End of session at RT 1264. The November 21, 2008 session begins on that
same page. The Misskelley defense called Dr. Tim Derning.

DR. TIM DERNING

DIRECT EXAMINATION BY MICHAEL BURT

[Vol. 6: RT 1269-1422]
ABSTRACT 120

I am a licensed psychologist with a bachelor’s degree in psychology,
master’s degree in clinical psychology, and a PhD in clinical psychology. I
received my PhD in 1987. I worked in a school for adjudicated adolescents in
Rockford, Illinois, and later worked as a test administrator in the Federal Bureau of
Prisons while finishing my doctoral training. After finishing that training I worked
as a staff psychologist at the Stockton Developmental Center in California. It was
an institution that housed people with developmental disabilities and involved
forensic practice as well. I was working with people with mental retardation, and
evaluating and testifying about matters like competency to stand trial. (BMHR
1272). I worked there for seven year in total. I also worked in other settings as
well. (BMHR 1269-1274).
I was licensed in 1990. I did additional training after my doctoral training,
in neuropsychology. (BMHR 1274-1275). Once I went into private practice, the
emphasis was on patients with neuro-cognitive disabilities. I worked with children
and families. After doing that, I was contacted at one point about court-related
cases in Arizona, and I did my first forensic evaluation in private practice. I
continued to develop expertise in dealing with patients who are mentally retarded
as well as those who have brain defects that affect cognitive functioning. These
could include autism, fetal alcohol syndrom, or other types of developmental
ABSTRACT 121

disabilities.
There are special issues that arise with persons who are developmentally
disabled. You have to be aware of pertinent normative data; appropriate tests; how
to communicate with them. This is a growing field. When I first came in to it, I
was one of the few people who had expertise in mental retardation in the forensic
context. (BMHR 1279).
I am familiar with the American Association of Mental Retardation which
had been around for some period of time. I am also familiar with the manual on
mental retardation that the Association published in 1992.
[Dr. Derning was offered as an expert on neuro-cognitive and neurobehavioral
disabilities, including learning disabilities and mental retardation.
BMHR 1279. The Court ruled that he could testify as such BMHR 1280]
I was contacted by Mr. Stidham in 2000. (BMHR 1280). It was after the
trial. He had concerns about Misskelley and wanted me to evaluate him. Nothing
happened for a while. I was then contacted again in 2004. At that point I was asked
to look at his Miranda waiver and to see if he was competent to stand trial. I was
sent and reviewed a series of materials including Dr. Wilkins’s testimony. (BMHR
1286).
Exhibit 44 lists records that I reviewed, and also provides some scores of
ABSTRACT 122

testing that had been done on Misskelley throughout his life. I also reviewed trial
transcripts, and the disciplinary hearing involving Dr. Wilkins. I also reviewed
tapes of Misskelley talking to his lawyer and to Dr. Wilkins.
I administered a series of tests to Mr. Misskelley, including achievement
tests, malingering assessments, functional skills tests, a test of nonverbal
intelligence, and some forensic competency assessments. (BMHR 1287-1288). I
also administered instruments addressing competence to waive Miranda and
competence to stand trial. I used instruments that were validated and reliable.
In my opinion, Misskelley was not competent either at the time of his arrest
or at the time of his trial. Misskelley’s Miranda waiver was not given knowingly
and intelligently. It is my opinion that his post conviction statements were
influenced by inducements and intimidation. I cannot opine whether he was
induced during the pre-trial interrogation itself. Misskelley did not understand the
process. (BMHR 1289-1290).
Asked to review Dr. Wilkin’s testimony, I disagree that a mental status
examination could produce data specific to competency. It’s a screening
instrument, though some of the responses that Misskelley had given explained his
difficulty with abstract reasoning (BMHR 1294-1295). In my opinion, Misskelley
is mentally retarded. (BMHR 1296).
ABSTRACT 123

In reviewing the Wilkins disciplinary file, I examined the evaluation by Dr.
Hazelwood who noted that Wilkins was holding himself out as an expert in fields
in which he was not qualified, and was using non-standardized procedures. He was
holding himself out as a neuropsychologist, though he did not have appropriate
training. In this case he was testifying about his use of tests that should not have
been given. The MMPI is not appropriate to this population of patient. (BMHR
1204-1305). Also, the MMPI is a test that assesses psychopathology, and it is not
designed to assess cognitive functioning.
In assessing mental retardation, part of what you are looking at is a
longitudinal study of the data available. You are looking for a person’s strengths
and weaknesses demonstrated over time.
In the tests I gave Misskelley, I found that he did not malinger. Looking at
his record of academic achievement, it was very poor. He would have been subject
to manipulation.
Looking at the Miranda waiver situation, Misskelley could not read
something that long and complicated and respond to it with comprehension.
I also evaluated his trial competency, and it is my opinion that he could not
understand language well enough to track proceedings. He could not do it in 2004
when I evaluated him, and looking at his 1993 tapes, he couldn’t track the language
ABSTRACT 124

back then either.

CROSS EXAMINATION BY BRENT DAVIS

Part of the work I did at the Stockton facility was to assess competence and
to assist in restoring competency. At the time, we did not have very good
instruments to assess competency. We used the Georgia Court Competency Test,
and some other instruments.
Mentally retarded people can be competent to stand trial. (BMHR 1348).
When you assess their ability to assist counsel, part of what you look for is their
ability to contribute to the process. (BMHR 1350).
Providing information about a time line, or about an alibi, is part of
providing assistance. You are showing me some additional information here in
court from his file that I did not have. Knowing about it, while I would have
preferred to have seen it before, does not change my opinion about Misskelley’s
competence. I viewed about 8 chapters of a DVD showing interaction between
Misskelley, his counsel, and Dr. Wilkins about two days ago. I did not listen to any
further audio tapes, except one tape explaining that Misskelley had his hand on a
Bible. (BMHR 1369-1370). What I heard on the tape was not unlike what I had
heard before, it was counsel structuring questions, probing, and Misskelley rarely
spontaneously saying anything.
ABSTRACT 125

I provide information for the Court to make a decision on competency. [The
Court remarks that “Just from my memory, you’re a far better witness that Dr.
Wilkins was. BMHR 1344]
Misskelley’s IQ scores on a WAIS III were: full scale IQ 72; verbal 71;
performance 77. (BMHR 1376).
His history of huffing and drinking may have impacted his performance.
Misskelley is a concrete thinker, which does not mean that he isn’t capable
of making things up, or in being convincing about things that did not happen.
(BMHR 1386-1387).
The Court asked Dr. Derning whether someone with Misskelley’s IQ and
concrete thinking would be able to provide varying accounts of the scenario of the
crimes charged in this case, and to describe specific details to his counsel or others
as did Misskelley. Dr. Derning explained that he is not surprised by the sequence
of events, or that certain parts of Misskelley’s accounts hung together better than
others, while parts of them did not conform to known information. Dr. Derning
concluded by explaining that: “And to come up with some of these facts, I really
don’t find that very surprising, since he’s been exposed to quite a bit of
information.” (BMHR 1394)
I did not assess the voluntariness of Misskelley’s statement to police. I did
ABSTRACT 126

assess his functioning, and under the current definitions of mental retardation,
including sub-average functioning, Misskelley fits that definition. I also sought to
assess his adaptive functioning, which had also been done when he was 10 years
old.
If you considered the Flynn effect or rising IQ scores, at the time of the trial
of this case, Misskelley’s full scale IQ would have been less than 70.

REDIRECT EXAMINATION BY MICHAEL BURT

I also made inquiry about Misskelley’s understanding of the current
proceedings. He has little understanding of what it is for, or why his counsel was
called to testify. That provided some corroboration for my opinion that he was not
competent at the time of his trial.
Misskelley’s stories kept changing, even at the point at which it appeared
that his goal was to make some kind of deal. His approach was consistent with his
impairments.