Showing posts with label competency. Show all posts
Showing posts with label competency. Show all posts

May 7, 2014

'Babbling idiot' standard: Squeaky Fromme competency tapes unveiled

Who of my generation can forget Lynnette "Squeaky" Fromme, the first woman to attempt to assassinate a U.S. president?

Today, almost 40 years after Fromme donned a flowing red robe, strapped on a Colt .45, and went in search of President Gerald Ford, the Sacramento Bee has unveiled the full audiotapes of her 90-minute competency examination, which the court released in response to a legal request from the Bee.

Fromme's Sept. 5, 1975 mission remains a little fuzzy: Her goal was either to save the coastal redwoods or to call attention to the plight of her messiah, cult leader Charles Manson. Ford wasn't in much danger, as it turned out: There was no bullet in the chamber. She later said she had deliberatedly ejected the round in the chamber before leaving home.* And as soon as she pointed her pistol at Ford's stomach, Secret Service agents easily subdued her.

"I stood up and waved a gun (at Ford) for a reason," Fromme told a reporter a few years later. "I was so relieved not to have to shoot it, but, in truth, I came to get life. Not just my life but clean air, healthy water and respect for creatures and creation."

People who knew Fromme (pronounced Frahm-mee) considered her strange. But she rejected an insanity defense, and sought to represent herself, prompting Judge Tom MacBride to order a competency evaluation. A court-appointed psychiatrist, James Richmond, certified her as competent to stand trial after a 90-minute examination that was tape recorded at her request. 

Under the legal standard at the time, one had to be nearly "a babbling idiot" to be found incompetent, in the words of the prosecuting attorney.  

Fromme subsequently threw an apple at that very same U.S. Attorney, Dwayne Keys, when at her sentencing hearing he called for the severest punishment, saying she was "full of hate and violence."

"Nolan Ryan couldn't have thrown a more perfect strike," John Virga, the attorney ultimately appointed to represent her at trial, told a journalist some 30 years later. "Hit Dwayne right between the eyes. His glasses flew off. After that, guys in (Keyes') office started giving him a box of apples for Christmas." 

Richmond, the court-appointed psychiatrist, had no problem with the "babbling idiot" standard. He said such a low standard was only fair, because "if a person is found unfit to stand trial, he can be committed to an institution for the criminally insane without being found guilty of anything."

The outcome of Fromme's trial, just two months after her arrest, was a foregone conclusion. Fromme boycotted much of the proceedings after the court declined her request to call Manson as a witness.

Looking back, Virga described his former client as "anything but crazy." "She's very bright, an intelligent, pleasant woman.When you talk with her, everything is fine until you mention Manson. Then it's like the guy who is perfectly normal until he hears 'Kokomo, Indiana.' Then he is off and running."

After being convicted of attempted murder and sentenced to life imprisonment, Fromme steadfastly declined to apply for parole. She was finally released in 2009, after serving 34 years in prison.

The outcome might have been different, had Fromme gone to trial today. Case law has raised the standards for competency to stand trial, and the standard is higher for defendants seeking to represent themselves. In 2012, following the U.S. Supreme Court's Edwards decision, California's high court ruled that even a defendant who is found competent to stand trial may be barred from self representation if mental illness prevents him or her from putting on a minimally adequate defense.

U.S. District Judge Kimberly J. Mueller released the audiotapes of Fromme's competency evaluation in response to a motion filed last November by the Sacramento Bee. Following the reasoning of the Ninth Circuit in a 1998 decision in the case of Ted Kaczysnki, the judge ruled that the public's right to know outweighed the defendant's privacy rights. 

Kudos to the Bee for making this request before it was too late. The audiotape was fast degrading, and the court had to call in a professional media salvaging company to restore it before it could even listen to it and rule on the request.

On the tapes, Dr. Richmond can be heard questioning Fromme about everything from her involvement with the Manson family to her eating habits and her religion, using the slang vernacular of the day:
Richmond: "The press has made a number of comments to the effect that you’re a rather daft broad wandering about in this world, following ill-begotten causes and so forth. How do you feel about that?"

Fromme: "I’m working through it the best way I can. I feel this trial, conducted with a little bit of dignity, would help tremendously."

Fromme sounds matter-of-fact and confident, expressing optimism about her chances of being acquitted:
"Oh, I feel, I feel definitely I have probably a 70 percent chance on the percentage scale. I don’t feel that I’ll be convicted of attempted assassination."

In hindsight, her confidence was obviously misplaced.

* * * * *

The full audiotapes are HERE. Thanks to reporter Sam Stanton for alerting me. For those who don't have time to listen to all 132 minutes, a 19-minute excerpt is HERE. A subsequent media videotape of Fromme discussing her crime is HERE. I have added Fromme's case to my RESOURCE PAGE OF COMPETENCY CASES, which now includes source documents on 10 noteworthy cases ranging from Ted Kaczynski to Mike Tyson.

*Don't confuse this with a second assassination attempt on the president just 17 days later in San Francisco. Sarah Jane Moore managed to squeeze off a wild shot before she was subdued. Another odd duck, she too was found competent to stand trial.

March 9, 2014

Psychologist whistleblower awarded $1 million; fired after testifying about state hospital's competency restoration program

In an unprecedented case, a civil jury has awarded $1 million in damages to a psychologist who was retaliated against after she challenged the validity of a state hospital's competency restoration methods.

Experts at the trial included Thomas Grisso and Randy Otto, prominent leaders in the field of forensic psychology who have written and taught extensively on best practices in the assessment of competency to stand trial.

After a five-week trial with dozens of witnesses, the jury found that Napa State Hospital failed to apply generally accepted professional standards for competency assessment and coerced its psychologists to find patients competent to stand trial "without regard to the psychologist's independent professional judgment, and without application of objective, standardized, normed, and reliable instruments."

Photo credit: J. L. Sousa, Napa Valley Register
Melody Samuelson, the psychologist plaintiff, ran afoul of her supervising psychologists at the Northern California hospital in 2008, when she testified for the defense at a competency hearing in a capital murder case in Contra Costa County. She had treated "Patient A" the prior year and had doubts about whether he was capable of being restored to competency, as his current treatment team claimed. Both the prosecutor and a hospital psychiatrist who testified for the state complained about Samuelson's testimony to then-Chief Psychologist James Jones, who launched an investigation that ultimately led to Samuelson's firing.

Samuelson was reinstated after a three-day hearing in 2011. An administrative law judge ruled that hospital administrators had failed to prove that Samuelson overstated her credentials during her 2008 testimony. Samuelson was not yet licensed at the time.

Samuelson subsequently filed a civil suit against the hospital, the chief psychologist, and two other supervising psychologists, claiming they engaged in a string of retaliatory actions against her even after her reinstatement. These actions included initiating a police investigation for perjury and taking action against her state license. She said she incurred the wrath of hospital administrators by repeatedly objecting to sham competency restoration practices designed to get defendants out of the hospital as quickly as possible, whether or not they were actually fit for trial.

Napa is the primary state psychiatric hospital serving Northern California, and houses defendants undergoing competency restoration treatment and those found not guilty by reason of insanity.

It has long been general knowledge that the overcrowded hospital routinely certifies criminal defendants as mentally competent with little seeming regard for whether they are truly fit to stand trial. I have evaluated many a criminal defendant shipped back to court with a formal certificate of competency restoration, whose mental condition is virtually identical to when he was sent to Napa for competency training in the first place. (Typically, such defendants now proudly recite random legal factoids that have been drilled into them -- such as "the four pleas" -- that are often irrelevant and unnecessary to their cases.)

But until Samuelson blew the whistle, there was little direct evidence from within the institutions of intentionality rather than mere bureaucratic incompetence. Samuelson alleged in her civil complaint that Chief Psychologist Jones "made clear to Samuelson that he was committed to … returning patients to court as competent to stand trial, and to minimizing the time for attaining such positive outcomes, regardless of the actual competency of individuals to stand trial."

According to Samuelson’s lawsuit, one reason that psychologists were pressured to find patients competent was to improve outcome statistics as mandated by a federal consent decree. In 2007, around the time of Samuelson’s hiring, the U.S. Attorney General's Office negotiated the consent decree mandating sweeping changes aimed at improving patient care and reducing suicides and assaults at Napa. The federal investigation had revealed widespread civil rights violations, including generic "treatment" and massive overuse of seclusion and restraints. 

Rote memorization

A longstanding criticism of the hospital's competency restoration program is that it focuses on rote memorization of simple legal terminology, ignoring the second prong of the Dusky legal standard, which requires that a defendant have the capacity to rationally assist his attorney in the conduct of his defense.

In her lawsuit, Samuelson accused the hospital of violating the standard of care for forensic evaluations and treatment by relying upon subjective assessment methods that are easily skewed. Defendant progress was measured using an unstandardized and unpublished instrument, the Revised Competency to Stand Trial Assessment Instrument, or RCAI, and a subjectively scored "mock trial" that was scripted on a case-by-case basis by poorly trained non-psychologists, the lawsuit alleged.

According to testimony at the Napa County civil trial, the hospital drilled patients on simple factual information about the legal system rather than teaching them how to reason rationally about their cases. Staff distributed a handbook outlining the factual questions and answers, posted the RCAI items at the nurse's station, and administered the RCAI repeatedly, coaching patients with the correct answers until they could pass the test.

Although forensic psychology experts Grisso and Otto were retained by opposite sides -- Grisso by the hospital and Otto by the plaintiff -- they agreed that this process falls short of the standard of practice in the field. It ignores the Constitutional requirement that, in order to be fit for trial, a criminal defendant must have a rational understanding of his own case as well as the capacity for rational decision-making. 

It has long  been my observation that the hospital's program was generic and failed to address defendants' specific legal circumstances. Both Grisso, who authored one of the earliest and most widely referenced manuals for assessing competency to stand trial, now in its second edition, and Otto, co-author of The Handbook of Forensic Psychology and other seminal reference works, testified that competency evaluations must address the defendant's understanding of his or her own specific legal circumstances, sources close to the case told me.

Disclosure of test data unethical?

Another pivotal issue at trial, according to my sources, was whether Samuelson's disclosure of test data from two competency instruments she administered -- the Evaluation of Competency to Stand Trial-Revised (ECST-R) and the MacArthur Competence Assessment Tool (MacCAT-CA) -- was improper. Samuelson disclosed the data at Patient A's 2008 competency hearing, after obtaining an authorization from the patient and a court order from the judge.

The hospital peer review committee that first recommended Samuelson's firing reportedly claimed that this disclosure was unethical and a violation of the American Psychological Association's Ethics Code.

Nothing could be further from the truth. The current version of the Ethics Code contain no prohibition on this type of disclosure in legal settings. Furthermore, fairness dictates that the legal parties be allowed to view data that are being invoked to decide a defendant's fate, so as to be able to independently analyze their accuracy and legitimacy. 

The jury levied $890,000 in damages against the hospital, $50,000 personally against Jones, described in the lawsuit as "the ringleader" of the campaign against Samuelson, and $30,000 each against two other supervising psychologists -- Deborah White and Nami Kim -- who allegedly conspired with Jones. Although punitive damages were not awarded, the jury found that the three psychologists acted intentionally and with "malice, oppression or fraud" toward Samuelson.

The state has until the end of next month to appeal the verdict, according to reporter Jon Ortiz of the Sacramento Bee, the only media outlet to cover the verdict so far.

Hat tip: Gretchen White

* * * * *

The Sacramento Bee report on the verdict is HERE. Dr. Samuelson’s civil complaint is HERE; the jury’s verdicts are are HERE

. . . And, speaking of psychiatric care -- I highly recommend this incredible story of the one-of-a-kind town of Geel, Belgium. (Hat tip: Ken Pope) 

UPDATE: On Oct. 28, 2016, California's First District Court of Appeals denied an appeal by the state hospital, upholding the jury's verdict except for one portion of the monetary damages. In its detailed opinion, the appellate court fleshes out the rights of psychologist whistleblowers who come to believe that assessments are being conducted in a potentially unlawful manner within an institutional setting. One of the more fascinating issues addressed in both the trial and the appeal was the principle that institutional failure to properly tailor competency restoration training and assessment to the Dusky legal standard -- which mandates that an accused have the capacity to rationally assist his or her attorney -- constitutes a violation of the U.S. Constitution. "If, as plaintiff's counsel argued, [Napa State Hospital] personnel were certifying to the trial court that patients were competent to stand trial without properly assessing their competency, a patient's constitutional due process rights could potentially be implicated," the appellate court noted in approving Samuelson's right to have argued this point in the closing arguments of the trial. 


(c) Copyright Karen Franklin - All rights reserved

August 27, 2013

8-year prison term in long-running Ayres saga

The up-and-down case of a child psychiatrist who sexually molested boys sent to him by the courts for counseling has finally concluded -- at least for now. William Ayres, 81, pleaded no contest to molesting five boys and was sentenced this week to eight years in prison.

The case has been slogging through the courts for as long as this blog has been around, in large part due to disputes over Ayres's competency. Ayres is suspected of molesting dozens of boys over a period of several decades, but many cases were beyond the statute of limitations.

The case had all of the elements of high drama: A once-respected child psychiatrist accused of molesting vulnerable boys sent to him by the courts. Allegations that prosecutors turned a blind eye. Pressure from victim's rights lobbyists. And, of special interest to this blog's readers, a bevy of mental health experts presenting contradictory evidence.

After a jury trial on the issue of competency ended in a deadlock in 2011, both sides stipulated that Ayres was incompetent due to dementia. He spent about nine months at Napa State Hospital -- where defendants in Northern California are sent for competency restoration treatment -- before the hospital decided that he was faking dementia in an elaborate ruse to avoid trial. He was finally found competent to stand trial after a four-day court hearing late last year.

At his sentencing hearing, victims -- now adults, some with children of their own -- spoke of the traumatic effects of being victimized by someone in a position of trust. As evidence that the former head of the American Academy of Child and Adolescent Psychiatry knew the damage he was inflicting, one former victim even read an excerpt from a journal article Ayres co-authored entitled "Practice Parameters for the Forensic Evaluation of Children and Adolescents Who May Have Been Physically or Sexually Abused."

Victims and their family members burst into applause when Ayres was sentenced, hugging and rejoicing over their victory in a lengthy and uphill struggle for justice, according to a news report in the San Mateo County Times.

But the fight may not be quite over yet: Ayres' attorney warned in court that the wheelchair-bound octogenarian may seek to withdraw his no contest pleas.

My prior blog posts on this case include: 

January 9, 2013

SCOTUS: No right to competency in habeas cases

In April, I blogged about the legal controversy over whether a convicted prisoner awaiting execution has a right to be competent during the sometimes-lengthy course of habeas appeals. Yesterday, the U.S. Supreme Court gave its unanimous answer:

No. 

The opinion came in the consolidated cases of Ernest Valencia Gonzales of Arizona and Sean Carter of Ohio. Both men's mental health deteriorated as they languished on death rows while their appeals wound slowly through the courts.

"Given the backward-looking, record-based nature of most federal habeas proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner's competence," wrote Justice Clarence Thomas.

So, any of you forensic psychologists with pending evaluations of competency in habeas cases can close out those files and put them in storage.

The opinion is HERE. My blog post laying out the legal controversy is HERE. A lengthier report on yesterday's opinion can be found at Courthouse News Service (HERE).

Hat tip: Ken Pope

November 24, 2012

Ayres case: Final act in long-running competency drama?

Notorious psychiatrist found fit for trial on molestation charges

The case has all of the elements of high drama: A once-respected child psychiatrist accused of molesting vulnerable boys sent to him by the courts. Allegations that prosecutors turned a blind eye. Pressure from victim’s rights lobbyists. And, of special interest to this blog’s readers, a bevy of mental health experts presenting contradictory evidence.

For forensic professionals, the case raises many questions that make it useful as a teaching tool:
  • Is competency an all-or-none construct?
  • Does symptom exaggeration equate to full-out malingering?
  • How might dementia affect a defendant’s trial abilities?
  • What weight should be given to the opinions of laypersons as opposed to trained psychologists and psychiatrists? 
William Ayres
The four-day competency hearing in San Mateo County, California (just south of San Francisco) was the latest in the long-running saga of William Ayres, one-time president of the American Academy of Child and Adolescent Psychiatry and host of a controversial 1960s public television sex education show for children, "Time of Your Life."

Ayres was arrested in 2007 on charges of molesting six boys, ages 9 to 13, between 1988 and 1996. He was suspected of molesting many more, but the statute of limitations barred prosecution. At his 2009 trial he claimed he was just conducting routine medical exams of his child patients. Although psychiatry focuses on the mind, he apparently felt the genital area was also necessary to probe. The jury deadlocked. After a subsequent jury trial on the issue of competency ended in another hung jury, the two sides stipulated that he was incompetent due to dementia. He spent about nine months at Napa State Hospital -- where defendants in Northern California are sent for competency restoration treatment -- before the hospital decided that he was faking dementia to avoid trial and sent him back.

The prosecution's star witness at the four-day hearing was a newly minted psychologist, licensed for less than one year, who bills himself as an expert on malingering. John McIlnay, who came to Napa after earning his PsyD degree in 2010 from the Christian evangelical school of Azusa Pacific, testified that the 80-year-old psychiatrist was cleverly malingering dementia in order to avoid retrial.

As an example, McIlnay recounted an episode in which Ayres talked with the head nurse about a perceived lack of safety on the unit. A day or so later, the nurse implemented some of his suggestions to address the problem. Ayres noticed, and sought her out to thank her. All of this indicated to McIlnay that Ayres could competently identify a problem, determine solutions, take effective steps to rectify the problem and, inconsistent with a dementia, track all of this in his memory.

Another example offered of spontaneous functioning inconsistent with dementia was his query of a nursing supervisor, when he returned to the hospital from a court hearing, as to whether he still had the same room; he reportedly walked straight to his old room without being directed.

Bolstering McIlnay’s testimony was that of a nurse on the intake unit who sounded the alarm that Ayres might be faking, in part because he was uncooperative with the treatment team. She testified that Ayres was able to correctly relate his medical history, supply the names of all of his medications, and even spell the word "Alzheimer’s" for her.

I didn't find that last example especially compelling. As I learned while doing a neuropsychology internship with the Alzheimer's Center of Northern California, overlearned information is often the last to go. A trained psychiatrist could easily retain the spelling of a word such as Alzheimer's even while suffering from that very condition himself.

Hospital staff divided

McIlnay's determination of malingering was countered by two members of Ayres's treatment team at the hospital, psychologist Thomas Knoblauch and psychiatrist Scott Sutherland. Additionally, Napa psychologist Erin Warnick, who conducted neuropsychological testing, testified that Ayres exaggerated his symptoms at times, but nonetheless had a dementing condition.

Warnick found a number of deficits that would interfere with Ayres's trial competency, including difficulty learning new information, inaccurate recall of some information, language deficits that interfered with retrieving and communicating relevant information in a coherent fashion, impairment in tracking thoughts and inhibiting irrelevant responses, mental perseveration, and emotional and cognitive disorganization when under stress, as might occur during a serious and extended trial.

In his brief decision finding Ayres competent to stand trial, Judge John Grandsaert discounted the testimony of all three clinicians as lacking objectivity.

The public split among hospital staff comes amid a new policy, intended to provide at least a veneer of greater objectivity, barring psychologists and psychiatrists on treatment units from writing forensic reports. While the judge faulted the treatment team as lacking objectivity, to my knowledge there was no discussion of potential bias among the staff members who labeled Ayres as malingering. In a peer-reviewed case study in the Journal of Forensic Psychology Practice, I wrote about my observation of a state hospital bias toward labeling criminal patients as malingerers. If nothing else, from a purely practical standpoint the diagnosis frees up scarce beds. In this case, hospital nurses and technicians might be biased against Ayres not just due to their institutional affiliation, but also because of the nature of the allegations.

The judge also discounted the opinion of UC San Francisco neuropsychologist Amanda Gregory, who testified for the defense, and that of Ayres's attorney, Jonathan McDougall, who in a relatively unusual move took to the witness stand to explain his client's difficulties in rationally assisting in his own defense.

In addition to McIlnay, the judge also afforded greater weight to two other experts called by the prosecution, both of whom opined that Ayres was competent. George Wilkinson, a forensic psychiatrist, concluded Ayres was malingering after the elderly colleague greeted him by name in their first meeting in more than a year. Wilkinson testified that Ayres did have a dementing condition, but was exaggerating his level of impairment. Similarly, forensic psychologist Paul Good -- who evaluated Ayres several times over a two-year period -- testified that Ayres had a dementia, but nonetheless was competent to stand trial "by the thinnest of margins."

Test data brushed aside

Complicating the clinical picture, Ayres passed several specialized tests for malingering administered by various professionals. These included tests of cognitive feigning (the Test of Memory Malingering and the Word Memory Test), tests of malingered incompetence, a test of malingered psychosis (the Miller Forensic Assessment of Symptoms Test), and measures of symptom distortion that were embedded in the longer neuropsychological test batteries.

The judge dismissed all of these data, concluding that Ayres's professional training and experience as a psychiatrist rendered him savvy enough to fake out the seasoned experts:
"The defendant's conduct and statements at Napa State Hospital viewed in the light of his extensive professional training and experience and his intellectual capabilities that were demonstrated from time to time in the evidence in this case showed the defendant to be competent and at the very least exaggerating his cognitive deficits." 
Obviously, a psychiatrist who understands the concept of malingering and knows about the existence of tests to detect it is better positioned to get away with faking than the average layperson. But we're talking about an elderly psychiatrist with no known training in the methodology of contemporary malingering tests. It might pose a challenge, for example, to differentiate neuropsychological tests that are measures of effort (which one would have to do well on to avoid being suspected of malingering) from those that measure cognitive decline (on which one would need to bomb in order to get a dementia diagnosis).

To be competent, the defendant must have a factual and rational understanding of his legal situation and have the rational capacity to assist in his defense. Here, the burden was on the defense to prove, by a preponderance of the evidence, that Ayres was not competent. Had he been found incompetent and permanently unrestorable to competency, he would have avoided trial, but might have faced a legal conservatorship.

The case has spawned its own victim advocacy website
The backdrop to all of the legal wrangling over malingering is a vocal victims' advocacy chorus chomping at the bit to see Ayres get justice. With the specter of Jerry Sandusky lurking in the background, the case has earned national publicity, and even has its own advocacy website: "William Ayres: Child Molester and Malingerer" featuring blow-by-blow coverage. Prosecutors initially dragged their feet on filing charges despite around three dozen alleged victims stepping forward; for a while the courts were still sending boys to Ayres even while he was under investigation. Now that they are on board, prosecutors are anxious to redeem themselves by moving forward against the increasingly feeble octogenarian before it is too late.

Malingering: All-or-nothing?

With such a confluence of interests embracing the image of Ayres as malingerer, any nuance is lost. Symptom exaggeration, so commonplace in our work, is equated as synonymous with all-out malingering, or the complete fabrication of a mental disorder for purposes of secondary gain. As I wrote about in my 2008 case study, individuals who are genuinely impaired may also exaggerate symptoms at times, for a variety of reasons, and it is sometimes quite difficult to disentangle the truth.

There is no doubt that a sly and intelligent defendant can fake out the experts. The best example I know of is that of Vincent "The Chin" Gigante, a Mafia don who feigned insanity for years. But outside of fiction and the movies, such sophisticated deception is rare.

Did it happen here? It's hard to know for sure. But one thing is certain: If Ayres truly does have a progressive dementia such as Alzheimer's, he will only get more impaired as the case drags on. So it would be premature to rule out the possibility of a renewed claim of incompetency as the March 11 trial date draws near.

Meanwhile, Ayres has been released on $900,000 bail, raising another issue that is ripe for reform. More than 70 percent of the 71,000 inmates in California's county jails are there because they are too poor to post bail. From the perspective of social justice, it seems odd for a man suspected of molesting dozens of boys to be walking the streets for year after year while petty miscreants lounge in jail awaiting trial on misdemeanor charges of vandalism or petty theft.

Further resources:

November 20, 2012

Double murderer gets death in crude parody of justice

"Ha-ha."

That was the reaction of a double murderer to today's jury verdict sentencing him to death. Representing himself at trial, Nathaniel Burris had told jurors in Martinez, California to flip a coin, as he couldn't care less whether he received the death penalty or life without the possibility of parole.

"Send me on my way," he told the jury through a severe speech impediment. "I'm happy, I'm smiling and laughing. I have no remorse."*

According to blow-by-blow news accounts by local news reporter Malaika Fraley of the Contra Costa Times, Burris giggled and cursed his way through the entire trial. He repeatedly said he was justified in killing his estranged girlfriend and her male friend, whom he suspected of trysting with her, and testified he would "do it again." After the verdict was read, he cursed and gloated at his male victim's relatives, yelling: "I blew your brother's brains out, and there's nothing you can do about it."

Even more bizarre, after calling himself as the sole defense witness at the penalty phase of the trial, Burris made a surprise admission: He had committed three unsolved armed robberies of San Francisco pharmacies in the 1990s.

When the prosecutor tried to pin him down about these holdups, cross-examining him as to what kind of gun he had used, Burris grinned and refused to answer: "At this time, I'm not going to answer your questions. Motion denied."

A juror who talked to the news reporter after the verdict said jurors were appalled by Burris's courtroom antics, and had a tough time understanding his right to present no defense. They deliberated for a little over a day before leveling the ultimate penalty, in part out of fear that Burris would kill other prisoners -- as he had testified he would -- if given a life sentence and housed with other men.

Mental health overlooked? 

Searching through news archives on the high-profile case (Burris was dubbed "the toll plaza killer" because the killings happened at the entrance to the Richmond-San Rafael Bridge), I could find no reporting on whether Burris was ever evaluated to determine whether he was competent to stand trial. If he was evaluated, and the results not publicized, he must have been found competent.

That seems odd, given his bizarre behavior throughout the trial. In the 2008 case of Indiana v. Edwards, the U.S. Supreme Court set the competency bar higher for defendants who elect to act as their own attorneys at trial, ruling that there is no Constitutional right to self representation. Earlier this year, California's high court took that line of reasoning even further, ruling that a judge may bar a defendant from representing himself even if he has been found competent to stand trial.
But the Burris case was a throwback to the pre-Edwards days in which the Long Island railroad killer, Colin Ferguson, was able to railroad himself straight to prison. The spectacle was like handing the prosecutor a shotgun loaded with buckshot and seeing if he could hit the defendant at a range of five feet.

Not difficult. Not pretty. And certainly not dignified for the legal system.

Not a one-time case

This isn't the first time in recent memory that Contra Costa County (northeast of San Francisco) has hosted such a farcical spectacle. Three years ago, a man named Edward Wycoff was allowed to represent himself in the ambush killings of his sister and brother-in-law. Like Burris, he was unrepentant. He testified at trial that he should win an award for ridding the world of two evil people who were "too easy" on their children and had not invited him over for Christmas.

I’m sure you can guess the outcome.

The jury deliberated only 45 minutes before sentencing Wycoff to die. And that was even after the son of the dead couple -- who had opposed the death penalty -- testified that Wycoff was too emotionally impaired to get the ultimate penalty.

In Burris's case, the prosecutor insisted that the defendant's bizarre conduct was irrelevant.

Snapshot of Burris with murder victim Deborah Ross
"Don't misunderstand what we've seen here for some mental disorder or defect," said Chief Assistant District Attorney Harold Jewett. "He's just a psychopathic killer."

But we have only his word on this, because there is no publicly available information on whether Burris's psychological functioning was ever fully explored. In a typical capital case, psychiatric problems, brain damage, childhood trauma, and a host of similar factors are explored as potentially mitigating circumstances that may be presented at the penalty phase of the trial.

For a psychopathic killer, Burris seemed to have an awfully strong death wish. The case reminded me a bit of the landmark case of Richard Moran, who strode into the Red Pearl Saloon in Carson City, Nevada back in 1984 and shot the bartender and a customer dead before looting the cash register. Facing the death penalty, Moran waived his right to counsel, pleaded guilty, and was sentenced to death.

Here, the charade took a little longer to play out, but the outcome was just as foregone. 

Burris spent quite a bit of time scoffing at the prospect of the death penalty, saying that California's capital sentencing scheme is so dysfunctional that his execution will be held up by appeals for the next 30 to 40 years, while he lives out his life comfortably on Death Row. I have to agree with him there. Especially given his questionable competence, which will be ripe grounds for appeal, I predict that the death penalty will be abolished in California before Burris gets the needle. Public support for capital punishment has never been lower in California. The internationally watched Proposition 34, which would have eliminated executions in the state, was narrowly defeated (53 to 47 percent) even as Burris stood trial, and the issue is unlikely to go away.

In the meantime, Burris sees no problem at all.

"I'm walking the plank. It's my plank to walk. I don't want anyone pushing me, guiding me or holding my hand," he told the jury charged with deciding his fate. “My life has been really interesting. I love it, and I'm actually interested in what's going to happen down the road."

"I’m as cool as a cucumber." 
* * * * *

*All direct quotes in this post were gleaned from the detailed news accounts by Malaika Fraley of the Contra Costa Times. Thank you for the reporting, Ms. Fraley.

Related blog posts:
My page of competency case resources is HERE.

July 8, 2012

Sanity opinions show "poor" reliability, study finds

Independent evaluators agree only about half the time 

Did you hear the one about the JetBlue pilot who suddenly began rambling incoherently, bolted out of the cockit and ran through the aisles of the plane, screaming about Jesus and Al Quaeda? Not surprisingly, a judge this week found him not guilty by reason of insanity.

But insanity isn't always so obvious. In fact, the innovative team of Murrie, Boccaccini and Gowensmith -- which last year brought word of troublingly low reliability among forensic psychologists and psychiatrists assessing competency to stand trial -- has even worse tidings on the sanity front. 

Set once again in the Aloha State, the soon-to-be-published study examined 483 evaluation reports, addressing 165 criminal defendants, in which up to three forensic psychiatrists or psychologists offered independent opinions on a defendant's legal sanity.

Evaluators reached unanimous agreement regarding legal sanity in only 55 percent of the cases. The agreement rate was a bit higher, 61 percent, if one counted as agreement cases in which two evaluators shared the same opinion about sanity and the third declined to give an opinion (for example, because the defendant was incompetent to stand trial or did not want to consider an insanity plea). Either way, that's significantly lower than the rates of agreement that the team found in their previous study of competency evaluators in Hawaii. Among initial competency referrals, evaluators reach unanimous conclusions in 71 percent of cases.

The base rate of sanity to insanity opinions by the individual evaluators studied was about two-thirds sane to one-thirds insane.

Not surprisingly, evaluators agreed most often when a defendant had been psychiatrically hospitalized shortly before the offense, or when he or she had a psychotic disorder. They tended to disagree in cases in which alcohol and/or drugs played a role.

Opinions about sanity carry enormous consequences. If someone who was genuinely insane at the time of an offense is precluded from mounting an insanity defense, he or she may be unjustly convicted and sent to prison. On the other hand, a sane person who successfully fakes insanity can avoid criminal prosecution and be sent to a psychiatric hospital, where he or she may be disruptive, waste limited treatment resources, or have an unfair opportunity for early release back to the community.

At the same time, insanity is a slippery construct with many shades of grey. Reasonable experts may differ about whether a defendant meets the legal criteria for insanity at the time of an offense, for example by lacking the capacity to appreciate the criminality of his conduct or to conform his conduct to the law. It is unrealistic to expect perfect agreement among evaluators; the question is how much agreement or disagreement is acceptable to the courts. Collecting baseline data on reliability is a great first step toward more judicial and professional awareness of this issue.

Hawaii is an outlier that makes it an ideal site for naturalistic studies such as this: When the question of sanity is raised, the court solicits three concurrent and wholly independent evaluations, each with a written evaluation report.

Hawaii also provides better compensation than many mainland U.S. jurisdictions, perhaps making for a higher-quality end product. The researchers told me that an initial evaluation -- typically covering the issues of competency, sanity and dangerousness -- pays $1,000. That's not great, considering that an expert may need to invest 30 or 40 hours in a complex case. But by way of comparison, here in the San Francisco Bay Area where I am, most counties pay only $300 to $500 per evaluation. The essentially pro bono compensation encourages newbies and hacks, while discouraging highly trained, experienced and thorough forensic experts. Local judges don't seem concerned about reliability and error rates, often appointing only a single evaluator as if alienists are just interchangeable warm bodies with appropriate initials after their names.

As in their competency study, the team also examined how judges handle disagreements among evaluators. In nine out of ten cases, judges went with the majority opinion of the experts. But when judges broke with the majority, it was usually to find a defendant legally sane. "This pattern seemed generally consistent with the courts' conservative approach toward insanity cases, and the tendency for insanity pleas to fail," the authors note.

The researchers said that this is the first study to examine independent evaluations of legal sanity in routine U.S. practice. As such, the levels of agreement among forensic evaluators were "surprisingly poor," and far poorer than the field tends to assume.
[I]n light of our findings, courts should consider carefully the rationale underlying an evaluator's final opinion. Because sanity is a legal (rather than clinical) decision, courts must base their decisions on the data, observations, and clearly articulated inferences that an evaluator provides, rather than simply the evaluator's final opinion…. [T]olerating poor reliability among forensic evaluators is also costly, in that it might undermine goals of equitable justice, undermine confidence in the mental health field, and increase costs associated with inappropriate placements in hospitals, jails, or prisons.
The article, “How Reliable Are Forensic Evaluations of Legal Sanity?” is forthcoming from Law and Human Behavior. Correspondence may be addressed to W. Neil Gowensmith.

May 20, 2012

Civil capacity assessment comes of age

What do these three situations have in common?
  • A young adult with chronic schizophrenia refuses medication because she believes she is being poisoned 
  • A middle-aged adult struggles to pay his bills after a traumatic brain injury from a motorcycle accident 
  • An older adult with dementia revises a will to favor one stepchild over another
All are situations in which a forensic practitioner may be called upon to render an opinion on the individual's capacity, whether to make medical decisions, handle finances, or execute a will. As the population ages and family structures become increasingly complex, the demand for such civil capacity assessments is growing exponentially.

So it is only fitting that the inaugural text in the National Academy of Neuropsychology’s new series on evidence-based practice focuses on civil capacities. The book brings together theoretical developments, research findings and practice recommendations in this complex and expanding area.

Volume editor George Demakis, a psychology professor at the University of North Carolina with considerable clinical experience conducting civil capacity evaluations, has brought together an impressive array of experts. Together, they discuss the research and practice in a range of civil capacities, including financial, healthcare decision-making, testamentary (executing a will), driving, personal care and guardianship.

The field's evolution is clearly visible in this book's chapters. Only 26 years ago, Tom Grisso issued his paradigm-shifting call for the assessment of "functional capacities." Here, rather than focusing on diagnostic labels or one-size-fits-all checklists of ability, chapter authors urge practitioners to carefully explore the individual's real-life functioning, including through collateral reports and even direct evidence of performance (for example, by observing a subject's driving).

A central goal of the book is to provide practical guidance. Each chapter contains an illustrative case example and discusses the range of capacity instruments available in that particular niche. Later chapters focus on the nuts and bolts of data collection, report writing, and testifying. There's even a chapter from the perspective of "the legal consumer," in which two North Carolina court officers tell us what they would like to see in a civil capacity assessment report. Although it's rather elementary stuff for the seasoned forensic practitioner, the chapter makes for a useful teaching tool for students and other novitiates.

In a glowing review for PsyCritiques, Jennifer Moye calls the text "a must read" that is "certain to advance the field." Her one substantive critique is that it gave short shrift to how values and individual differences (including multicultural and educational influences) play into expert judgments of capacity. This is an important issue, considering the liberties that can be lost when people are declared incompetent to make their own medical decisions or to live independently in the community.

For a more thorough discussion of the issue of social status and capacity assessment, from the perspective of medical treatment, I recommend an essay by Susan Stefan in a special 1996 issue of Psychology, Public Policy and Law on the MacArthur Treatment Competence Research.

I was also a bit disappointed to see that last year's book by colleagues Adam Alban and Eric Mart on testamentary capacity didn't get even a nod. The book, The Practical Assessment of Testamentary Capacity and Undue Influence in the Elderly, is an excellent practitioner guide, which even includes a CD-ROM of assessment tools in this area.

These minor quibbles aside, Civil Capacities is a major advance that is sure to become an essential text for those working in this area, including neuropsychologists, forensic psychologists, attorneys and judges.

My Amazon review of Civil Capacities in Clinical Neuropsychology: Research Findings and Practical Applications is HERE. If you find it useful, please click on "YES," this review was helpful.

April 15, 2012

SCOTUS to tackle capital habeas competency right

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 4, 2012

New competency resources

Case report added to resources page

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

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


New review of competency assessment tests

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

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

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

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

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

"Mental Competency: Best Practices Model"

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

February 28, 2012

Forensic psychologist blackballed over competency opinions

Imagine that every time you evaluated a criminal defendant, a partisan advocate was standing by your shoulder, ready to accuse you of bias if you thought the defendant was incompetent to stand trial. To make matters worse, imagine you were assigned those defendants most likely to be impaired, due to developmental disabilities that interfere with their ability to understand their cases or work with their attorneys.

That's the pressure being applied to Ray Hendrickson, a respected forensic psychologist in the state of Washington. Accusing him of bias, local prosecutors have succeeded in getting him barred from examining criminal defendants in one Washington county.

"We have made it very clear that we don't approve of Dr. Hendrickson,"' a representative of the Pierce County (Tacoma) prosecutor's office told the local newspaper.

Prosecutors accuse Hendrickson of endangering public safety by finding too many defendants incompetent to stand trial. Hendrickson is a lead psychologist and training director at the Center for Forensic Services at Western State Hospital, one of two state hospitals where criminal defendants undergo competency and sanity evaluations and treatment under Washington’s centralized system.

The beleaguered psychologist is one of the only in-house experts qualified to evaluate defendants who have developmental disabilities as well as mental illness. As a hospital spokesperson pointed out, such defendants often are found incompetent to stand trial because they are too impaired to understand their cases or assist their attorneys in their defense.

The hospital said it acceded to prosecutors' demands under duress, because state law entitles the prosecuting attorney to approve one of the two experts appointed to conduct a competency or sanity evaluation.

To challenge Hendrickson, prosecutors pored over felony cases in which defendants were found incompetent to stand trial. Hendrickson was involved in almost half of 30 such cases over a 3-year period, they claim. One case highlighted in the news involved a developmentally disabled man accused of stabbing his girlfriend. After being found unrestorable to competency, the man was ultimately released from the hospital.

(The local news article incorrectly states that defendants found incompetent to stand trial on violent felony charges typically have their cases dismissed. In actuality, most stand trial after undergoing competency restoration treatment; only a small percentage are found unrestorable after one year of treatment, making them eligible for civil commitment if they remain dangerous.)

Defense attorneys are livid, calling the attack on Hendrickson a naked power play intended to strip criminal defendants of their right to an impartial evaluation. This is at least the second time in recent memory that Pierce County authorities have successfully objected to a respected and skilled evaluator with whom they did not see eye to eye.

Such partisan interference will only increase the pressure faced by many evaluators in state hospital settings, where beds are increasingly scarce, to find defendants competent in order to help the criminal justice process speed things along.

Having done my forensic postdoctoral fellowship in the forensic unit at Western State Hospital in the 1990s, I find this news especially sad. Back when I was there, the unit was a top-notch training site, where evaluators were given the resources, training and support to perform neutral, high-quality forensic evaluations.

Although even back then the state evaluators had a reputation of prosecutorial bias, in reality we had the independence to let the chips fall where they may. As prosecutors were fond of eliciting from us under direct examination, we didn't have to worry about earning referrals, and we got paid the same no matter which side won or lost a case.

But if prosecutors blackball experts with whom they disagree, it will be hard for them to honestly claim that their hand-picked psychologists are truly independent.

Even more ominous is a bill being considered by the state’s legislature that would require only one expert -- approved by the state -- in competency cases. The defense could request a second expert under the proposed law, but such a request would not be automatically granted.

Such a move might seem to make fiscal sense. But, given the poor rates of agreement among competency evaluators, it may be penny-wise but pound-foolish. According to a new study out of Hawaii, for example, competency evaluators disagree in about two or three cases out of every ten. That's in part because competency is nuanced. Evaluators tend to concur in obvious cases involving florid psychosis, but may arrive at different opinions in gray cases in the middle of the competency continuum.

Since judges tend to rubber-stamp experts' opinions, having only one evaluator will substantially increase rates of error. Some cases will be unnecessarily delayed while defendants undergo needless (and costly) treatment; at the other end of the spectrum, some defendants will  be unfairly convicted, undergoing trials without understanding the proceedings or being able to assist their attorneys.

Winnowing the process down to one potentially idiosyncratic opinion, or forcing out well qualified evaluators based upon their rates of incompetency findings, will make the process more unreliable and, in the end, hinder justice.

Related blog post:



Hat tip: Ken Pope