Death row logjam in California

L.A. Times: Critical shortage of appellate lawyers

With 700 prisoners, California's Death Row is the largest in the United States. But almost half of the condemned will not be executed any time soon; they are still waiting for attorneys to handle their appeals.

Despite a glut of attorneys in the state, few are willing or qualified to tackle post-conviction appeals. Each condemned prisoner gets an automatic appeal to the state supreme court, after which they can file a habeas corpus petition challenging their conviction. The wait for habeas counsel averages 10 to 12 years, a bottleneck that the state's high court calls "critical."

The work is draining both emotionally and financially, say the few attorneys who do habeas work.

"It's a big toll on people to have clients on death row," attorney Lynne Coffin told Los Angeles Times reporter Maura Dolan. "Even if they are nowhere near execution, they are very needy. Most have no family connections anymore, no money, no friends, so the lawyer becomes the source of everything."

Coffin, who at 61 years old handles capital cases almost exclusively, said witnessing the executions of two clients was disturbing. "And I am not going to any more."

The full story, in today's L.A. Times, is HERE.

High cost a factor in public support for death penalty alternatives

Meanwhile, a national poll of 1,500 registered voters shows growing support for alternatives to the death penalty. A majority of voters (61 percent) would choose a punishment other than the death penalty for murder, including life with no possibility of parole and with restitution to the victim’s family (39 percent), life with no possibility of parole (13 percent), or life with the possibility of parole (9 percent), said the center, which opposes capital punishment.

Sixty-eight percent of those surveyed said cost was a very or somewhat convincing argument against the death penalty. Voters ranked emergency services, creating jobs, police and crime prevention, schools and libraries, public health care services, and roads and transportation as more important budget priorities than the death penalty. Two-thirds of those surveyed would favor replacing the death penalty with life with no possibility of parole if the money saved were used to fund crime prevention programs.

The survey was conducted by the Death Penalty Information Center, which opposes capital punishment. It can be found HERE.

Mother California: Essential prison reading

Imagine serving 30 years in prison with no end in sight. Would you survive? Would you not just survive, but actually grow as a person?

While serving a sentence of life without the possibility of parole ("the other death sentence") in California's massive prison system, Kenneth Hartman morphed from a violent killer, "a 19-year-old thug from the blasted wasteland of South Los Angeles' urban, post-industrial decay," to an award-winning author, philosopher, and prison reformer.

The subtitle of his autobiography is "A Story of Redemption Behind Bars." But Mother California tells a story much bigger than one man's personal odyssey. Through Hartman, we witness how three decades of irrational, tough-on-crime rhetoric has plunged California's prisons into an abyss of despair, violence, and criminal recidivism, all the while emptying the state's financial coffers.

Take Christmas. When Hartman first came to prison, in the early 1980s, the cellblocks were decked out in holiday lights, wreaths, and trees. Prisoners decorated their cells with holiday cards from loved ones, the Salvation Army donated candy and nuts, and, in the visiting room, "one of the old guys dressed up as Santa Claus for pictures with the kids and the young wives."

Within 15 years, holidays had been banished. Santa was gone, along with the decorations and treats. Every day resembled the last in its dreary monotony. "The walls are the same unadorned concrete every day of the year. My first Christmas at Tehachapi, one of the guards got on the public address system to tell us about the great meal he would soon be enjoying, the time he would be spending with his family. We didn't deserve to be with our families, he ranted, we were just where we belonged and have a hearty Merry fucking Christmas."

Watching helplessly as his beloved weight-training equipment is loaded onto the back of a flatbed truck, Hartman realizes "how far the advocates of punishment-for-the-sake-of-inflicting pain will go to turn the clock back" and erase the progressive reforms won by prisoners during the 1970s.

Hartman articulately chronicles the divergent impacts of this tough-on-crime politicking on daily life in prison. At Tehachapi, one of the newer prisons, guards are hyper-aggressive and controlling. At Lancaster, in contrast, the guards have ceded control, locking themselves in their control centers and allowing unchecked chaos and violence. The chapel becomes a crack house, the odors of marijuana and pruno (home-made liquor) fill the air, and almost everyone is high and destitute.

The golden triad

That is how Hartman, in one of his many philosophical essays on the prison system, labels the three proven ingredients to reducing criminal recidivism:

• Increased and enhanced visiting to build and maintain family ties
• Higher education
• Quality drug and alcohol treatment

Despite (or perhaps because of?) their effectiveness, the special-interest prison lobby has vigorously sabotaged all three, he writes:

In my 29 years, visiting has deteriorated from a slightly unpleasant experience to a hostile and traumatic acid bath that quite effectively destroys family ties.

Higher education is virtually nonexistent but for those few with the substantial resources needed to purchase it. In those rare cases where innovative ways have been found to bring education back into the prisons the special interest groups have mounted vicious campaigns to terminate the programs.

The opposition to drug and alcohol treatment, much more widely supported in the body politic, is subtler. Using the proven method of compulsory participation by the least amenable, those programs that are instituted are crippled in the normal chaos of prison.

All of this opposition stands behind the banner of protecting victims' rights, as if only the desire for revenge by past victims of crime matters, over even the potential losses of future victims.

The Honor Program

Determined to put his accumulated wisdom and principles into practice, Hartman worked with other prisoners and non-custody staff to design a special program at Lancaster Prison called the Honor Yard. Founded in 2000, the program provides a separate community for 600 men who have committed to living productive lives in which they give back to the community and make amends for past wrongdoings. They must commit to abstaining from gangs, violence, drugs, and racism.

In its first six years of operation, the Honor Program functioned without a single major violent incident, and saved the state millions of dollars. In the wake of its success, state Sen. Gloria Romero sponsored Senate Bill 299 to expand the program to other prisons. Gov. Arnold Schwarzegger, in his infinite wisdom, vetoed the bill.

Hartman's dream, according to a news article on the program, is to be able to live the remainder of his life in a violence-free environment where he can devote himself to his writing. One of his essays won a $10,000 writing prize, with the money going to his wife and daughter, conceived before California took away conjugal visit privileges from lifers. He is currently involved in a campaign to eliminate life sentences.

Instead of reading endless meaningless studies on psychopathy and such, we should spend more time in the real world, listening to articulate autodidacts like Hartman.

Kenneth Hartman's philosophical essays on prison are online HERE. More on the Honor Program, and efforts to save and expand it, is HERE. More on lifers in U.S. prisons is HERE.

If you enjoyed this review, I would appreciate your taking a quick moment to let me know by visiting my Amazon book review and click on "YES," this review was helpful.

Hat tip: Jules Burstein

Garrido to undergo competency evaluation

The attorney for Phillip Garrido, the man who gained worldwide infamy last year in the alleged abduction of Jaycee Dugard, has raised a doubt as to whether Garrido is competent to stand trial.

"This is a fundamental fairness issue," his attorney, Susan Gellman, a deputy public defender in El Dorado County, told a reporter for the San Francisco Chronicle. "What we're talking about here is whether or not a citizen is able to make a decision about his case. When someone wants to go to trial for crazy reasons, or not go to trial for crazy reasons, that person is not competent." She noted persistent trouble communicating with Garrido during her more than 20 meetings with him at the jail.

As I explained in my analysis of the case in the Guardian of UK last August, psychiatric issues -- including competency and perhaps insanity -- are sure to be prominent in this case due to Garrido's history of religious delusions. Through the wonders of the Internet, I wrote at the time, we can "travel back in time and enter his mind, via rambling blog posts about voices in his head, mind control, and religious delusions of himself as the savior." (Amazingly, his contemporaneous "Voices Revealed" blog is still online, for those of you who want to take a gander.)

At Friday's court hearing in El Dorado County, Judge Douglas Phimister commented that he had spotted strange behavior during his limited observations of the defendant in court. At times, he noted, "Garrido aggressively scribbled notes in a pad even though little was going on in court."

Demian Bulwa's San Francisco Chronicle account is HERE. My August 2009 analysis in the Guardian of UK, "Jaycee Dugard, transfixed by a monster," is HERE. My Sept. 3, 2009 followup post on the case, "Sex-Registry Flaws Stand Out," has more background and links.

Photo credit: Rich Pedroncelli, AP

Abuse rampant in California prisons

Mentally disabled prisoners in California are routinely beaten, robbed, sexually assaulted and deprived of food and sanitation. And in a "climate of indifference," prison officials have virtually ignored a 2001 court order mandating that they identify and protect these most vulnerable prisoners.

That was the opinion a federal judge issued last week in refusing to lift the 9-year-old court order. U.S. District Judge Charles Breyer's ruling followed a 6-day trial. The judge cited one instance in which a mentally disabled prisoner lost 35 pounds in five months because his cellmate was stealing his food and guards only laughed at him when he requested their help.

Sacramento Bee series: Prisoner abuse widespread

The judicial ruling echoes a stellar investigative series by reporter Charles Piller of the Sacramento Bee, who obtained and analyzed thousands of pages of documents and interviewed dozens of insiders, including confidential sources. The resulting picture of the inside of California prisons is not pretty:

• Guards fabricating rule violations that extended the time of prisoners they didn't like, including prisoner activists

• Prisoners losing "good time" credits for breaking minor rules, such as stepping across a line on the concrete

• A rigged system in which nearly all prisoners charged with rule violations are found guilty, and appeals or complaints against guards are fruitless

• Light discipline even when officers severely injure or kill prisoners

In one case, an officer needlessly punched a prisoner in the head, broke his elbows, and then lied about it in reports. The penalty? A 12-day suspension.

"The degree of civilization in a society
can be judged by entering its prisons."

-- Fyodor Dostoyevsky (1860)

Undermining the appeals process, according to prisoners and former officers, is prisoners' fear of retaliation. Edgar Martinez, a former prisoner at High Desert, claimed that guards trampled his belongings and strip-searched him in a snow-covered yard. He said he watched guards provoke fights among inmates and tell others, "this [complaint] needs to go away or we're going to make your life a living hell." Afterward, Martinez said, he was too terrified to protest the mistreatment.

In a 2007 case, guards viciously beat several prisoners and denied them adequate medical treatment, yet not a single one filed a complaint, according to a former lieutenant named Gerald Edwards. Prisoners know that filing a complaint may lead to retaliation, including being shipped off to a different prison dominated by racial or ethnic enemies.

Behavior modification units a living hell

If routine conditions are bad, they are nothing compared to the cruelty, corruption and racism that Piller found when he investigated the so-called behavior modification units.

High Desert State Prison. Photo credit: Ben Kutchins, "Prison Town USA"

These are the units where recalcitrant prisoners, disproportionately African American, are subjected to "extreme isolation and deprivation -- long periods in a cell without education, social contact, TV or radio." A prisoner at the Salinas Valley unit went five months without exercise, sunlight or fresh air, according to his successful lawsuit. At the High Desert facility, prisoners described "hours-long strip-searches in a snow-covered exercise yard. They said correctional officers tried to provoke attacks between inmates, spread human excrement on cell doors and roughed up those who peacefully resisted mistreatment. One said guards contaminated prisoners' food with dirt and insects and starved those who complained.

Many of the prisoners' claims were backed by legal and administrative filings, and signed affidavits, which together depicted an environment of brutality, corruption and fear." As Edward Thomas, a former prisoner in the High Desert unit, described it, it was "like something that happens in a concentration camp."

"Black monkey unit": Abuse based on skin color

While about a third of California prisoners are black, blacks comprised a majority of prisoners subjected to the High Desert behavior unit. Guards referred to the unit as the "black monkey unit" and joked about how the "monkeys" are "always hanging around in there" -- a macabre reference to suicide attempts by prisoners of color.

"Guards seemed to view behavior modification as a license to make inmates as miserable as possible to compel obedience," Piller reported.

"Several inmates described an incident when staff left one inmate on the floor with rectal bleeding and refused to take him to get medical attention," according to the report of a group of state researchers. When guards arrived, "they said 'It's the f---ing n----- again, let him die.' And they left him there."

Their July 2007 visit to High Desert shook up the state researchers, said one, a sociologist who lectures at UC Davis and has more than 25 years of corrections research experience. Norm Skonovd said he had never seen a similar case. The researchers were allegedly chastised when they reported what they had seen, and were told to tone down and bury the prisoner allegations of abuse. Skonovd claims he suffered professional retaliation.

Correctional abuse: A cause of violence and recidivism?

Prisoners said the behavior modification units were so dreaded that they would act out so they would be placed in "the hole" instead. This, the researchers noted, could lead to more violence behind bars. Indeed, although the units were "sold to lawmakers as a way to reduce recidivism," their brutality would likely lead to more anger and, hence, more convicts returning to prison, the researchers theorized.

For you blog readers who aren’t from California, why should you care?

Because, like Milan is to the fashion industry, so California is a trendsetter for the global prison industry. You all know by now that the USA is the world's premiere Prison Nation, locking up 1 out of 100 residents. But if California were a country, we would rank seventh in the world -- behind the USA, China, Russia, and a handful of others. (That's by raw numbers. If you go by proportion of the population incarcerated, we fall further back; only one out of every 36 adult Californians is under correctional control, compared with a whopping one out of 13 adult Georgians. Hint: Maps showing rates of incarceration for U.S. states look eerily similar when juxtaposed with maps showing states' proportions of African Americans. Click on the links to see for yourself.)

I highly encourage all of you to read the Bee series (available HERE). Muckraking journalism is practically dead these days, with the daily news biz more and more resembling interchangeable strip malls along the highways -- corporate-owned, homogenized, and full of quick-and-dirty crime bytes. And the prison news beat is especially hard to cover, because access is so highly controlled and critical information subjected to censorship (as "Red Hog" reported in Committing Journalism).

I wonder how Dostoyevsky would have rated the civilization level of modern California.

APA Dispatch I: Science and public policy

I had intended to limit my dispatches from the American Psychological Association convention in San Diego to forensic highlights. But I would be remiss if I didn't touch on the big news from psychological science and public policy. Anyway, it's all related to forensics.

Conference theme: Ending marriage discrimination

A public policy highlight of the convention was its theme of opposing marriage laws that discriminate against gay men and lesbians. Walking into the futuristic convention hall, one was greeted by a life-sized hologram of the APA's CEO, Norman B. Anderson, speaking of the scientific advocacy role in this area of the APA, which at 152,000 members is the world's largest psychological organization and devotes a good share of its $115 million annual budget to advocacy. Kiosks gave attendees a chance to don large lapel pins supporting marriage equality, or send a message to their legislator calling for an end to the federal ban on same-sex marriage.

The theme, planned months ago, could not have been more timely, especially given the conference's location. Just as the convention got underway yesterday, Judge Vaughan Walker lifted the stay on gay marriages in California following his earlier ruling that marriage discrimination was unconstitutional. Many of the key expert witnesses who presented scientific evidence at that trial were featured speakers at the convention: Gregory Herek of UC Davis on sexual orientation and stigma (introduced by APA President Carol Goodheart), Anne Peplau of UCLA on same-sex relationships, and Charlotte Patterson of the University of Virginia summarizing the empirical research regarding the emotional health of children raised in lesbian and gay families.

The APA leadership seems delighted to be on the correct side of history this time, especially after the lengthy debacle over psychologists' role in the torture of detainees at Guantanamo.

Memory: How the brain reconstructs reality

Meanwhile, memory research was on the cutting edge of the psychological science presented at the convention. I had the great fortune to hear preeminent scholar Daniel Schacter present some of the very latest findings.

We already know that retrieving a memory is nothing like opening a file on your computer. In calling up a memory, the brain -- specifically the hippocampus -- grabs a bunch of bits and pieces stored here and there around the brain, and reintegrates them to suit the current situational demand. This is adaptive. It allows us to use our accumulated experience to respond flexibly to an ever-changing environment. But it comes at a cost of errors and distortions, which Schacter has summarized beautifully in The Seven Sins of Memory (which all forensic practitioners should read).

In his talk, Schacter illustrated with the case of "John Doe 2," the composite creation of a faulty memory who was the subject of a massive FBI manhunt after the Oklahoma City bombing. As it turned out, John Doe 2 (despite lingering conspiracy theories to the controversy) was most probably an Army private who had nothing whatsoever to do with McVeigh; he happened to have been at the auto body shop where McVeigh rented his van, but a full day later.

The advent of neuroimaging technology has enabled this memory research to advance at a rapid pace. (The hippocampus even has its own journal now, named after itself!) In their most recent work, Schacter and his colleagues are localizing the precise hippocampal sites that activate when various tasks are being performed. Distinct patterns of hippocampal activity are visible on fMRI when someone is storing initial memories, retrieving those memories, and imagining future possibilities.

Intriguingly, it turns out that the brain tasks involved in remembering are not so different from those involved in imagining the future, or imagining a fictional version of the past, for that matter. Which makes sense: Like recalling real events, imagining fictional scenarios first requires us to think about our past experiences, and then tweak them (consciously or unconsciously).

Australian study: Sharing distorts eyewitness memory

The fact that the very act of retrieving a memory causes it to be distorted (also the topic of a rather dry convention presentation by researcher Joseph LeDoux, author of The Emotional Brain) explains a new finding by forensic psychology lecturer Helen Paterson of the University of Sydney in Australia. She found that sharing memories leads to contamination that cannot be reversed through providing corrective information.

Paterson's team showed participants one of two different versions of a video of a crime. After discussing the crime with each other, most participants reported seeing specific details that were not in the version they had watched. The researchers believe that discussions among co-witnesses are more likely to damage accurate recall for a crime than are other avenues of distorted information such as reading a news account or being asked leading questions by investigators.

Like the broader memory research of Schacter and others, Paterson's study, published in the journal Applied Cognitive Psychology, has direct implications for witness reliability. Once a memory is distorted, the inaccuracies remain even when witnesses are told that the new information is wrong, as witnesses " find it difficult, if not impossible, to distinguish between genuine memories and false memories of an event," Paterson said.

The forensic implications of this line of memory research are rather mind-boggling, when you stop and think about it. Not only do we need to be extremely cautious about putting too much weight on someone's memory for an event but, as the accumulating research shows, we must be skeptical even if multiple people agree on the "facts."

Coming up in Part II: Whither juvenile forensics

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:

• New poll shows Californians support death penalty (San Diego Union Tribune, July 21, 2010)
• California death penalty: A hollow promise? (San Diego Union Tribune, April 25, 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:

• Killing and culpability: A reader participation exercise (April 14, 2010)
• "Killing and culpability" sentences handed down (June 16, 2010)

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)

Sex offender registry: Weapon of homophobia?

This summary is not available. Please click here to view the post.

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

"Killing and culpability" sentences handed down

You readers who completed the "Killing and Culpability" exercise a while back may be interested in the sentences that were handed down:

"Avenging a Wrong"

Remember Aaron Vargas? He was the man who went to the home of the older man whom he said had molested him as a child, shot the man once in the chest, and then waited half an hour to be sure he died. The Northern California community of Fort Bragg had rallied around Vargas, and he was expecting a lenient sentence after his guilty plea to manslaughter.

The judge said no dice; the fact that the victim was a child molester was largely irrelevant. "To grant probation in this case would put a stamp of approval on the defendant's actions, which I cannot do," he told a courtroom packed with Vargas supporters. "The use of violence to correct a wrong only encourages more violence."

The sentence: 9 years in the state pen.

"Street Brawl"

The other case featured in the exercise was that of Andrew Hoeft-Edenfield, age 20, who stabbed a University of California at Berkeley fraternity man to death during a drunken street brawl. A jury had rejected his plea of self defense, and convicted him of second-degree murder. Although he cried and pleaded for leniency, the judge noted that he fled from the scene after the stabbing, discarded his knife and hid out at a friend's house.

The sentence: 16 years of hard time.

Reactions, readers? Were either of the sentences surprising? Were they just?

The "Killing and Culpability Exercise" is HERE

Calif.: Custody evaluators facing lost immunity

Among forensic psychologists, child custody evaluators face the highest rate of licensure board complaints. The courts request their help in the most acrimonious parenting disputes, and it is easy to get caught in the crossfire. Even though 99 percent of all board complaints are ultimately dismissed, defending oneself is stressful, time-consuming, and expensive.

Over the past 20 years, aggrieved parents have deluged psychology licensure boards with frivolous, manipulative and mean-spirited complaints. Fearing that the onslaught would discourage professionals from agreeing to assist courts in high-conflict parenting cases, legislatures in many U.S. states have increased statutory protections. In the past decade, Florida and West Virginia passed immunity statutes for court-appointed evaluators. Colorado went even further, barring licensing board complaints over child custody evaluations, requiring that complainants instead take their claims back to the original trial court.

But legislation being proposed in California would turn in the opposite direction, dismantling quasi-judicial immunity protections for evaluators and other neutral professionals who assist the courts in parenting disputes. The current version of the proposed Assembly Bill 2475, heading to the state Assembly's Judiciary Committee on May 4, would add the following section (43.94) to California’s Civil Code:

"The doctrine of judicial immunity or quasi judicial immunity shall not apply to exonerate any private third party appointed by the court in an advisory capacity based on his or her professional expertise, who provides a report or findings to the Court in a proceeding under the Family Code, with the intention that the Court act in one way or another based on such report or findings, from liability for acts performed within the scope of his or her appointment in violation of laws, rules of court, or professional standards. This section shall apply to private individuals such as special masters, minor's counsel, investigators, therapists, evaluators, receivers, bankruptcy trustees, experts, factfinders, and other persons specifically appointed by the courts in an advisory capacity based on their professional training or expertise."

I was initially suspicious that perhaps the "Men's Rights Movement" had a hand, as this increasingly powerful international lobby is making a concerted effort to reform child custody laws to favor men, and especially men accused of abusing their partners and children. Men's rights advocates claim that a feminist-run court system systematically violates men's civil rights, that a large proportion of abuse allegations are false, and that men "are victims of an unrecognized epidemic of violence at the hands of abusive wives," as reported in an expose in Slate. On the legal front, Respecting Accuracy in Domestic Abuse Reporting (RADAR) claims credit for blocking four federal domestic-violence bills, among them an international expansion of the Violence Against Women Act, according to the Slate report. Extrajudicially, movement members go so far as to applaud acts of violence perceived as retaliation against the feminist status quo.

But Assemblyman James Beall, the sponsor of AB 2475, does not appear allied with this regressive movement. Rather, he bills himself as a progressive Democrat who fights for the rights of children, families, the poor, and the disabled. Previously, he sponsored legislation (AB 612) to ban the use of Parental Alienation Syndrome -- a favorite of the father's rights movement -- from family courts.

NOTE: After I wrote this post, I did a bit more research on AB 612, and realized it was even more extreme than his new proposal. It would have allowed parents to sue any expert witness who relied upon "an unproven, unscientific theory." This would have included not only Parental Alienation Syndrome, its ostensible target, but a gamut of other evidence. After all, not much in any field of science is completely proven and uncontested. Luckily, that bill was defeated, perhaps explaining this new attempt. -- May 8, 2010

As it turns out, AB 2475 is supported by opponents of the men's rights movement, including an organization called the Protective Parents Association. This group lobbies on behalf of mothers who say the courts impede their efforts to protect their children by giving joint or sole custody to abusive fathers. "[T]he court responds to women attempting to protect their children from an abusive father with a knee-jerk reaction, assigning gender-biased labels to women to minimize or ignore the abuse in a reckless disregard of the safety of the child," writes association director Karen Anderson. By gender-biased labels, she is referring, no doubt, to Parental Alienation Syndrome.

So, AB 2475 may turn out to be a case of failure to anticipate unintended consequences. As readers know, politicians often propose a law in a knee-jerk response to a high-profile event, tweaking existing mechanisms without adequate anticipation of potential future deployments. Ironically, the bill could open the floodgates for attacks on neutral evaluators by the very same angry men with money who most often invoke the pseudoscientific construct of Parental Alienation Syndrome in custody cases.

When I telephoned Assemblyman Beall's office today to get more background, a staff member was cagey about the bill's impetus and minimized its intended scope, saying it was meant to only apply to mediators and not to child custody evaluators. Clearly, the current language belies this claim. So far I have been unable to turn up any specific case or cases that prompted this bill. Rather, it may be a misguided effort to stop evaluators from using the construct of Parental Alienation Syndrome against mothers in custody cases.

By way of background, various types of immunity for professionals involved in the legal system have a long history. Judicial immunity (immunity for judges) was implemented on public policy grounds in England all the way back in the 17th century. Similarly, witness immunity enjoys a long history, based on the principle of encouraging people to testify honestly and without fear of reprisal. Prosecutors performing their job duties are protected by qualified immunity, while psychologists and teachers enjoy statutory immunity when the law requires them to report child abuse.

Under the construct of quasi-judicial immunity, courts across the United States have repeatedly held that court-appointed experts must have some protection from intimidation in order to feel confident and free to make neutral and independent findings. As Karl Kirkland and colleagues point out in an enlightening review, this bolsters both the integrity of the judicial process and public welfare more generally.

This does not mean evaluators can say or do whatever they want. Immunity is never absolute, nor should it be. But forensic evaluators actually face enhanced scrutiny and risk as compared with other clinicians due to the adversarial nature of legal cases. As Greenberg and colleagues point out in another excellent review (reference below), errors that might go unnoticed or be addressed constructively in therapy are much more likely to be exposed through the adversary process; the opinions of forensic experts must stand up to intense scrutiny and vigorous cross-examination.

But it seems an error to allow parties whose goal is often to subvert the legal process (for example by getting an evaluator removed from a case) to drive honest, hard-working, and experienced professionals away from child custody work through spurious harassment. Consider the data. California logged the most licensing board complaints over child custody evaluations of any U.S. state during the 1990s. Yet according to the review by Kirkland and colleagues, out of all of those 1,660 complaints, only a single one -- that's right, ONE -- led to a formal finding against the psychologist.

* * * * *

For a good expose of the men's rights movement, see the Slate article by Kathyrn Jones, Men's Rights Groups Have Become Frighteningly Effective: They’re changing custody rights and domestic violence laws. In researching the issue of immunity for expert witnesses, I also consulted the following excellent sources (none, unfortunately, accessible online):

• Quasi-Judicial Immunity for Forensic Mental Health Professionals in Court-Appointed Roles, by Karl Kirkland, Kale E. Kirkland, Glen D. King, and Guy J. Renfro, Journal of Child Custody (2006)
• Lessons for Forensic Practice Drawn from the Law of Malpractice, by Stuart Greenberg, Daniel Shuman, Stephen Feldman, Collin Middleton, and Charles Patrick Ewing. In: Forensic Psychology: Emerging Topics and Expanding Roles (2007)
• A Comprehensive Guide to Child Custody Evaluations: Mental Health and Legal Perspectives by Joanna Bunker Rohrbaugh (2007)
• Clinician's Guide to Child Custody Evaluations, 3rd Edition, by Marc J. Ackerman (2006)

Photo: "The Dads Who Fought Back" (2006 video)

California may expand juvenile competency law

In the landmark case of Milton Dusky, the U.S. Supreme Court held that in order to be criminally prosecuted a defendant must have a factual and rational understanding of the proceedings and a basic ability to consult with his or her attorney.

Some U.S. states have limited this due process protection to defendants who suffer from a mental illness or a developmental disability. This excludes children, who may lack rational understanding due to their natural immaturity. In the 2006 Washington state case of Swenson-Tucker, for example, an appellate court held that an 8-year-old boy was competent to stand trial despite severe deficits stemming from his age and immaturity.

In Florida, by contrast, juveniles have a statutory right to competence, and both age and developmental immaturity can be considered in deciding competence. (Florida Code, Section 985.223.)

If California Assemblyman Felipe Fuentes has his way, the Golden State will follow the Sunshine State and move into the forefront of juvenile justice trends. Assembly Bill 2212 would formalize the requirements for juvenile competency proceedings in the state, and specifically mandate consideration of developmental immaturity.

The proposed law (excerpted below) follows on the heels of a 2007 appellate case (see my blog post HERE) allowing immaturity as the basis of incompetency for an 11-year-old Sacramento boy accused of breaking into an elementary school and stealing candy bars. Two psychologists had evaluated Dante H. (2007 Cal. App. LEXIS 704) and concluded that he was not fit to stand trial.

AB 2212, as amended, Fuentes. Minors: mental competency.
The bill would require, upon declaration of a doubt as to the minor's competency, the court to order that the question of the minor's competence be determined in a hearing, as specified. The bill would require the court to appoint an expert in the field of juvenile adjudicative competency to evaluate whether the minor suffers from a mental disorder, developmental disability, or developmental immaturity and, if so, whether the condition impairs the minor's competency. The bill would require the Judicial Council to develop and adopt rules to implement these requirements. The bill would require that, if the minor is found to be incompetent by a preponderance of the evidence, all proceedings remain suspended to determine whether there is a substantial probability that the minor will attain that capacity in the foreseeable future or the court no longer retains jurisdiction. The period of time during which these proceedings would be suspended would not exceed 6 months.

A vote by the California Assembly's Public Safety Committee is scheduled for today.

Although the definition of developmental immaturity remains vague (see below text by Ivan Kruh and Thomas Grisso for an excellent discussion), most forensic psychologists who evaluate juveniles already consider their age and maturity, and this proposed law is a much-needed step toward requiring such practice.

Recommended resources:

• Evaluation of Juveniles’ Competence to Stand Trial by Ivan Kruh and Thomas Grisso (Best Practices in Forensic Mental Health Assessment series)
• Juvenile Competency Statutes: A Model for State Legislation by Kellie Johnson, Indiana Law Journal
• MacArthur Foundation's Juvenile Competence Study

Delusional campaign for a world without risk

Convicted sex offender Anthony Sowell seemed run-of-the-mill. He scored a low "1" on the Static-99, the popular actuarial tool designed to quantify risk for sexual recidivism. Now, he is suspected in the murders of 11 women whose remains were found at his Cleveland, Ohio home. (His publicly leaked risk evaluation is HERE.)

John Albert Gardner III, who like Oscar-winning film director Roman Polanski was convicted of molesting a 13-year-old girl, looked almost as routine. Paroling after a 5-year prison stint, he scored a "2" on the Static. Now, he stands charged with the highly publicized San Diego rape-murder of teenager Chelsea King.

While the United States crashes and burns -- jobs disappearing, home values plummeting, public school teachers begging for basic supplies like paper and pencils -- politicians are hosting emergency hearings to determine "what went wrong."

Who you gonna blame? The Static-99

The same California politicians who enthusiastically enacted a law -- the ambitiously titled Sex Offender Control and Containment Act of 2006 -- mandating the use of this scientifically flawed actuarial tool are now jumping all over prison bureaucrats for mandating its use to determine which paroling sex offenders should be most carefully monitored. Maybe they should have listened to those who have been saying all along that actuarial tools are not a panacea.

When I got a call from a news reporter exploring that angle, I found myself in the amusing position of (half-heartedly) defending the Static-99. As I tried to explain to the reporter (who then misquoted me), finding a needle in a haystack ain’t easy. At the risk of sounding perseverative: it's the statistical problem of low base rates. If only about one of every ten paroling sex offenders will reoffend sexually, picking out that one is difficult. And picking the one who will commit an exceedingly rare crime like the Chelsea King murder is virtually impossible. The hysterical masses can't seem to grasp that:

• The broad majority of men who are apprehended and prosecuted for a sex offense are never rearrested for another, and
  

• The broad majority of sex crimes are committed by men who fly below the radar because they have never been apprehended before. To catch these guys, you'd have to engage in massive over-prediction, producing an epidemic of what we call "false positives."

And that's just what the mobs are calling for. As one man in the crowd lobbying for the new "Chelsea's Law" put it, anyone who "touches a child" should automatically lose all Constitutional rights.

Be careful what you wish for. Even in a fascist police state, bad stuff will still happen. In fact, a misplaced emphasis on eliminating risk will paradoxically decrease public safety, by eliminating primary prevention programs that actually work to reduce crime. In California, prison officials told an emergency meeting of the Assembly Select Committee on Prisons and Rehabilitation Reform they would need $1 billion more each a year to return every paroled sex offender to prison on the basis of minor violations like Gardner's. That would mean taking even more pencils away from teachers in a state near bankrupted by its massive prison infrastructure.

All aboard the opportunist train

It's understandable why parents of crime victims like Chelsea King lobby for tougher laws. It's a way to deny their impotence and channel their feelings of sadness, guilt and rage.

And it's similarly easy to understand why politicians jump on the bandwagon. Powerless to fix our shattered economy and lacking the political will to tackle more complex social problems, they seize on random horrors to make themselves look good. Illusory efficacy wins votes.

And then the other opportunists jump on board. Crime Victims United used this week's hearing to lobby against early release of nonviolent prisoners. (Can you say non sequitur?)

Not to be outdone, a group of embittered forensic psychologists have jumped on the Chelsea bandwagon. Forming a secret "consortium," they have complained to the state Attorney General's Office that if they were still evaluating paroling prisoners for potential civil commitment as Sexually Violent Predators (SVP's), they would have done a better job of protecting the public. The evaluators, who are shielding their identities through an attorney, claim that the state's new contract bidding policy for SVP evaluations "results in the loss of life of untold victims" "for the sake of economic expediency." Their propaganda, aired on the incendiary Larry King Live show, conveniently omits mention of their pecuniary interest: Many of these state contractors were billing more than $1 million per year, again while school teachers begged for budget crumbs.

Cultural Myopia and moral relativism

Underlying these empty moral campaigns are a set of intertwined myths and lopsided values:

• Rare sex crimes are a significant threat to public safety. As the mob vents its impotent rage against the government and its spawn -- the mythical sexual predator -- the fact remains that the biggest killer of 15- to 24-year-olds worldwide remains motor vehicle accidents. The is followed closely by suicides, the fourth-leading killer of children over age 10 in seven developed nations.

• Only sex crimes count. Is sexual assault really all that much worse than murder, torture, or other serious crimes? Why is it treated so differently? Are legislatures assigning as much resources to combating the "pseudocommander mass murderer" or the burgeoning militia movement stoked up by its racist hatred of Obama?

• Only a certain type of sex crime counts. Many of the same angry folks who want to suspend the Constitutional rights of some accused sex criminals are busy defending others. When the Chelsea King case broke, the reaction to another breaking sex crime story was its polar opposite. Responding to news that star football quarterback Ben Roethlisberger was accused of a second rape, media pundits went wild on lying, gold-digging women who falsely accuse men of rape. In fact, some of the men who most vitriolically despise sexual predators are rapists themselves. Rape is endemic on many college campuses, with fraternity boys virtually immune from prosecution. As an excellent National Public Radio series describes, young men face few consequences for using alcohol as weapon with which to sexually assault naive young women who are then often forced to quit school. If we really want to make the world a safer place, we need to look a little closer to home. Instead of focusing on an easy bogeyman, let's put our efforts into primary prevention of rape and child molestation. And if we truly want to stop criminals from reoffending, let's not eliminate rehabilitation programs in prison!

• Science is capable of eliminating (or at least drastically reducing) risk. The search for blame has become reflexive. Whenever anything bad happens, the what-went-wrong tenor of media coverage encourages finger-pointing, public wrath, and -- ultimately -- pointless (or worse) legal tweaks by opportunist politicians. When hoodlums sneak into a zoo and taunt a tiger into attacking them, it's the zoo's fault for not building high enough fences. (Remember that 2007 case?) When a speeding truck careens over the side of a bridge, traffic engineers get blamed. "They" -- shorthand for the amorphous "government" -- can never do enough to protect their citizens from all conceivable danger.
  

It's hard to accept that random danger is a part of life. Sometimes, bad stuff just happens.