The 9th Circuit Court of Appeals has issued a ruling with implications for forensic psychology, treatment in correctional settings, group therapy, psychotherapist-patient confidentiality, and correctional ethics more broadly.The case goes way back to 1984, when 13-year-old Christy Ann Fornoff was sexually assaulted and smothered to death in Arizona. Physical evidence and suspicious circumstances linked Donald Beaty to the crime, and he was quickly arrested.
While awaiting trial, Beaty became depressed and went on a hunger strike. He was transferred to a psychiatric unit, where he agreed to participate in an experimental, coed therapy group. At one group session, a teenage girl confronted Beaty about his offense, and he became upset. Immediately after the group session, Beaty approached the prison psychiatrist who ran the group, George O'Connor. As O'Connor later recalled the conversation, Beaty said he was not a terrible person and that he had not meant to kill Ms. Fornoff.
Time went by. Beaty went to trial. The prosecution presented physical evidence linking him to the crime, but the jury hung 10-2 (for guilty). Meanwhile, O'Connor happened to be in court on another case. During some idle chitchat, he told a guard that Beaty had confessed to him. Through the grapevine, the prosecutor quickly heard this good news, and O'Connor was compelled to testify at Beaty's second trial. Not surprisingly, the verdict this time was guilty. Beaty was sentenced to death.
At issue in the capital habeas appeal was whether Beaty's statement to the psychiatrist was properly admitted, or whether it was protected as confidential. Beaty argued that he had signed a confidentiality agreement to participate in the group therapy and that he thought his conversation with the psychiatrist was confidential.
An appellate court disagreed. The confidentiality contract only applied to statements made while the group was in session, not to a private conversation immediately thereafter. The court also disagreed with Beaty that he was coerced into treatment. (This is relevant because a coerced confession to police may be excluded from evidence if it is shown that the suspect's independent will was overborne.)
The court distinguished Beaty's case from two earlier cases in which statements made to psychiatric clinicians in custodial settings were deemed protected from disclosure.
Case of Daniel Pens
In the first of these two cases, Daniel Pens was convicted of rape in 1981 and committed to a locked treatment program at Western State Hospital in Washington. The treating therapists assured Pens that information he revealed during his mandatory treatment would remain confidential and would not be disclosed to the courts. As part of his treatment, Pens confessed to additional rapes. After three years, the clinicians wrote a report to the court detailing Pens’ self-incriminating statements and concluding that he was too dangerous to be released.
In 1989, the Ninth Circuit ruled that Pens' admissions fell squarely within the Fifth Amendment privilege against self-incrimination, and could not be used against him in court. (The case is Pens v. Bail, 902 F.2d 1465.)
Case of "D.F."
The appellate court also distinguished the Beaty case from a far more fascinating case out of Wisconsin that is worthy reading for all mental health practitioners. In 1993, 12-year-old "D.F." of Wisconsin was charged with killing her two infant cousins. She was placed in a locked institution for troubled youths. Like many such programs, the program utilized a level system in which privileges and punishments were accorded based on participation in treatment. Patients who talked to clinicians and wrote in their journals could wear their own clothes, talk to other children, and move around freely.
Four months into her treatment, during a group therapy session, D.F. admitted killing her cousins. A staff member immediately reported the confession to Child Protective Services, which in turn notified the FBI. During a subsequent investigation, treatment staff secretly funneled information to the FBI while continuing to encourage DF to discuss her crimes in therapy.
At DF's trial, the judge suppressed the statements not on the basis of the privilege against self-incrimination (as in Beaty's case), but on the grounds of psychotherapist-patient privilege. The prosecution appealed to the district court.
The district court conducted an inquiry into the treatment center's operations. The court noted that treatment staff had close working relations with police agencies and, indeed, many acted as "law enforcement surrogates" in eliciting confessions from troubled teens. Warnings about the consequences of self-incrimination were minimal to non-existent. The district court upheld the suppression of DF's confession; the 7th Circuit Court of Appeals upheld that ruling in 1995. DF's treating clinicians, in the appellate court's view, were acting in the dual roles of prosecutor and healer. (The case is U.S. v. DF, 63F.3d 671.)
Harking back to Estelle v. Smith
In its decision in DF's case, the 7th Circuit went back to the landmark U.S. Supreme Court case of Estelle v. Smith (451 U.S. 454). To refresh your memory, that Texas case involved Ernest Benjamin Smith, who was sentenced to death for the armed robbery of a grocery store in which his accomplice fatally shot the clerk. Smith had the misfortune to have his competency evaluated by state psychiatrist Dr. James P. Grigson, who later earned the infamous nickname of "Dr. Death." At Smith's sentencing hearing, Grigson testified that Smith was "going to go ahead and commit other similar or same criminal acts if given the opportunity to do so." After hearing that ominous prediction, the jury voted for death.
In Estelle, the U.S. Supreme Court held that a court-appointed psychiatrist must give Miranda warnings before questioning a prisoner. In other words, it doesn't matter that the information-gatherer is a psychiatrist rather than a police interrogator. What matters is the purpose for which the information is being collected. Dr. Grigson, although not a government officer, was acting on the state's behalf.
The court's narrow ruling in Beaty is troubling, in that it may encourage prosecutors to seek incriminating information from clinicians working in custodial settings. The ethics of such disclosures remains a cloudy issue, with correctional clinicians holding a variety of views on when they are required or permitted to divulge information to authorities. At minimum, this line of case law should remind forensic practitioners of the need to provide a careful, Miranda-like warning to people we are evaluating, describing the lack of confidentiality and how the information they provide may be used. And certainly, Dr. O'Connor's casual disclosure of Beaty's confession to a guard – which set this case in motion – seems a breach of proper conduct.
Perhaps the best treatise on this topic is John Monahan's Who is the Client? The Ethics of Psychological Intervention in the Criminal Justice System. But that was written more than a quarter of a century ago, in 1980, and drastically needs updating in light of new case law and practice and the radical expansion of both the criminal justice system and the correctional treatment industry.
The case of Beaty v. Schriro, No. 05-99013, is available at the 9th Circuit's website.
