California adopts Edwards: OK to deny self-representation to mentally ill

Mentally ill defendants in California may be barred from representing themselves at trial even when they have been found competent to stand trial, the state Supreme Court has decided.

This week's ruling stems from the 2008 U.S. Supreme Court case of Indiana v. Edwards, which held that states may set higher standards for self-representation than for competency to proceed to trial with an attorney.

The court upheld the conviction of Andrew D. Johnson of Vallejo, sentenced under California’s three-strikes law to 85 years to life in prison for two severe assaults.

Earlier in the proceedings, a jury had found Johnson competent to stand trial.The trial judge had initially let Johnson represent himself, but changed his mind based on Johnson’s bizarre behavior and filing of nonsensical motions.

The state high court cautioned that trial courts "must apply this standard cautiously," as under normal circumstances defendants have a Sixth Amendment right to represent themselves: "A court may not deny self-representation merely because it believes the matter could be tried more efficiently, or even more fairly, with attorneys on both sides."

No uniform standard

Several interested parties -- including the California Attorney General, San Francisco Public Defender, California Attorneys for Criminal Justice, and the Office of the State Public Defender -- had filed amici curiae arguing that California courts should have discretion to deny self-representation to "gray-area" defendants such as Johnson.

In their briefs, these parties proposed various standards for competency for self-representation that the court might adopt. But the court declined to adopt any of these specific standards, or those proposed in two recent law review articles, "pending further guidance from the high court."

In a footnote, the court also suggested that courts may choose to include the question of self-representation competence in routine trial-competency evaluation requests, even when the issue has not been raised.

This will leave court-appointed experts in an awkward position, tasked with evaluating "simply whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel."

Such murkiness will increase the complexity of competency evaluations for forensic psychologists and psychiatrists. This is especially problematic in that court-appointed experts are grossly undercompensated, which attracts inexperienced and poorly trained professionals willing to perform what one attorney I know refers to as "drive-by competency evaluations."

When a defendant refuses evaluation

In his appeal, Johnson also complained that none of the experts appointed to evaluate his trial competency ever interviewed him personally. In fact, that was because he refused to meet with any of them.

The court said that the when a defendant refuses to be evaluated, the judge and jury must "do the best they can under the circumstances," as occurred here.

At the competency trial, psychologist Kathleen O'Meara, called by the defense, made clear that her opinion was tentative in that it was based solely on transcripts of the pretrial proceedings, defendant's letters, medical records and conversations with correctional staff. She speculated that defendant might have a paranoid delusional disorder, but that he could also be malingering.

Two psychiatrists called by the prosecution, Herb McGrew and Murray Eiland, both testified that it was not possible to form an opinion on competency without interviewing the defendant.

Sticky wicket

The Edwards decision expands the parens patriae doctrine, subordinating autonomy for ostensible fairness. In deciding that the mentally ill do not have the same constitutional rights as everyone else, the U.S. Supreme Court set up a very difficult situation.

On the one hand, allowing floridly psychotic defendants to represent themselves sanctions court-assisted suicide in that conviction is almost always assured, as in the farcical spectacle of Colin Ferguson's trial in the Long Island Railroad massacre.

On the other hand, since the U.S. trial system gives full authority to the attorney to conduct the defense as he or she sees fit, a defendant who has not consented to legal representation is stripped of the right to present his own defense. And, since no judge wants an inexperienced, potentially disruptive defendant mucking up their courtroom, it is tempting to find a problem defendant competent to stand trial, but then force him to accept an attorney -- and a defense -- that he may not want.

Related reading:

How will Edwards affect competency evaluations? (June 20, 2008 blog post)

Mentally ill: No constitutional right to self representation (June 19, 2008 blog post)

Fools competent to represent themselves at trial: Buffoonery doesn’t qualify under Edwards, appellates rule (July 7, 2010 blog post)

Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant, Erica J. Hashimoto, North Carolina Law Review (2007) [free, open-access download]

Defending Oneself, Erica Hashimoto

COMPETENCY CASE RESOURCES WEB PAGE

Future orientation a major factor in juvenile competency

Photo credit: Richard Ross, Juvenile in Justice

Unlike adults, most children and adolescents who are found incompetent to stand trial are not psychotic. Rather, they have cognitive impairments. And, in a factor gaining greater attention from courts and legislatures, they are often immature.

Indeed, developmental maturity is so important that in California and some other states, juvenile competency evaluators are now required by law to assess for it.

That’s easier said than done. After all, what is immaturity, and how does it affect competency?

In a study just published in the Journal of the American Academy of Psychiatry and Law, four scholars state that one big chunk of maturity is future orientation, or the extent to which a youngster takes long-range consequences into account in making decisions. One reason that youngsters engage in risky behaviors, the theory goes, is because they are present-focused and lack a more mature perspective on the future.

Testing the influence of future orientation on competency, the researchers found that the well-established relationship between age and competency is moderated by a child's degree of future orientation.

Further, competency is particularly "fragile" in immature children. In other words, smaller deficits in cognitive abilities are more likely to influence competency in immature children as opposed to their more mature peers.

I recommend the full article, by Aaron Kivisto, Todd Moore, Paula Fite and Bruce Seidner. It is available for free online, HERE.

Loughner case shines spotlight on forced meds practices

Under what circumstances may the U.S. government drug a captive against his will?

A round of high-profile court skirmishes over the forcible medication of attempted assassination suspect Jared Loughner may help resolve legal ambiguities on this issue.

Two decades ago, in the landmark case of Washington v. Harper, the U.S. Supreme Court ruled that convicted prisoners may be forcibly medicated without a judicial hearing, if prison officials deem them dangerous to themselves or others. All that is needed is an informal administrative hearing behind the walls, a proceeding that many liken to a kangaroo court.

But pretrial detainees – who are presumed innocent – have greater rights when it comes to forced medications to restore their competency to stand trial. In the 2003 case of U.S. v. Sell, the high court specified certain conditions that must be met before someone may be forced to take medications designed to render him or her trial competent:

The Constitution permits the Government involuntarily to administer antipsychotic drugs to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.

Government "end run"?

In the Loughner case, defense attorneys accused the government of trying to make an end run around these legal requirements by claiming that Loughner was dangerous. The incidents of alleged dangerousness claimed by the government included cursing and throwing a plastic chair on March 14, spitting and lunging at his lawyer, Judy Clarke, on April 4, and throwing chairs in his cell on May 28.

All of these incidents took place at the prison hospital in Springfield, Missouri where Loughner was sent after being diagnosed with paranoid schizophrenia and determined to be incompetent to stand trial. Loughner’s attorneys said they were denied access to their client, and only found out after the fact that the prison had held a hearing on June 14 and unilaterally decided to forcibly administering antipsychotic medication. Loughner is taking the oral antipsychotic Risperidone under threat that if he refuses, he will be forcibly injected with the potent drug Haldol.

In an emergency motion filed June 24 seeking to force a halt to the medications, the defense team said three isolated instances of misconduct during five months in custody are hardly sufficient to show present dangerousness. They accused prison staff of administering the antipsychotic not to reduce Loughner’s danger, but to restore him to competency, in violation of Sell. They asked that the prison be ordered to use other means of reducing Loughner’s danger if necessary, such as restraints, isolation, or minor tranquilizing drugs.

Courts must remain mindful that the dangerousness rationale and its purported justifications don’t become muddled with the attempt to administer psychotropic medications for purposes of treatment and restoration of competency…. To permit the prison to make these treatment decisions without Sell’s guidance and protections not only jeopardizes a significant liberty interest, it jeopardizes a fair trial.

They cited the landmark case of Riggins v. Nevada. In that case, the U.S. Supreme Court held that a Nevada man was deprived of a fair trial by being forcibly medicated to keep him competent during trial. The medications interfered with the content of his testimony and his ability to follow proceedings and communicate with counsel; they also impacted his outward appearance such that he no longer appeared insane, despite the fact that he was claiming insanity at the time of his crime.

"I didn’t go to medical school"

A federal judge summarily denied the defense motion, saying he did not want to second-guess the prison clinicians.

"I defer to medical doctors," U.S. District Judge Larry A. Burns said at an emergency hearing requested by the defense. "I have no reason to disagree with doctors. I didn't go to medical school."

But because the issue of whether forced drugging is permissible is a legal issue, not a clinical one, this seems like improper deference.

Luckily, the 9th Circuit Court of Appeals had more sense, issuing an emergency order July 2 to halt the medications until the issue could be fully litigated.

The appellate court pointed to its 2005 ruling in of United States v. Rivera-Guerrero, holding that forced administration of medications to pretrial detainees is of “clear constitutional importance.” In that case, the 9th Circuit ruled that in federal cases that such orders are too important even to be issued by lower magistrate judges, as opposed to district court judges.

Should pretrial detainees get greater deference?

At a hearing before a three-judge panel on Thursday, the appellate justices focused on the distinction raised by Loughner’s defense team between forcibly medicating a convicted prisoner and medicating a pretrial detainee.

“Why should someone presumptively innocent not be treated with greater personal deference” than a convicted prisoner, asked Judge Alex Kozinski, chief judge of the 9th Circuit, according to the Wall Street Journal.

"Is the goal of rendering the defendant competent different from medicating him for dangerousness?” asked Judge Kim McLane Wardlaw, touching on another area of murkiness. "Are these different goals? How do you separate them out?"

Loughner’s attorneys argue that not only will their client's fair-trial rights be affected, but he could also suffer irreparable harm from the strong drugs because they alter the chemical balance in the brain and can have serious, even fatal, side effects.

With the immediate urgency out of the way, the appellate panel did not give a date for their ruling on the medication issue.

Where is this heading?

This skirmish holds the promise of clearing up confusion over when the government may forcibly drug a captive without a formal court hearing. But, no matter which way this skirmish ends, Loughner will likely never be released from custody. His case may take one of several directions.

One likely next step is that he will be granted a Sell hearing, as his attorneys seek. If so, it seems likely that forced medications will be authorized. After all, if ever there was a compelling government interest in seeing that a defendant goes to trial, it is here. The 22-year-old Arizona man faces 49 felony charges in a Jan. 8 shooting rampage that killed six people and wounded 13, including U.S. Representative Gabrielle Giffords.

If he is given antipsychotic medications, Loughner will most likely be rendered competent to stand trial, probably within a year. The standard for competency to stand trial requires only that a defendant have a factual and rational understanding of the proceedings and an ability to rationally assist his attorney in his own defense.

Once Loughner is found mentally competent, his attorneys will likely raise the defense of insanity. In order to be found insane, his mental disorder must have prevented him from knowing that his actions were wrong at the time he committed them. If he is found insane, he will be committed to a locked psychiatric hospital.

In contrast, if he is found guilty he faces the death penalty. However, there is a good chance that attorneys will negotiate a plea deal that spares his life. This is what happened in the case of Ted Kaczynski, the Unabomber. Such a resolution has the advantage of avoiding the internationally embarrassing spectacle of the U.S. government trying and executing someone who was floridly psychotic at the time of his crimes.

There is also the remote possibility that Loughner will not be restored to competency and so will never face trial. This could happen either if his attorneys succeed in fighting forced medications (a highly unlikely event), or in the event that medications do not work to restore his sanity. In either of these circumstances, prosecutors could seek to have him civilly committed to a psychiatric hospital.

Bottom line, he will never be released back into the community.

I have made the June 24 defense motion available HERE. My previous essay on the Loughner case, “The Arizona rampage: Analyzing the analyzers,” can be found HERE. My other prior coverage of legal wrangling in this case is HERE.

Should social workers do juvenile competency evaluations?

California Judicial Council soliciting input through June 20 on forensic qualifications

Photo credit: Richard Ross

As many of you may know, California just enacted a cutting-edge law (W&I 709) requiring that developmental immaturity must be considered in determining a juvenile's competency to stand trial. Now, the state's Judicial Council is tasked with developing new Rules of Court (5.645) to help implement the law, including guidelines about who qualifies as an expert in juvenile competency proceedings.

The Council has issued a specific call for comments on whether the court should expand the list of accepted experts from psychologists and psychiatrists only, to include other professionals such as social workers.

The deadline to submit a written comment is June 20. Comments may be submitted via email, mail or fax.(Be sure to follow the instructions, available HERE.)

Currently, five California superior courts have adopted protocols regarding juvenile competency matters (available HERE). The Superior Courts of San Diego and Sacramento counties require the appointment of a psychologist or psychiatrist, while San Francisco County appoints a psychologist, and the Los Angeles and Santa Clara courts use an expert panel.

My thoughts

My concern with expanding the eligible professions is that, although there are many fine social workers in the field, their education and training does not prepare them to perform state-of-the-science assessments in this complex area. Social work programs do not provide the education and training in psychometric testing, statistics or differential diagnosis that is routine in psychology graduate programs. As I wrote in my formal comment to the Judicial Council:

Often, competency becomes an issue with children due to complex constellations of underlying deficits, such as neurological insults, neurodevelopmental impairments, psychiatric disturbances, intellectual or other cognitive limitations, and learning disabilities. In such cases, ferreting out what is going on requires the proper selection, administration, and interpretation of an ever-changing array of psychological tests and measures….

Because social work programs do not offer the extensive training in differential diagnosis that is standard in psychology and psychiatry training programs, social workers as a rule are not equipped to adequately sort through complex differential diagnostic issues and assess their functional impact on a juvenile’s competency to stand trial.

The other aspect of the proposal about which I expressed reservations was section (v), which would require evaluators to "be familiar with … treatment, training and programs for the attainment of competency available to children and adolescents in California."

In my opinion, this goes beyond the bounds of a typical forensic psychology evaluation, and may lead to unintended negative consequences. As I wrote to the Council:

In practice, this could require an evaluator to take on the onerous burden of ferreting out the available services in each jurisdiction in which he or she practices. The task of locating appropriate services for incompetent minors properly belongs to local probation officers, child welfare workers, regional centers, and others, not forensic evaluators….

Well-qualified evaluators are already reluctant to conduct court-ordered evaluations due to the pittance that most counties pay. Mandating additional burdens that do not exist for other types of forensic work could inadvertently contribute to poor practice by leaving only shoddy "drive-by" evaluators willing to take on these complex and time-consuming cases.

I encourage interested professionals to submit comments right away, as the deadline is looming. In the near future, the Council plans to seek public comment on other aspects of this new law, and I will try to provide you with advance notice on this blog.

Special journal issue on psychology-law available for free!

A special issue of Current Directions in Psychological Science showcasing the latest psychological research applied to the legal system has received enormous interest. As a result, the editors and Sage Publications are making the full contents available free to the public through June 15, 2011. The articles cover a wide range of topics of interest to my readers, including competency, violence risk assessment, profiling, false confessions, eyewitness evidence, and jury decision making. You are encouraged to download these articles for later reading, and to freely share these links with colleagues. 

  FULL CONTENTS - CLICK ON BELOW LINKS TO DOWNLOAD  

Comment From the Editor
Randall W. Engle
 
Editor's Introduction: Special Issue on Psychology and Law
Ronald P. Fisher
 
Resolving the Offender "Profiling Equations" and the Emergence of an Investigative Psychology  
David V. Canter
 
Forensic Interviewing Aids: Do Props Help Children Answer Questions About Touching?
Debra Ann Poole, Maggie Bruck, and Margaret-Ellen Pipe
 
Interviewing Cooperative Witnesses
Ronald P. Fisher, Rebecca Milne, and Ray Bull
 
Current Issues and Advances in Misinformation Research
Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus
 
Eyewitness Identification
Neil Brewer and Gary L. Wells
 
Outsmarting the Liars: Toward a Cognitive Lie Detection Approach
Aldert Vrij, Pär Anders Granhag, Samantha Mann, and Sharon Leal
 
Suspect Interviews and False Confessions
Gisli H. Gudjonsson and John Pearse
 
Current Directions in Violence Risk Assessment
Jennifer L. Skeem and John Monahan
 
Future Directions in the Restoration of Competency to Stand Trial  
Patricia A. Zapf and Ronald Roesch
 
The Utility of Scientific Jury Selection: Still Murky After 30 Years
Joel D. Lieberman
 
Expert Psychological Testimony  
Brian L. Cutler and Margaret Bull Kovera
 
The Psychology of Trial Judging  
Neil Vidmar
 
Jury Decision Making: Implications For and From Psychology
Brian H. Bornstein and Edie Greene

Australian man spends decade in prison without trial

Mental competency laws are designed to protect people who are accused of crimes from being subjected to legal prosecution if they cannot understand the proceedings or rationally assist in their defense. But some offenders are spending more time behind bars after a finding of unfitness to stand trial than if they had been tried and convicted.

Marlon Noble and supporter (Photo credit ABC News)

In Western Australia, the case of one such man is making headlines. Marlon Noble has spent 10 years behind bars after being accused of sexually assaulting two girls. He is mentally impaired from a childhood bout of meningitis.

"If he has been tried and found guilty he would never ever been sentenced to the length of time," said longtime supporter Ida Curtois, a retired social worker.

He is one of 29 people in West Australian jails who have never been found innocent or guilty.

If he has been tried and found guilty he would never ever been sentenced to the length of time.

-- Ida Curtois            

But in an unusual twist, the two alleged victims are now coming forward to clear his name. Since Noble never had a court hearing on the allegations, the case against him was never tested.

If Noble is released, his supporters say they will continue lobbying until all accused people being held indefinitely due to mental disabilities are given other options.

Incompetent defendants also detained indefinitely in U.S.


Most forensic psychologists in the United States can tell you about Theon Jackson. A "mentally defective deaf mute with a mental level of a pre-school child," Jackson could neither read nor write and was not proficient in sign language. Evaluators called his prognosis for attaining competency to stand trial "dim." Taking the case up to the U.S. Supreme Court, his attorneys argued that he was effectively getting a life sentence for two street robberies that netted a grand total of nine dollars.

In a landmark ruling in 1972, the high court agreed, ruling that an accused person who is found incompetent to stand trial cannot be held longer than "the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future."

If it is determined that the individual will not become competent, "then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant."

In the current era of the sexually violent predator, however, incompetency statutes have made it easier to civilly commit accused individuals whose cases were never proven in criminal court.

In New York State, for example, which has just begun implementation of a new civil detention scheme for sex offenders, the government argued that since civil commitment is a civil proceeding, they should not have to prove their cases beyond a reasonable doubt as they would have to in a criminal trial. Instead, they argued that the standard of proof should be the lower "clear and convincing evidence" standard (sometimes equated to a level of certitude of about 75% as opposed to 95-99% for the beyond a reasonable doubt standard).

Late last month, U.S. District Judge Deborah A. Batts upheld a challenge to that position, declaring that despite the ostensibly "civil" nature of preventive detention, its consequences are too onerous to allow for a lowered standard of proof:

Here, the risk of an erroneous deprivation is high…. Those committed as "sex offenders" under Article 10 are housed in a secure psychiatric facility and segregated from those who are not "sex offenders." After release from confinement, those labeled "sex offenders" are subjected a regimen of "strict and intensive supervision and treatment," which may include but need not be limited to, electronic monitoring or global positioning satellite tracking for an appropriate period of time, polygraph monitoring, specification of residence or type of residence, [and] prohibition of contact with identified past orpotential victims. Given the attendant stigma and significant liberty infringements that result from application of the label "sex offender" under Article 10, the consequences of an erroneous application of that label are severe.

The legal challenge was brought by the state's Mental Hygiene Legal Service, which provides legal service to psychiatric patients, including at least 22 pretrial defendants who -- like Mr. Noble in Western Australia -- have been found incompetent to stand trial on sex charges.

Loughner update: Skirmishing over competency

Arguments over who, where, how and what of evaluation   

In federal court this week, the government and defense skirmished over the mechanics of evaluating the competency to stand trial of Jared Loughner, the suspect in January's high-profile shooting rampage in Arizona. This skirmish is likely to be the first of many involving Loughner's psychiatric state, a central issue in the case.

Who should conduct the evaluation?

• Government: Bureau of Prisons staff should conduct the evaluation.

• Defense: Outside mental health experts are more likely to be impartial. 

• Court ruling: Bureau of Prisons will evaluate the defendant.

Where should the evaluation take place?

• Government: Loughner should be evaluated at the federal Bureau of Prisons facility in Springfield, Missouri, a medical referral center with specialized forensic resources. In a memo, the chief of psychiatry for the Bureau of Prisons, Dr. Donald Lewis, said Springfield was the best facility for a competency evaluation, because it "has medical staff available for neurology and other organic testing, and has far more forensic staff and full-time psychiatrists available to provide round-the-clock assistance," according to an AP news brief.

• Defense: Loughner should not be moved from his current federal prison housing in Tucson. He is "seriously ill," and moving him to Missouri could worsen his state and restrict his lawyers’ access, thereby impeding their efforts to gain his trust. The defense has also expressed concern that this move will facilitate prison officials' collecting and releasing private information to prosecutors.

• Court ruling: Loughner will be sent to the federal prison in Springfield. 

How should the evaluation be conducted?

U.S. District Judge Larry Burns ordered that the evaluation will be videotaped and that the videos will be provided to both prosecutors and defense attorneys. It was not clear from news reports whether one side requested the videotaping, or whether the judge introduced this idea on his own.

What should the evaluation address?

One tricky area in assessing the competency of a defendant who may later plead insanity is that an incompetent defendant may make incriminating or otherwise unwise statements about the crime itself. In a competency assessment, evaluators have a duty not to probe into the defendant's mental state at the time of the offense, leaving that inquiry until the defendant is certified as competent and enters a plea of insanity. If a defendant blurts out information about the motivations for the offense, these should not be included in a written report on competency.

Loughner's attorneys expressed concern that with prison staff at the helm, a competency inquiry might expand into a review of Loughner's sanity. The federal court judge ruled that the scope of the exam must be limited to whether the defendant is competent to stand trial, not whether he was sane at the time of the shooting. However, the videotaping of the evaluation may make this difficult to achieve in practice, increasing the risk that information pertaining to Loughner's state of mind at the time of the crime will be prematurely revealed to prosecutors.

Related post:

• Arizona rampage: Analyzing the analyzers

Steffan's Alerts: New column features fresh scholarship

In a new column launching today, forensic psychologist Jarrod Steffan scours the academic journals as they roll off the presses and brings you his top choices for articles of interest to forensic practitioners. Just click on a title to go to the journal site and read the full abstract; click on an author's name to request the full article. Feel free to leave comments on this new feature in the comments section of the blog.

Expert testimony in false confession cases

Mock jurors perceive that coercive interrogation tactics elicit confessions from guilty but not innocent suspects. Authors Iris Blandon-Gitlin, Katheryn Sperry, and Richard Leo go on to report the effects of an actual disputed confession case on jurors’ perceptions of false confessions in the current issue of Psychology, Crime and Law.

Meta-analysis of mental health courts

Are mental health courts working? Preliminary analyses point in the direction of success, according to an article by Christine Sarteschi and colleagues published in the Journal of Criminal Justice.

Malleability of juvenile offenders’ risk for recidivism

In the new issue of Criminal Justice and Behavior, Claudia E. Van Der Put and colleagues provide data showing that dynamic risk of adolescents' decreases as they age, thereby affecting the effectiveness of risk assessment and related interventions.

Feigning competence to proceed to trial

Preliminary data, reported by lead author Randy Otto in Assessment, suggest that a new measure called the Inventory of Legal Knowledge may assist evaluators in appraising defendants’ response style in competency to stand trial evaluations.

• A previous blog post on the new instrument is HERE.

Prostitution and serial murderers

Compared to killers of nonprostitutes, serial murderers of prostitutes have killed more and for longer periods of time, according to a study by Kenna Quinet published in Homicide Studies.

The state of the science in stalking

In Aggression and Violent Behavior, Kathleen Fox, Matt Nobles, and Bonnie Fisher take stock of the literature on stalking assessment and, based on their review of 56 studies, recommend guidelines for future research.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist whose practice is based out of Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

New site features competency rogues' gallery

At long last, I have completed a WordPress redesign of my decrepit old website. The new site features a compilation of publicly accessible resources on legal competencies, including reports, videos, and court transcripts on cases ranging from Ted Kaczynski (the Unabomber) To boxer Mike Tyson to suspected "dirty bomber" Jose Padilla. These resources, most free and online, are available for instructors, students, practitioners, and anyone else who is interested. For training purposes, it’s hard to beat real-life reports and videos, especially from high-profile or otherwise fascinating cases. To see the full gallery, go to my new website -- HERE -- and click on the Resources tab. Have fun exploring. And please submit a comment on this page if you know of any other resources that I didn't list.

Thanks to all of you who helped with this project by giving me leads -- Denis, Steve, Frank, Eileen, Christina, Ronna, and others.

Special issue, Current Directions in Psychological Science

The February issue offers a cutting-edge roundup of psychology-law topics, with contributions from many luminaries. Click on an author link to request a reprint.

• Expert Psychological Testimony by Brian L. Cutler and Margaret Bull Kovera (I haven't finished reading this one yet, but I see that it discusses the critical issue of adversarial allegiance, identified by Murrie, Boccaccini and their colleagues in regard to the Psychopathy Checklist)

• Future Directions in the Restoration of Competency to Stand Trial by Patricia A. Zapf and Ronald Roesch

• Current Directions in Violence Risk Assessment by Jennifer L. Skeem and John Monahan

• The Psychology of Trial Judging by Neil Vidmar

• Jury Decision Making: Implications For and From Psychology by Brian H. Borstein and Edie Greene

• Suspect Interviews and False Confessions by Gisli H. Gudjonsson and John Pearse

• The Utility of Scientific Jury Selection: Still Murky After 30 Years by Joel D. Lieberman

• Resolving the Offender "Profiling Equations" and the Emergence of an Investigative Psychology by David V. Canter

• Forensic Interviewing Aids: Do Props Help Children Answer Questions About Touching? by Debra Ann Poole, Maggie Bruck, Margaret-Ellen Pipe

• Interviewing Cooperative Witnesses by Ronald P. Fisher, Rebecca Milne, and Ray Bull

• Current Issues and Advances in Misinformation Research by Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus

• Eyewitness Identification by Neil Brewer and Gary L. Wells

• Outsmarting the Liars: Toward A Cognitive Lie Detection Approach by Aldert Vrjj, Par Anders Granhag, Samantha Mann, and Sharon Leal

How competent are the competency evaluators?

Largest real-world study finds modest agreement among independent alienists

A bad forensic report by a bad evaluator sets bad events in motion.

True story: A judge ordered a robbery suspect to undergo evaluation. A drive-by psychologist opined that the defendant was incompetent to stand trial due to schizophrenia and attention deficit/hyperactivity disorder (ADHD). The judge rubber-stamped the evaluator's opinion. The defendant was shipped off to the dysfunctional state hospital system for competency restoration treatment. There, the psychologist's diagnoses were rubber-stamped. The unruly defendant was shot full of powerful antipsychotics, given a few months of bus therapy, and proclaimed competent. The defendant had never been psychotic in the first place. Years later, he remained just as mentally retarded as ever.

"Penny-wise, pound-foolish" is the expression that comes to mind. The courts try to save money by appointing only one psychologist per case, and by paying a ludicrously small sum that encourages shoddy practices. But cleaning up the resultant messes is costly, inefficient, and fundamentally unfair.

Competency evaluations are the bread and butter of forensic work. An estimated 60,000 defendants per year -- roughly 5% of the total -- are evaluated to see whether they understand their legal situations and can rationally assist their lawyers in their defense. But for all of the importance of accurate assessments, both to a smoothly running court system and to the rights of the mentally ill to a fair trial, surprisingly little is known about the real-world accuracy of forensic evaluators.

In the case I just outlined, the judge viewed psychologists and psychiatrists as equal and interchangeable, all inherently reliable and trustworthy. At the other extreme, some believe forensic opinions are as random as a chimp with a typewriter.

Hawaii: Exemplar or exception?

Only one U.S. state squarely addresses the problem of reliability in competency evaluations. In the Aloha State, when a doubt is raised as to a defendant's competency, three separate evaluators must conduct independent evaluations. One evaluator is a state employee; the other two are independent. One must be a psychiatrist. By law, the three cannot talk with each other about the case.

This makes Hawaii the perfect setting to examine the real-world reliability of competency evaluators. In a study just accepted for publication in Law and Human Behavior, three investigators took advantage of this opportunity to conduct the largest naturalistic study ever of evaluators' agreement about competency to stand trial.

It should not be a surprise that Daniel Murrie and Marcus Boccaccini are two of the investigators. Not the types to run Psych 101 undergrads through artificial lab experiments, these two are committed to examining forensic practice in the courtroom trenches. I've blogged about their previous work exposing "partisan allegiance" effects in the real-world application of the Psychopathy Checklist (PCL-R). For the current innovative study, they teamed up with W. Neil Gowensmith of the Hawaii courts' forensic services unit.

Examining 729 reports authored by 35 evaluators, they found that all three evaluators agreed in just under three out of four -- or 71 percent -- of initial competency referrals. Agreement was a bit lower -- 61 percent -- in cases where defendants were being reevaluated after undergoing competency restoration treatment.

Consistent with the results of a hot-off-the-press meta-analysis of 50 years of competency research, evaluators believed that the broad majority of defendants referred for evaluation, about 73 percent, were competent to stand trial. This figure was somewhat lower for defendants being reevaluated after an initial finding of competency, with evaluators opining competence in about half of such restoration cases.

Why do evaluators differ?

As far as why agreement is not higher, the study raised more questions than it answered. The researchers sifted through the data looking for patterns, but none jumped out. Evaluators did not lean one way or the other by discipline (psychologist vs. psychiatrist) or by employer (state versus private practice). Defendant demographics were not explanatory. Nor were evaluator disagreements about diagnosis.

It would be interesting to conduct qualitative analyses of the 216 cases in this study to see whether those in which evaluators differed were more complex and ambiguous than the others. I suspect that to be the case.

Competency is nebulous. It exists along a continuum, so there is no precise cut point at which a defendant is automatically "competent" or "incompetent" to go forward with his legal case. Thus, evaluator agreement will never be perfect, nor -- necessarily -- should it be.

How did the judges rule?

One of the more intriguing aspects of the study was its exposition of how judges ruled after being presented with three reports. Not surprisingly, when evaluators were unanimous or split 2-1, the judges tended to go with the majority. But unlike the judge in the vignette I described earlier, many Hawaiian judges were independent thinkers who did not just rubber-stamp the evaluators' opinions.

When they disagreed with the opinions of the court-appointed psychologists and psychiatrists, it was typically to find a defendant incompetent. In fact, in a few cases the judges found defendants to be incompetent even when all three evaluators believed a defendant was competent. In this way, they elevated defendants' due-process rights over prosecutorial efficiency. But maybe that's just Hawaii.

Moving forward

I found the results somewhat encouraging. When not subjected to partisan allegiance pressures, forensic practitioners agreed about three-fourths of the time about whether a defendant was competent to stand trial or not.

Still, if these results are generalizable, it means evaluators will disagree in about two or three cases out of every ten. So in jurisdictions that appoint only a single evaluator, the researchers point out, many judges may be unwittingly rubber-stamping an idiosyncratic -- and even patently incorrect -- opinion:

[T]o the extent that there is a factually correct answer to the question of whether or not a defendant is competent to stand trial, relying on one evaluator increases the likelihood that the court reaches an incorrect decision (by following an incorrect single opinion that would have been revealed as a minority opinion if other evaluations were available). In some instances, this may result in delaying a trial while a defendant is unnecessarily hospitalized. In other instances this may result in a defendant proceeding to trial when additional evaluator(s) would have opined the defendant was unable to participate meaningfully in that trial….

The justice system needs to continue to wrestle with how to handle these competing demands -- efficient use of resources versus fair consideration of defendants' right to due process.

Murrie and Boccaccini are on a roll. Let's hope they keep churning out this ground-breaking line of research, examining the real-world vagaries of forensic practice, and that others climb down from the ivory towers and jump on their bandwagon.

As they note, "naturalistic studies of field reliability are an essential first step in gauging wide-scale quality across all manner of forensic practice and targeting areas for improvement."

News flash: Epic trial ends with sanity verdict

It took a jury only five hours to decide that Brian David Mitchell does not meet Utah's legal definition of insanity, and to find him guilty of all charges in the 2002 kidnapping of Elizabeth Smart.

The high-profile case teems with issues of import to forensic psychology and psychiatry, including malingering and the boundary between delusions and extreme religious beliefs.

The trial, as in the many past hearings, featured dueling experts. On one side was prominent New York City psychiatrist Michael Welner, who said Mitchell was sane and malingering a mental disorder to escape criminal liability. Defense attorneys criticized both Welner's fees, a whopping $750,000 (no, that's not a typo), and his methods. For example, he had FBI agents conduct about 30 interviews on his behalf, according to an Associated Press report by Jennifer Dobner.

On the other side was psychologist Richart DeMier, who evaluated Mitchell for 45 days at a federal prison in Missouri in 2008 and diagnosed him with paranoid schizophrenia. During his full day of testimony, DeMier was vigorously questioned about the sometimes-muddy distinctions between delusions and extreme religious views, a central issue throughout this case. He testified that the distinction is not an exact science, and that mental illness is not always black and white, according to a report in the Deseret News.

Experts also dueled ferociously at Mitchell's competency hearing last year. At one point during testimony by Jennifer Skeem, a forensic psychologist from California who grew up in Utah, the proceedings "seemed less about issues relating to Mitchell's competency and more about what she believed was 'character assassination' " by Welner, according to a Deseret News report. "I'm not a hired gun who intentionally collaborated with an unethical defense team," Skeem told the court.

Crazy or not, the self-styled prophet maintained his typically bizarre behavior during the reading of the verdict, loudly singing the hymn, "He Died, the Great Redeemer Died."

Judge Kimball’s 149-page competency ruling, which I highly recommended to any of you who do competency work, is HERE.

My previous coverage of this fascinating case, with links to other reports, includes:

• Mitchell to plead insane (July 6, 2010)
• Mitchell labeled as malingerer, ruled competent (March 1, 2010)
• "Legal pointillism": New approach to competency (Dec. 8, 2009)
• Record-breaking fee for competency report? (Dec. 4, 2009)
• Utah court: OK to forcibly medicate accused kidnapper (Dec. 17, 2007)

Graphics credit: Scott Snow, KSL

Special journal issue on adjudicative competencies

• Should adolescent immaturity be a basis for incompetency?
• Must sex offenders be competent at civil commitment trials?
• When is it ethical to evaluate a condemned person's competency to be executed?
• Is it ethical to assist in making someone sane enough for the state to kill?
• How should clinicians manage empathy in competency evaluations?
• Is neuroimaging a help or a hindrance?
• What are current best practices for detecting feigning?

These are among the cutting-edge ethical, legal, clinical and practical issues addressed in a special issue of Behavioral Science and the Law on adjudicative competencies.

As the above list of questions implies, the landscape for competency determinations is evolving. More people than ever are behind bars. Especially in the wake of drastic budget cuts, many are languishing with serious and inadequately treated mental disorders. For these "wretched souls," notes internationally acclaimed forensic psychiatrist Alan R. Felthous in his introduction to the special issue, the system is often unconscionably unresponsive.

Here, in one place, is a summary of many of today's controversies in this bread-and-butter practice niche. Check it out HERE.

Garrido to undergo competency evaluation

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

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

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

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

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

Photo credit: Rich Pedroncelli, AP

Forensic update: Malingering and incompetency

New response style measure hitting the market

Randy Otto and colleagues are as busy as beavers these days. I just blogged about Dr. Otto's new violence risk assessment text; now he and colleagues Jeffrey Musick and Christina Sherrod are releasing the Inventory of Legal Knowledge, a brief measure of response style for defendants undergoing adjudicative competence evaluations.

The 61-item, true-false test is orally administered and takes about 15 minutes. Questions are phrased in simple language and concern the legal process. It's highly portable for in-custody settings. And at $129 for the complete kit it's not a bad deal, considering PAR's normally hefty pricing. (You can order it now, but it won't actually release until mid-September.)

The theoretical basis is the same as for the Test of Memory Malingering and other measures of malingering; one suspects dissimulation when scores are either significantly lower than chance or significantly lower than attained by relevant normative groups.

A validation study has been published online in advance of the print edition of Assessment. The study, by the test authors, is titled: “Convergent validity of a screening measure designed to identify defendants feigning knowledge deficits related to competence to stand trial.” Here is the Abstract:

Because some defendants undergoing evaluation of their competence to stand trial may feign limitations in their ability to understand and participate in the legal process, assessment of their response style is critical. Preliminary research indicates that the Inventory of Legal Knowledge (ILK) has some potential to identify persons feigning competence related impairments. This study examined the convergent validity of the ILK using a sample of criminal defendants who, while undergoing competency evaluations, were administered the ILK and other response style measures. Moderate correlations between the ILK and these other tools provided some support for the ILK as a measure of response style.

More information is HERE.

Online review of updated SIRS malingering test

Richard Rogers' widely utilized Structured Inventory of Reported Symptoms (SIRS) has just been updated with a second edition, and forensic psychologist Steve Rubenzer of Houston, Texas (where "we don't only sing, but we dance just as good as we walk") has a critical review in the Open Access Journal of Forensic Psychology. The abstract:

The Structured Inventory of Reported Symptoms-2 (SIRS-2) contains significant changes designed to prevent false-positive and false-negative classification errors. While the SIRS-2 has many laudatory features, the manual contains some erroneous and questionable statistics and arguments, and authors sometimes stray from the best practices advocated by the first author. The SIRS-2 is a strong choice for assessing feigned psychosis and severe psychopathology. However, evidence for its value in assessing many other conditions, particularly somatic complaints and feigned cognitive impairment, is quite limited.

The full review is online HERE.

Overview: Feigning adjudicative incompetence

And, there's more! Sherif Soliman and Phillip J. Resnick have an overview of accepted methods for detecting feigning in competency evaluations, including specific instruments and their limitations, forthcoming from in an upcoming issue of Behavioral Sciences & the Law that is now online in advance of the print edition. The abstract:

Competence to stand trial (adjudicative competence) is the most requested forensic psychiatric evaluation, with an estimated 60,000 referrals annually. The challenge of detecting feigned incompetence has not been systematically studied until the past decade. Estimates of feigned adjudicative incompetence vary from 8 to 21%. This article reviews techniques for detecting malingered psychosis and malingered cognitive impairment during competence evaluations. Specific techniques for assessing feigned adjudicative incompetence and estimating the malingerer's genuine abilities are discussed. A stepwise approach to suspected feigned adjudicative incompetence is proffered.

Since this manuscript was already in press when the new ILK and the revised SIRS-2 were released, these instruments are not reviewed. In addition to a basic overview of instruments, however, Soliman and Resnick also describe a structured approach. As the authors point out, "Unlike many other evaluations, the assessment of adjudicative competence does not end with the determination that the defendant is malingering." Even with an uncooperative individual, the evaluator must make an effort to determine the subject's genuine capabilities.

Correspondence about that article should go to Dr. Soliman, Senior Clinical Instructor of Psychiatry at Case Western Reserve University in Ohio.

Fools competent to represent themselves at trial

Buffoonery doesn’t qualify under Edwards, appellates rule

Two hucksters were not incompetent to represent themselves despite engaging in "nonsensical antics" during their month-long jury trial, the Ninth U.S. Circuit Court of Appeals ruled this week.

Defendants Kurt F. Johnson and Dale Scott Heineman were convicted of conspiracy and 34 counts of mail fraud stemming from a debt-elimination program in which they took more than $3 million from as many as 3,500 homeowners throughout 35 states. The basic premise of their so-called "Dorean Process" was that homeowners should stop paying on their mortgages because banks were being unfair, and take out new loans on which the defendants earned sizeable commissions.

During their trial, the defendants filed "meaningless and nonsensical documents" and advanced "an absurd legal theory wrapped up in Uniform Commercial Code gibberish," the appellate court stated. They insisted on wearing jail attire in front of the jury, and one of their "recurring themes in their colloquies with the court was their peculiar theory that they were 'sentient human beings' " distinct from the capitalized titles by which they were referred to in court documents.

A forensic evaluator, James R. Missett, M.D., Ph.D., had evaluated them before trial and testified at a pretrial hearing that neither had a diagnosable mental disorder. Further, the defendants adamantly insisted on representing themselves, even after the trial judge repeatedly warned them about the dangers and "practically begged them to accept counsel."

The appeal was brought under Indiana v. Edwards, which was decided by the U.S. Supreme Court in 2008, after their trial concluded. That opinion set out a higher standard for self representation than for competency to stand trial when represented by an attorney. Interestingly, however, the trial court had carefully probed and made a record of the defendants' competency to represent themselves, even before Edswards established a higher standard.

Said the Ninth Circuit:

"The record clearly shows that the defendants are fools, but that is not the same as being incompetent.... The behavior of the defendants during the trial in this case, while occasionally wacky, was not disruptive or defiant…. [T]hey did not exhibit a blatant disregard for courtroom rules or protocol and did not make it impossible for the court to administer fair proceedings. In fact, they made opening statements, closing arguments, cross-examined witnesses, argued jury instructions, and testified on their own behalf…. They were examined by a psychiatrist and found to be fine. In the absence of any mental illness or uncontrollable behavior, they had the right to present their unorthodox defenses and argue their theories to the bitter end."

Additional background: Defendant Kurt Johnson’s gibberish-laden blog, The Dorean Group, gives a flavor of the defendants' anti-government, religious rhetoric. Attorney Rachel Dollar's Mortgage Fraud blog cites some examples of the pair's wild legal motions. And fraud prevention consultant Chuck Gallagher discusses some of the interesting ethical issues involved in homeowners' willingness to rely upon the defendants' assertions. My 2008 analysis of Indiana v. Edwards is HERE.

Hat tip: Kathleen