July 29, 2010

Race salience and juries: It’s complicated

Samuel R. Sommers of Tufts University is one of the leading experts on "race salience," or the study of under what conditions defendant race influences white jurors. In the decade since he and colleague Phoebe Ellsworth first published on this topic, their research has garnered widespread interest both among researchers and in the courts. In the current issue of The Jury Expert, he clarifies some misconceptions about the theory, including:
  • Misconception #1: "Race salient" means simply informing mock jurors of the defendant's race.
  • Misconception #2: White juror bias cannot occur when racial issues are salient at trial.
  • Misconception #3: Salient racial issues at trial always lead to White juror leniency.
  • Misconception #4: All race-salience manipulations have equal impact.
Related blog posts:
Other interesting articles in this issue of The Jury Expert:
Of related interest:

Sam Sommer's excellent blog, The Science of Small Talk

July 27, 2010

Victim race still central to death penalty

The more things (appear to) change, the more they stay the same

The odds of getting a death sentence for killing a white person is about three times higher than for killing an African American with the race of the defendant virtually irrelevant, according to a new study out of North Carolina that echoes earlier findings on capital punishment.

Researchers Michael Radelet of the University of Colorado and Glenn Pierce of Northeastern University in Boston combed through three decades of death sentences for the study, to be published next year in the North Carolina Law Review.

The study will be used in capital appeals, according to an article in the Daily Camera of Boulder, Colorado. The U.S. Supreme Court ruled in 1987 that statistical evidence of racial bias could not be considered in individual cases, but states could pass their own legislation to do so. North Carolina has 159 people now awaiting execution. As Brittany Anas reports:
Leading up to the study, legislators in North Carolina had raised concern about the racial disparities of those on death row -- but there was no hard evidence…. The state became the second in the nation, following Kentucky, to allow murder suspects and those already on death row to present statistical evidence of racial bias. The law is intended to make sure that the race of the defendant or victim doesn't play a key role in sentencing. The study by Radelet and Pierce is the first to be released since North Carolina passed the Racial Justice Act.
Of related interest:

Race and the death penalty, Death Penalty Information Center data clearinghouse

Death penalty news in California:

July 21, 2010

Race, class, and self defense

Berkeley fraternity case spotlighted

Remember the "Killing and Culpability" reader participation exercise I presented in April, featuring the case of a young man in Berkeley, California, who stabbed a fraternity man during a street brawl? If so, you may recall that Andrew Hoeft-Edenfield was found guilty of second-degree murder and sentenced to 16 years in prison. Now, I am gratified to see that the troubling case is getting national play as part of renewed debate over what constitutes self defense.

"Had Hoeft-Edenfield been tried in Florida, things might have turned out differently," asserts Brooklyn-based freelance writer Lisa Riordan Seville in a column first published at Crime Report and now reposted at Salon.com. That's because Florida eliminated the "duty to retreat" requirement for self defense that played a role in Hoeft-Edenfield's conviction. Unlike California, Florida and 29 other states now have "stand your ground" laws that allow people to "meet force with force" anywhere they have a “legal right to be."

The essay is pegged to the U.S. Supreme Court's 5-4 ruling in McDonald v. City of Chicago, reaffirming gun ownership as a Constitutional right. Although that case did not pertain to self defense, legal analysts say it may ultimately help to "reshape the boundaries of the kind of force individuals can use to defend themselves," Seville notes.

Race, class, and social status in self defense claims

My local news is reporting on a bizarre rally in the overwhelmingly white San Francisco suburb of Walnut Creek. The protesters were there to support Johannes Mehserle, the transit cop who shot African American train passenger Oscar Grant to death in Oakland, California. Yes, that's right. To support the maligned killer. You will recall that Mehserle was convicted of only involuntary manslaughter, based on his claim that he had meant to fire his taser. (He is currently awaiting sentencing.) Counter-protesters lay face down in the street with their hands behind their backs to show Grant's position when he was shot in the back of the head. It reminded me of the quip going around Twitter just after the verdict highlighting race and relative social rank as factors in jury verdicts: "Hey, if Oscar Grant had shot a cop in the back, do you think he could have gotten off by saying, 'Oops, I thought I was texting on my cell phone'?"

One of my goals in the reader participation exercise was to showcase how implicit values and relative social status influence contested claims of self defense. Thus, I was intrigued by Seville's discussion of race and class in self defense claims. This was the focus of Justice Clarence Thomas's concurring opinion in the McDonald case. Thomas pointed out the importance of firearm ownership for black citizens in the South in the post-Reconstruction era, during which African Americans were "tortured and killed for a wide array of alleged crimes, without even the slightest hint of due process."

Massad Ayoob, a police captain and firearms trainer in New Hampshire, also acknowledged the role of race, class, and other circumstances in the outcomes self-defense claims:
He pointed to the case of Ronnie Barlow, a young black man from Arizona who was in 1990 convicted of second-degree murder for what he said was a self-defense shooting. He said he was attacked by 21-year-old Robert Lockwood, a white man with a long criminal history and the son of a local judge, but the jury didn’t buy it. The judge, however, saw it differently and reduced the jury verdict to manslaughter. Two years later, Barlow was released."
What would the "reasonable person" have done?

Subtle social and moral values quickly slip into jury deliberations because of the supposedly objective question of what the "reasonable person" would have done in the defendant's situation. Writes Seville:
The "reasonable man" -- or, now, "reasonable person" -- doctrine is the cornerstone of a self-defense case, explains Cynthia Lee, a law professor at George Washington University. Juries must decide if the sequence of events was reasonable not only in the defendant’s mind but also from an outside perspective.

"The reasonableness requirement is imposed to lend an air of objectivity to the defense," says Lee, the author of Murder and the Reasonable Man, a study of how beliefs and social norms play out in criminal cases, including self-defense trials. "The problem is of course that reasonableness is in the eye of the beholder," she says. "What’s reasonable to one person is not reasonable to another.”
Battered person’s syndrome

Seville goes on to discuss the role of the battered women's defense in broadening conceptions of self defense in the courtroom:
In recent years, the courts and state legislatures have opened up more room for questions about what constitutes an "imminent" threat and whether a reasonable person must try to flee before using force.

Increased legal acceptance of the "battered person’s syndrome" in the early 1990s allowed juries to hear how an abused person -- often, a woman -- might feel she had no choice but to kill to save her life. This challenged the long-standing notion that the threat to one's life had to be imminent. A battered person may, some believe, kill because the abuse is perceived to be life-threatening even if it isn't happening right then.

Like "stand your ground laws," battered-person defenses show that societal views can come into play in the long-standing right to self-defense, but nothing may indicate that better than the juries themselves.

Self-defense cases offer juries a lot of leeway to decide what they believe is reasonable and just, regardless of the law. "What the law on the books requires and what happens in action may be two different things,” Lee says. "Prosecutors, cops, jury members. We’re all people -- and stereotypes about certain groups affect us all."

The McDonald decision means that courts throughout the country will grapple for years with interpretations of the Second Amendment and the right of self-defense. But when the cases make it in to court, justice may depend less on the letter of state law than on the state of mind of the 12 people seated in that jury box.
Related blog posts:
Photo credits: (1) family photo of Andrew Hoeft-Edenfield, credit The Crime Report
(2) Mehserle counter-protesters, credit Brant Ward, San Francisco Chronicle

(3) "The Second Amendment," credit ianturton (Creative Commons license)

July 20, 2010

Under duress, Georgia scales back sex offender law

Long-time blog subscribers may recall the case of Janet Allison, who became a homeless, jobless leper because she allowed her pregnant daughter's boyfriend to move into the family home. The state of Georgia has now scaled back that residency restriction law in an effort to prevent the courts from overturning it altogether.

Georgia had lost a series of legal challenges brought by human rights activists over the nation’s most draconian sex offender law. Attorney Sarah Geraghty of the Southern Center for Human Rights, which has been on the forefront of efforts to stem the tide of "fear-based" laws, gave a keynote speech about the law's inhumanity at the annual meeting of the Association for the Treatment of Sexual Abusers back in 2008.

About 13,000 -- or 70 percent -- of the men and women on Georgia’s sex offender registry will now be able to "live and work wherever they want," according to a report by Greg Bluestein of the Associated Press in yesterday's Atlanta Journal-Constitution. Residency restrictions will still apply to about 5,000 sex offenders who committed their offenses after 2003, but they will vary in scope. Among the changes, elderly and disabled offenders may also be exempted from residency requirements.

Iowa has also scaled back some of its restrictions under pressure from courageous prosecutors in that Midwestern state. As I blogged about back in 2007, Iowa prosecutors lobbied for repeal of residency restrictions because of their negative unintended consequences of encouraging sex offenders to disappear, making them more dangerous. "Most legislators know in their hearts that the law is no good and a waste of time, but they’re afraid of the politics of it," a spokesman for the Iowa prosecutors' association said at the time.

Related blog posts:
You might also like:

July 18, 2010

Sex offender registry: Weapon of homophobia?

It's a gay tourist mecca. Cute guys in sexy tank tops cruise the boulevard, looking at other men's crotches, grabbing their own packages, and saying, "Show me what you've got." If a man expresses interest but wants to go somewhere private, the answer is no: "Show me what you've got."

The men doing this crude cruising are heterosexual police in idyllic Palm Springs, California, where up to 30 to 40 percent of the population and the majority of tourist dollars are gay. Two dozen men entrapped in this sting last summer now face lifelong penalties under mandatory sex offender registration laws.

Before the sting began, local police allegedly negotiated a deal with the District Attorney's Office of Riverside County that men would be arrested on misdemeanor charges of lewd conduct and indecent exposure (penal code sections 647(a) and 314), which require lifelong sex offender registration under the state's Penal Code section 290(c), and would not be allowed to plead guilty to lesser charges not requiring registration.

In court documents, the men claim their prosecutions are discriminatory, because police ignore similar conduct by heterosexuals. A security guard at a water park catering to families with children said she observed 10 to 15 incidents of public sex between heterosexual couples at the park, yet no arrests were made; another security guard made similar observations at a downtown parking structure. And a review of all public defender cases over a 10-year period found not a single case of a heterosexual being prosecuted for having sex in public, said Roger Tansey, a defense attorney representing five of the men. Defense documents also accuse Palm Springs police of giving preferential treatment to soldiers, allowing Marines to escape arrests for public drunkenness, fighting, and battery upon girlfriends.

"Heterosexuals in Palm Springs are free to engage in lewd conduct, expose their private parts, perform fellatio and cunnilingus, or enjoy sexual intercourse naked in public without fear -- Palm Springs Police Department undertakes no stings to discourage this behavior, nor has it ever arrested them," alleges a defense document.

A report on the controversy by Emmy Award-winning reporter Hank Plante, a Palm Springs resident, in today's San Francisco Chronicle is HERE. News accounts by Ken Nelson, Editor in Chief of San Diego Gay and Lesbian News, and by El Walsh of the Bay Area Reporter are HERE and HERE.

July 16, 2010

To catch a liar: Don't watch Fox-TV

When the TV show Lie to Me jumped off in 2009, the hype presented it as grounded in true-to-life science of lie detection. Social scientist Paul Ekman of the University of California at San Francisco, upon whom the show is based, even critiques the scientific accuracy of each episode on his Fox-TV blog.

But watching the show actually makes people WORSE at detecting deception, while at the same time increasing their overall suspiciousness and cynicism about others' honesty, according to a carefully designed study just published in the journal Communication Research.

"Lie to Me appears to increase skepticism at the cost of accuracy,” reports the research team led by Timothy Levine of Michigan State University.

As reported by Tom Jacobs at Miller-McCune, the findings have real-world implications:
Levine and his colleagues argue that … most recent research casts doubt on the accuracy and effectiveness of lie-detection methods presented on the series as unfailingly successful…. So once again, "fictional media portrayal of social science theory leads to confusion between fiction and fact," the researchers write. "Viewers (of the show) may come away with the false sense they can better detect lies. Viewers may also acquire a false sense that law enforcement officers are being effectively trained to detect deception and, therefore, may be less critical as jurors or witnesses." So the next time you turn on a television show, keep in mind that the creators just may be lying to you.
Jacob’s full report on the study is HERE.

Related blog posts:

July 15, 2010

"Consumed With Sex": Sex offender treatment in risk society

Tuesday's post on sex offender treatment has been reposted on several discussion boards and listservs and is getting some hits from Alltop, a kind of cool online psychology news service. In doing research for an article I am writing about sex offense prevention, I just came across another one that may interest many of you. It's based on ethnographic research by Dany Lacombe, a professor of sociology and anthropology at Simon Fraser University, at a sex offender treatment program up in Canada.

Dr. Lacombe ended up dubbing the program Sex Offender School because of the way that it indoctrinated sex offenders into internalizing a high-risk identity as "a species entirely consumed by sex." Her observational analysis, "Consumed With Sex: The Treatment of Sex Offenders In Risk Society," published in the British Journal of Criminology, is fascinating. Here is the abstract:
This ethnography of a prison treatment programme for sex offenders examines the meaning of rehabilitation in the context of the 'new penology.' As it explores how cognitive-behaviourism structures treatment, it uncovers a therapeutics grounded in risk that actively constructs the identity of the sex offender. It shows how the management of risk relies on techniques of introspection and self-discipline—a patient's internalization of his crime cycle and relapse prevention plan—that target primarily sexual fantasies. These self-policing techniques radically transform the sex offender into a species entirely consumed by sex.
I recommend the entire article, which can be requested directly by emailing Dr. Lacombe.

July 13, 2010

"Treatment": Backwards and upside down?

Don't focus on "denial" or "lack of empathy," warn sex offender treatment experts

Social scientists have long known about the human tendency to divide into in-groups and out-groups. Current popular fascination with so-called psychopaths illustrates this us-versus-them bent. If psychopaths represent evil, that makes the rest of us good. The non-criminal breathes a sigh of relief to discover a distinct "criminal brain" (unless, as neuroscientist Jim Fallon found, we share the abnormality).

Nowhere is this infrahumanisation more extreme than in regards to sex offenders, who are seen as a species apart. Infrahumanisation prevails not just among the general public, but among treatment providers as well. Sex offenders, the popular therapeutic wisdom holds, are likely to lie, distort, and manipulate. Thus, sex offender programs target these attributes in treatment. If a sex offender accepts responsibility and learns empathy, the theory goes, he will be less likely to reoffend.

Not so fast, say three highly experienced scholars and clinicians of sex offending: "As it turns out excuse-making is healthful and results in a reduction in reoffending. It may, therefore, not only be counter to accepted principles of offender treatment to attempt to change noncriminogenic distortions, it may result in increased rates of reoffending."

In their article in the most recent issue of Sexual Abuse in Australia and New Zealand, the researchers argue that many of the entrenched assumptions underlying sex offender treatment are not empirically supported and may actually impede therapeutic progress. Lead author Bill Marshall, an award-winning professor emeritus at Queen's University and Director of a sex offender treatment program in Kingston, Ontario, is one of the world's preeminent scholars of sex offending, with more than 300 publications (including 16 books) dating from long before the fad took hold. Liam Marshall is the primary therapist at the Sexual Offender Treatment Program at Millhaven Assessment Unit, a high-security federal penitentiary in Canada. Jayson Ware, a graduate student at the University of New South Wales who works in the Australian prison system, also specializes in the treatment of sex offenders.

Accepting responsibility. That has a nice moral ring to it. But what does it really mean? And does it translate into a reduction in crime? Most definitely not, the authors state:
[T]aking responsibility, as this is commonly understood in offender treatment, requires the offender to indicate that the behavior has an internal stable cause; that is the client offended because he is a "deviant" or a "bad person." Such attributions are not conducive to change but rather are likely to persuade the offender that his behavior is intractable…. Perhaps it is those sexual offenders who blithely, and readily, admit to all aspects of their offenses, that are the ones who should be given the most therapeutic attention and yet in most programs the full admitters are seen as ideal participants.
In practice, the authors point out, "taking responsibility" often means agreeing with the victim's version of events, which is automatically assumed to be Truth. Treatment manuals instruct clinicians to aggressively challenge any rejection of the victim's account. It is this therapeutic aggression, in turn, rather than the offender's initial minimization or excuse-making, that blocks effective treatment:
Sometimes these challenges are quite harsh and clearly imply that the offender is lying. This type of confrontational challenging has been shown to prevent progress toward the goals of treatment.... Whatever style of challenging is employed, the underlying assumption is that the official record of the offense is a veridical account which the offender must come to agree with if he is to progress further in treatment....

Overall it is hard to see the value in having sexual offenders provide offense details that match the victim's account.... [D]oing so may produce all manner of problems both for the target client and for the other group members. These potential problems might be tolerable if, indeed, overcoming denial and minimizations did result in an enhanced acceptance of responsibility but there is no evidence that it does. Most importantly, there is no evidence that an increase in acceptance of responsibility leads to a reduction in reoffending.…

Therapists may be better advised to change their views on this issue and alter their treatment approach. What we want sexual offenders to do is not blame themselves for their past but rather accept responsibility for their future....

Excuses are attempts to preserve the person's reputation, to prevent the erosion of self-esteem, and to avoid feelings of shame. Stigmatizing shame, where the person concludes they did something wrong because they are bad, leads to an increase in criminal behavior…. While therapists see excuses as examples of criminogenic thinking, extensive research shows that those offenders who offer excuses for their crimes are at lower risk to reoffend than those who accept full responsibility.
The authors similarly tackle the thorny issue of "empathy." Empathy training is a primary component of 94 percent of sex offender treatment programs in North America, according to one survey. Yet a supposed empathy deficit does not predict reoffending, and should not be a focus of treatment, the authors contend.

Finally, the authors address the widespread assumption that sex offenders elaborately plan their crimes. When sex offenders claim an offense "just happened," clinicians accuse them of lying or minimizing. But what if they are telling the truth, and "some, or even most, sexual offenses are not planned?" Again, therapists' insistence that clients adopt their version of reality is an adversarial stance that prevents therapy from succeeding. Offenders learn to keep their true thoughts to themselves and parrot the therapist's opinions, promoting cynicism rather than healing.

So what is left, if therapists ignore excuses, denials, or deficient empathy? Research has established two stable sets of distortions as highly predictive of reoffending, the authors remind us: attitudes tolerant of rape or of child sexual abuse, and emotional identification with children. It is these distorted attitudes, as well as many individual-specific factors -- such as depression, substance abuse, and/or trauma histories -- that put offenders at risk. These empirically established factors, then, should be the foci of treatment aimed at reducing risk.

I highly recommend the full article, "Cognitive Distortions in Sexual Offenders: Should They All Be Treatment Targets?" It is available upon request from the authors. Jayson Ware, one of the authors, will be presenting at the upcoming conference of the Association for the Treatment of Sexual Abusers in Phoenix, Arizona. His Oct. 21 presentation is in the session, "Re-Examining Sexual Offender Treatment Targets," chaired by Ruth E. Mann, PhD of Her Majesty’s Prison Service (UK).

July 12, 2010

Heartbreaking video on elderly and dying prisoners

Readers appreciated the video documentary I posted last week on the mentally ill in U.S. prisons, so here's a newer video on the elderly in prison. Forget humanitarianism; the economic costs alone of incarcerating so many elderly and infirm should be cause for alarm.

Al Jazeera's investigative reporting continues to impress me. In this special investigation, "Fault Lines: Dying Inside," we see amazing footage that includes:
  • a prisoner with Huntington’s Chorea in the nation's first specialized unit for demented patients, a 30-bed facility in New York that has never before been filmed for TV
  • 100-year-old Sherman Parker, demented and missing one leg, being cared for by a prisoner earning $5 a month in an Oklahoma prison "operating in warehouse mode" due to severe budget cuts
  • 86-year-old Plutarcho Hill, imprisoned for 66 years for a 1947 murder, who has escaped and returned to prison 10 times
  • Larry White, a 72-year-old ex-convict released from prison three years ago who is "going back and helping those I left behind" by lobbying for compassionate release for elderly prisoners
  • a woman volunteer who is dedicating her life to providing hospice for dying prisoners in the Pennyslvania prisons

July 10, 2010

Normality endangered: "Psychiatric fads and overdiagnosis"

That's the title of this week's Psychiatric Times commentary by Dr. Allen Frances, chair of the DSM-IV Task Force and psychiatry professor emeritus at Duke University. The column begins:
Fads in psychiatric diagnosis come and go and have been with us as long as there has been psychiatry…. In recent years the pace has picked up and false "epidemics" have come in bunches involving an ever-increasing proportion of the population. We are now in the midst of at least 3 such epidemics -- of autism, attention deficit, and childhood bipolar disorder. And unless it comes to its senses, DSM5 threatens to provoke several more (hypersexuality, binge eating, mixed anxiety depression, minor neurocognitive, and others).

Fads punctuate what has become a basic background of overdiagnosis. Normality is an endangered species. The NIMH estimates that, in any given year, 25 percent of the population (that’s almost 60 million people) has a diagnosable mental disorder. A prospective study found that, by age thirty-two, 50 percent of the general population had qualified for an anxiety disorder, 40 percent for depression, and 30 percent for alcohol abuse or dependence. Imagine what the rates will be like by the time these people hit fifty, or sixty-five, or eighty. In this brave new world of psychiatric overdiagnosis, will anyone get through life without a mental disorder?
While focusing on the alarming spread of psychiatric diagnoses among children, as he has in the past Dr. Frances touches on the forensic implications of diagnostic freneticism:
Mental disorder labels can provide cover for societal problems. Criminal behavior has been medicalized (eg, rape as a psychiatric disorder) because prison sentences are too short and such labeling allows for indefinite psychiatric commitment.
Frances concludes:
The DSM-5 bias to thrust open the diagnostic floodgates is supported only by flimsy evidence that does not come close to warranting its great risks of harmful unintended consequences. It is too bad that there is no advocacy group for normality that could effectively push back against all the forces aligned to expand the reach of mental disorders.
The full essay is HERE.

July 9, 2010

Correctional ethics: New guidelines; licensing complaints

New correctional psychology standards published

As most of you know, the largest mental health institutions in the Land of the Free are not hospitals, but penal institutions: Riker's Island in New York, Cook County Jail in Chicago, and the Los Angeles County Jail. The USA incarcerates the largest proportion of its population of any country on the planet, and at least 15 percent of those 2 million or more people have serious mental illnesses. Unfortunately, many correctional systems lack resources to meet the constitutionally mandated needs of mentally ill individuals in their custody.

For you folks in correctional psychology, Criminal Justice and Behavior has just published a special issue containing the newly revised standards for psychologists working in jails, prisons, and other correctional facilities and agencies. This is only the second revision of the standards since their initial publication by the International Association for Forensic and Correctional Psychology (IACFP) in 1980. They are the result of more than a year's effort by a revision committee chaired by Richard Althouse, Ph.D., president of the IACFP.

Guantanamo psychologists face ethics charges

The timing of these new guidelines is serendipitous. Earlier this week, the San Francisco-based Center for Justice and Accountability and Harvard Law School's International Human Rights Clinic filed state licensing board complaints against two former Guantanamo psychologists. The aim of the complaints, filed in New York and Ohio, is to force investigations into the psychologists’ roles in the torture of prisoners.

The Ohio complaint alleges that Larry C. James, now dean of Wright State University's School of Professional Psychology, headed a special unit called the Behavioral Science Consultation Team, known as "Biscuit," that advised the military on how to break down prisoners and participated in the controversial interrogations at Guantánamo. The New York complaint is against psychologist John Leso, Dr. James's predecessor on the special team.

APA revises ethics standards

In the wake of the Guantanamo abuses, the American Psychological Association has revised its Ethics Standards to clarify that compliance with the law is no excuse for unethical behavior.

Specifically, language has been added to Standards 1.02 and 1.03 ("Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority" and "Conflicts Between Ethics and Organizational Demands") stating that the standards may "under no circumstances … be used to justify or defend violating human rights." In addition, a clause allowing psychologists to behave unethically in order to "adhere to the requirements of the law, regulations, or other governing legal authority" has been struck out.

Related resources:
  • The new correctional standards are available HERE for free for a limited time.
  • Mother Jones and Democracy Now have in-depth coverage of the Guantanamo complaints, with links to additional background materials.
  • The Ohio complaint against psychologist Larry James is HERE. Local coverage of that case, in the Dayton Daily News, is HERE.

July 8, 2010

Video: Criminalization of mentally ill

I just stumbled across an outstanding educational video on the mentally ill in U.S. prisons. Focusing on Texas prisons, it touches on the problems of isolation, decreased funding, and telecare. Brought to you by Al Jazeera.

July 7, 2010

Fools competent to represent themselves at trial

Buffoonery doesn’t qualify under Edwards, appellates rule

Two hucksters were not incompetent to represent themselves despite engaging in "nonsensical antics" during their month-long jury trial, the Ninth U.S. Circuit Court of Appeals ruled this week.

Defendants Kurt F. Johnson and Dale Scott Heineman were convicted of conspiracy and 34 counts of mail fraud stemming from a debt-elimination program in which they took more than $3 million from as many as 3,500 homeowners throughout 35 states. The basic premise of their so-called "Dorean Process" was that homeowners should stop paying on their mortgages because banks were being unfair, and take out new loans on which the defendants earned sizeable commissions.

During their trial, the defendants filed "meaningless and nonsensical documents" and advanced "an absurd legal theory wrapped up in Uniform Commercial Code gibberish," the appellate court stated. They insisted on wearing jail attire in front of the jury, and one of their "recurring themes in their colloquies with the court was their peculiar theory that they were 'sentient human beings' " distinct from the capitalized titles by which they were referred to in court documents.

A forensic evaluator, James R. Missett, M.D., Ph.D., had evaluated them before trial and testified at a pretrial hearing that neither had a diagnosable mental disorder. Further, the defendants adamantly insisted on representing themselves, even after the trial judge repeatedly warned them about the dangers and "practically begged them to accept counsel."

The appeal was brought under Indiana v. Edwards, which was decided by the U.S. Supreme Court in 2008, after their trial concluded. That opinion set out a higher standard for self representation than for competency to stand trial when represented by an attorney. Interestingly, however, the trial court had carefully probed and made a record of the defendants' competency to represent themselves, even before Edswards established a higher standard.

Said the Ninth Circuit:
"The record clearly shows that the defendants are fools, but that is not the same as being incompetent.... The behavior of the defendants during the trial in this case, while occasionally wacky, was not disruptive or defiant…. [T]hey did not exhibit a blatant disregard for courtroom rules or protocol and did not make it impossible for the court to administer fair proceedings. In fact, they made opening statements, closing arguments, cross-examined witnesses, argued jury instructions, and testified on their own behalf…. They were examined by a psychiatrist and found to be fine. In the absence of any mental illness or uncontrollable behavior, they had the right to present their unorthodox defenses and argue their theories to the bitter end."
Additional background: Defendant Kurt Johnson’s gibberish-laden blog, The Dorean Group, gives a flavor of the defendants' anti-government, religious rhetoric. Attorney Rachel Dollar's Mortgage Fraud blog cites some examples of the pair's wild legal motions. And fraud prevention consultant Chuck Gallagher discusses some of the interesting ethical issues involved in homeowners' willingness to rely upon the defendants' assertions. My 2008 analysis of Indiana v. Edwards is HERE.

Hat tip: Kathleen

July 6, 2010

Mitchell to plead insane

No surprise, but Brian David Mitchell has filed official notice that he plans to go for an insanity defense. Mitchell, as you all know, is awaiting trial in the 2002 kidnapping of Elizabeth Smart in Salt Lake City. The defense notice states an intent to rely upon unspecified "expert testimony as to mental disease or defect." I'm not holding my breath that the trial will start as scheduled on November 1, but when and if it does it is bound to be quite interesting.

I highly recommend that all forensic practitioners read U.S. District Judge Dale Kimball's lengthy ruling on Mitchell's competency to stand trial, issued four months ago. At 149 pages, it's the most comprehensive competency decision I have seen. In describing Mitchell as a cunning malingerer, the decision has plenty of implications for the insanity trial as well.

Utah abolished the insanity defense some years back. The state now uses the restrictive standard of Guilty But Mentally Ill, under which evidence of mental disorder can be introduced only for the restricted purpose of disproving mens rea, or the mental state that must be present in order to be convicted of certain special-intent offenses. (A handy chart showing the insanity standards of each U.S. state is HERE.) However, since the federal government is prosecuting Mitchell, he should still be able to rely upon the defense.

POSTSCRIPT: Subsequent news coverage on the government's response to the insanity filing is HERE.

July 1, 2010

Eyewitness ID: Landmark report urges overhaul

New Jersey case may change legal landscape, reduce wrongful convictions

Mistaken eyewitness identifications are the leading cause of wrongful convictions, playing a role in three out of four DNA exoneration cases to date, according to the Innocence Project. Now, a cutting-edge report commissioned by the Supreme Court of New Jersey recommends major changes to bring the courts into alignment with the current state of the science on eyewitness testimony.

Geoffrey Gaulkin, a retired judge, spent close to a year reviewing three decades of research and taking testimony from experts in a hearing that legal observers describe as unprecedented. His conclusion: About a third of witnesses who pick out a suspect choose the wrong person, and the courts are not keeping up with science to prevent such wrongful identifications in court. Expert witnesses at the evidentiary hearing included John Monahan, law professor at the University of Virginia, Gary Wells of Iowa State University, and Steven Penrod of the John Jay College of Criminal Justice.

The state high court request for a comprehensive probe stemmed from the case of Larry Henderson, who was convicted of manslaughter in 2004 based on a photographic identification procedure.

In his report, Gaulkin recommends far-reaching procedural safeguards, including procedures to assess the reliability of witnesses' identification of suspects. He also proposes that prosecutors, rather than defendants, should bear the burden of proof regarding the reliability of eyewitness testimony, and that juries and judges should be fully informed about the science of eyewitness identification and its fallibility.

Observers say the Special Master's findings of science and law represent a sea change that may eventually serve as a blueprint for other jurisdictions to revamp both their witness identification protocols and their rules on the use of eyewitness evidence in court.

Further resources:
Hat tip: Jane