Showdown: DNA evidence vs. cognitive bias

Back in the 1980s, southern Alameda County in the East Bay was the hellmouth for serial murder. As a newspaper reporter covering the crime beat, I was reporting on at least three separate fiends prowling the suburbs and picking off young teenage girls at whim.

It was harder to stop them back then. Forensic DNA was still in its infancy. The historic evidentiary hearings in Oakland, California on the admissibility of DNA typing, with full-scale scientific battles tying up courtrooms for months on end, were still a few years away.

Tina Faelz and her mother Shirley

Fourteen-year-old Tina Faelz was one of the victims. In 1984, she was found dead with 44 stab wounds. She had taken a shortcut through a drainage culvert while walking home from school.

(As a side note, Tina had walked home that day because a group of girls was planning to beat her up if she rode the bus. Bullies tyrannized Foothill High School in suburban Pleasanton; on the same day as Tina’s murder, an alpha-male bully threw a football player into a dumpster and locked the lid.)

Detectives had no shortage of suspects. There was the mother’s violent boyfriend. There was the aforementioned school bully, whom someone had spotted near the crime scene. There was a man who was arrested shortly after Tina’s death for a similar assault in which the girl managed to escape.

What they lacked was hard evidence.

The case went cold for decades. It was finally cracked just a few years ago, thanks to the intersection of DNA science and a cop’s pregnancy. Detective Dana Savage couldn’t be on the streets due to her pregnancy, so she decided to take a gander at the vexing cold case.

Detective Savage was fairly certain that the culprit was one of two serial killers who’d been active in the region at the time; she just didn’t know which one. Based on the vigor of the attack, she figured the killer must have shed some blood, so all she needed was something to test for DNA. She struck gold with the victim’s purse, which had been found lodged in a nearby tree.

But when Savage got the call from the crime lab, she was in for a surprise. The culprit was not one of the serial killers. Nor was it any of the original suspects.

It was the 16-year-old classmate who’d been thrown into the school dumpster earlier in the day.

After killing Tina, Steven Carlson had dropped out of school and spent the next 30 years abusing meth and bouncing in and out of custody. When police came to talk to him, he started retching violently. He was tried and convicted, and is now serving a 16–to-life sentence.

It’s unfortunate that it took so long to catch the killer. But on the bright side, the Pleasanton police did things right: They kept their minds open and never fixated on the wrong person. That would have been far worse.

Barking up wrong trees

In other cases during that violent era, police sometimes got it tragically wrong. For example, when 8-year-old girl Cannie Bullock was raped and murdered in her home in nearby San Pablo, Detective Mark Harrison fixated relentlessly on William Flores, the sexually creepy guy next door, literally driving him to his grave. (If every creepy guy was a murderer there wouldn’t be many women left on the planet, or even many male cops if you believe the dismal statistics in the must-watch Netflix series Unbelievable.) Even after Flores self-immolated, the detective wouldn’t let him rest in peace. Once DNA technology became available, Harrison got a court order to dig up Flores’s body, certain the test results would clear the long-dormant case.

He was dead wrong. The DNA didn’t match that found on the little girl’s body.

(That case went cold for many years. Finally, DNA from a man convicted of sexual assault in Colorado was routinely entered into a database, which spit out a match. The killer, Joseph Cordova, was never a suspect in the girl’s killing, although he lived and worked in the area and had used drugs with the girl’s mother. He is now parked on California’s death row.)

But here’s the really bad news: Even with modern DNA technology’s miraculous crime-solving capabilities, fixations like Detective Harrison’s still lead police astray with some regularity. In particular, forensic science is no match for a priori stereotypes about the bad guys.

A case in point: The murder of elderly Leola Shreves in Yuba City, California.

The attack was frenzied. As detailed by San Francisco Chronicle reporter Matthias Gafni, the TV set was smashed and a door was ripped from its hinges. The 94-year-old victim had been tortured, strangled and beaten to a pulp. Her teeth were shattered, her jaw and back broken, and 17 of 24 ribs cracked. Her ears and scalp were nearly ripped from her skull.

Police quickly latched onto the next-door neighbor, a socially awkward video-game devotee. Michael Alexander aroused police suspicion in part due to his troubled past: He had been arrested at age 15 for threatening to kill a high school teacher and burn down the school after fighting with and choking another student.

Burdened with an intellectual disability, the 20-year-old was no match for the seasoned detectives who brought him in for questioning. When he denied ever being at his neighbor’s house, police lied to him, saying his fingerprints, shoe prints and DNA had all been found there. When he continued to profess his innocence, detectives suggested that maybe he had blacked out, and an alter ego named “Angry Mike” had committed the crime. Alexander’s naïve acceptance of the detectives’ ruses eventually led him to accede to their version of reality despite not having any recollection of it.

For anyone with expertise on false confessions, Alexander’s had all the classic hallmarks. It was replete with maybes and probabilities. The details did not match the evidence from the crime scene. And Alexander immediately recanted.

“Have you been looking for the real killer?” he later asked the detectives.

His question fell on deaf ears. He was arrested and charged with capital murder.

Unbeknownst to him at the time, there was indeed an abundance of real physical evidence – DNA, fingerprints and shoe prints. All of it excluded him and pointed to someone else.

Astonishingly, the identity of Shreve’s killer was in front of the detectives the entire time, but it took them six long years to realize it.

Armando Cuadras

On the night of the murder, a man named Armando Cuadras was found collapsed on the street just 300 yards away, drunk and badly injured. He was taken to the hospital by ambulance, but police failed to connect the two events. Cuadras, whose DNA was splattered all over the bloody crime scene, is now awaiting trial.

Mental blinders

Cognitive scientists have various names for the mental processes that cause people to prematurely focus on one solution to the exclusion of other possibilities. Tunnel vision. Myopia. Confirmation bias. In essence, the Yuba City police identified a suspect, based in part on their preconceived ideas about what a guilty person should look like, and in the process closed their minds to alternate possibilities.

Then, once all of the physical evidence came back and screamed out Alexander’s innocence, cognitive dissonance kicked in: It can be hard to abandon a firm belief even when confronted with irrefutable evidence that it is wrong. Cognitive dissonance was on florid display in the infamous case of the Central Park Five. As documented in the powerful Netflix series When They See Us, prosecutors still refuse to accept overwhelming evidence of the young men’s innocence. Such is the power of cognitive blinders. (My blog post on that astonishing case is HERE.)

Unfortunately, when police focus on the wrong person they not only destroy the suspect’s life, but also allow the real culprit to remain free, thereby endangering others in the community. There are myriad cases of very dangerous men who went on to rape and kill again after police investigators failed to diligently pursue all leads. (Again, let me plug the harrowing series Unbelievable.)

After almost two years in jail, Alexander was finally set free and the charges against him dismissed. But even with another suspect in custody and awaiting trial, police and prosecutors have stubbornly refused to concede that Alexander is innocent.

Which just goes to show, even the miracles of DNA typing are no match for minds that are rigidly shut.

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FURTHER RESOURCES: The transcript of Michael Alexander's confession is available online, and is a good resource for teaching and learning about false confessions. Tina Faelz's killing is the subject of a true-crime book, Murder in Pleasanton, which includes back-story information not available elsewhere. If you are interested in diving deeper into the problem of cognitive biases in police investigations and how they can be avoided, a great resource is Criminal Investigative Failures, edited by D. Kim Rossmo. Two chapters I especially recommend are "Who Killed Stephanie Crowe," focusing on the appalling case that I've blogged about several times in which a 14-year-old boy was wrongfully arrested in his sister's murder, and "On the Horns of a Narrative," by my colleague David Stubbins and his brother, which focuses specifically on cognitive biases in criminal investigations.

A NOTE TO MY FAITHFUL SUBSCRIBERS: My apologies for the diminishing quantity of posts as of late. I'm working on a couple of larger writing projects. I also Tweet regularly on forensic psychology and criminology topics, so feel free to follow me on Twitter for more regular news and commentary.

What’s Wrong With “Making A Murderer”?

Making A Murderer is generating huge buzz on social media; dual petitions calling for Steven Avery’s exoneration have garnered more than 600,000 signatures to date. But after slogging through the 10-hour Netflix “documentary,” I was left feeling disturbed by the drama’s narrative and premises. Here's why:

1. The narrative is grossly misleading.

The hook to this story is protagonist Steven Avery’s prior exoneration: He served 18 years in prison for a rape of which he was ultimately exonerated by DNA evidence; just three years after his release, he was arrested for the unrelated murder and mutilation of another young woman in rural Manitowoc County, Wisconsin.

It’s an intriguing hook. But others – including the superb podcasters at Radiolab in 2013 – had already mined it. So filmmakers Moira Demos and Laura Ricciardi went for a different twist: Avery was innocent, framed by corrupt police whose reputations were tarnished by the wrongful conviction scandal.

Viewers are treated to interminable audio clips of the convicted killer proclaiming his innocence and whining about the injustice of it all. With its sympathetic focus on Avery and his socially marginal family, the documentary excludes much of the hard evidence pointing to Avery.

Perhaps the most blatant example of misinformation is the portrayal of Avery and his victim as strangers. In fact, the evidence presented at trial suggested that Avery not only knew Teresa Halbach, a photographer for Auto Trader magazine, but was targeting her. After a photo assignment at his family's auto salvage yard in which he greeted her wearing only a towel, she complained to her bosses that she was “creeped out” by him. Yet he continued to call and ask for her to be sent back out. Phone records revealed that on the day of her murder, he repeatedly called her cell phone, using *67 to block his ID. Not only was her cremated body found in his burn pit just a few steps from his trailer, but two separate witnesses testified they had seen Avery putting items into a barrel of his from which police later recovered her incinerated cell phone and camera. Avery's nephew also told police he had helped Avery hide the victim's vehicle in the salvage yard, and DNA evidence of Avery's sweat under the hood corroborated his account.

This brief list is not exhaustive; there's lots more inculpatory evidence that the series omits or glosses over.

2. It lionizes a sexual predator.

There are plenty of sympathetic characters in prison. A great many of them are unquestionably guilty. Steven Avery – innocent or guilty – is not one of them. He comes across as shallow, callous and self-absorbed, fitting the part of a cold and calculating predator.

Prisoners who served time with him during his first bid confirmed that he was not a nice guy. They told investigators that he showed them diagrams of a torture chamber he planned to build when he was released, so that he could "torture and rape and murder young women.”

There is further evidence of tremendous rage toward women. While in prison, he threatened to mutilate and kill his former wife. And despite his exoneration in the original rape for which he was convicted, prosecutors presented evidence in a pretrial affidavit of two other rapes of girls and women for which he was never prosecuted. There are also allegations that he sexually molested child relatives, including his codefendant and nephew, Brendan Dassey.

Perhaps most ominously, just three weeks before Halbach’s murder, he bought a set of leg irons and handcuffs, suggesting that the crime was premeditated and elaborately planned.

It is only if we know this background information -- excluded from the Netflix series -- that we can make proper sense of the trial judge’s admonition to Avery at his sentencing hearing:

“You are probably the most dangerous individual ever to set foot in this courtroom.”

3. Journalistic bias of this magnitude is unethical.

Filmmakers Laura Ricciardi and Moira Demos

In several drawn-out scenes, the filmmakers depict the TV news crews covering the trial as bottom-feeding hyenas, lacking any compassion or mercy as they circle and nip at the heels of the beleaguered Avery clan.

This is a clever cinematic device. It imparts the illusion that the documentarians are above the fray, more neutral and trustworthy than the media rabble. 

In reality, they are no less superficial. We get no greater clarity, and certainly no deeper analysis. The difference is merely one of perspective. Lengthy scenes in the Avery kitchen, watching Steven's mother Dolores prepare and eat her lunch, emphasize the one-sidedness of the series: Demos and Ricciardi are essentially mouthpieces for Steven Avery.

It’s not that police do not lie, or plant evidence. They do it all the time. So it's certainly possible that police planted the victim's car key in Avery’s bedroom, as the Averys claim. But framing Avery would have required much more. Police would have had to know the location of Halbach's body in order to move it to Avery's burn pit. They would have had to plant Avery's sweat under the hood of Halbach's car, where his nephew's account predicted it would be. All told, this convoluted conspiracy theory stretches credulity.

Ironically, while the filmmakers castigate police for going after Avery’s nephew (instead, they cast unsupported aspersions on the victim's male friends and relatives), Avery and his defense team had no such compunctions. Their alternate suspect list included the boy, along with other male members of the Avery clan.

Some observers, such as journalist and private investigator Ann Brocklehurst, imply that business interests may have contributed to this over-solicitude toward the Averys:

“Ma and Pa Avery are portrayed lovingly as salt-of-the-earth types. They’re never asked how they managed to raise three sons with such a long and documented history of violence.... [I]f the filmmakers had decided one of the brothers, nephews or brother-in-law likely did it, Ma and Pa might have pulled right out of the multi-year film project and left the directors empty-handed. A Shakespearian or Faulkneresque tale of a dysfunctional and dangerous family is of no use to anyone if you don’t have the legal rights to tell it.”

Journalists’ code of ethics warns reporters not to distort either facts or context, and to take special care to avoid misrepresentation or oversimplification. Intentionally or not, Demos and Ricciardi clearly violated this standard.

4. “Innocence porn” exceptionalizes criminal justice problems.

The trope of the wrongfully convicted is a time-honored sub-genre of true crime. New Yorker writer Kathryn Shultz traces it back to the late 1880s, with a popular magazine column called “The Court of Last Resort” by criminal defense lawyer turned author Erle Stanley Gardner, better known for his Perry Mason detective series. As Shultz notes, recent films and TV series in this genre have been quite successful in getting criminal cases reopened and convictions overturned: 

“Although it subsequently faded from memory, 'The Court of Last Resort' stands as the progenitor of one of today’s most popular true-crime subgenres, in which reporters, dissatisfied with the outcome of a criminal case, conduct their own extrajudicial investigations. Until recently, the standout representatives of this form were 'The Thin Blue Line,' a 1988 Errol Morris documentary about Randall Dale Adams, who was sentenced to death for the 1976 murder of a police officer; 'Paradise Lost,' a series of documentaries by Joe Berlinger and Bruce Sinofsky about three teen-agers found guilty of murdering three second-grade boys in West Memphis in 1993; and 'The Staircase,' a television miniseries by Jean-Xavier de Lestrade about the novelist Michael Peterson, found guilty of murdering his wife in 2001. Peterson has been granted a new trial. Randall Dale Adams was exonerated a year after 'The Thin Blue Line' was released. Shortly before the final 'Paradise Lost' documentary was completed, in 2011, all three of its subjects were freed from prison on the basis of DNA evidence.”

Last year’s NPR  podcast series, Serial, probing the case of a young man named Adnan Syed who had been convicted of killing his former high school girlfriend, became an overnight sensation. (And, guess what: A judge has just granted a motion for a new post-conviction review of the evidence in that case.) What with the popular success of Making A Murderer, more such cultural events can be anticipated.

But while documentaries like Serial or Making A Murderer may seem progressive in shining a spotlight on the legal system and exposing flaws therein, they may actually further a narrative of exceptionalism. In other words, miscarriages of justice are rare events caused not by systemic problems, but by ___ (fill in the blank: corrupt police, shyster attorneys, bungled evidence handling or analysis, etc.).

And only the innocents -- the exceptions to the rule -- are worthy of attention. 

5. The nephew got second billing.

Instead of hanging their tale on the threadbare hook of Avery’s prior exoneration, the filmmakers could have delved more deeply into the routine misfiring of the legal system by centralizing Avery’s nephew and codefendant, 16-year-old Brendan Dassey.

Brendan Dassey, the 16-year-old nephew

Like his uncle, Dassey may very well be guilty. But in his case, neither innocence nor deliberate corruption is essential to the narrative. Guilty or innocent, framed or not, the manner of his prosecution was rotten to the core, illustrating more common and systemic flaws in the criminal justice system.

“Innocent people don’t confess,” prosecutor Ken Kratz told the jury.

That false gospel went unchallenged because – for reasons never explained in the series – the juvenile’s defense team chose not to call a confession expert, who could have dissected Massey’s statements and explained to the jury how the detectives’ skillful manipulations produced a potentially unreliable confession.

This was a boy with a low IQ and limited education, who was interviewed by detectives on multiple occasions, for hours and hours on end, without either his mother or his attorney present. He was easily confused and misled into believing that if he confessed, all would be forgiven and he would go home. His statements were contaminated when police fed him facts, which he then regurgitated. 

Private investigator Michael O'Kelly

Dassey also had the misfortune to be initially represented by an unethical attorney who decided early on that Dassey was guilty, ignoring the boy’s protestations to the contrary. The attorney, Len Kachinsky, in turn hired a private investigator with highly confused loyalties. Indeed, the PI wrote a eugenics-laced email to the defense attorney revealing his unabashed antipathy toward his client's family:

“This [family] is truly where the devil resides in comfort. I can find no good in any member. These people are pure evil.... We need to end the gene pool here.”

Together, the loyalty-challenged attorney and investigator brow-beat a detailed confession from their client, which they promptly turned over to police. Although both the attorney and his investigator were removed from the case before trial, neither suffered any official sanction for their betrayal of their duties, or the damage caused to Dassey's case.

6. The entertainment spectacle has produced a destructive backlash.

In perhaps the most poignant moment in the series, defense attorney Dean Strang -- the show’s moral compass -- critiques the “unwarranted certitude” rampant within the criminal justice system, with everyone from police and prosecutors to defense lawyers, judges and jurors far too convinced that they are privy to The Truth.

Across the board, he mourned, the system suffers from “a tragic lack of humility.”

Steven Avery with rape victim Penny Beerntsen

Unfortunately, the filmmakers fell into that very same trap. It was apparent to many that they had naively embarked on their 10-year project wearing blinders. Penny Beerntsen, the original rape victim (whose misidentification sent Avery to prison), was one such observer. A remarkable woman who is active in the innocence movement, Beerntsen told the New Yorker that the filmmakers’ certitude troubled her:

“It was very clear from the outset that they believed Steve was innocent,” she told me. “I didn’t feel they were journalists seeking the truth. I felt like they had a foregone conclusion and were looking for a forum in which to express it.”

It is no surprise that Avery and his family have staunchly denied his guilt: He was framed once, so why not twice? After all, they point out, the $36 million judgment he was seeking for his false imprisonment could have bankrupted Manitowoc County. But for the filmmakers to fall so under the Averys’ spell that they would radically distort the facts is disconcerting. Their bias was transparent, and the excluded evidence easily available. It seems arrogant to regard the public as too gullible to do any basic fact-checking.

Predictably, a furious backlash has ensued, with social media pundits and entertainment outlets competing to debunk the series. Rather than systemic flaws in the system, the discourse has devolved into a pointless, dichotomous debate over guilt or innocence.

Worst of all from the interests of the innocence movement, some are asking the question: If Steven Avery had never been exonerated, would Teresa Halbach be alive today?

The innocence movement can counter with the fact that Avery is an extreme outlier: Of all the many hundreds of people who have been exonerated and freed from prison, only a tiny handful have reoffended with a serious offense.

But Avery is an outlier for another reason as well: He may not have raped Penny Beerntsen, but he was far from innocent even back then. Police in his rural community already had him on their radar screen, as a dangerous young man, someone who thought nothing of assaulting a female relative with a gun or dousing a cat with oil and throwing it on a bonfire to watch it burn.

The filmmakers insist that it was never their intent to manipulate their audience, nor to propel such a mass rush to judgment – in either direction. In hindsight, however, perhaps the grisly murder of Teresa Halbach was not the best choice for a documentary about innocence?

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 POSTSCRIPTS

On Aug. 12, 2016, U.S. District Court Judge William Duffin granted Brendan Dassey's petition for a writ of habeas corpus, based on the false promises that were made to him (in conjunction with other relevant factors, including his age, intellectual deficits, and the absence of a supportive adult), and ordered that he either be released or granted a new trial. The 91-page ruling is HERE. 

On June 22 2017, a three-judge panel of the 7th Circuit Court of Appeals upheld the District Court's decision. Its 128-page ruling is HERE. As of that date, Dassey remained in custody while prosecutors decided whether to appeal to the Supreme Court. New York Times reporting on that appellate ruling is HERE.

On Dec. 8, 2017, by a narrow vote of 4-3, the full 7th Circuit Court of Appeals reversed the decision of its three-judge panel. Citing the need for appellate courts to be deferential of trial courts, it held that the original trial court decision upholding Dassey's conviction was not patently erroneous or unreasonable. In a strongly worded dissent, Justice Ilana Rovner called the decision "a profound miscarriage of justice" that condoned the use of psychologically coercive techniques and condemned "an impaired teenager" to spend his life in prison. The majority decision and two dissenting opinions are HERE. They are highly recommended reading as they illuminate the current state of tension surrounding psychologically coerced confessions and especially the controversial Reid interrogation method.  

In June of 2018, the U.S. Supreme Court declined to hear Dassey's appeal, meaning Dassey will continue to serve his life sentence.

And in July of 2018, Dassey's ethically challenged attorney Len Kachinsky, who later became a judge, was charged with stalking his former court clerk. He has been suspended from practice, and faces up to five years in prison if convicted. The allegations against him are creepy enough that they might make for a good true-crime show in their own right.

Adversarial allegiance: Frontier of forensic psychology research

A colleague recently commented on how favorably impressed he was about the open-mindedness of two other forensic examiners, who had had the courage to change their opinions in the face of new evidence. The two had initially recommended that a man be civilly committed as a sexually violent predator, but changed their minds three years later .

My colleague's admiration was short-lived. It evaporated when he realized that the experts’ change of heart had come only after they switched teams: Initially retained by the government, they were now in the employ of the defense.

"Adversarial allegiance" is the name of this well-known phenomenon in which some experts' opinions tend to drift toward the party retaining their services. This bias is insidious because it operates largely outside of conscious awareness, and can affect even ostensibly objective procedures such as the scoring and interpretation of standardized psychological tests.

Partisan bias is nothing new to legal observers, but formal research on its workings is in its infancy. Now, the researchers spearheading the exploration of this intriguing topic have put together a summary review of the empirical evidence they have developed over the course of the past decade. The review, by Daniel Murrie of the Institute of Law, Psychiatry and Public Policy at the University of Virginia and Marcus Boccaccini of Sam Houston State University, is forthcoming in the Annual Review of Law and Social Science.

Forensic psychologists’ growing reliance on structured assessment instruments gave Murrie and Boccaccini a way to systematically explore partisan bias. Because many forensic assessment tools boast excellent interrater reliability in the laboratory, the team could quantify the degradation of fidelity that occurs in real-world settings. And when scoring trends correlate systematically with which side the evaluator is testifying for, adversarial allegiance is a plausible culprit.

Daniel Murrie

Such bias has been especially pronounced with the Psychopathy Checklist-Revised, which is increasingly deployed as a weapon by prosecutors in cases involving future risk, such as capital murder sentencing hearings, juvenile transfer to adult courts, and sexually violent predator commitment trials. In a series of ground-breaking experiments, the Murrie-Boccaccini team found that scores on the PCL-R vary hugely and systematically based on whether an expert is retained by the prosecution or the defense, with the differences often exceeding what is statistically plausible based on chance.

Systematic bias was also found in the scoring of two measures designed to predict future sexual offending, the popular Static-99 and the now-defunct Minnesota Sex Offender Screening Tool Revised (MnSOST-R).

One shortcoming of the team’s initial observational research was that it couldn’t eliminate the possibility that savvy attorneys preselected who were predisposed toward one side or the other. To test this possibility, two years ago the team designed a devious experimental study in which they recruited forensic psychologists and psychiatrists and randomly assigned them to either a prosecution or defense legal unit. To increase validity, the experts were even paid $400 a day for their services.

Marcus Boccaccini

The findings provided proof-positive of the strength of the adversarial allegiance effect. Forensic experts assigned to the bogus prosecution unit gave higher scores on both the PCL-R and the Static-99R than did those assigned to the defense. The pattern was especially pronounced on the PCL-R, due to the subjectivity of many of its items. ("Glibness" and "superficiality," for example, cannot be objectively measured.)

The research brought further bad tidings. Even when experts assign the same score on the relatively simple Static-99R instrument, they often present these scores in such a way as to exaggerate or downplay risk, depending on which side they are on. Specifically, prosecution-retained experts are far more likely to endorse use of "high-risk" norms that significantly elevate risk.

Several somewhat complimentary theories have been advanced to explain why adversarial allegiance occurs. Prominent forensic psychologist Stanley Brodsky has attributed it to the social psychological process of in-group allegiance. Forensic psychologists Tess Neal and Tom Grisso have favored a more cognitive explanation, positing heuristic biases such as the human tendency to favor confirmatory over disconfirmatory information. More cynically, others have attributed partisan bias to conscious machinations in the service of earning more money. Murrie and Boccaccini remain agnostic, saying that all of these factors could play a role, depending upon the evaluator and the situation.   

One glimmer of hope is that the allegiance effect is not universal. The research team found that only some of the forensic experts they studied are swayed by which side retains them. Hopefully, the burgeoning interest in adversarial allegiance will lead to future research exploring not only the individual and situational factors that trigger bias, but also what keeps some experts from shading their opinions toward the retaining party.

Even better would be if the courts took an active interest in this problem of bias. Some Australian courts, for example, have introduced a method called "hot tubs" in which experts for all of the sides must come together and hash out their differences outside of court. 

In the meantime, watch out if someone tries to recruit you at $400 a day to come and work for a newly formed legal unit. It might be another ruse, designed to see how you hold up to adversarial pressure.

* * * * *

The article is: Adversarial Allegiance among Expert Witnesses, forthcoming from The Annual Review of Law and Social Science. To request it from the first author, click HERE. 

Related blog posts:

• Remarkable experiment proves pull of adversarial allegiance (March 5 2013)  
• Psychopathy: A Rorschach test for psychologists? (March 25, 2011) 
• "Hot tubbing": Counterbalance for expert partisanship? (Aug. 11, 2008)

Film to explore gay-bashing in friendly, liberal community

Lawrence "Mikey" Partida's injuries

It was a tragic end to his 32nd birthday celebration. As Lawrence “Mikey” Partida left his cousin’s house, a young neighbor confronted him, hurling antigay epithets before beating Partida unconscious. The slightly built long-distance runner and grocery clerk was left with a fractured skull and a piece of wooden fence post embedded behind his eye. He underwent months of surgery and rehabilitation.

The event shocked the idyllic university community of Davis, California. Nestled between San Francisco and the state’s capital city of Sacramento, the town of 65,000 is ranked among the best places to live in America, with a reputation as safe, welcoming, liberal, educated and bicycle-friendly.

Perhaps more surprising than the assault itself was the identity of the perpetrator, and his kid-gloves treatment by the criminal justice system.

Clay Garzon

Clayton “Clay” Garzon, then 19, is the son of two well respected physicians, one of them a prominent humanitarian. Yet notwithstanding his privileged and progressive upbringing, this was not his first violent attack; he was awaiting trial on charges stemming from a drunken brawl the year before in which four young men were stabbed. Despite the fact that he was out on bail already when he mercilessly beat Partida, he was approved for bail of only $75,000, allowing his immediate release yet again. He ultimately pled guilty to assault, battery and hate crime charges in exchange for a sentence of five years in the local county jail, under a prison realignment law (AB 109) intended only for non-violent offenses.

Despite having used antigay slurs before, during and after the assault, Garzon and his attorney insisted that the attack was not motivated by antigay animus.

Forensic linguistics

Of potential interest to this blog's audience, the defense called an expert in the new field of forensic linguistics, who opined that Garzon's use of the term faggot was "more consistent with challenging [Partida's] masculinity" than with hatred. William Eggington, a linguistics professor from Brigham Young University, testified at Garzon's preliminary hearing that a tolerant family upbringing in a liberal community "would lower the possibility that this would be a gender- related crime." 

This testimony highlights a vexing problem with so-called “hate crime laws.” Their very name fosters a misimpression that bias crimes are necessarily motivated by hatred. As I found in my research with antigay assailants, this is far from the case. Such crimes are often driven more by instrumental goals such as fitting in with a peer group or demonstrating visible proof of masculinity than by outright animus. As the prosecutor, Jonathan Raven of the Yolo County District Attorney's Office, pointed out, hatred is not a requisite element of a hate crime: “One simply has to be motivated by a bias, in whole or in part.” The idea behind the enhanced penalty is that by attacking a person based even in part on his or her group membership, one is causing fear in the targeted class. As Raven noted in a statement, “certainly the crime in this case caused those in the LGBT community to be fearful.”

Further complicating Garzon's motivations is the fact that he lashed out at Partida when the gay man told him to stop pestering Partida’s female cousin, whom Garzon had been aggressively pursuing all night long.

Unpacking violence

Disentangling the complex and multifaceted roots of violence is the goal of anthropologist and filmmaker Daniel Bruun, who is producing a film, “Davisville 2013,” on the case.

Bruun, a Davis native, closely followed the case for a year as it wended its way through the legal system, recording more than 50 hours of courtroom proceedings and interviews. He even tracked down the victims in Garzon’s other case.

Ironically, while Partida experienced an outpouring of support from the Davis community, including an appeal from Sikh leaders for higher bail, Garzon’s other victims, young working-class white men who were not a member of a protected minority, were not feeling the love. As candlelight vigils were held in Davis for Partida, police in nearby Dixon couldn’t even be bothered to investigate, according to Bruun’s investigation.

“If [Garzon] never would’ve done that [hate crime], he probably never

Candlelight vigil for Partida

would’ve gone to jail -- ever,” lamented one of the forgotten stabbing victims. “It hurts that they didn’t really care for us.” 

In a front-page interview in the Davis Enterprise last week, Bruun said he first started contemplating the causes of seemingly senseless and random violence when he was in junior high school, and a 14-year-old Davis boy was beaten, robbed of two dollars and pushed into a moving train by three local teens. “I was affected by it, but I felt like the story was never told in a complete way,” Bruun told reporter Lauren Keene.

He seized upon the Davis case as a chance to tell a bigger story, about the causes of male youth violence as well as its impact on victims, communities, and even the assailants themselves.

“It seemed like an opportunity to tell a story like that in the best way possible -- to be involved in it as the story is unfolding.”

Filmmaker (right) with Partida

Bruun’s prior documentaries included anthropologically informed explorations of underground cultures in Manchester, England and The Bronx; his short film Temporary Sanity is on the Royal Anthropological Institute's recommended curriculum for anthropology undergraduates in Great Britain.

Bruun is kicking off a month-long fundraising campaign on Indiegogo, a San Francisco-based fundraising website. He hopes to raise $10,000 to complete the project.

Bruun plans to interview me along with prominent hate crime expert Gregory Herek of the University of California at Davis. I realize that I just put the word out about fundraising for another documentary, on violence against transgender women of color (again involving me as an expert), but if you feel so inclined, here’s a link to donate to Bruun’s worthy Davisville 2013 project as well. 

Child custody lore: The case of the runaway woozle

The bond between infant and mother is the bedrock of healthy child development When parents divorce, shared custody arrangements destabilize this primary attachment bond, leading to serious developmental problems in children. In general, mothers should maintain sole physical custody of children up until the age of four.

This is the consensus of a growing body of research. 

Or is it?

Do you remember when Winnie the Pooh and his friends became obsessed with the fear that a dread woozle was stalking them in the woods, only to realize that they were seeing their own footsteps? In science, a woozle is much the same. It’s a belief or claim that gains traction due to repeated citation, despite its lack of empirical support. Often, it’s an idea that appeals to members of the news media, politicians or the general public, because it fits with conventional wisdom or is politically expedient.

In the realm of child custody policy, the idea that shared parenting is a bad thing is a behemoth woozle that’s been trotting around the globe virtually unchallenged of late, according to Linda Nielsen, a professor of education at Wake Forest University in North Carolina and an outspoken proponent of shared parenting.

Nielsen’s case, methodically argued in the current issue of Psychology, Public Policy and Law, is pretty convincing. When you peel back the layers of the onion, the much-touted “body of research” about the dangers of shared parenting plans for infants and toddlers consists primarily of one severely flawed study. It's been so oft-repeated in academic journals, news media reports, and legislative hearing rooms that it has gained an aura of ultimate truth even as contradictory evidence from other studies -- finding either no ill effects or even developmental benefits to shared custody -- has been side-railed.

The much-ballyhooed study, by clinical psychologist Jennifer McIntosh and colleagues, was part of a report commissioned by the Attorney General’s office in Australia in 2010. According to Nielsen, the so-called “preschooler study” was driven by outmoded theoretical assumptions about mother-infant attachment that are not supported by recent empirical studies. McIntosh leans heavily on the work of neuroscientist Allan Schore. She quotes Schore as claiming that small children do best when they have only one primary caregiver tending to their bedtime routines, and that women’s brains are more neurologically equipped than men's for communicating with and forming attachments to infants.

Nielsen starts by pointing out some obvious problems (which others in the field have noted) with generalizing from the Australian preschooler study. Sample sizes were small, the majority of the parents had never been married to each other (one-third hadn’t even lived together), etcetera.

But it’s when she drills down into the intimate details of the study’s procedures that things get interesting. The woozle’s claim that “overnighting” (spending nights with their father) is bad for children rests on four negative findings – increased watchfulness; irritability, persistent gazing, and frequent wheezing. Yet, the methods used to measure these constructs were novel, and lacked any established reliability or validity. To take just two examples:

• Wariness/ watchfulness in the mother’s presence: The rationale for measuring watchfulness was that some attachment theorists believe it to be a sign of insecurity and anxiety. The researchers created a “visual monitoring scale” by cribbing three items from a longer instrument. Mothers were asked how often the infant: (1) looked at her to see if she was watching, (2) tried to get her attention when she was being inattentive, and (3) tried to get her to notice or look at interesting objects. The researchers concluded that the infants in the frequent overnighting group – who scored higher on this novel scale -- were exhibiting signs of stress. This is problematic on its face, since this scale has not been established as a reliable or valid measure of insecurity, anxiety, stress, or attachment. But, more fundamentally – and quite ironically – the Communication and Symbolic Behavior Scales from which the items were drawn is intended to assess infants’ communication skills and language readiness. Thus, high scores on these items are interpreted as positive rather than negative -- indicating an infant is more developmentally advanced and poised to begin talking. Hardly evidence of impaired attachment and the perils of shared parenting. 

• Wheezing: The researchers proposed wheezing as a sign of stress due to a “negative emotional environment.” They measured wheezing by asking the mother one yes-or-no question: “Does your child wheeze at night more than four times a week?” Setting aside the fact that single-question instruments are known to be unreliable, the researchers went with the a priori assumption that wheezing is a psychosomatic symptom, ignoring significant evidence of alternate causes. Wheezing, indeed, has well established genetic, physiological and environmental components “having nothing to do with stress or family dynamics,” Nielsen points out. These include low parental income and – logically enough -- exposure to pollutants, cigarette smoke, pets, cockroaches, mildew and the like. According to Nielsen, none of the three studies that the authors cite to support their hypothesized link between attachment stress and wheezing do in fact support such a conclusion.

Despite these and other flaws as meticulously deconstructed by Nielsen, the preschooler study has been enormously influential in professional organizations, legal settings, and public policy discourse around the globe. From Australia to the United Kingdom to Israel and the United States, “it has been cited as grounds to set limits on shared parenting, to the exclusion of almost all of the other studies that have examined outcomes for children in shared parenting families."

Beyond the issue of child custody law and policy, this article is a great teaching tool applicable to other areas of psychology-law in its illustration of how social science data can “woozle” academics and the general public alike into swallowing things that are not true.

Next up, I’m hoping someone will conduct a similar scholarly analysis of the perplexing problem of woozles’ kinfolk, the Heffalumps of Winnie the Pooh's psychedelic nightmare.

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The article, “Woozles: Their Role in Custody Law Reform, Parenting Plans, and Family Court,” can be requested from the author (HERE).

 Hat tip: Mark Worthen, PsyD

Research roundup

The articles are flooding in at an alarming rate, threatening to bury me under yet another avalanche. Before I am completely submerged, let me share brief synopses of a few of the more informative ones that I have gotten around to reading.

Assessor bias in high-stakes testing: The case of children’s IQ

I’ve blogged quite a bit about bias in forensic assessment, reporting on problems with such widely used tests as the Psychopathy Checklist and the Static-99R. As I’ve reported, some of the bias can be chalked up to adversarial allegiance, or which side the evaluator is working for, whereas some may be due to personality differences among evaluators. Now, researchers are extending this research into other realms -- with alarming findings.

In a study of intelligence testing among several thousand children at 448 schools, the researchers found significant and nontrivial variations in test scoring that had nothing to do with children’s actual intelligence differences. The findings, reported in the journal Psychological Assessment, are especially curious because scoring of the test in question, the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV), seems relatively straightforward and objective (at least as compared to inherently subjective tests like the Psychopathy Checklist, for example).

The article is:

• Whose IQ Is It? Assessor Bias Variance in High-Stakes Psychological Assessment.  McDermott, Paul A.; Watkins, Marley W.; Rhoad, Anna M. Psychological Assessment, Published online on Nov 4 , 2013. To request a copy from the first author, click HERE.

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Beware pseudo-precision in expert opinions

I’ve never forgotten a video I saw a long time ago, in which the filmmakers drove up to random strangers and asked for directions to a nearby landmark. Some of the good samaritans gave enthusiastic instructions that were completely wrong, while other people gave correct directions but in a more tentative fashion. The trouble is, the more confident someone appears, the more we judge them as knowing what they are talking about.  

One way we gauge a presenter’s confidence, in turn, is by their level of precision. In a new study, researchers found that participants were more likely to rely on advice given by people who provided more precise information. For example, they were more likely to trust someone who said that the Mississippi River was 3,992 miles long, rather than 4,000 miles long.

What this means in the forensic realm is that we should not make claims of false precision, when our evidence base is weak. For example, we should not claim to know that someone has a 44 percent chance of violent reoffense within three years. Such misleading claims-making lends an aura of confidence and expertise that is not warranted.

The article is:

• Show Me the Numbers: Precision as a Cue to Others' Confidence. Jerez-Fernandez, A., Angulo, A. N., & Oppenheimer, D. M. Psychological Science. Published online on 6 Dec. 2013. To request a copy from the corresponding author, click HERE.

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Ethics and the DSM-5

Speaking of avalanches, the volume of critical response to the DSM-5 is lessening now that the tome has been on the bookshelves for eight months. Trying to keep my finger on the pulse because of my training activities on the manual’s forensic implications, I found an interesting summary of the ethical dilemmas of the latest trends in psychiatric diagnosis.

The author, Jennifer Blumenthal-Barby, is an ethics professor at Baylor College of Medicine’s Center for Medical Ethics and Health Policy. In her critique, published in the Journal of Medical Ethics, she focuses on consequence-based concerns about the dramatic expansion of psychiatric diagnoses in the latest edition of the American Psychiatric Association’s influential manual. Concerns include:

• False positives, or over-diagnosis, in clinical (and I would add forensic) practice
• Risks associated with pharmacological treatments of new conditions
• Neglect of larger structural issues and reduction of individual responsibility through medicalization
• Discrediting of psychiatry through the trivialization of mental disorders
• Efforts to eradicate conditions that are valuable or even desirable

Although her discussion is fairly general, she does mention a few of the proposed diagnostic changes of forensic relevance that I’ve blogged about. These include the proposed hypersexual disorder and a proposal to eliminate the age qualifier (of 18 and above) for antisocial personality disorder, to make it consistent with all of the other personality disorders.

It’s a good, brief overview suitable for assignment to students and professionals alike.

The article is: 

• Psychiatry’s new manual (DSM-5): ethical and conceptual dimensions. Journal of Medical Ethics. Published online on 10 Dec. 2013. To request a copy, click HERE.

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Dual relationships: Are they all bad?

We’ve all seen the memo: Dual relationships are to be avoided.

But is that always true?

Not according to ethics instructor Ofer Zur.

Multiple relationships are situations in which a mental health professional has a professional role with a client and another role with a person closely related to the client. In a new overview, Zur asserts that, not only are some multiple relationships ethical, they may be unavoidable, desirable, or even -- in some cases -- mandated.

In delineating the ethics and legality of 26 different types of multiple relationships, Zur stresses that in forensic settings, most multiple relationships should be avoided.

The article, Not All Multiple Relationships Are Created Equal: Mapping the Maze of 26 Types of Multiple Relationships, is another good teaching tool, and is freely available online at Zur’s continuing education website.

By the way, if you are in California and are looking for more ethics training, Zur and two of my former colleagues from the state psychological association’s Ethics Committee -- Michael Donner, PhD and Pamela Harmell, PhD -- are co-presenting at an interactive ethics session at the upcoming California Psychological Association convention. The convention runs April 9-13 in Monterey, and the ethics conversation -- “Ethics are not Rules: Psych in the Real World” -- is on Saturday, April 12.