September 30, 2010

Courts should admit if "emperor wears no clothes"

SVP evidence must meet legal admissibility standards,
high court justice in Washington

The Supreme Court of Washington has made it easier for some civilly committed Sexually Violent Predators (SVP's) to challenge their detentions. In a 5-4 ruling, the high court struck down a state law restricting what types of evidence a sex offender may introduce to show he is no longer dangerous.

Under the invalidated law, an offender could only petition for release based on reduced risk due to either treatment or permanent physiological changes. An offender could not claim, for example, that he no longer met the legal criteria for civil commitment (having a mental disorder that made him more likely than not to reoffend sexually) based solely on advancing age or maturation, even though these factors are strongly associated with desistance.

Most intriguing was the concurring opinion of Justice Richard B. Sanders. The justice rebuked the trial judge for abdicating his role as gatekeeper to ensure that scientific evidence admitted in court is reliable and valid. The trial court accepted the testimony of the government experts without considering whether they were scientifically valid, while summarily dismissing the opinions of the lone defense expert, Sanders noted.

In his declaration for the defense, psychiatrist Lee Coleman had challenged the science underlying the prosecution witnesses' risk assessments, diagnoses, and opinions. In particular, he disputed the legitimacy of the makeshift diagnosis of "paraphilia, not otherwise specified," i.e., "sexual activity with non-consenting females" assigned to convicted rapist David McCuistion:
Dr. [Carole] DeMarco claims that 'Paraphilia Not Otherwise Specified (Nonconsent) is an accepted diagnosis among practitioners knowledgeable about sexual offenders.' I believe it would be more accurate to say that the only practitioners who use this label are those who perform SVP evaluations. But regardless of how many use it, the so-called 'diagnosis' is obviously nothing more than doublespeak for the crime of rape. If this is the best the evaluators are capable of doing … surely it means that the entire evaluation process is a sham created to fulfill legal and legislative agendas.

As a 'dynamic risk factor' (characteristics that could change over time, as opposed to the static nature of one's criminal past), she wrote that Mr. McCuistion 'continues to associate with individuals who have an antisocial attitude and engage in a high level of fault finding with SCC rules and policies indicating an antisocial lifestyle.' Given the universal recognition by SVP inmates that the evaluation and treatment program is based on a law that has no recognized basis in science or psychology, it is totally unacceptable to equate 'fault finding with SCC rules and policies' with risk of sexual re-offending.
Commented Justice Sanders:
The trial court accepted the State experts' testimony without considering whether they were valid under Frye [the evidence admissibility standard in Washington] but proceeded to reject Dr. Coleman’s testimony out of hand:

'Dr. Coleman’s report and conclusion are contrary to the conclusions reached by previous examiners of Mr. McCuistion, and is essentially a re-argument of the original finding that Mr. McCuistion is a sexually violent predator. That Dr. Coleman disagrees with past examiners and fact-finders does not, itself, make his opinion the correct one.'

And yet that doesn’t make his opinion wrong either….

Where a person is deprived of his or her freedom based upon opinion testimony lacking scientific credibility, reliability, and accepted methodology, courts must step forward and announce with the courage of a small child that the Emperor wears no clothes.
No clothes, huh? Is it possible that the times they are a-changin'?

The majority opinion, concurring opinion, and dissent (saying the administrative costs and burdens of this ruling are too high) are all available online. Dr. Coleman's declaration is attached as Appendix A to Justice Sanders' concurring opinion.


Jaci said...

If the Supreme Court is looking for "reduced risk due to either treatment or permanent physiological changes," could this not be offered using biochemical screens to determine individual baseline, associated imbalances and behaviors, and changed physiological profiles after treatment? Most likely, these changes will not be permanent unless treatment is continual. However, it seems that monitoring compliance through simple labs will determine that, and changes in psychometric test results and clinical observation would substantiate the link to behavior.

James Manley said...

As the Court stated, "There is more than one way to change." The 2005 amendment to RCW 71.09 was about containment, not science. Maintaining the status quo in SVPland in WA world is at least a very expensive process that could be streamlined and costs reduced if more men were transitioned to the community rather than locked on an island for actions 20-30 years ago. Most particularly with the 60+ age group.