June 27, 2008

Interesting issue of forensic psychiatry journal

The latest issue of the Journal of the American Academy of Psychiatry and Law is now available online. The theme is ethics in forensic psychiatry practice.

I found Cheryl Wills' article (here) especially intriguing:

Post-Katrina Juvenile Competency Determinations: A Tale of Two Systems

Natural disasters such as Hurricane Katrina have resulted in the displacement of families to locations throughout the nation. Juvenile courts have been affected by this mass migration of youths. Postdisaster recovery has been slow. Consequently, a cohort of youths has aged out of the juvenile justice system before their juvenile competency hearings could be held. Some of these young adults now face charges as adults in criminal courts. The author explores what happens when youths awaiting juvenile competency determinations age out of the system and face charges as adults. The evolution of the problem, the current situation, case examples, and possible solutions are reviewed.
Amnesia and crime

The June issue also includes a point-counterpoint debate on assessing amnesia and crime. Should the approach be neuropsychiatric, as argued by Hal Wortzel and David Arciniegas (here), or psychiatric-clinical, as argued by Dominique Bourget and Laurie Whitehurst (here)?

Review of Campbell's Assessing Sex Offenders

Michael Harlow writes a critical review (here) of the new (second) edition of Terrence W. Campbell's Assessing Sex Offenders: Problems and Pitfalls. (To see the new edition itself at Amazon, click here.)

Legal case summaries

And, last but not least, we get summaries of interesting recent court cases on:
Click here for the full table of contents.

June 26, 2008

Indigent defendants face loss of attorneys

"Starve the Beast" decimating public services

Crumbling schools, shuttered hospitals, unemployment, homeless elderly, the demise of medical and mental health services. It is hard for me to grasp that the catastrophic collapse of America's infrastructure is part of a deliberate, 25-year strategy.






But there is not much doubt that the current crisis is the result of the "Starve the Beast" doctrine of slashing government services through tax cuts, especially for the corporations and the rich. Taxes in the United States are far lower than in almost any other advanced country, while war costs skyrocket.

In the criminal justice system, budget cuts are making a mockery out of the Constitutional right to legal representation. With plea-bargains the norm, trials are becoming an endangered species. In one rural Mississippi county, more than 4 out of 10 indigent defendants plead guilty at arraignment, on the day that they first meet their court-appointed contract lawyers.

The public defenders I work with are staggering under crippling caseloads. Around the country, budget cuts are forcing layoffs of trial lawyers. In some counties, public defense agencies are responding by refusing to handle misdemeanors and even, in some cases, serious felonies.
  • In Florida, the Miami-Dade County Public Defender is withdrawing from all felony cases except murder and child rape. Bennett Brummer said this week that his office cannot ethically accept more cases than his attorneys have time to properly handle. A court hearing is set for Friday.
  • In Minnesota, the state Public Defender Office is laying off 16 percent of its attorneys (72 of 440), and will stop representing parents in child welfare cases and defendants in some drug court cases.
  • In Kentucky, the Department of Public Advocacy will drop about 10,000 to 20,000 cases per year, including involuntary civil commitments and family court cases. The chief justice of the Supreme Court called it an impending legal crisis: "Without adequate defense counsel, the public simply cannot be confident that persons are not being wrongfully convicted of crimes."
  • In Atlanta, Georgia, the state public defender is closing one office and laying off lawyers, leaving 1,850 defendants without lawyers. A class-action lawsuit brought by several of the suspects and their attorneys claims the firings will replace adequate representation with “lawyers who meet, greet and plead their clients in as little time as possible."
If public defenders refuse a case, the courts may appoint private contract attorneys. In Atlanta, the proposal is to pay these private lawyers $200 for each plea bargain and $600 for each trial. It is hard for me to see how this meager payment could possibly engender adequate legal representation.

The crisis bodes poorly for forensic psychologists who make their living in the criminal justice sector. Unqualified attorneys who are simply collecting checks have little incentive to contract for necessary investigation or psychological evaluations for their indigent clients. As in the rural Mississippi county described above, the only way they can make a buck is by strong-arming guilty pleas at arraignment.

More importantly, it bodes poorly for those who are actually innocent. Based on DNA exonerations, Scott Henson over at Grits for Breakfast estimates there are probably about 2,300 to 5,000 innocent people locked up in Texas prisons alone. If the current crisis continues, that number is bound to grow.

The Wall Street Journal's Law Blog, ABC News, and the New York Times have more on the crisis. Hat tip to Bruce for telling me about the conservative "Starve the Beast" doctrine.

June 23, 2008

CA Study: Shockingly low sex offender recidivism

New research in California shows that only a tiny fraction - 3.38 percent - of released sex offenders are convicted of a new sex offense within 10 years of release. The study followed 3,577 prisoners who were released between 1997 and 2007 after serving time for sex offenses.

In an even larger parallel study by California's Sex Offender Management Board, tracking 4,204 paroled sex offenders, only 3.21 percent were convicted of a new sex offense within 5 years of release.

In both studies, almost all of the recidivism came within the first year post-release. Sex offenders were returned to custody for parole violations at a lower rate than other paroled prisoners, despite the fact that they were supervised more intensely. And they were more likely to be rearrested for crimes other than sex offenses.

The findings are consistent with a smaller study two years ago of recidivism by civilly committed Sexually Violent Predators. Of 93 such high-risk offenders released from Atascadero State Hospital without completing treatment, only 4.3 percent reoffended within six years.

The data call into question the dramatically higher recidivism rates cited by state evaluators at Sexually Violent Predator (SVP) civil commitment trials. Those data are based on Canadian research with an actuarial instrument called the Static 99. The Static 99 recidivism base rates are 18 percent after five years and 21.3 percent after 10 years, many times higher than the California data.

The statistical procedure of survival analysis may explain some of this discrepancy, but is unlikely to account for most of it. In survival analysis, an offender who dies or is reimprisoned is removed from the data pool, so that only offenders who are at risk of reoffending are calculated.

Rates of detected recidivism among sex offenders have dropped precipitously in recent years. In a 10-year period, sexual assaults against adolescents age 12-17 dropped by 79 percent; substantiated sexual abuse cases involving children dropped 39 percent in the same period. Possible reasons for the decline include greater public awareness and more severe punishments.

The data are a bit hidden at the
California Sex Offender Management Board's website, so I have made them available HERE (5-year study) and HERE (10-year study).

June 20, 2008

How will Edwards affect competency evaluations?

Imagine yourself in this situation:

You have no money or family resources. You are arrested for a serious crime you did not commit. You are assigned an overworked and inexperienced lawyer. You repeatedly call his office, but he is never there. On the eve of trial, he briefly visits you at the jail. He is not familiar with your case. He has done no investigation. He brushes aside your claims of innocence and urges you to plead guilty. You talk to other prisoners. They say this attorney is notorious for falling asleep during trials. Frantic, you ask the judge for a different lawyer. He refuses.

This situation is far from fantasy. The quality of court-appointed counsel is abysmal in many jurisdictions. Indigent defense agencies are understaffed and underfunded, creating a pressing demand to extract guilty pleas from their clients. Appellate courts have consistently ruled that inexperience, falling asleep, and heavy drinking do not necessarily constitute ineffective assistance of counsel.

Your choices: (1) Watch this inept attorney railroad you to prison, (2) plead guilty to a crime you did not commit, or (3) represent yourself.

That latter choice may be your best option. According to the only empirical study to date, pro se defendants were more likely to win acquittals than were defendants with attorneys. Of course, only a tiny proportion of defendants, about 0.3% to 0.5%, represent themselves, often when they are backed into a corner as in the above vignette.

So how does this relate to yesterday's U.S. Supreme Court ruling in Indiana v. Edwards?

In Edwards, the high court carved out a special niche for mentally ill defendants, subordinating autonomy for ostensible fairness. The ruling establishes two levels of competency: the current (low) level for competency to stand trial, and a higher one for competency to represent oneself. But it provides no guidance on what this higher level is.

Although only a small proportion of pro se defendants are mentally ill, a request to represent oneself is likely to trigger a competency evaluation. Indeed, of the 22% of pro se defendants who were screened for competency in the above-cited study by law professor Erica Hashimoto, most (59%) were screened only after they sought to dismiss their counsel. Judges and prosecutors are likely to seek such evaluations because failure to do so might cause a conviction to be overturned.

Expansion of parens patriae doctrine

The underlying problem is that the standard for competency to stand trial is very low, and the courts have consistently refused to raise the bar. But how many judges want an inexperienced, potentially disruptive defendant mucking up their courtroom? So, my prediction is that mentally ill defendants will be found competent, but forced to accept an attorney - and a defense - that they may not want.

Indeed, this was at the crux of Justice Antonin Scalia's lengthy dissent:

"Once the right of self-representation for the mentally ill is a sometime thing, trial judges will have every incentive to make their lives easier … by appointing knowledgeable and literate counsel."

And since the U.S. trial system gives "full authority" to the attorney to conduct the defense as he or she sees fit, a defendant who has not consented to legal representation is stripped of the right to present his own defense.

"The facts of this case illustrate this point with the utmost clarity," Scalia wrote. "Edwards wished to take a self-defense case to the jury. His counsel preferred a defense that focused on lack of intent. Having been denied the right to conduct his own defense, Edwards was convicted without having the opportunity to present to the jury the grounds he believed supported his innocence."

The other side of this argument, of course, is that allowing floridly psychotic defendants to represent themselves sanctions court-assisted suicide in that conviction is almost always assured. This is especially so in serious cases, including death penalty cases.

As the high court held in the half-century-old case of Massey v. Moore, "No trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental condition stands helpless and alone before the court."

Slippery slope

As Scalia noted, the Edwards ruling is "extraordinarily vague." It leaves unanswered the question of what level of competence is sufficient to represent oneself, and how that decision will be made.

It also leaves unclear what happens when a defendant has an attorney, but seeks to testify at trial. Will there be an intermediate standard of competency for this situation, in which a certain degree of rational thinking and articulation skills are necessary?

Undoubtedly, the murkiness of the new standard will increase the complexity of these evaluations for forensic psychologists and psychiatrists. This is especially problematic in that court-appointed experts are grossly undercompensated, which attracts inexperienced and poorly trained professionals willing to perform what one attorney I know refers to as "drive-by competency evaluations."

I see the potential of depriving the mentally ill of a right to counsel as a potentially slippery slope. Where does one draw the line? Indeed, in its amicus brief, the American Psychiatric Association noted the need for pro se defendants to have both "oral communication capabilities" and "written-communication abilities."

So, might perceived low intelligence or even low education be a sufficient bar to self-representation? And, how about ideological extremism? Could those labeled "terrorists" be barred from representing themselves in order to air their political beliefs?

This linkage is not a remote possibility, as it turns out. One of the key issues in the Guantanamo prosecutions has been whether the detainees (who are not protected by the U.S. Constitution) will be allowed independent counsel. The initial tribunal rules refused to allow competent detainees to represent themselves. Now, detainees may decline government-appointed lawyers, but the tribune may force counsel onto any detainee who does not fully participate in his defense.

More nuanced approach

On the brighter side, the high court refused to overturn Faretta v. California, as the state of Indiana had sought. That 1975 case established the right of defendants to represent themselves so long as they made this choice "voluntarily and intelligently."

In addition, the ruling may whittle away at the unilateral view of competency espoused by the court in Godinez v. Moran, the only other Supreme Court case that has considered competence within the context of self-representation. In that 1993 opinion, written by Justice Clarence Thomas, the court engaged in convoluted reasoning to hold that no higher level of competency was required to waive counsel.

"There is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights," held the Court in Godinez. "The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself."

In contrast, the Edwards opinion cites the empirical research conducted by the MacArthur group to assert that competency is not a single, unitary construct. Rather, understanding, reasoning, and appreciation of one's circumstances are separable aspects of functional legal ability, the court held.

We can only hope that this recognition of the complexity of competency, and the implicit endorsement of formal competency assessment tools such as the MacCAT-CA, signals an important shift in thinking.

In preparing this essay, I came across many good resources, some of which are listed here.

The ruling in
Indiana v. Edwards is here. All of the various supporting and opposing briefs are available here and here. The American Psychiatric Association brief is here.

Erica Hashimoto's research on pro se defendants,
Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 NC Law Review 432 (2007), is available for download here. An essay by her at the Concurring Opinions blog is here.

The New York Times, the Christian Science Monitor, and Legal Times have coverage of the ruling. Commentary is available at Scotusblog, Crim Prof blog, Simple Justice, the Legal Ethics Forum, and Court-O-Rama.

June 19, 2008

Mentally ill: No constitutional right to self representation

A few months ago, I blogged about an important case out of Indiana, pertaining to whether the mentally ill have a right to represent themselves in court. As many of you may recall, this Constitutional right led to the farcical and ironic spectacle of a railroad killer railroading himself straight to prison.

That was Colin Ferguson (satirized by Saturday Night Live here). We have witnessed similar spectacles in other cases of floridly psychotic people acting as their own attorneys. Another example that I blogged about several times was Scott Panetti, who rambled insanely at his 1995 murder trial and tried to subpoena Jesus Christ, John F. Kennedy, and other dead people.

It's an easy conviction for the prosecution, of course. But it is hardly fair. And certainly not dignified.

In today's 7-2 ruling in the case of Indiana v. Edwards, the U.S. Supreme Court held that the mentally ill do not have the same constitutional rights as everyone else. Even though someone may be competent to stand trial with the help of a lawyer, a judge may force the defendant to accept an attorney if the trial might otherwise be a farce.

"The Constitution permits states to insist upon representation by counsel for those competent enough to stand trial ... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves," Justice Stephen Breyer wrote for the majority.

Proponents of allowing mentally ill defendants to represent themselves despite questionable understanding and judgment cite the Sixth Amendment's right to self-representation. Legal scholar Michael Perlin calls this argument a "pretextual" rationalization for injustice.

Today's decision involved Ahmad Edwards, a delusional schizophrenic man whom a trial judge ruled was competent to stand trial for a robbery-shooting but incompetent to represent himself. Edwards had an attorney but was convicted anyway, prompting his appeal. This ruling will likely reinstate his conviction.

The imposition of a higher standard for self representation than for other facets of competency to stand trial seems at odds with the high court’s earlier holding in Godinez v. Moran. Clarence Thomas, the author of that 1993 opinion, dissented in Thursday's ruling, as did fellow conservative jurist Antonin Scalia.

"In my view, the Constitution does not permit a state to substitute its own perception of fairness for the defendant's right to make his own case before the jury," Scalia said.

The full opinion in Indiana v. Edwards (07-208) is available here. USA Today has more here. My previous blog post on the case is here. Photo credit: afsilva, "The Railroad Ahead" (Creative Commons license).

June 11, 2008

More on the McInerney antigay murder case

Defense may use emerging science of adolescent brain development

Greg Herek, a prominent scholar in the field of prejudice studies, wrote a good summary today about the case of 14-year old Brandon McInerney. As I noted yesterday, the 14-year-old will be arraigned Thursday on charges of murdering his gay classmate, 15-year-old Lawrence King.

Herek's post, which you can read at the UC Davis researcher's "Beyond Homophobia" blog, mentions the possibility of a defense based on emerging neuroscience technology, suggesting that the adolescent brain is not fully developed.

McInerney's attorney, Ventura County Public Defender William Quest, has said he will do everything he can to invoke the science of the developing brain at McInerney's trial. Quest maintains that immature brain development might mitigate the intent to kill.

"The crux of homicide is you have this intent to kill. It's thought out and coherent. If there is something that, given your brain development, puts you in a state that is not coherent, it mitigates that intent," he is quoted in the Ventura County Star as saying.

Quest may have a tough time convincing jurors that McInerney did not form the legally required intent to kill, in that the Young Marines member brought a gun to school and shot Lawrence King not once but twice in the head.

If a neuroscience defense emerges as a centerpiece of the nationally publicized case, it will likely draw attention to the current conflict in the field over whether the budding science is well enough established for the courtroom. (For more on that debate, see the Law & Neuroscience Project website and the Law and Ethics of Brain Scanning resources brought to you by the Sandra Day O’Connor College of Law at the University of Arizona.)

That controversy aside, it will be good news if Quest backs away from his earlier focus on blaming the school for the tragedy. Quest had publicly stated that administrators of the middle school where the killing took place were partly responsible because they allowed the victim to openly display his gender nonconformity.

Tom Kisken of the Ventura County Star has a lengthy summary of the neuroscience debate as it pertains to McInerney's case, available online here. Greg Herek's blog post is here.