Saturday, February 28, 2009

Upcoming forensic training workshops

Forensic Training Institute - Diagnostic Controversies
April 16 (CA)


Your host (Karen Franklin) and colleague Craig Lareau will present this all-day training at the California Psychological Association convention in Oakland, California. Geared toward advanced-level forensic practitioners, we will focus on current diagnostic controversies in the field including those surrounding Antisocial Personality Disorder, Psychopathy, the sexual disorders as used in Sexually Violent Predator (SVP) proceedings, and Posttraumatic Stress Disorder.

Click HERE for more information and online registration.

Assessing Malingering and Miranda Rights Waiver
April 24 (VA)


If you want to get away from the cold and visit a pretty place, you might want to check out this excellent training down in Charlottesville, Virginia. Richard Rogers, whom most of you all know as a leading forensic psychology practitioner and scholar, is presenting this full-day training sponsored by the always-excellent Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia. Dr. Rogers will be presenting one-half day on malingering (the topic of his classic reference text) and one-half day on evaluation of Miranda Rights, another of his specialty areas.

Click HERE for more information and to register.

Assessing Violence Risk in Community Settings

May 22 (VA)

This is a chance to hear from John Monahan, probably the foremost expert on this topic. Monahan has authored or edited 15 books and written hundreds of articles; his work on violence risk is frequently cited by courts, including the California Supreme Court in the landmark Tarasoff v. Regents and the United States Supreme Court in Barefoot v. Estelle, in which he was referred to as "the leading thinker on the issue" of violence risk assessment. This training is also sponsored by the Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia.

Click HERE for information and registration.

Monday, February 23, 2009

Latest on controversial "Fake Bad Scale"

I wanted to alert my psychologist readers to the latest in the controversy over the "Fake Bad Scale" of the Minnesota Multiphasic Personality Inventory, a topic I have blogged about previously (HERE). If you are planning to use this Scale, you should be aware of this article and the others on both sides of the controversy.

The Fake Bad Scale (FBS) was developed to identify malingering of emotional distress among claimants in personal injury cases. It was recently added to MMPI-2 scoring materials, resulting in its widespread dissemination to clinicians who conduct psychological evaluations.

The latest article, in the interesting new journal Psychological Injury & Law, summarizes concerns about the Scale's reliability, validity, and potential bias against women, trauma victims, and people with disabilities.

The article concludes that the scale is not sufficiently reliable or valid to be used in court:

"Based on a review and a careful analysis of a large amount of published FBS research, the FBS does not appear to be a sufficiently reliable or valid test for measuring 'faking bad,' nor should it be used to impute the motivation to malinger in those reaching its variable and imprecise cutting scores. We agree with the conclusions of the three judges in Florida that the FBS does not meet the Frye standards of being scientifically sound and generally accepted in the field, and that expert testimony based on the scale should be excluded from consideration in court. The samples used to develop the FBS are not broadly representative of the populations evaluated by the MMPI-2, nor are its criteria used to define malingering objective and replicable. There is insufficient evidence of its psychometric reliability or validity, and there is no consensus about appropriate cut-off scores or use of norms."
The article is "Potential for Bias in MMPI-2 Assessments Using the Fake Bad Scale (FBS)." The Abstract and a "free preview" are online HERE; the full article requires a subscription but can be requested directly from the first author, James Butcher. Butcher and co-authors Carlton Gass, Edward Cumella, Zina Kally and Carolyn Williams present just one side of the heated controversy; a rebuttal is scheduled for publication in an upcoming issue of the journal, followed by other pro and con articles.

Related blog resources:

New MMPI scale invalid as forensic lie detector, courts rule: Injured plaintiffs falsely branded malingerers? (March 5, 2008) – contains links and citations to other sources

"Fake Bad Scale": Lawyers advocate exposing in court (May 20, 2008)

A list of FBS references and statement from the test's publisher is HERE

Hat tip: Ken Pope

Saturday, February 21, 2009

Peach Tree law makes Wall Street Journal

In 1996, 17-year-old Christopher Noles had consensual sex with his 14-year-old girlfriend. He was arrested for statutory rape and served a few months in prison. Then, he went on with his life. He got a job, married his girlfriend, became a father -- all the things adults normally do.

But in 2006, Georgia -- like many other U.S. states -- passed laws limiting where sex offenders could live and work. Noles lost his job and his family could not find a place to live.

Now, the Wall Street Journal’s Stephanie Chen tells his troubling story of unintended consequences to Southerners and Yankees alike:

After Prison, Few Places for Sex Offenders to Live: Georgia's Rules That Keep Some Convicted Felons Far From Children Create Challenges for Compliance, Enforcement

The article is available online for free for only a few more days. I've also blogged a lot about the Georgia's sex offender laws over the past couple of years. Click HERE to read more.

Hat tip: Jane

Thursday, February 19, 2009

Clueless 'science'

Guest essay by Jennifer L. Mnookin*
Law professor and vice dean, UCLA Law School
On television shows such as the "CSI" series, forensic science is high-tech, heroic and always right. The National Academy of Sciences released a long-anticipated report Wednesday on the real world of forensic science -- and the news is disturbing and downright ugly. Laboratories are woefully underfunded, and much of what passes for forensic "science" does not meet even minimal scientific standards. Yet, when forensic scientists testify in court, they often are embarrassingly overconfident about their findings.
The academy's report, commissioned by Congress and the result of years of investigation by a distinguished panel of independent experts, does not mince words in its indictment of the scanty research foundation upon which much forensic science now stands. The report asserts that "the current situation" is "seriously wanting, both because of the limitations of the judicial system and because of the many problems faced by the forensic science community." It also calls for the urgent creation of a federal agency devoted to encouraging research and to providing much-needed regulation and oversight.
Put simply, although many kinds of forensic testimony -- involving handwriting identification, fingerprint evidence and ballistics, for example -- are enormously persuasive to a typical jury, they do not meet the basic requirements of good science.

But we don't need to wait for a new agency to make the necessary changes. Judges, who preside over the presentation of this evidence, need to exercise their role as gatekeepers to protect the integrity of our criminal justice system by requiring higher standards for forensic science when it's used as legal evidence.


What did the study's authors identify as some of the most significant problems?
Bias: Doctors testing a new medicine are -- appropriately -- not told which patients receive placebos and which get the test medication, because that knowledge might unconsciously bias their behavior and observations. But forensic scientists are frequently exposed to information that can potentially foster bias. Crime laboratories have failed to create adequate procedures for making testing "blind."
Error rates: Most of the forensic disciplines lack good information about how often practitioners make mistakes, a basic requirement of any science. Not knowing the error rate is bad enough, but some experts consistently testify under oath that their technique has an error rate of zero, an inherently preposterous claim.

No one really knows just how often document examiners incorrectly analyze handwriting samples, how frequently arson investigators get the cause of a fire wrong or how often forensic odontologists misidenti
fy bite marks. Yet anecdotal information and research suggest that errors are disturbingly frequent. University of Virginia law professor Brandon Garrett's 2008 study of the first 200 convicted defendants exonerated by DNA evidence, for example, found that faulty forensic science testimony was second only to erroneous eyewitness identification as a cause of miscarriages of justice.

Over-claiming:
Science deals in probabilities, not certainty. The only forensic science that makes regular use of formal probabilities is DNA profiling, in which experts testify to the probability of a match. None of the rest of the traditional pattern-identification sciences -- such as fingerprinting, ballistics, fiber and handwriting analysis -- currently has the necessary statistical foundation to establish accurate probabilities. Yet, instead of acknowledging their imperfect knowledge, fingerprint experts, for example, routinely testify that they can identify a specific person's prints to the exclusion of all other people in the world with 100% certainty.
In 2004, the FBI, often said to have the nation's best crime lab, wrongly identified Oregon attorney Brandon Mayfield as a terrorist based on an erroneous fingerprint match. It eventually admitted its error, and the government had to pay him $2 million. There are hundreds of less adequate labs across the country. How much confidence can we have in them?

Structural independence:
Here in Los Angeles, the city crime laboratory is part of the Police Department, and the county's lab reports to the sheriff. These kinds of arrangements are typical. But when the police and prosecutors pay and supervise the scientists, it stands to reason that the scientists may have difficulty establishing their independence.


The courts have almost entirely turned a deaf ear to these arguments, essentially giving forensic science and its practices a free pass, simply because they've been part of the judicial system for so long. Mea
nwhile, scandals continue to come to light across the nation involving error and even fraud in labs.
The findings in the National Academy of Sciences report should spur judges to require higher standards. At a bare minimum, judges should immediately prohibit experts from testifying to impossibilities such as "an error rate of zero" or asserting that they are capable of making 100% certain identifications.
In other cases, judges would be well advised to throw out forensic science altogether -- not forever, but until adequate research establishes, for example, that the conventional wisdom about evidence of arson is empirically valid, or until fingerprint and ballistics experts provide adequate proof that their real-world error rate is reasonably low. Courts should require forensic experts to back up their testimony with empirical evidence that they can do what they claim to be able to do.

We wa
nt and need forensic science in our legal system, but we have to be able to trust it. The forensic science community has been, at best, wary of, and often downright hostile to, serious inquiry into its strengths and limitations, especially by objective external researchers.

But if judges raised their standards and limited or excluded forensic evidence that didn't meet them, that fortress mentality would inevitably change. This much-needed research would probably reveal that forensic science is not as perfect as its practitioners have often claimed. But when forensic science rests on an appropriate scientific foundation, it will be far more deserving of our confidence. Our system of justice demands no less.
*From the Los Angeles Times of February 18, 2009, posted with the written permission of Professor Mnookin
Dr. Mnookin is a widely published law scholar and co-author of The New Wigmore: Expert Evidence. Her work focuses on evidence theory, expert evidence, and law and culture, with an emphasis on law and film. She is particularly interested in the connections between science, law and culture; her current work focuses on the history of expert and visual evidence in the American courtroom.
The National Academy of Sciences' important report,
Strengthening forensic science in the United States: A path forward, is online here. A summary of the report is here. To listen to yesterday's Congressional briefing on the report, click here. A New York Times report on the study is here.

Veteran with PTSD won’t do time for robberies

Last month I wrote about the potentially landmark case in which an Army veteran was found insane in the armed robbery of a pharmacy. Sargent Binkley said he robbed that pharmacy and one other of painkillers to cope with his symptoms of post-traumatic stress disorder.

Yesterday, Sargent pleaded no contest in a separate San Francisco Peninsula robbery committed during the same time period, in exchange for a promise of probation. He had faced at least 12 years in prison.

Binkley cannot be formally sentenced until state hospital doctors find him sane and no longer dangerous. The ability of the white West Point graduate and former Eagle Scout to garner sympathy among jurors and prosecutors bodes well for his stay at the hospital. If I had to bet, I would predict state hospital psychiatrists will agree to a quick release.

Armed robbers are rarely found insane when their crimes appear rational, goal-directed, and premeditated. Additionally, California law does not allow for an insanity verdict based on addiction alone.

The defense had argued that Binkley was traumatized by two events -- guarding a mass grave in Bosnia and shooting a teenager during a Honduran drug raid. Prosecutors countered that Binkley exaggerated his military service and that his claim of involvement in drug interdiction in Honduras was pure fantasy. Further, they said, his addiction to pain pills stemmed not from military-related activities but from a hip injury incurred while he was running away from a production assistant for the Fox reality TV show "Temptation Island" after a bar fight.

The trial featured dueling psychiatric experts who agreed that Binkley suffers from PTSD, but disagreed on whether his symptoms were of sufficient magnitude as to render him insane, or incapable of knowing right from wrong at the time of the robberies.

The case comes amid growing interest in the plight of veterans returning from the wars in Iraq and Afghanistan. Military leaders acknowledge that multiple deployments in particular put a severe strain soldiers and their families, and can increase the likelihood of domestic violence, alcohol abuse, and symptoms of post-traumatic stress disorder.

To handle a wave of arrests of soldiers, special courts for veterans are opening in several states, including Arizona.

Related stories:

Insanity verdict for soldier with PTSD: Case heralded as landmark for traumatized veterans (blog post, Jan. 14, 2009)

Ex-Army captain won't do time for two holdups (San Francisco Chronicle, Feb. 19, 2009)

Focus on violence by returning GIs (New York Times, Jan. 2, 2009)

New court is sought to aid vets charged with crimes (Arizona Republic, Jan. 6, 2009)

Reaching out to returning vets (Wisconsin Law Journal, Feb. 6, 2009 – subscription required)

Wednesday, February 18, 2009

Another ruling against federal sex offender law

From the Sacramento Bee:

In only the third such ruling in the nation, a Sacramento judge has found to be unconstitutional a statute that makes it a federal crime for someone to fail to register as a sex offender and relocate from one state to another.

U.S. District Judge Lawrence K. Karlton found that, in enacting the 2006 Sex Offender Registration and Notification Act, "Congress overstepped its authority under the (Constitution's) commerce clause…. This appears to be a plain usurpation of the state's police power."

Karlton made rulings this week in two prosecutions and threw them out, saying SORNA does not meet the U.S. Supreme Court's standard for congressional jurisdiction over interstate commerce.

At least 18 district judges have upheld SORNA, while only two others have found it is at cross-purposes with the commerce clause. Of the 12 federal appellate circuits, only two -- the 8th and 10th -- have addressed the issue, and both upheld the statute.

Related blog posts:

Court strikes down federal civil commitment law (January 9, 2009)

Challenge to juvenile sex offender risk prediction: Harsh federal law on shaky scientific ground (October 9, 2008)

Federal court strikes down portion of Adam Walsh Act (September 10, 2007)

Sunday, February 15, 2009

International outrage: Czechs versus Saudis

In a good example of cross-cultural variations related to sexual behavior, international human rights groups are going after two countries for officially sanctioned policies that could not be more different:

Castrating prisoners . . .

In the Czech Republic, first-time, non-violent sex offenders such an exhibitionists can be imprisoned for life. Unless, that is, they agree to be castrated. In the past decade, at least 94 sex offenders have gone under the blade.

In a cleverly entitled article, "The unkindest cut," Time Magazine tackles the controversial issue of castration in that nation.

The Council of Europe, a human rights body, is demanding that the Czechs immediately stop the "degrading" punishment. But as the Dallas Morning News points out, although the Czech Republic may be the only country in Europe that allows the practice, it is certainly not unheard of in the United States. In Texas, for example, three prisoners have undergone voluntary surgical castration in recent years. Many more sex offenders around the country undergo "chemical castrations" that reduce their sex drive -- and potentially their legal sanctions.

Study findings are mixed as to whether castration, either surgical or chemical, is effective at curbing sex offender recidivism.

. . . vs. allowing child marriages

Meanwhile, a little bit to the southeast, Human Rights Watch is up in arms in the wake of a judge's refusal to annul the marriage of an 8-year-old girl to a 47-year-old man. The girl's father reportedly arranged the marriage to his friend in order to settle a debt; when the mother protested, the judge made the girl's husband sign a pledge that he would not have sex with the girl until she reaches puberty.

The nation's top cleric defended the practice, saying girls as young as 10 should be allowed to wed. "Those who think she's too young are wrong and they are being unfair to her," CNN News quoted Sheikh Abdul Aziz Al-Sheikh as saying.

Laws about what age children may marry, or have sexual relations, are complex and vary tremendously from nation to nation, and even within some nations (such as the United States). The median age at which a child can consent to sexual activity is somewhere around age 14-16, but varies from a low of about 9 to a high of 21.

At least the Saudi newlywed should be happy he does not live in the Czech Republic.

Postscript: In an out-of-court settlement, the 8-year-old has been allowed to divorce her husband.

Friday, February 13, 2009

Implications of PA case for juvenile courts

Today's New York Times has coverage of the astonishing case that I blogged about yesterday, on the two juvenile judges in Pennsylvania who were accepting kickbacks to send children to jail. Of interest to my readers, the case is calling public attention to juveniles' right to an attorney.

Children have a constitutional right to legal representation under a U.S. Supreme Court ruling in 1967. But in Pennsylvania and at least 20 other states, they can waive this right. Some say juveniles should be required to have a lawyer when they appear in court, as is the law in three states (Illinois, New Mexico and North Carolina).

"The juvenile system, by design, is intended to be a less punitive system than the adult system, and yet here were scores of children with very minor infractions having their lives ruined," Marsha Levick, a lawyer with the Philadelphia-based Juvenile Law Center, told the Times. "There was a culture of intimidation surrounding this judge and no one was willing to speak up about the sentences he was handing down."

Last year, according to the Times story, Pennsylvania's Supreme Court rejected a petition filed by the Juvenile Law Center about more than 500 juveniles who had appeared before Judge Ciavarella without legal representation. The court originally rejected the petition, but recently reversed that decision.

Given the secrecy surrounding juvenile court proceedings, some are also calling for greater public access - a double-edged sword that may cause unintended negative consequences, in my opinion. As the former director of the state's Office of Juvenile Justice pointed out, probation officers, prosecutors, and defense attorneys are already present in court and sworn to protect the interests of children; "it’s pretty clear those people didn't do their jobs."

The excellent followup article is here.

Photo credit: publik16 (Creative Commons license)

Thursday, February 12, 2009

Evil lurked in Luzerne County

Something scary was happening in Luzerne County, Pennsylvania. A kid who had never been in trouble would show up in juvenile court for writing a prank note or having drug paraphernalia and -- BOOM -- he would disappear.

Kids were locked up for months at a time even when probation officers recommended against it. Youth advocates complained, but no one listened.

Now, everyone knows why. Two of the judges were running a scheme in which they shunted kids to private jails in exchange for at least $2.6 million in kickbacks. In what the media are calling "one of the most stunning cases of judicial corruption on record," one of the two bad judges actually shut down the county juvenile hall so kids would have to go to PA Child Care LLC, which owned him.

A senior judge from a neighboring county will have the laborious task of going through all cases handled by the judges for the past six years, to "identify the affected juveniles and rectify the situation as fairly and swiftly as possible."

A first step in rectifying the situation -- or at least making the wronged kids feel a bit better about the world -- might be to lock up the offenders. But after the judges pleaded guilty in federal court Thursday to tax charges, they were allowed to remain free pending sentencing.

Too bad they didn't afford that same courtesy to the youngsters who came before them.

Photo credit: "The Fog" by Canon in 2D (Creative Commons license)

Wednesday, February 11, 2009

Recommended reading: Juvenile competency

I was just looking over Ivan Kruh and Tom Grisso's new book, Evaluation of Juveniles' Competence to Stand Trial, as I sat down to write a rather complex report on an 11-year-old child. Wow! This little book is such a great tool, I thought I should plug it to those of you who work with juveniles.

As I wrote in my Amazon review, "You will not find this much comprehensive, up-to-date information on juvenile competency to stand trial (CST) evaluations in any other single source." It's a tiny little book, but it is jam-packed with information, very clearly written, with the concepts clearly explained.

Also, unlike the volume on SVP evaluations in the same new Best Practices in Forensic Mental Health Assessment series from Oxford University Press, this one tackles the controversies and complexities in the field head-on, rather than shying away from them.

My complete Amazon review is here, with links to other relevant resources. (As always, if you like it please click on the "Yes" button at the bottom, as that helps the placement of my reviews on Amazon.)

Thursday, February 5, 2009

Megan’s Law: Millions for nothing

You all know about "Megan's Laws." They are named after Megan Kanka, a 7-year-old girl from "America's favorite hometown" of Hamilton, New Jersey, who was raped and murdered by her neighbor, a released sex offender named Jesse Timmendequas, on July 29, 1994.

Capitalizing on the fear this crime engendered, legislators proved themselves tough on crime by enacting Megan's Laws in all 50 U.S. states. The laws are designed to protect the public by mandating that convicted sex offenders register with local police and that police agencies keep the public informed about the whereabouts of these offenders.

But do the laws really protect the public?

Despite their enormous popularity, little research has been conducted into whether they work.

Now, a federally funded study of New Jersey's law has found the following dramatic effects:

  • Effects on sex offender recidivism: NONE
  • Effects on time to first re-arrest: NONE
  • Effects on number of victims: NONE
  • Effects on state budget: $3.9 million-plus (as of 2007)
The bottom-line conclusion?

"Given the lack of demonstrated effect of Megan's Law on sexual offenses, the growing costs may not be justifiable."

Other research has suggested that the laws may not only be ineffective at reducing sex offending, but they may paradoxically increase sex offenders' risk through the secondary effects of social stigmatization, loss of employment and housing, and even physical victimization, all of which increase stress and social isolation and make it harder for sex offenders to successfully reintegrate into society.

Americans are standing in hours-long, Depression-style lines for a couple of free eggs at Denny's. Our schools cannot even afford pencils or electricity in the classrooms. Yet we are willing to pay millions for laws that only provide an illusion of safety. Something is wrong with this picture.

The study, "Megan's Law: Assessing the Practical and Monetary Efficacy," by researchers Kristen Zgoba, Philip Witt, Melissa Dalessandro, and Bonita Veysey, is available here.

Tuesday, February 3, 2009

Children serving life without parole: “Cruel and unusual?”

Test your knowledge:

1. In the entire world, how many children are serving sentences of life without parole for crimes committed when they were 13 years old?

2. In what countries are those cases?


3. How many of those cases involve crimes in which no one died?

Answers: (1) There are only eight in the entire world. (2) All eight are in the United States. (3) Only two did not commit a murder. Both are Black, and both are in Florida.

In yesterday's New York Times, Supreme Court correspondent Adam Liptak reports on one of those two. Joe Sullivan, now 33, is serving life for the 1989 rape of a 72-year-old woman. As Liptak reports it:
The victim testified that her assailant was "a colored boy" who "had kinky hair and he was quite black and he was small." She said she "did not see him full in the face" and so would not recognize him by sight. But she recalled her attacker saying something like, "If you can't identify me, I may not have to kill you." At his trial, Mr. Sullivan was made to say those words several times. "It's been six months," the woman said on the witness stand. "It's hard, but it does sound similar."
Sullivan's trial lasted only one day. His lawyer, later suspended from practice, made no opening statement. Biological evidence was collected from the victim but was not presented at trial and has since been destroyed.

Now, in an appeal to the United States Supreme Court, the Equal Justice Initiative argues that Sullivan’s life sentence is cruel and unusual punishment, banned by the Constitution’s 8th Amendment.

People can argue about whether imprisoning a 13-year-old for life is cruel, comments Liptak, but "there is no question that it is unusual."

Liptak's column is here.

Further resources:

Equal Justice Initiative report, "Cruel and Unusual," on 13- and 14-year-old children sentenced to life in prison

Photo credit: Equal Justice Initiative. Hat tip: Jane.

 
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