Regarding the District Attorney Response to Dunlap Clemency Petition

ROBERT McINTYRE, Ph.D. Licensed Psychologist / Certified Neuropsychologist Specialty in Forensic Psychology 2305 Canyon Blvd., #205, (Voice) 303-442-7220 Boulder, CO, 80302 (FAX) 303-449-1970 robert.mcintyre4@gte.net (cell) 303-641-7567 http://www.drrobertmcintyre.com Regarding the District Attorney Response to Dunlap Clemency Petition TO: Attorney Phil Cherner, Office Phone: 303-860-7686 via email: Phil@PhilCherner.com Attorney Madeline Cohen, via Madeline.Cohen@fd.org DATE: 05/12/2013 RE: Nathan Jerard Dunlap, Date-of-Birth: 04/08/1974 Dear Counsel, Reviewing Arapahoe County District Attorney George Brauchler s response to your clemency petition on behalf of your client (as downloaded on 05/10/2013 from DA's response: http://ch7ne.ws/11z9lxb found on Denver s TV Channel 7 News website http://www.thedenverchannel.com/news/local-news/letters-urge-governor-to-denyclemency-for-nathan-dunlap-sentenced-to-death-for-4-murders on 05/11/2013 ), I was disappointed to notice the numerous factual errors and omissions about Mr. Dunlap s mental status. Although I think it is reasonable for the District Attorney to argue the prosecution s side of the clemency proceeding, I feel obligated to correct his factual errors about Mr. Expertise in Criminal forensic psychology, Civil competencies, Psychological and neuropsychological injuries, Child custody matters, Treatment of severe mental illness and substance use disorders

of 9 Dunlap s mental status. I also must correct the District Attorney s gross errors about my work in this case. First about my work, Mr. Brauchler initiated his commentary about it starting toward the bottom of page 22 of his objection. He wrote: Dr. Robert McIntyre is of similar ilk to the team of biased experts working for the defense. Not only does McIntyre rely on Gur s report, but he also relies on Dr. Opsahl s neuropsychological evaluation. Mr. Brauchler is factually incorrect. Mr. Brauchler completely ignored that my December 2011 report of Mr. Dunlap contains a detailed, source cited, psycho-social history of him compiled from over 400 pages of documents that I reported reviewing, particularly including Judge Leopold s 368 page ruling that included detailed summaries of lay and expert witness testimony and The Court s opinions of same, along with reports from all other experts from both sides of this case, including those from Dr. Johnson and Dr. Manguso. My December 2011 report also documents my direct observations of Mr. Dunlap during full contact visits conducted with him inside a private room at the Sterling Correctional Facility for approximately 17 ½ hours over two days, on 11/20/2011 and 11/21/2011. The Appendix to my December 2011 report additionally contains a full listing of all psychological and neuropsychological tests that I administered to Mr. Dunlap during my November 2011 evaluation of him, with discussion of all test results in the Appendix or in my December 2011 report.

of 9 That Mr. Brauchler omitted mentioning that I relied on all of these sources of information suggests that he really doesn t know very much about this case. Particularly important to understand is that numerous embedded measures of effort and three free-standing effort measures, were distributed across my neuropsychological testing battery during the two full days of administering my own neuropsychological testing to Mr. Dunlap. Mr. Dunlap s measured neuropsychological performance with me over two days showed various impairments as reported by me in my December 2011 report, and my April 2013 summary. Importantly, Mr. Dunlap demonstrated excellent effort on all effort measures interspersed within my battery over our two full days together, thus demonstrating excellent validity with respect to the accuracy of his measured neuropsychological performance with me. In short, I did not rely on Dr. Opsahl s evaluation. Regarding Dr. Opsahl s evaluation, it is important to notice that in contrast to Mr. Brauchler s assertion that Dr. Manguso discredited Dr. Opsahl s results (see Judge Leopold s summary); Dr. Manguso did not tell Judge Leopold that Dr. Opsahl s results were invalid. Dr. Manguso only said that Dr. Opsahl could not verify the validity of his results due to his failure to administer free standing test-response validity measures. Regarding what I said about Dr. Opsahl s results, I pointed out that Dr. Opsahl s results were similar to mine; and because my results were demonstratively valid, I concluded that their validity, and their similarity to Dr. Opsahl s, provided scientific support for the validity of Dr. Opsahl s results, despite his flawed methodology of failure to administer free standing effort measures within his neuropsychological battery.

of 9 From the above I then reasonably concluded that because Mr. Dunlap produced a similarly impaired neuropsychological performance with Dr. Opsahl to what Mr. Dunlap produced with me, his measured neuropsychological impairments with me are of longstanding duration since at least 2002 when Dr. Opsahl tested him. At the top of page 23 of the District Attorney s clemency objection, he continues his writing about my work with: From his sources, which again inexplicably exclude the easily obtainable facts surrounding the defendant s murderous behavior, McIntyre impossibly concludes that Dunlap s brain-based impairments for moral reasoning and impulse control are long -standing. For his grand finale, Dr. McIntyre, clearly recognizing the need to show the Governor some connection to Dunlap in 1993, extrapolates from Dunlap s current presentation back to when he was 19 years of age by considering the biological immaturity of his brain development. Thus, McIntyre remarkably concludes, since the literature clearly shows that 19 year olds have poorer impulse control and decision making than 39 year old people, Nathan s brain-based impairments with moral reasoning and impulse control abilities were substantially worse than they are now. Leaving aside that the above-quoted passage from Mr. Brauchler is somewhat incoherent, here again the District Attorney is incorrect about the basis of my opinion. Yes, I concluded that Nathan s brain-based impairments with moral reasoning and impulse control abilities (at age 19) were substantially worse than they are now.

of 9 And yes, part of my conclusion contained the common observation that generally, 19 year olds have poorer impulse control and decision-making (abilities) than 39 year old people, and that it would be expected for Mr. Dunlap to conform to this developmental norm. But omitted from the District Attorney s rebuttal is a failure to understand the term, brain-based, or to account for any of my previously reported statements about Mr. Dunlap s mental status at age 19. For example, my December 2011 report documents Judge Leopold reporting credible evidence describing Mr. Dunlap with mental illness as a juvenile, thereby supporting the theory that at 19, Mr. Dunlap s brain functions were impaired. In my December 2011 report, and my April 2013 summary I stated that the maturational processes of neuronal myelination and synaptic pruning are the biological bases for 19 year olds generally having poorer impulse control and decision-making abilities than 39 year old people. Further down on page 23 of the District Attorney s objection he then wrote that: McIntyre and Gur s sleight of hand requires little scientific rebuttal as there is little scientific method being applied. Again, the defense expert s desire to overreach and make the science fit their desired result defeats their credibility. Regarding Mr. Brauchler s assertion of little scientific method about my work, it is well documented in neuroscience research literature that neuronal myelination and synaptic pruning are the biological bases for 19 year olds generally having poorer impulse control and decision-making (abilities) than 39 year old people. Therefore it is

of 9 reasonable to conclude that with respect to impulse control and decision making, Mr. Dunlap s neuropsychological status at age 19 would be more impaired than the impaired neuropsychological status he validly demonstrated at age 37 (Mr. Dunlap s age when I tested him for two full days in 2011). Elsewhere in Mr. Brauchler s clemency objection he rejects the fact of Mr. Dunlap s now well documented major mental illness of Bipolar disorder that was undiagnosed at the time of his crimes and undiagnosed at the state hospital in the 1993-96 time period. In support of his rejecting Mr. Dunlap s status as a person with severe mental illness, Mr. Brauchler references state hospital psychiatrist, Dr. Johnson asserting that your client was malingering. Dr. Johnson either did not know, however, or ignored the fact that Mr. Dunlap s state hospital medical record showed clear evidence of mania prior to his trial. Specifically, at one point Mr. Dunlap had stayed awake for four consecutive days at the hospital. Not sleeping for four days is not particularly fake-able, and is diagnostic of a manic episode. A manic episode, in turn, is clear evidence for Bipolar disorder. Dr. Johnson s assertion that Mr. Dunlap was malingering mental illness at the state hospital is also refuted by other aspects of Mr. Dunlap s medical record there. For example, a state hospital psychological evaluation conducted in 1994 by Dr. Frank Lee showed Mr. Dunlap s results on the Minnesota Multiphasic Personality Inventory, 2 nd edition (MMPI-2) generated diagnostic hypotheses of Attentional deficits, severe mental illness, or non-compliance with testing due to mental illness, but with no evidence of symptom exaggeration; and showed a non-malingered profile on the Structured Interview of Reported Symptoms (SIRS), an assessment tool often referenced as a gold standard measurement tool for malingering assessment.

of 9 Mr. Brauchler also omitted from his objection that trial defense counsel failed to provide to his defense expert, Dr. Barkhorn, the State hospital medical record reflecting Mr. Dunlap s well defined, pretrial, manic episode of not sleeping for four consecutive days. Not armed with the latter pivotal data, Dr. Barkhorn s diagnostic opinion at the time of trial (she did not testify then) was that Mr. Dunlap showed evidence of narcissistic personality disorder. While Mr. Brauchler s objection cited Dr. Barkhorn s initially stated diagnostic impression that your client had a personality disorder, Mr. Brauchler failed to mention that post-trial, Dr. Barkhorn in fact testified in the appellate hearing before Judge Leopold that Mr. Dunlap suffers from Bipolar disorder. Dr. Barkhorn testified to Judge Leopold that her changed diagnostic impression that Mr. Dunlap is a person with the brain disease, Bipolar disorder, occurred upon Dr. Barkhorn learning of Mr. Dunlap s pretrial manic episode at the state hospital. Mr. Brauchler s argument that Mr. Dunlap was and is not remorseful at the time of Mr. Dunlap s crimes and for several years afterwards, fails to account for the fact that untreated Bipolar disorder, particularly in a manic phase, often presents as bragging and lack of remorse. To support his not remorseful point, Mr. Brauchler quotes at length from Mr. Dunlap s TV interview with Paula Woodward in 1996 (when his disease was still undiagnosed and untreated), with Mr. Brauchler citing this as evidence that Mr. Dunlap lacks remorse. In contrast to Mr. Brauchler s explanation, considering everything else now known about Mr. Dunlap s mental status; a better explanation of the Woodward interview than that offered by the District Attorney who is not a mental health professional, is that it was Mr.

of 9 Dunlap s undiagnosed Bipolar disorder with psychotic features that was doing the talking during the Paula Woodward interview. As previously mentioned, Mr. Brauchler disparaged my work in this case by, for example, asserting that I did not find, or that I ignored, easily found records. Responsive to this I must point out that I know from Colorado Department of Corrections (DOC) psychological testing results and other DOC records, that Mr. Dunlap exhibited manic episodes with psychotic features inside the DOC in 1997 and 2000, and exhibited significant depression in 2002. Indeed and as previously discussed in some detail here-in, I must call out Mr. Brauchler for saying on page 22 of his clemency objection that I relied on bad sources of information for my evaluation of Mr. Dunlap, only citing results from Dr. Gur s imaging and Dr. Opsahl s testing. Obviously, Mr. Brauchler grossly erred about my sources of information. My sources of information about Mr. Dunlap include over 400 pages of documents reviewed, including: DOC records, Judge Leopold s detailed summary of witness testimony, reports from all experts on both sides of this case, and 17 ½ hours of directly observing Mr. Dunlap over two full days of full contact visits. As previously mentioned in my December 2011 report, Mr. Dunlap s mental health problems date back to his childhood and adolescence; predating his criminal activity. For example, Judge Leopold s summary reported credible testimony that as a high school freshman, 14 year old Mr. Dunlap was depressed and a good candidate for psychotherapy.

of 9 During my two days with Mr. Dunlap I administered to him a comprehensive neuropsychological testing battery that included numerous embedded measures of effort and three free standing effort measures, all of which demonstrated good effort by Mr. Dunlap, thereby showing validly accurate neuropsychological results. As documented at length in my December 2011 report, and summarized in my April 2013 report, knowing that Nathan Dunlap is a person with Bipolar disorder is beyond dispute. Now 39 years old, Mr. Dunlap tolerates a relatively high daily dosage of lithium treatment to combat his Bipolar disorder. The medication has produced substantial mood stabilization for him. Mr. Dunlap s neuro-imaging supports and explains the behavioral evidence of impaired moral reasoning and impulse control described by his neuropsychological testing performance. Mr. Dunlap showed similar neuropsychological status 10 years ago. Textbook-published neuroscience research shows that 19 year olds have less developed brain regions associated with impulse control and moral reasoning. It is not a stretch to conclude that at age 19 with undiagnosed Bipolar disorder, Mr. Dunlap s biologically less mature brain would produce an even more impaired ability for impulse control and moral reasoning than what he demonstrated with me. Very respectfully, Robert McIntyre, Ph.D.