April 27, 2012

Composites illustrate problems with eyewitness recall

Take a minute to examine this display of composites. Notice the wide variations in features -- eyes, apparent age, bone structure, etc.

DNA evidence links 11 rapes in East Los Angeles over the past 16 years to this so-called "Teardrop Rapist." Based on the similarities in modus operandi and description, police believe he is responsible for at least 17 other rapes, for a total of 28 or more.

But, as these sketches show, the victims have strikingly different recall. They give his height as between a pint-sized 5 foot 2 inches and 6 feet. His weight fluctuates between 130 and 200 pounds. His age varies between 27 and 40.

Even the teardrop(s), an especially distinctive feature, are recalled differently. Some victims saw one teardrop; some reported up to three -- or none at all (police say he may have had them removed). The teardrop(s) were usually spotted on his left cheek, but occasionally they were seen on his right.

About the only constants are his eyes (brown), his ethnicity (Hispanic), and the fact that he wears a head covering. 

In 1999, police arrested a 21-year-old man for the attacks. Given the problems with eyewitness accuracy so amply illustrated here, the existence of DNA evidence proved a lucky break for him: He was exonerated.

April 23, 2012

Blogger wins scientific achievement award

Accepting the award. Photo credit: Michael Donner
I am pleased to report that I have been awarded the 2012 Distinguished Scientific Contribution in Psychology award. It struck like a thunderbolt in a clear blue sky; I had no idea I had even been nominated for an award until I got a phone call notifying me I had won. 

It was especially meaningful to come from the California Psychology Association. The only voice for California’s 18,000 licensed psychologists, the CPA tirelessly advocates for the profession as well as for the mental health needs of the general public in California.

For those of you who only know me as a blogger and/or a forensic psychology practitioner, I conducted pioneering research in the late 1990s into the motivations of hate crime perpetrators. I later extended that work to group rape, likening both forms of violence to cultural theater in which the actors publicly demonstrate masculinity, with their victims as dramatic props. (I'm excited about a forthcoming chapter in a cutting-edge text on multiple-perpetrator rape, due out next year.) I have also conducted historical research and published on the ethics of forensic diagnosis, and especially the contested sexual paraphilia of "hebephilia." More information on my research is available on my website and on Wikipedia.

The location of the awards ceremony could not have been more idyllic -- the gorgeous Monterey coast on a balmy weekend. The 270-degree view of the Monterey Bay and the surrounding hills from the 10th floor of the Marriott Hotel was breathtaking; unfortunately, a photo just can't capture it.

CPA President Craig Lareau presents award.
Photo credit: Patricia VanWoerkom
The quality of this year's convention trainings was impressive. Perhaps because the current president, Craig Lareau, is a forensic psychologist and attorney, there was a good deal of forensic programming. Alan Goldstein presented the latest on Miranda waiver evaluations (including the new instrument), Professor Gail Goodman gave an overview of the research on child witness accuracy, and there were workshops on forensic neuropsychology.

I especially enjoyed a presentation by Keely Kolmes of San Francisco and Heather Wittenberg of Maui designed to help psychologists step up their online presence. For anyone interested, Dr. Kolmes has some nice resources (HERE) for psychologists on the ethics of social media and on managing one's online reputation.

By the way, if you practice in California and don't belong to the CPA, I encourage you to join. The reconfigured CPA has a forward-looking leadership team headed by the dynamic Jo Linder-Crow and is doing essential advocacy work on behalf of psychologists and the public. It appears to have defeated (at least for the time being) an effort to axe our regulatory agency, the Board of Psychology, which would have left psychologists at the mercy of other professions. It's working hard to promote parity for mental health consumers. And it's tangibly supporting legislators who will lobby for progressive causes, for example prisoner rehabilitation instead of endless warehousing. So do your share, whether it's just paying dues or volunteering, so that all of the heavy lifting does not fall on just a few shoulders.

Sea Otter, Monterey Bay
Whether or not you belong to the CPA, if you are in California you might also consider donating to its Political Action Committee, which funds progressive politicians and reforms. The unfortunate reality is, politics is money-driven.

And now, sadly, it's back to the grindstone.

Related news: Your blogger profiled in the 2012 edition of advanced high school textbook, Forensic Science: Advanced Investigations.

April 22, 2012

Ranking forensic journals through content analysis

Illustration credit: Jock Alexander, The Australian
You have no doubt heard of journal "rankings." A journal's rank conveys information about the impact and quality of a journal. This can be useful information for both authors and consumers. An author might want to consider a journal's prestige, and the difficulty getting published in it. For consumers -- including expert witnesses who might be relying on a particular article in court -- ranking can serve as a proxy for the accuracy and reliability of a journal's content. How much should the trier of fact trust the information in this journal?

But there are lots of methods for ranking journals -- the Impact Factor, the Eigenfactor, the h-index, just to name a few. And with the proliferation of journals in forensic psychology, it gets hard to keep track. Which journals have the best reputations? Which are the most cited? Which provide the broadest coverage of forensic psychology topics?

One popular way to rank-order journals is based on reference counts. How many times a journal is cited is an indicator of its reputation. In forensic psychology, according to an unpublished study by S. Black, the top-referenced journals are (in rank order):
  1. Law and Human Behavior
  2. Behavioral Sciences and the Law
  3. British Journal of Psychiatry
  4. Journal of Forensic Psychiatry and Psychology
  5. American Journal of Psychiatry
  6. Criminal Justice and Behavior
Now, a researcher with training in both psychology and library science has taken a somewhat different approach, devising a clever content-analysis procedure to rank-order journals in our field.

Chris Piotrowski started by screening several texts in the field and choosing terms that are popular both in research and practice. The 16 terms were: eyewitness testimony, competency to stand trial, alcoholic blackouts, infanticide, sentencing, forensic evaluations, polygraph, malingering, jury selection, homicide, diminished capacity, insanity defense, child abuse, Daubert standard, child custody and expert witness.

Next he used PsycNET, "the recognized major bibliographic resource in the social and behavioral sciences that indexes scholarly and professional journals," to run keyword searches on his 16 terms. For each search term, he rank-ordered journals based on the frequency of hits; a journal's total ranking was obtained by summing across all 16 terms.

The winners were (in rank order):
  1. Journal of the American Academy of Psychiatry and Law
  2. PsycCRITIQUES (formerly, Contemporary Psychology)
  3. Law and Human Behavior
  4. Behavioral Sciences and the Law
  5. American Journal of Forensic Psychology
  6. Journal of Psychiatry and Law
  7. Bulletin of the American Academy of Psychiatry and Law
  8. Mental & Physical Disability Law Reporter
  9. American Journal of Psychiatry
  10. American Psychologist
  11. Journal of Forensic Psychology Practice
  12. International Journal of Psychiatry and Law
  13. Journal of Criminal Justice
  14. Professional Psychology: Research and Practice
  15. Journal of Applied Psychology
  16. Archives of Clinical Neuropsychology
  17. Psychological Reports
  18. British Journal of Psychology
  19. Psychology, Public Policy, and Law
I would be a little cautious about relying on this method, because the choice of keywords -- which is open to manipulation -- might influence the rankings. But as you can see, there is overlap between this method and the more traditional citation-count method used by Black. For instance, Law and Human Behavior and Behavioral Sciences and the Law made it into the top four, no matter which method was used. There are some noticeable differences as well, with several journals that were highly cited in Black's study not ranking high using this content analysis method.

For more information on the method and the exact scores for each journal, feel free to contact Dr. Piotrowski (HERE); I'm sure he will be happy to share a copy of the article, which is published in the current issue of the American Journal of Forensic Psychology.

Oh, in case you were wondering, that journal is number five on his list.

The article is: Top cited journals in forensic psychology: An analysis of the psychological literature (2012), American Journal of Forensic Psychology 30 (2), 29-38.

April 15, 2012

SCOTUS to tackle capital habeas competency right

At a criminal trial, a defendant who lacks rational understanding cannot be forced to proceed. Likewise, a person who is sentenced to death cannot be executed unless he is sane enough to grasp why he is being punished.(1)

But what happens if a prisoner loses his mind between the bookends of trial and execution, as he languishes on Death Row while his appeals wind slowly through the appellate courts? Does a prisoner have a right to be competent during the course of habeas proceedings, or can his appeals proceed without him?

After officials in 17 states urged the U.S. Supreme Court to clarify this issue, the Court signaled it would do so by agreeing to review two cases, one from Arizona and the other from Ohio.

Lawyers will be battling over various legal precedents, from English Common Law to a Ninth Circuit Court of Appeals ruling from 2003 to an obscure Supreme Court ruling from 1966.

In the case of Ernest Valencia Gonzales, Arizona attorneys contend that the Ninth Circuit “created a competency right out of thin air,” and that prisoners do not have a right to competency during federal appeals.

Gonzales was convicted of first-degree murder and sentenced to death in 1991. His appeal was stayed 15 years later, after his attorneys said he had lost the ability to rationally communicate and to assist them, due to a progressive deterioration in his mental health.

In halting Gonzales’s case, the Ninth Circuit Court of Appeals, which handles federal appeals in the nine western states, relied upon its earlier ruling in the case of Rohan ex rel. Gates v. Woodford (334 F.3d 803). In that 2003 decision, the court ruled that a capital habeas petitioner has a right to competency if he is pursuing “claims that could potentially benefit from his ability to communicate rationally.” That case effectively halted the execution of Oscar Gates of California, who was condemned to die for a 1979 murder.

The lawyers for the state of Arizona say the Rohan ruling plays into the hands of convicted prisoners, who “have an incentive to adopt delaying tactics to avoid execution,” thus circumventing states’ interests in carrying out their death sentences.

Gonzales's attorneys call this claim "hysterical," stating that the right to competency under Rohan is narrow in scope and has only been granted in a handful of cases. They say the right to be competent from the time of arrest all the way through to execution is well established:
An incompetent condemned prisoner’s inability to assist counsel was recognized under English Common Law…. If the condemned prisoner became of unsound mind at any point before execution, the proceedings were to be stayed. The rationale behind this rule was that the condemned prisoner’s mental disorder might prevent him from sharing with his lawyer a fact, known only to him, that could result in his life being spared. This rationale is just as relevant today.
The level of competence required during federal habeas proceedings falls "somewhere between the right to be competent to stand trial and the right to be competent to be executed," they said in their reply brief.

The U.S. Supreme Court declined a request to review the Rohan ruling, and up until now -- with one small exception -- has studiously avoided stepping in to clarify the competency rights of prisoners during federal appeals.

That exception, an obscure case back in 1966, is at the heart of the state of Ohio’s appeal in the case of Sean Carter, who is awaiting execution for the 1997 rape and murder of his adoptive grandmother.

The case, Rees v. Peyton, involved Melvin Davis Rees, Jr., a Virginia jazz musician convicted in the 1959 massacre of a family of four. When he announced that he wanted to stop all further appeals, his lawyers said they doubted his mental competency to make that decision. A psychiatrist retained by Rees's attorneys opined that Rees was mentally incompetent, while psychiatrists selected by the state expressed doubts. In a short ruling, the Supreme Court directed the federal district court to, as a first step, "make a judicial determination as to Rees' mental competence and render a report on the matter to us." The question, the high court said, was "whether [Rees] has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises."

Accordingly, the lower court held a hearing and determined that Rees was indeed incompetent to abandon his appeals. In a one-line order the following year, the Supreme Court put the matter on hold, and never returned to it. Rees died in prison three decades later, in 1995.

"To this day, the Rees case is shrouded in mystery," says the government’s brief in the Carter case, with different circuit courts hold starkly different views of its breadth. To the Sixth Circuit, it stands for the proposition that prisoners have a right to be competent during their appeals. Other circuits, according to the brief, have interpreted it more narrowly, to guarantee a competency right only to prisoners who have decided to abandon further appeals.

Lawyers for the state of Ohio raise similar concerns to those in Arizona, saying the stay of Carter's case, if upheld, "will improperly bring Ohio’s capital litigation to a halt. Under the Sixth Circuit's extraordinarily loose standards, any prisoner can make a minimal showing of incompetence, demand a hearing, and secure an indefinite stay of his habeas proceedings." The Sixth Circuit handles appeals from Ohio, Kentucky, Michigan and Tennessee.

The cases are Ryan v. Gonzales and Tibbals v. Carter. All of the briefs are available online, by clicking on these case links.The Supreme Court will hear arguments in the two cases during the term that begins in October, with a decision likely early next year. So far, I haven't heard much speculation on which way the wind is blowing.

Footnote 1: This is the minimalist "Ford standard" set out by the U.S. Supreme Court's 1986 opinion in Ford v. Wainwright.

April 10, 2012

Open letter opposing DSM-5 paraphilias expansion

Photo credit: Dr. Joanne Cacciatore
As readers of this blog are aware, proposals to expand the sexual disorders in the American Psychiatric Association's upcoming DSM-5 have generated significant controversy among forensic psychologists and psychiatrists. Now, forensic psychologists are banding together to urge APA President John Oldham to reject the proposed diagnoses of pedohebephilia, paraphilic coercive disorder and hypersexual disorder. The text of an open letter drafted by Richard Wollert, an Oregon psychologist with extensive experience in sex offender treatment and evaluation, follows. If, after reading it, you would like to become a signator, just click on the indicated link, and provide Dr. Wollert with your name and professional credentials. Don't delay, as I understand that this important letter is being submitted very soon. 

Dear Dr. Oldham:

As a mental health professional and/or sex educator I am writing to you to encourage the American Psychiatric Association to leave invalid sexual disorders out of DSM-5. 

In 1999, the Dangerous Sex Offender Task Force of the American Psychiatric Association issued a strongly worded statement about psychiatry's failed efforts to meaningfully define and classify sexual deviance. In contrast to the cautious approach advised by the Task Force, a Paraphilias Subworkgroup of the DSM-5 is vigorously lobbying for the adoption of three highly controversial expansions of sexual disorders (Hebephilia, Paraphilic Coercive Disorder, and Hypersexual Disorder). The expansions would be a major mistake, due to poor reliability, unproven validity and -- most of all -- the potential for vast and harmful unintended consequences. 

The Subworkgroup is now proposing to add a "Hebephilic" type to Pedophilia, extending the diagnosis of Pedophilia from covering those with sexual attractions to prepubescent children to those with sexual attractions to pubescent children under age 15. It also proposes to add new diagnoses of "Paraphilic Coercive Disorder" and "Hypersexual Disorder" to the Appendix as "Criteria Sets for Further Study." I am dismayed by each of these recommendations for the following reasons. 

Hebephilia lacks conceptual coherence. Most men are attracted to sexually maturing 14-year-olds, as reflected in the large number of industrialized countries where the age of sexual consent is 14 (Green, 2010). Normative attractions may be criminal when acted upon, but they should not be labeled as mental disorders. "Hebephilia" is an archaic term that languished in psychiatric obscurity until the passage of modern civil commitment laws in the United States (Franklin, 2010). Since then, some evaluators who confuse statutory rape with mental disorder have invoked Hebephilia as a condition that justifies civil commitment (Ewing, 2011). Such usages do not provide a cogent explanation for behavior that is illegal in the United States but legal in other countries being classified as a mental disorder. Finally, Hebephilia lacks adequate diagnostic reliability (Wollert and Cramer, 2011). Most of the research has been conducted by a single Canadian research team that is overly represented on the Paraphilias Subworkgroup. Although the DSM-5 Task Force has indicated that final decisions about proposed revisions will be made on the basis of field trial data, a November 2011 change in the proposed criteria for the diagnosis rules out the application of even this meager safeguard. 

Paraphilic Coercive Disorder (PCD) was initially proposed for inclusion in DSM-5 as a diagnosis that would be limited to men who preferred rape over consensual sex. Because only a very small percentage of rapists prefer rape over consensual intercourse (American Psychiatric Association, 1999), clinicians are unable to reliably apply this label (Wollert, 2011). This is one reason for the American Psychiatric Association's consistent rejection of rape-based paraphilias in three previous editions of the DSM (Zander, 2008). In the face of overwhelming opposition, the Subworkgroup has taken the fallback position of recommending PCD only for inclusion in the Appendix as a condition meriting "further study." However, this would confer an undeserved back-door legitimacy to the invalid construct. Rather than a mental disorder, rape is a crime for which the proper placement is prison. 

The proposed criteria for Hypersexual Disorder (HD) are the product of a recent ad hoc literature review by Martin Kafka, a member of the Subworkgroup. His review indicated their validity has not been empirically confirmed. Given the inherent difficulty in determining at what point a normal human drive becomes abnormal, it is not surprising that the proposed diagnosis is marred by conceptual confusion and vague verbal anchors (Moser, 2011). Its poor reliability and validity will translate to a high rate of false positives in both civil commitment trials and outpatient clinics that serve the community in general. With the proposal becoming a magnet for ridicule both by academic scholars and the popular press, it too has been relegated to the Appendix. However, the Appendix was not intended as a storage site for criteria sets that, like Hypersexuality Disorder, have never been tested. 

These three proposals all lack adequate empirical support. They will increase false positive diagnoses by labeling behaviors that are normative, developmental, or criminal as mental disorders. Promoting the misclassification of juveniles and other vulnerable populations as dangerous sex offenders, they will undermine the reputation of forensic practitioners and those who study sexual behavior. Collectively, professions that endorse the use of unreliable diagnoses run the risk of losing their credibility. 

The British Psychological Society, the American Counseling Association, and the Society for Humanistic Psychology and many other divisions of the American Psychological Association have all submitted petitions or letters of concern to the American Psychiatric Association regarding revisions proposed for the DSM-5. These documents express concerns about the lack of empirical support for many DSM-5 proposals, the likelihood of “false-positive epidemics” flowing from decreased diagnostic thresholds, and the negative effects of "over-medicalizing" human behavior. They also point out that the prevention of false-positive epidemics should take precedence over "nomenclatural exploration" and that the temptation to adopt new diagnoses should be tempered by the recognition that diagnostic labels tend to be confounded with normative social expectations. 

I share these concerns as they apply to sexual disorders. I further support the adoption of sexual disorder criteria sets only after they have been established to have high true positive rates and acceptable false positive rates. Therefore, I urge the DSM Task Force to remove the Hebephilia qualifier from the proposed diagnosis of Pedophilia, and to eliminate Paraphilic Coercive Disorder and Hypersexual Disorder from any inclusion in the DSM-5. 


(email your name and professional credentials to Dr. Wollert)


American Psychiatric Association (1999). Dangerous sex offenders: A task forcereport of the American Psychiatric Association. Washington D. C.: American Psychiatric Association.

Ewing, C. P. (2011). Justice perverted: Sex offense law, psychology, and public policy. New York: Oxford University Press. 

Franklin, K. (2010). Hebephilia: Quintessence of diagnostic pretextuality. BehavioralSciences and the Law, 28, 751-768. 

Green, R. (2010). Sexual preference for 14-year-olds as a mental disorder: You can’t be serious!! [letter to the editor]. Archives of Sexual Behavior, 39, 585-586. 

Moser, C. (2011). Hypersexual Disorder: Just more muddled thinking [letter to theeditor]. Archives of Sexual Behavior, 40, 227-229. 

Wollert, R. (2011). Paraphilic Coercive Disorder does not belong in DSM-5 forstatistical, historical, conceptual, and practical reasons [letter to the editor]. Archives of Sexual Behavior, 40, 1097-1098. 

Wollert, R. & Cramer, E. (2011). Sampling extreme groups invalidates research on the Paraphilias. Behavioral Sciences and the Law, 29, 554-565. 

Zander, T. (2008). Commentary: Inventing diagnosis for civil commitment of rapists. The Journal of the American Academy of Psychiatry and the Law, 36, 459-469.

April 7, 2012

Hebephilia bites the dust -- again

  Federal judge rules that faux diagnosis cannot be basis for civil detention 

In yet another blow to those seeking to expand mental illness in order to civilly detain U.S. citizens for possible future crimes, a judge has again held that the faux diagnosis of  "hebephilia" is not valid for this purpose.The Good Friday ruling was one in a string of defeats for the federal government in its efforts to civilly detain ex-convicts under the Adam Walsh Act.

Judge Terrence Boyle rejected the testimony of two government psychologists who had diagnosed George Hamelin with hebephilia based on his sexual misconduct with one 13-year-old boy and another boy under the age of 13 (whose precise age was not specified).

Calvin Klein billboard: Fashion industry banking on hebephilia
As opposed to pedophilia, hebephilia involves sexual attraction to youths who have reached puberty. The controversial diagnosis was first proposed by a team of psychologists at a sex clinic up in Toronto. Two members of the Canadian team also belong to the sexual disorders work group for the DSM-5, the upcoming revision of the American Psychiatric Association’s influential diagnostic manual. With sexually violent predator statutes enacted by the federal government and 20 U.S. states requiring a mental disorder as a prerequisite for civil commitment, government evaluators have taken to invoking the label against sex offenders who are neither pedophiles nor rapists.

Wrote the judge in rejecting the label as a basis for civil commitment:
Hebephilia is not listed as an accepted mental disorder in the DSM-IV-TR. Although hebephilia has been proposed to be included as a mental disorder in the revision of the DSM, it has been rejected as a proper mental disorder by numerous psychologists…. [N]oted mental health professionals have opined that sexual arousal to pubescent and post-pubescent minors is not an inherently deviant sexual interest, albeit one that, in this country, if acted on might violate the law.

The Court finds persuasive the testimony of Dr. [Joseph] Plaud on this issue, who states in his report that "a possible diagnosis of a deviant sexual interest in pubescent/post-pubescent males, termed by some psychologists as 'paraphilia NOS hebephilia/ephebophilia,' ... is an invalid diagnosis."

Given that the characterization of hebephilia is a contested issue in the mental health community, the Court finds that it would be inappropriate to predicate civil commitment on a diagnosis that a large number of clinical psychologists believe is not a diagnosis at all, at least for forensic purposes.
I hope the American Psychiatric Association is listening. If they let the proposed diagnosis of pedohebephilia sneak into the DSM-5, it will only contribute to the already massive outpouring of criticism being leveled against them for expanding the range of mental illnesses. A grassroots petition protesting the diagnostic expansions has garnered almost 13,000 signatures to date.

My report on Judge Boyle's January ruling rejecting hebephilia in the case of Jeffrey Neuhauser (Federal judge tosses hebephilia as basis for civil detention) is HERE. My online resource page on hebephilia is HERE. Wikipedia has further background and links on the controversial diagnosis. A USA Today probe of the beleaguered federal SVP program is HERE.

April 4, 2012

New competency resources

Case report added to resources page

Thanks to colleague Denis Zavodny, who found this report on the web, I have added another competency case to the rogue's gallery. For those of you who don't know, this is a collection of publicly accessible resources on legal competencies that I put together some time back. For training purposes, I have found that it's hard to beat real-life reports and videos, especially from high-profile or otherwise fascinating cases.

The newest report is on Thomas A. Shay (bottom right photo, above), arrested in 1991 for a bomb blast that killed one Boston police officer and maimed another.  A Bridgeport State Hospital psychologist found nothing wrong with him other than a bad case of immaturity and self-centeredness.

New review of competency assessment tests

Marvin Acklin
The Journal of Personality Assessment has just published a handy overview of three competency assessment instruments. The report, by Hawaii forensic psychologist (and forensic psychology blogger!) Marvin Acklin, focuses on the psychometric properties of two tests that are fast becoming standards, as well as a newer test of response style that’s still on shakier ground.

Acklin describes the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA) and the Evaluation of Competency to Stand Trial–Revised (ECST-R) as indispensable to the forensic clinician's toolbox, a statement with which we would all likely agree. 

He especially lauds the MacCAT-CA, "the queen of CST instruments," because its vignette method enables us to drill down into the defendant's core reasoning skills, essential to decisional competency. The ECST-R, meanwhile, is most useful when the issue is psychosis and malingered psychosis. On the negative side, he points out, neither instrument provides sufficient sampling of basic legal knowledge, which must be ascertained through a detailed interview.

Acklin is less sanguine about the new Inventory of Legal Knowledge (ILK), developed to assess for malingered incompetency. Echoing Steve Rubenzer's astute critique in the Open Access Journal of Forensic Psychology, he notes concern about the its potentially high rate of false positives, or people falsely labeled as malingerers. This has been a concern of mine, too; the recommended cut score of 47 lends itself to overdiagnosis of malingering in adversarial settings.

The article, The Forensic Clinician's Toolbox I: A Review of Competency to Stand Trial (CST) Instruments, may be requested directly from the author (HERE).

"Mental Competency: Best Practices Model"

And since we're on the topic of competency resources, don't forget to check out the National Judicial College's newly launched website. It's got a lot to offer. My previous blog post on the site, with links to it, is HERE.

April 1, 2012

180-year sentence overturned over lack of mental health testimony

  Lawyer erred by not calling psychologist, appellate court holds   

A trial counsel’s failure to call a psychologist to testify at the sentencing hearing of a Missouri man with borderline intelligence constitutes reversible error, an appellate court has ruled.

The court upheld a trial court decision that the attorney's performance was deficient, and that the failure to present psychological evidence may have prejudiced the defendant.

A jury deliberated for just a little over an hour at the sentencing hearing of 24-year-old Skylor Radmer before recommending a prison sentence of 180 years. Earlier, the jury had convicted him of two counts of statutory sodomy for molesting his 5-year-old niece.

In upholding the lower-court ruling reversing the sentence, the Court of Appeals for the Western District of Missouri said that psychological testimony about Radmer's borderline intelligence might have resulted in a different outcome.

Radmer's attorney, Bert Godding, knew about Radmer's intellectual handicap because he had represented him in a prior case in which his comprehension of a police Miranda warning was at issue. In that case, he retained psychologist Bill Geis, who testified at an evidentiary hearing that Radmer was functioning at the borderline intellectual level, with an IQ score of 75.

At a hearing on the ineffective assistance claim, Dr. Geis testified that Radmer's low intelligence might have been relevant to explaining his sex offending as a product of poor judgment rather than pedophilia.

The trial attorney also testified at the hearing, admitting that he had no strategic reason for not calling a mental health expert to testify at the sentencing phase of the trial: "I don't believe that I necessarily had a reason not to or to do that," he testified. "I don't know why I didn't call someone like that."

The appellate court rejected the prosecution’s argument that the jury would have found Dr. Geis biased because he had worked for the public defender in the past. Geis is a research professor at the University of Missouri-Kansas City.

The defense lawyer's "failure to call Dr. Geis or a similar expert during the sentencing phase fell below an objective standard of reasonableness," the appellate court unanimously held.

Hat tip: Ken Pope