Mute mystery man baffled jail psychologists

 Deemed incompetent to stand trial after month of silence

How do you provide treatment to someone who won't talk, when you know absolutely nothing about him -- not even his name? That was the problem facing clinical staff at the San Mateo County Jail this month.

"John Doe" was arrested May 30 for shoplifting two frozen pizzas and several candy bars from a local supermarket. But it was no ordinary theft: Store personnel described him as semi-catatonic, making no effort whatsoever to conceal what he was doing, private investigator Rich Fischer told me today. Perhaps because of his odd behavior, supermarket employees didn't even call the police until Mr. Doe's third attempt to make off with the food.

When police responded, the disheveled man placidly declined to communicate. And he has remained mute ever since, not speaking a single word to anyone for an entire month.

He had no identification, and his fingerprints didn't show up in any databases. No missing persons reports could be found.

He seemed to understand simple commands, both in English and Tagalog. (About one out of five residents of the local community of Daly City are Filipino.) But he wouldn't sustain eye contact or write. In the sole clinical breakthrough, when a nurse asked him if he was "happy or sad," he drew a picture of a happy face. Consistent with his sketch, he seemed perfectly content with his situation, according to an article in today’s San Francisco Chronicle about the mystery..

Knowing nothing about him, jail mental health personnel concentrated on ruling out medical causes for his muteness, such as a stroke or a brain hemorrhage. No medical causes were found, and no clinical interventions were successful.

He was not in any immediate danger, as he was able to understand enough to take care of his basic needs in jail. But he did not seem to be in a position to rationally assist his attorney with his criminal case, so he was found incompetent to stand trial and transferred to a local hospital for further treatment.

Meanwhile, the private defender's office (the local version of a public defender's office) retained investigator Rich Fischer to solve the mystery.

In addition to plastering the local community with fliers, Fischer contacted the news media, which ran an article with a photo. Finally, just today, he got a lucky break when someone who knew the mystery man alerted the family, who contacted Fischer and identified him from a photo. As it turns out, the family had filed a missing persons report in San Francisco, but it had fallen through the cracks.

Maguire Jail, Redwood City

Although Mr. Doe has now been identified, some mystery remains as to his clinical condition. The 44-year-old Filipino native, who holds advanced degrees in computer science and electric engineering, began withdrawing about a year ago, Fischer said. He continued to deteriorate until he finally disappeared from his San Francisco apartment about a month ago.

So, in the end, it was old-fashioned gumshoe work as opposed to psychological detection that cracked the case. In the absence of any collateral information there is only so far that psychology can go in cases of psychogenic muteness.

"I’ve got a reputation for being able to find people when I have a name," a satisfied Fischer told me. "But this was the opposite situation. It was a little unusual."

Now that Mr. Doe has been identified and his family can provide collateral information about his condition, it will be up to the court-appointed experts to decide whether he is competent to stand trial, or can be restored to competency.

Somehow, I doubt he will ever face trial. After all, a couple of frozen pizzas and a few candy bars is hardly the crime of the century. Especially when the alleged culprit isn't talking.

High court ruling on juvenile sentencing: What's it mean?

Two things strike me about Monday's headline-grabbing high court rulings in Miller and Jackson, banning mandatory sentences of life without parole for juvenile killers.

Mandatory versus discretionary sentencing

First, the U.S. Supreme Court did not outlaw sentences of life without parole (LWOP) for juveniles, even though we are one of the only countries in the world to impose such punishment. The cases only take issue with mandatory LWOP sentences. In doing so, the justices are restoring a bit of the discretion traditionally afforded judges and juries to weigh mitigating factors before imposing a sentence.

Second, the court's opinions -- there’s a whopping five in all! -- reflect an escalating ideological tension over what counts as "cruel and unusual punishment" (banned by the Eighth Amendment) under the "evolving standards of a mature society."

Bryan Stevenson of the Equal Justice Initiative argued the case

For the court’s bare majority of five, evolving standards suggest that children should be treated differently from adults. Thus, the cases of Evan Miller and Kuntrell Jackson are logical extensions of previous rulings banning the death penalty for juveniles (in the case of Roper), and life without parole for juveniles convicted of non-homicide offenses (in Graham).

In this line of thinking, the majority leaned on psychological research and an amicus brief by the American Psychological Association. Luminaries in our field (including Elizabeth Cauffman, Tom Grisso, Terrie Moffitt, Jen Woolard, Larry Steinberg, John Edens, Alan Kazdin, Donald Lynum and Edward Mulvey) helped inform the court of what brain science reveals about "the hallmarks of youth," in the words of Justice Kagan: "immaturity, impetuosity, and failure to appreciate risks and consequences."

Only two justices, Stephen Breyer and Sonia Sotomayor, wanted to go further than eliminating mandatory LWOP sentences. In their concurring opinion, they stated their opinion that the Supreme Court's recent ruling in Graham prohibits imposing the penultimate punishment on minors who did not intend to kill. Here, 14-year-old Kuntrell Jackson merely went along with a group of older boys, one of whom killed a video store clerk in the course of a robbery. He did not kill, nor was there evidence he intended the death.

Society evolving toward harsher punishment

Kuntrell Jackson of Arkansas,
14 at the time of his crime

The court’s conservative dissenters, however, lambasted the majority for "march[ing] toward some vision of evolutionary culmination" favoring rehabilitation over retribution. "Unless confined, the only stopping point for the Court’s analysis would be never permitting juvenile offenders to be tried as adults." To the minority, there is no contradiction between the ever-harsher penal policies in 21st century America and the "evolving standards of a mature society." Wrote Chief Justice Roberts in his dissent:

[T]here is little doubt about the direction of society’s evolution. For most of the 20th century, American sentencing practices emphasized rehabilitation of the offender and the availability of parole. But by the 1980’s, outcry against repeat offenders, broad disaffection with the rehabilitative model, and other factors led many legislatures to reduce or eliminate the possibility of parole, imposing longer sentences in order to punish criminals and prevent them from committing more crimes. Statutes establishing life without parole sentences in particular became more common in the past quarter century. And the parties agree that most States have changed their laws relatively recently to expose teenage murderers to mandatory life without parole.

Commenting over at Slate, appellate judge Richard A. Posner cast the whole notion of "evolving standards of a maturing society" as a sick joke:

Evan Miller, also 14, an abuse victim who killed
a neighbor in a drug-induced haze

The concept of cruel and unusual punishments is based on "the evolving standards of decency that mark the progress of a maturing society." Is the United States a maturing society? Surely not in the realm of criminal law, a real disaster area -- we imprison a higher fraction of our population than any civilized nation (and than most of the uncivilized ones), many for trivial crimes involving mind-altering drugs less dangerous than alcohol or cigarettes; life sentences are imposed with abandon; prosecutorial discretion is very broad and often exercised irresponsibly; and judges' sentencing discretion, also broad, is exercised much of the time in an intellectual vacuum.

Posner, a senior lecturer at the University of Chicago Law School, also took issue with using "brain science" to draw a hard line between juveniles and other defendants:

I am struck by the court's reference to "brain science." The court has learned from brain science that teenagers are immature! But we knew that. The problem with using it as a basis for distinguishing between murderers of different ages is that many adult murderers have problems with their brains, too. Why is it not cruel and unusual to sentence them to life in prison? A categorical distinction between a 17-year-old and an 18-year-old seems arbitrary, and in any event a reflection of feelings about children (if teenagers can be called children) rather than of the teachings of brain science. If the court had said -- what I imagine the justices in the majority feel, that emotion dictated the outcome -- that a sentence of life imprisonment (with no parole of course) imposed on a 14-year-old is extremely distasteful, it would have the considerable virtue of candor.

Getting down to the brass tacks 

So, what does this ruling mean in practice, and how will it play out?

As it now stands, 29 of the 38 U.S. states that allow sentences of life without parole for juveniles have provisions for such sentences to be mandatory. All told, about 2,000 of the 2,500 people serving LWOP sentences for crimes committed as minors were sentenced under laws mandating that punishment.

It is not clear how many of these convicts will be eligible for relief. Legal pundits are already debating the retroactive applications of Miller and Jackson. (See HERE and HERE.)

Most likely, as a lawyer colleague predicted, some prisoners in states with vigorous advocacy offices may benefit, while those in other states will continue to languish.

For more background, see my post at my Psychology Today Witness blog on the Lives of Juvenile Lifers report: "No other country condemns children to life behind bars" (click HERE).

Bow ties: The simple solution to expert witness credibility

If you are a lawyer anxious over how your expert witness will perform on the witness stand, you can always instruct the expert to don a bow tie: It's just the ticket for that "nerdy nod of credibility."

That's just one of the scintillating nuggets of advice for turning a ho-hum expert into a "great" witness in the latest issue of The Jury Expert, a publication of the American Society of Trial Consultants. Other advice from Doug Carner of Forensic Protection includes instructing the expert to be confident and relaxed and not to be "the hero."

Reading the column made me thankful that the attorneys I work with have more common sense than to focus on the superficial. I would be less than thrilled to have an attorney client making wardrobe recommendations (bow tie or not) or ordering me to just relax.

I don't mean to sound cynical about trial consultants. I'm sure there is a valid place for them in helping prepare witnesses -- especially novitiates -- for trial. But in my opinion, substance is far more important than style. And that's very hard to teach in a simple advice column. So attorneys are better off choosing the right expert in the first place than scrambling to prepare their witness via last-minute wardrobe tips.

Critically, a good expert witness must have legitimate expertise in the topic at hand. Without legitimate expertise, it is hard to be calm and confident. He or she should also be thorough, taking the time to research the issues and understand the specific case facts. And, above all, the witness should convey honesty and humility.

An attorney who has to tell the witness not to play "the hero" has already made a big mistake. That narcissistic expert should have been avoided in the first place. As a colleague once remarked, it helps us to remain humble if we remember that we are just one piece of evidence, like a maggot on a dead body.

Fortunately, The Jury Expert editors had the good sense to solicit rebuttals from other trial consultants, who took issue with Carner's column.

Forensic psychologist Stanley Brodsky, a widely published authority on trial consultation, called Carner's wardrobe advice "demeaning." Experts don't need to be told to dress up for court. And although one or two exceptions come to mind, most of us won't feel more comfortable in a bow tie.

Brodsky also objected to Carner's advice that experts should just "stick to the facts." What distinguishes expert testimony from the testimony of lay or fact witnesses, he pointed out, is that experts are supposed to present not just facts but -- that's right -- expert opinions.

In another rebuttal, trial consultant Elaine Lewis said Carner only stated the obvious, without giving any real insights on how to achieve better results. "For example, we are told an expert 'should remain relaxed' but there is no suggestion on how to accomplish this," she noted.

Ellen Finlay, who brings the perspective of a former trial attorney to her trial consultant practice, said much of what looks like poor witness preparation stems from inadequate law school training in how to craft a compelling direct examination. A well-crafted direct examination provides a road map for jurors and witnesses and is the single most effective way to "communicate your story to both the jury and your own witnesses," she coaches.

If I was in the business of advising attorneys on preparing expert witnesses for trial, I would tell them not to scrimp on time. The biggest mistake I see attorneys making is to throw their cases together at the last minute. Attorneys need to fully explain to their experts their theory of the case, their voir dire and direct examination approach, and what to anticipate from cross-examination.

If the expert is left hanging in the wind, the case will suffer, bow tie or not.

SVP risk tools show 'disappointing' reliability in real-world use

Rater agreement on three instruments commonly used  to assess sex offenders' risk of recidivism is much lower in practice than reported in the tools' manuals, according to a new study out of Florida.

Faring most poorly was the Psychopathy Checklist (PCL-R). Correlations of scores between two evaluators hired by the same agency were in the low range. On average, psychologists differed by five points on the instrument, which has a score range of of zero to 40. In one case, two evaluators were apart by a whopping 24 points!

Agreement among evaluators was only moderate on the Static-99 and the MnSOST-R, two actuarial risk assessment instruments for which scoring is relatively more straightforward.

The study, published in the respected journal Psychological Assessment, was a collaboration between scholars from the Department of Mental Health Law and Policy at the University of South Florida and researchers with the Florida Department of Children and Families. It utilized archived records culled from the almost 35,000 individuals screened for possible Sexually Violent Predators (SVP) civil commitment in Florida between 1999 and 2009. The researchers located 315 cases in which the same individual was evaluated by separate clinicians who each administered both the PCL-R and at least one of the two actuarial measures within a short enough time frame to enable direct scoring comparisons.

It would be a mistake to lean too heavily on the results of a single isolated study. But the present study adds to a burgeoning body from several groups of independent researchers, all pointing to troubling problems with the accuracy of instruments designed to forecast risk of recidivism among sex offenders.

Related study: Psychopathy and sexual deviance not predictive

Collectively, the research has been especially critical of the ability of the highly prejudicial construct of psychopathy to add meaningfully to risk prediction in this high-stakes arena. Indeed, just this week another study has come out indicating that neither psychopathy scores nor sexual deviance measures improve on the accuracy provided by an actuarial instrument alone.

An especially interesting finding of that Canadian study is that reoffense rates were still below 12 percent over a 6-year followup period for even the most high-risk offenders -- those with high risk ratings on the Static-99R plus high levels of psychopathy and sexual deviance (as measured by phallometric testing). This makes it inappropriate to inflate risk estimates over and above those derived from Static-99R scores alone, the authors caution.

Item-level analysis finds varying rates of accuracy

A unique contribution of the Florida study is its analysis of the relative accuracy of every single item in each of the three instruments studied. Handy tables allow a forensic practitioner to see which items have the poorest reliability, meaning they should be viewed skeptically by forensic decision-makers.

For example, take the MnSOST-R, a now-defunct instrument with a score range of –14 to 31 points. The total gap between evaluators was as wide as 19 points; the items with the greatest variability in scoring were those pertaining to offenders' functioning during incarceration, such as participation in treatment.

Meanwhile, the weak performance of the Psychopathy Checklist owes much to the items on its so-called “Factor 1,” which attempt to measure the personality style of the psychopath. As I've discussed before, rating someone as “glib,” “callous” or “shallow” is a highly subjective enterprise that opens the door to a veritable avalanche of personal bias.

Piggy-backing off a recommendation by John Edens and colleagues, the Florida team suggests that the prejudicial deployment of the Psychopathy Checklist may be superfluous, in that scores on Factor 2 alone (the items reflecting a chronic criminal lifestyle) are more predictive of future violence or sexual recidivism.

Next up, we need to identify the causes of the poor interrater reliability for forensic risk prediction instruments in real-world settings. Is it due to inadequate training, differing clinical skills, variable access to collateral data, intentional or unintentional bias on the part of examiners, adversarial allegiance effects (not a factor in the present study, since both evaluators were appointed by the same agency), or some combination?

In the meantime, the fact that two evaluators working on the same side cannot reliably arrive at the same risk rating for any particular individual should certainly raise our skepticism about the validity of risk prediction based on these instruments.

The studies are:

Reliability of Risk Assessment Measures Used in Sexually Violent Predator Proceedings. Cailey Miller, Eva Kimonis, Randy Otto, Suzonne Kline and Adam Wasserman. Psychological Assessment. Published online 7 May 2012. Advance online publication. Click HERE to contact the authors.

Does Consideration of Psychopathy and Sexual Deviance Add to the Predictive Validity of the Static-99R? Jan Looman, Nicola A. C. Morphett and Jeff Abracen. International Journal of Offender Therapy and Comparative Criminology. Published online 28 May 2012. Click HERE to contact the authors.

Inter-rater reliability of the PCL-R total and factor scores among psychopathic sex offenders: Are personality features more prone to disagreement than behavioral features? John Edens, Marcus Boccaccini and D. W. Johnson. 2010. Behavioral Sciences and the Law, 28 (1), 106–119. 

Related blog posts: 

• Psychopathy: A Rorschach test for psychologists?
• Study: Psychopathy score fails to predict sexual recidivism   
• NPR series on psychopathy in court

Civil capacity assessment comes of age

What do these three situations have in common?

• A young adult with chronic schizophrenia refuses medication because she believes she is being poisoned 

• A middle-aged adult struggles to pay his bills after a traumatic brain injury from a motorcycle accident 

• An older adult with dementia revises a will to favor one stepchild over another

All are situations in which a forensic practitioner may be called upon to render an opinion on the individual's capacity, whether to make medical decisions, handle finances, or execute a will. As the population ages and family structures become increasingly complex, the demand for such civil capacity assessments is growing exponentially.

So it is only fitting that the inaugural text in the National Academy of Neuropsychology’s new series on evidence-based practice focuses on civil capacities. The book brings together theoretical developments, research findings and practice recommendations in this complex and expanding area.

Volume editor George Demakis, a psychology professor at the University of North Carolina with considerable clinical experience conducting civil capacity evaluations, has brought together an impressive array of experts. Together, they discuss the research and practice in a range of civil capacities, including financial, healthcare decision-making, testamentary (executing a will), driving, personal care and guardianship.

The field's evolution is clearly visible in this book's chapters. Only 26 years ago, Tom Grisso issued his paradigm-shifting call for the assessment of "functional capacities." Here, rather than focusing on diagnostic labels or one-size-fits-all checklists of ability, chapter authors urge practitioners to carefully explore the individual's real-life functioning, including through collateral reports and even direct evidence of performance (for example, by observing a subject's driving).

A central goal of the book is to provide practical guidance. Each chapter contains an illustrative case example and discusses the range of capacity instruments available in that particular niche. Later chapters focus on the nuts and bolts of data collection, report writing, and testifying. There's even a chapter from the perspective of "the legal consumer," in which two North Carolina court officers tell us what they would like to see in a civil capacity assessment report. Although it's rather elementary stuff for the seasoned forensic practitioner, the chapter makes for a useful teaching tool for students and other novitiates.

In a glowing review for PsyCritiques, Jennifer Moye calls the text "a must read" that is "certain to advance the field." Her one substantive critique is that it gave short shrift to how values and individual differences (including multicultural and educational influences) play into expert judgments of capacity. This is an important issue, considering the liberties that can be lost when people are declared incompetent to make their own medical decisions or to live independently in the community.

For a more thorough discussion of the issue of social status and capacity assessment, from the perspective of medical treatment, I recommend an essay by Susan Stefan in a special 1996 issue of Psychology, Public Policy and Law on the MacArthur Treatment Competence Research.

I was also a bit disappointed to see that last year's book by colleagues Adam Alban and Eric Mart on testamentary capacity didn't get even a nod. The book, The Practical Assessment of Testamentary Capacity and Undue Influence in the Elderly, is an excellent practitioner guide, which even includes a CD-ROM of assessment tools in this area.

These minor quibbles aside, Civil Capacities is a major advance that is sure to become an essential text for those working in this area, including neuropsychologists, forensic psychologists, attorneys and judges.

My Amazon review of Civil Capacities in Clinical Neuropsychology: Research Findings and Practical Applications is HERE. If you find it useful, please click on "YES," this review was helpful.

Jail confidentiality, Part II: Open season on insanity consultants

Do insanity consultations fall under the attorney-client privilege? 
Not in DeKalb County, Georgia

POSTSCRIPT: In 2015, the Georgia Supreme Court overturned Henry Neuman's murder conviction based on the trial court's harmful error of violating attorney-client privilege by forcing the defense consultants to turn over their records to prosecutors. My blog post on this ruling is HERE.  

In civil court, expert consultants may be kept secret under attorney-client confidentiality rules. Even with testifying experts, an amendment to the Federal Rules of Evidence allows civil attorneys to avoid handing over the experts' reports until they are in their final form.

Is the situation similar in criminal court? Criminal attorneys often assert that the work product of an expert who is retained only as a consultant -- not as an expert witness -- can be kept confidential under the attorney-client privilege doctrine. But consider this scenario:

An attorney wants to know whether insanity might be a viable defense in a murder case. He decides to retain a psychologist as a consultant. The psychologist agrees to meet with the defendant and give the attorney an initial assessment.

Being an ethical practitioner, the psychologist obtains informed consent from the defendant. He explains that since he is just a consultant and won’t be testifying as an expert in the case, the information that he collects will only be shared with the attorney.

But he is wrong. The next thing he knows, he has been slapped with a subpoena ordering him to bring his notes and test data to court and be prepared to be questioned by the district attorney about his findings. If he refused to cooperate, the prosecutor threatens to search his office and seize the records; a search warrant is already in hand.

Peter Thomas. Photo credit: Chris 
North, Reporter Newspapers

This was the rude introduction to forensic psychology that greeted Peter Thomas of Georgia, a novice to criminal work and court proceedings. He was yanked into the middle of the headline-grabbing case of Hemy Neuman, a high-level General Electric manager who had ambushed and shot to death a subordinate's husband, entrepreneur Russell "Rusty" Sneiderman, outside a preschool in a wealthy suburb of Atlanta, Georgia.

The prosecutor in the Neuman case learned of Thomas's involvement through an old trick -- underhanded but effective -- of monitoring the jail's visitor logs.  

Neuman's attorneys vigorously objected to the subpoena and the legality of the pretrial discovery hearing. Allowing prosecutors to interview Thomas would have a "chilling effect" on defense attorneys' ability to use experts, lest they do their clients "more harm than good," attorney Robert Rubin argued to the court. 

"Mr. Neuman was told, at the beginning of his meeting with Peter Thomas, that his disclosures during the course of that interview would be disclosed only to his legal team," Rubin and co-counsel Douglas Peters wrote in a legal motion objecting to the disclosure. "Mr. Neuman was NOT given the standard warnings usually given during a court ordered evaluation that by cooperating in the evaluation he was waiving his Fifth Amendment privilege. Mr. Neuman did not knowingly waive any privilege, including Fifth Amendment or attorney-client."

But DeKalb Superior Court Judge Gregory Adams was unmoved. He ordered Thomas and, later, a second psychologist, to hand over their evaluation notes forthwith. He said he would first view the materials to protect any information that might fall under the protection of the attorney-client privilege.

Case law murky

The U.S. Supreme Court has never clarified whether the prosecution can discover and use evidence generated by non-witness defense psychiatric experts when criminal defendants raise the insanity defense, leaving lower courts divided on the issue, according to an overview in the Fordham Law Review.

The Third Circuit is an example of an appellate court that has ruled that attorney-client privilege applies in this situation. In its 1975 ruling in U.S. v. Alvarez, it held that "effective assistance of counsel with respect to the preparation of an insanity defense demands recognition that a defendant be as free to communicate with a psychiatric expert as with the attorney he is assisting." In that case, a psychiatric consultant rendered an unfavorable opinion regarding the viability of an insanity defense for a defendant facing trial for kidnapping. The defense went ahead with an insanity defense anyway, without calling the expert to testify. Knowing of the initial expert's opinion, the government subpoenaed him and, over defense objection, the trial court compelled him to testify. The Third Circuit overturned the conviction.

Other courts, however, "have held that merely by asserting the insanity defense, criminal defendants waive all claims of privilege with respect to any prior psychiatric evaluations," reports Elizabeth Maringer in the law review. A prime example was the 1976 case of Edney v. Smith, involving a man facing trial for kidnapping and murdering his ex-girlfriend's 8-year-old daughter. Edney pleaded insanity and called a psychiatrist who testified in support of this plea. The court then allowed the prosecution to call, in rebuttal, the original psychiatrist who had examined Edney for trial preparation purposes and who did not believe that Edney was mentally ill. The New York Court of Appeals upheld Edney’s conviction, ruling that pursuing an insanity defense automatically waives the attorney-client privilege.

The threat of prosecutorial discovery puts defense attorneys in a Catch-22 situation as they weigh options in cases in which mental illness is a potential issue. On the one hand, as Maringer notes, counsel “risk creating witnesses for the prosecution” when they investigate a mental health defense, especially if they use court-appointed experts. On the other hand, they risk violating their client's rights if they do not thoroughly investigate this line of defense.

"The obvious chilling effect upon defense attorneys' willingness to investigate and pursue the insanity defense for their clients conflicts with the policies underlying the Sixth Amendment," Maringer states. "In addition, risk of disclosure diminishes defendants' willingness to cooperate with counsel and psychiatric experts."

'Celebrity angels and demons made me do it'

Hemy Neuman

Neuman's insanity defense was ridiculed in the press. The love-struck defendant claimed that he had heard the voice of a demon who sounded like Barry White and seen an angel who looked like Olivia Newton-John, who ordered him to kill the husband of his love interest.

The defense called at least three mental health experts. Psychologist Adriana Flores testified that in her expert opinion Neuman was suffering from erotomanic delusions and was insane at the time of the killing. Neuman told her he had been visited by a "she-demon" who told him the Sneidermans' children were his.

"He believed he was the father of the children, they were his children and were in danger," Flores testified. "It was his duty to rescue them, to protect them by killing Rusty [Sneiderman], then he could be with his children. 

Another defense expert, psychiatrist Julie Rand Dorney, testified that Neuman showed signs of "paranoia, depression, social isolation, confusion and magical thinking, which could mean psychosis."

The prosecution, meanwhile, painted Neuman as a calculating killer who planned Sneiderman's shooting for months, going to gun shows, taking a gun safety course, going to target practice, renting a car for the shooting and wearing a disguise, according to ABC News coverage.

Psychiatrist Pamela Crawford, called by the government, said she believed Neuman was faking his symptoms. "His discussion of [the demons] was inconsistent," she testified. "At one point he says, 'I know they are not real,' then later says, 'I just want the demons to go away.' He's not even consistent in the same interview."

"The defendant is serving up an insanity sandwich and he's been serving it up since 2010 and he wants you to eat it," District Attorney Robert James told the jury.

Not too surprisingly, the jury rejected Neuman's insanity bid. Neuman was found guilty but mentally ill and sentenced to life in prison without parole.

Appeal may clarify law - at least in Georgia

The judge's decision to turn over Thomas's assessment data to the prosecution will likely figure prominently in Neuman's appeal.

Neuman’s attorney, Robert Rubin, said the prosecution's pretrial subpoena ploy forced the defense to change strategies, and to call Thomas as a witness in order to prevent him from becoming a prosecution witness. Thomas, who had never before testified in court, conceded under cross-examination that he did not test for malingering, and that Neuman may have been faking insanity.

The case should serve as a cautionary one for pretrial consultants. Unless and until this murky area of the law gets cleared up, it is prudent when conducting an insanity evaluation -- even if you are just a consultant and not expected to testify -- to let the defendant know that the information you are collecting may ultimately be discoverable.

After all, you never know who is looking over your shoulder when you sign your name on the jail log. It could be a prosecutor with a subpoena in one hand and a search warrant in the other.

The law review article, available online, is: "Witness for the prosecution: Prosecutorial discovery of information generated by non- testifying defense psychiatric experts" by Elizabeth F. Maringer, Fordham Law Review 62 (3), 1993.