January 5, 2012

Civil commitment petition against Butner, NC prisoner dismissed

 Federal judge discounts sex offender's confessions as fabricated

Sex offenses are upsetting, and their perpetrators creepy. Understandably, it's easy for jurors and even judges to brush aside legal technicalities and burdens of proof in the interest of keeping women and children safe.

But it is disturbing when forensic psychologists collude in this endeavor, disregarding the limits of science by overstating the accuracy of risk assessment instruments, inventing pretextual disorders to justify preventive detention, and even claiming omniscient truth-telling powers regarding ancient, unprosecuted allegations.

In an environment replete with such folie à plusieurs, it was refreshing to read the recent federal decision in the case of Markis Revland, a habitual criminal who faced civil detention after serving time for child pornography possession.

Senior U.S. District Judge Bernard A. Friedman systematically analyzed and rejected the evidence as failing to meet the government’s burden of proof. Not only did the government fail to show that Revland had a serious mental disorder that put him at high risk of molesting children if released, it even failed to prove that the convict had engaged in any hands-on child molestation in the past, the judge ruled.

Child abuse claims imaginary

In addition to his conviction for child pornography, Revland had two prior convictions for indecent exposure. But the most damning evidence against him was his own admissions, made during sex offender treatment at the federal prison in Butner, North Carolina, that he had committed 149 additional incidents of sexual abuse of children of various ages.

However, the keen-minded judge of the U.S. District Court for the Eastern District of North Carolina wasn’t buying those confessions:
The court finds that all of the 149 incidents reported by respondent … were the product of his imagination, not actual events.
He explained that Revland was desperate to enroll in Butner’s treatment program in order to escape the infamous federal prison in Leavenworth, Kansas, where he feared for his life after being beaten and raped at knifepoint by fellow prisoners. Once at Butner, he felt compelled to fabricate “a long list of sex offenses,” lest he be deemed uncooperative and returned to Leavenworth.

The offenses that he described in great detail were implausible, in that he was serving a prior, 10-year prison term for cocaine at around the same time that he claimed to be running around molesting children, the judge determined:
The reported incidents were not only too numerous to believe but also recounted – years afterwards – far too precisely, with respondent providing the age of the victim, the time of day … when each offense occurred, and the location where each incident allegedly occurred…. And yet the government offered no evidence to independently verify that any of these incidents occurred or that any of them – even one – ever resulted in investigation or prosecution.
As a group, Butner offenders – most of them incarcerated on child pornography charges -- have confessed to an unusually high number of undetected sex offenses, leading many observers to suspect that the widely publicized numbers are unreliable. Critics say treatment providers at the federal institution pressured prisoners to report as many offenses as possible, lest they be accused of not cooperating.

No bona fide sexual disorder

Likewise, Judge Friedman was unconvinced by the government's claim that Revland suffered from a mental disorder, pedophilia, that would justify civil commitment by making him likely to engage in future child molestation if released.

Friedman conceded that the convict met the criteria for antisocial personality disorder. But he found that such a diagnosis was irrelevant:
The essence of this disorder is that the patient “fail[s] to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest.” Dr. [Jeffrey] Singer testified that the vast majority of prison inmates have this disorder, as they are in prison for breaking the law and failing to conform to social norms. Dr. [Joseph] Plaud testified that there is no documented causal link, in this case or in general, between antisocial personality disorder and sexual dangerousness. The court credits these experts' opinions.
Finally, the judge rejected the claims of two government psychologists that two so-called actuarial instruments, the Static-99R and the MnSOST-R, showed Revland to be at high risk for recidivism.

Judge Friedman said the risk assessments by both Dr. Manuel Gutierrez, a Board of Prisons employee, and contract psychologist Jeffrey Davis were "particularly unreliable in the present case because they both assumed that [Revland] is a pedophile with numerous 'hands-on' victims, whereas the court has rejected both of these premises."

Increasingly, cutting-edge researchers are coming to the consensus that by and large, with a few exceptions at the extreme end of the continuum, sex offenders are not a distinct group worthy of the level of special attention they are getting these days. Rather, they are garden-variety criminals who violate social norms, take what they want, and eventually burn out as they enter middle age.  

The judge's bold language in cutting through the empty psychobabble about mental disorder and risk harkens back to the little boy in the Hans Christian Andersen tale, The Emperor's New Clothes, who was not afraid to declare out loud that the emperor was naked.

December 31, 2011

Happy New Year’s – and thanks for your support!

Thanks very much to those of you who responded to my request for help, generously donating money and books or signing up for a paid subscription. I really appreciate your kind assistance. For those of you who meant to chip in but didn’t get around to it yet (I know how busy we all get), click HERE to see a list of ways that you can still contribute. (Or, look in the right column of the blog's website.) Please join in today, to help keep this blog thriving in 2012 and beyond.

Happy New Year’s to all of you!

Updates of leading malingering and Miranda rights tests

As we ring in the new year, here are a couple of updates on tests some of you may be using in your forensic practices.
Miranda instruments revised

When it comes to assessing whether a criminal defendant had the capacity to waive his or her Miranda rights prior to giving a statement to police, there is only one game in town -- the Instruments for Assessing Understanding and Appreciation of Miranda Rights by eminent forensic psychologist Tom Grisso and colleagues. Now, that set of tests has been completely revised and given a new name: the Miranda Rights Comprehension Instruments (MRCI). One of the main problems with the old instruments was that their language was more complex than the actual language used by many police warnings, reducing their real-world validity. That problem has been rectified through simpler language in the new edition. Also, the test developers promise better psychometric properties and updated normative data. But it's kind of a tricky situation, because we are being instructed to use the new instruments when assessing juveniles, but to stick with the old ones for assessing adults until new adult norms are published some time in 2013. More on the new instruments is HERE.

Facelift for gold-standard malingering test

In contrast to Miranda rights, there is no shortage of instruments for assessing malingering. But for assessing malingered psychosis, one instrument is widely recognized as the "gold standard." That test is Richard Rogers and colleagues’ Structured Interview of Reported Symptoms (SIRS). It too was recently revised. The revision was in part due to the discovery that the original SIRS failed to adequately distinguish between some people diagnosed with dissociative identity disorder and people who were instructed to deliberately exaggerate symptoms. But critical reception for the revised tool, the SIRS-2, has been less than stellar. Over at the Open Access Journal of Forensic Psychology, forensic psychologist Greg DeClue warns that the SIRS-2 may be vulnerable to admissibility challenges in court. That is due to the publishers' refusal to be transparent by letting independent professionals such as DeClue analyze their data. DeClue challenges the test's developers to submit a comprehensive description of the SIRS-2 validation study for peer-reviewed publication, and to let independent professionals analyze the data without impediment. His interesting critique is HERE.

December 20, 2011

Join the blogger's circle of support

As the year draws to a close, I would like to publicly thank all my loyal readers and subscribers. It’s been gratifying to see subscriptions for this blog grow from a few dozen back in 2007 to today's many hundreds of forensic practitioners, lawyers, educators, criminologists, researchers, authors and policy advocates. It is great to see nearly all of the U.S. states and dozens of nations represented, from Saudi Arabia and Turkey to Scotland and Lithuania.

A snapshot of this morning's blog visitors from around the world
I am especially grateful to the many of you who have lent tangible support through monetary donations, books, and other forms of encouragement. Your generous support has been essential in defraying my costs. Letting me know that the time and energy I devote to blogging is useful in keeping you connected and abreast of developments in the field has also helped me stay motivated.

For those of you who have not yet chipped in, I’ve made it very easy. Here are three ways to join my expanding circle of support, and help keep this blog going:

1. Subscribe. A $3 monthly subscription helps defray my Internet fees and research costs. Just click on the "SUBSCRIBE" button in the upper right column of the blog. Paypal makes it quick and easy. 

2. Donate. Give a one-time donation of any amount you choose. Again, Paypal makes it simple; just click on the “DONATE” button on the blog.

3. Gift. Finally, donating a book from my Amazon wish list is a great way to show your appreciation. The list is HERE; you can also browse through it on the blog page. There's a price range for everyone.

And thanks again to all of you who have given me so much support over the years.

December 18, 2011

Appellate court upholds exclusion of SPECT evidence

Yerba Buena Island, San Francisco Bay
On May 22, 2002, the body of Juliette Williamson was found washed up on Yerba Buena Island in the San Francisco Bay. Williamson and her long-time partner Bruce Brooks were well-known street performers known as the Chicago Brother and Sister Blues Band. For years, they had lived together in a purple school bus parked under a freeway.

Within days of Williamson's disappearance, Brooks gave three confessions to friends. He provided graphic details of how he bludgeoned her to death with a hammer after a drunken quarrel. He even took one friend to the location where he had tossed her body into the Bay; there, police later recovered blood samples that matched Williamson's DNA.

The couple’s 16-year relationship had always been tumultuous, but it was deteriorating in the weeks before the killing. Brooks had resumed smoking crack cocaine and had openly threatened to kill Williamson if she left him, according to trial testimony.

Bruce Brooks. Photo credit: M. Macer, S.F. Chronicle
By the time he went to trial six years later, Brooks's story had changed. He testified that Williamson attacked him and knocked him "silly." He saw a fluorescent number three in his mind; the next thing he knew he was dropping Williamson's body over the bridge to bury her at sea. He had no recollection of killing her, but figured he must have.

A defense-retained neuropsychologist, Myla Young, testified that Brooks had frontal lobe damage that might cause him to begin a repetitive act like hitting and not stop until worn out. The impairment also made him prone to amnesia, she said.

But the jury wasn't buying. After three days of deliberations, jurors convicted Brooks of second-degree murder. He was sentenced to 15 years to life.

Appeal: Unfair to exclude SPECT evidence

Brooks appealed, citing the trial judge's exclusion of Single Photon Emission Computed Tomography (SPECT) evidence. He had hoped to introduce the colorful brain scans to convince the jury he had organic brain damage that made it impossible for him to premeditate a murder, or even form a conscious intent to kill. Psychiatrist Daniel Amen was prepared to testify that Brooks' scan, which measures blood flow to certain regions of the brain, looked "very abnormal."

San Francisco trial judge Cindy Lee excluded the SPECT testimony based on concerns about both the method and the messenger.

Daniel Amen promotes his Amen Clinics
Under California's Kelly-Frye standard, for scientific evidence to be admissible in a criminal case, there must be proof that the technique is considered reliable in the scientific community and that the witness is a qualified expert who used correct scientific procedures. The party seeking to introduce the evidence has the burden of proving its admissibility by a preponderance of the evidence.

Regarding the method, the judge ruled that research has not established that SPECT scans can accurately determine cognitive impairment, much less impairment so severe as to preclude the requisite mental states for premeditated murder. While the scans were "pretty glitzy" and "high tech," their colors lacked meaning and had a high potential to confuse the jury, she said.

As to the messenger, the judge had "a 'considerable question' ... as to whether [Amen] is an independent and unbiased expert and truly represents a cross-section of the relevant scientific community," according to a just-issued appellate ruling.

The First District Court of Appeal upheld the trial judge's ruling, endorsing her concerns about both the method and the messenger.

The appellate justices were unable to find any published appellate decision on the issue of whether SPECT evidence is admissible in a criminal trial to support a theory that a defendant's ability to form a specific intent was impaired by organic brain damage. So they conducted their own independent review of the scientific status of SPECT evidence. They were ultimately under-impressed.
[W]e agree with the trial court that defendant failed to establish that SPECT was generally accepted by the scientific community as showing brain injuries that were relevant to the defense theory that he did not form the intent necessary to commit murder. Defendant did not establish a generally accepted correlation between blood flow to a particular part of the brain and any particular behavior…. [A]s the trial court correctly summarized the testimony, "[T]here’s a lack of any testimony that there’s any quantitative percentage of blood flow, specific cognitive functions or other factors that will be impaired or even affected."

Regarding the messenger, the appellate justices said it was within the trial judge's discretion to raise "serious questions about Amen’s qualifications to testify as an expert witness. The court doubted that he could be independent and unbiased in light of his long engagement in significant entrepreneurship activities regarding SPECT via the Amen Clinics and activities as a proponent of the utility of SPECT scan imaging."

Amen's methods questioned

Judge Lee and the appellate panel were not alone in viewing Amen's activities with suspicion.

Amen, a graduate of the now-defunct Oral Roberts University School of Medicine, has said he was "led by God to pursue this work." And the missionary zeal with which he promotes SPECT for everything from depression and anxiety to aggression and drug abuse has raised concerns among other medical professionals.

In 2005, Amen's unconventional treatments had caught the attention of Quackwatch, an international network dedicated to exposing medical "frauds, myths, fads, fallacies, and misconduct." Three years later, Salon ran a piece by neurologist Robert Burton, criticizing PBS for running Amen's "self-produced infomercial" touting his unproven intervention for Alzheimer's disease:
It’s hard to dismiss the religious undertones of Amen’s work…. And yet Amen’s sense of calling hasn't led him to undertake the high-quality clinical investigations that would lend scientific credence to his claims…. Amen states that he has read more than 40,000 SPECT scans and holds himself up as a world expert. But a brief quote from his TV special quickly reveals a very peculiar method of determining what constitutes a normal SPECT scan…. Using Amen’s figures from his TV program, only 3 percent of those he has studied have been interpreted by himself and his staff as being normal. Put another way, 97 percent of patients who attend Amen’s clinic can expect to be told that their SPECT brain scan is abnormal.

But the controversies surrounding neuroimaging in court go far beyond those swirling around Amen and his SPECT scans. Echoing the trial judge's concerns in the Brooks case, the UK Royal Society just this week warned that jurors may be far too impressed with brain images, not recognizing their limited applicability to real-world legal questions.

POSTSCRIPT: On Feb. 29, 2012, the California Supreme Court denied review of the case. 

December 15, 2011

Study: Lads’ mags sound identical to rapists

As I was driving through America’s Farm Belt on the way to a prison (miles and miles of cows and plowed corn fields as far as the eye could see), it was a bit incongruous to suddenly see --

Photo by Karen Franklin

-- an ADULT SUPERSTORE, perched on the side of the freeway like a giant mousetrap. While sex offenders are chastised for even thinking about pornography, a free-world traveler like me can't escape its dehumanizing specter, whether on the highway or in my hotel room. Novelist Russell Banks was surely on to something when he called sex offenders the canaries in the coal mine, victims of a $10-billion-plus industry that preys on their loneliness and alienation.

With that vision in mind, I was pleased to see that two of my favorite academic scholars are getting a flurry of media attention over their new study finding that most people cannot distinguish between statements about women in British lads' mags and those made by convicted rapists.

In the study, due to be published in the British Journal of Psychology, men identified more with the comments made by rapists than the quotes made in lads' mags. And that's not necessarily a bad thing: On the whole, the statements pulled from Britain's four leading lads' mags (what North Americans would call men's magazines) were actually more denigrating of women than the rape-justifying statements made by rapists.

For example, here are two quotes:
  • "There's a certain way you can tell that a girl wants to have sex . . . The way they dress, they flaunt themselves."
  • "You do not want to be caught red-handed . . . go and smash her on a park bench. That used to be my trick."

The first quote is pulled from the book, The Rapist Files: Interviews With Convicted Rapists. The second is from a lads' mag. (If you want to test your ability to differentiate rapists from lads' mags, Jezebel has obliged with an online quiz containing 16 of the statements used in the study.)

The study authors worry that lads' magazines (which are not categorized as pornographic because they do not show full nudity) are mainstreaming hedonistic, predatory attitudes toward women.

"The apparent normalising effect of lads' mags runs counter to the work that is done with sex offenders both in prison and the community,” lead researcher Miranda Horvath told the Guardian. “Sex offender programmes challenge the men about their sexist, misogynistic and derogatory beliefs about women and seek to reeducate them. Yet it appears that some similar beliefs have been presented in recent lads' mags, which are normalised and accepted in mainstream society."

Said co-researcher Peter Hegarty in a press release, “We are not killjoys or prudes who think that there should be no sexual information and media for young people. But are teenage boys and young men best prepared for fulfilling love and sex when they normalise views about women that are disturbingly close to those mirrored in the language of sexual offenders?”

He added that young men should be given credible sex education and not have to rely on lads' mags as a source of information as they grow up.

Dr. Horvath of Middlesex University is a pioneering researcher into multiple-perpetrator rape and co-organizer of the London conference on sexual violence at which I gave a keynote this summer. Dr. Hegarty at the University of Surrey has just completed a fascinating research project on Lewis Terman of Stanford University; his book, Poison in the Gift: Alfred Kinsey, Lewis Terman and the Sexual Politics of Smart Men is in press by the University of Chicago Press.

The article is: "Lights on at the end of the party: Are lads' mags mainstreaming dangerous sexism?" by Miranda Horvath, Peter Hegarty, Suzannah Tyler and Sophie Mansfield, in the British Journal of Psychology. Author correspondence may be addressed to Dr. Horvath (HERE).