that Atkins had an IQ of such a person. (Actually, the court noted Atkins had an IQ of 59.) Thus, Atkins could not be executed. He would have to spend the rest of his life in prison watching his favorite television shows American Idol and Geraldo Rivera.

But that was then. This is now.

You don’t have to be a genius to see the irony lurking around this story.

Atkins’ IQ has risen to a lofty 76. (The defense says 74, the prosecution says 76 — why quibble? Split the difference. Make it a 75.) The experts say his IQ has risen because of the mental labor involved in preparing his defense. One clinical psychologist stated that the new test scores should be discounted because they are the result of "a forced march towards increased mental stimulation" provided by the case itself. Okay, okay. We all know about forced marches toward increased mental stimulation. Some people call them billable hours.

To ensure that the point of this unbelievably sad story is not lost, the article helpfully points out to its readers, "In helping put an end to the death penalty for the mentally retarded, Atkins could have ensured his own execution." Yes, as Atkins gets smarter, he may get executed. And he may find that American Idol is not as good as he once thought.

Here’s what the prosecutor said: "I don’t see how a 76 is exculpatory and evidence of mental retardation. It needs to be under 70."

You think Atkins is smart enough to fake an IQ test? Say maybe score a 69?

Paul Kennebeck can be reached at or (303) 987-7461.

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