June 29, 2012

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.

June 27, 2012

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).

June 19, 2012

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.