More on the McInerney antigay murder case

Defense may use emerging science of adolescent brain development

Greg Herek, a prominent scholar in the field of prejudice studies, wrote a good summary today about the case of 14-year old Brandon McInerney. As I noted yesterday, the 14-year-old will be arraigned Thursday on charges of murdering his gay classmate, 15-year-old Lawrence King.

Herek's post, which you can read at the UC Davis researcher's "Beyond Homophobia" blog, mentions the possibility of a defense based on emerging neuroscience technology, suggesting that the adolescent brain is not fully developed.

McInerney's attorney, Ventura County Public Defender William Quest, has said he will do everything he can to invoke the science of the developing brain at McInerney's trial. Quest maintains that immature brain development might mitigate the intent to kill.

"The crux of homicide is you have this intent to kill. It's thought out and coherent. If there is something that, given your brain development, puts you in a state that is not coherent, it mitigates that intent," he is quoted in the Ventura County Star as saying.

Quest may have a tough time convincing jurors that McInerney did not form the legally required intent to kill, in that the Young Marines member brought a gun to school and shot Lawrence King not once but twice in the head.

If a neuroscience defense emerges as a centerpiece of the nationally publicized case, it will likely draw attention to the current conflict in the field over whether the budding science is well enough established for the courtroom. (For more on that debate, see the Law & Neuroscience Project website and the Law and Ethics of Brain Scanning resources brought to you by the Sandra Day O’Connor College of Law at the University of Arizona.)

That controversy aside, it will be good news if Quest backs away from his earlier focus on blaming the school for the tragedy. Quest had publicly stated that administrators of the middle school where the killing took place were partly responsible because they allowed the victim to openly display his gender nonconformity.

Tom Kisken of the Ventura County Star has a lengthy summary of the neuroscience debate as it pertains to McInerney's case, available online here. Greg Herek's blog post is here.

Scarface idolatry: Evidence of violence?

I was driving past an abandoned gas station where vendors usually sell fresh strawberries and oranges from the back of a pickup truck. This day, the vendors were selling Scarface posters instead. Framed ones, all different poses of the cultural icon.

The sight harkened me back to a young drug trafficker I evaluated. Although he had no known history of violence, federal agents found a Scarface poster along with a loaded handgun in his home. The poster, argued federal prosecutors, showed a propensity for violence.

I don't know how many young drug traffickers hang Scarface posters on their walls, but after last month's appellate decision in U.S. v. Marin I can say that it is not a good idea. Antonio Marin of Massachusetts was caught under very similar circumstances to the young man I evaluated. Charged with possessing a firearm in furtherance of drug trafficking, he said no, he simply had a "casual," innocent interest in guns. At trial, the government rebutted that defense by presenting a Scarface shadow box found in Marin's apartment. The display case contained (among other items) a picture of Al Pacino aiming a machine gun, a replica gun, and a cigar.

An appellate court upheld the use of the Scarface memorabilia against Marin, saying its probative value outweighed its potentially prejudicial impact.

That's where expert testimony might have proven helpful. As I wrote in my report in the similar case, research has established certain factors as correlated with violence. Scarface idolatry, no matter its intuitive appeal, is not one of them. If it was, the crime rate would be much higher: Scarface is one of the most popular DVD's on Amazon, and the Internet has dozens of Scarface-related sites and hundreds of spin-off products, including music tapes, posters, and T-shirts.

Researchers have studied the effects of violent media on aggression for decades, generating hundreds of studies on this topic. Although the debate continues to rage, there is general consensus that no direct link exists between violent cinematic imagery and real-life violence. Watching large amounts of violent movies or TV shows might encourage violence in those already so inclined, but fantasy violence is neither necessary nor sufficient to trigger real-life violence.

Interestingly, the potentially unfair prejudice of Scarface memorabilia was acknowledged in a second case last month, this time when the defense tried to introduce it at a trial.

High school students Jean Pierre Orlewicz and Alexander Letkemann of Michigan were on trial for a gruesome beheading-murder of a 26-year-old man named Daniel Sorensen. To bolster their claim of self defense, the teenagers sought to introduce images from Sorensen's MySpace page of - you guessed it - Scarface.

No can do, the judge ruled. The photos "would tend to move the jury to decide the matter on an improper basis such as inflamed passions and emotions."

Sorensen is not the only murder victim whose MySpace site was scoured for the low-down on his personality and proclivities. Indeed, that is one of the first places police (as well as people like me) will look for uncensored (if sometimes exaggerated) self portrayals when someone gets caught up in a crime. That potential reality is far from the minds of young people as they immerse themselves in the semi-public world of social networking.


Take the case of University of California Berkeley fraternity member Christopher Wootton. He was killed this month in a drunken, late-night brawl. His loyal friends and family insist he was a peaceable guy who must have been trying to defuse the combatants. On his MySpace site just a week earlier, however, he had bragged about grinding another man's face into the pavement during an unrelated drunken fight.

Will this admission be allowed in court, to bolster the 20-year-old murder defendant's contention that he acted in self defense? Only time will tell.

One thing is certain: If either of these young men had a Scarface poster on their wall, we will hear about it on the local news. And then those street-corner vendors might have to go back to selling fruit. So far, no one has tried to link strawberries to violence.

Hat tip: Colin Miller at EvidenceProf

Does CSI Effect really lead to more acquittals?

Crime dramas saturate network television. Most focus on science and technology, blending reality and fiction to give viewers unrealistic beliefs about evidence in real-life cases. For the past few years, prosecutors have been lamenting this so-called CSI Effect, stating that jurors are making impossible demands for scientific evidence in order to convict.

But does the expectation of scientific evidence really translate into increased acquittals? And, if so, are viewers of TV crime shows more susceptible to this effect?

Those were the questions that a Michigan judge and two other researchers set out to answer, through a survey of more than 1,000 randomly selected jurors.

Judge Donald Shelton and colleagues found that almost half of the prospective jurors surveyed expected to see scientific evidence in every case, with 22 percent expecting DNA evidence – a highly unrealistic expectation. Not surprisingly, this expectation was stronger for regular viewers of CSI, who were also more likely to believe that their favorite TV crime dramas were realistic.

However, the jurors' expectations did not necessarily translate into an automatic tendency to acquit. Rather, jurors said they would only demand scientific evidence if the prosecutor did not call the victims or others as witnesses. In rape cases, however, CSI viewers were less likely than other jurors to say they would convict a suspect in the absence of DNA evidence (which often is not available in real-life sexual assault cases).

Increased expectations of law enforcement are not necessarily a bad thing, Judge Shelton argued in an essay published in this month’s National Institute of Justice journal (available online here). Perhaps, he wrote, police should make more of an effort to get the scientific evidence that the public seeks. And, when such evidence is not available, attorneys and judges need to learn how to explain this reality to the jury.

"Most importantly," wrote Shelton, who has written extensively on the impact of technology on the law, "prosecutors, defense lawyers, and judges should understand, anticipate, and address the fact that jurors enter the courtroom with a lot of information about the criminal justice system and the availability of scientific evidence."

Presidential hopefuls' criminal justice stances

Despite growing public awareness of the drastic costs of current policies, criminal justice issues have received little attention in the U.S. presidential debates. To rectify this, the nonpartisan Sentencing Project has prepared a handy 11-page pdf guide that provides the positions of frontrunners McCain, Obama and Clinton on nine key criminal justice issues, including sentencing policy, prisoner reentry, the death penalty, and felony disenfranchisement. The guide is available here.

Houston's embattled DA finally steps down

Allegations of racism in prosecutions

If Houston was a state, it would rank second only to the rest of Texas in the number of executions carried out in the past three decades. And behind this unprecedented juggernaut stands one man - Harris County District Attorney Chuck Rosenthal.

Rosenthal resigned from office Friday amid a high-profile scandal involving the release of dozens of pornographic, racist and political e-mails on his office computer.

Of potential interest to my readers, the scandal almost coincidentally brought out allegations of racism in the prosecution of crimes: Black potential jurors were allegedly struck because they were perceived as soft on crime; code names for blacks were bandied about in e-mails, and black leaders believed that prosecutors worked to punish blacks more harshly than whites.

The Houston Chronicle has the complete story, along with a timeline of events and links to other coverage. For more on capital punishment, including in Harris County, check out the amazing set of links at the prosecutor’s office of Clark County, Illinois.

"The Tim Masters Case: Chasing Reid Meloy"

That's the title of a hard-hitting article focusing on forensic psychologist Reid Meloy's troubling role in the Tim Masters case in Colorado that many of my forensic psychologist readers have been following closely. This continues to be quite the cautionary tale for the rest of us.

"Meloy's reports and opinions about Masters' artwork have been the source of controversy from the beginning, but never so much as during recent courtroom testimony in which reams of material was introduced for the first time that bring into question not only Meloy's objectivity but whether or not he even came to his conclusions independently," writes journalist Greg Campbell of Fort Collins (Colorado) Now.

Campbell hunted down Meloy at a 4-day youth violence risk assessment training course in San Diego, where Meloy was giving a talk entitled "Adolescent and Young Adult Mass Murder: Assessment and Management of a Catastrophic Risk." He describes Meloy as a "rock star" in the crowd of law enforcement officials, psychologists and education professionals:

" ... taking second billing in the world's small population of celebrity forensic investigators to Roy Hazelwood, Gregg McCreary and John Douglas if only because he never worked for the FBI as they did, and because he's not technically a 'criminal profiler,' a career that has proved so popular in recent American pop culture. His resume more than compensates for being just a step below these movie- and TV-show-inspiring pioneers, however. He is a professor at two San Diego universities, a faculty member of the San Diego Psychoanalytic Institute and former chief of the San Diego County Forensic Mental Health Division. He's written more than 170 papers published in peer-reviewed journals and has written or edited 10 books. Currently, he operates a private forensic practice, consults with the FBI on counterterrorism measures and works to analyze threats to British politicians and the Royal Family. He is a diplomate in forensic psychology of the American Board of Professional Psychology.

"Meloy made no reference to Masters in his presentation, which was focused on the characteristics of mass murderers like Columbine killers Eric Harris and Dylan Klebold, Omaha mall shooter Robert Hawkins, and Virginia Tech killer Seung-Hui Cho. In general terms, Meloy outlined traits of these killers that were similar to traits he attributed to Masters. They tend to be loners. They use fantasy to compensate for shortcomings in their lives. They have poor family relationships. They have a fascination with weapons and war."

Campbell repeatedly emphasizes Meloy's refusal to publicly comment on the case or his role in it. He quotes Meloy as telling him: "I don't want to say anything extrajudicially. It's just too sensitive. ... There will be a time and a place."

"The forensic psychologist has never been shy about his opinion that Tim Masters' doodles made him a killer ... but now that charges are dropped, Reid Meloy has only one thing to say: 'No comment.' "

"Although he now doesn’t want to say anything extrajudicially, Meloy was interviewed for a 2000 documentary about the case that appeared on the A&E Network's 'Cold Case Files.' The show is an uncritical ode to how Meloy, Broderick, Gilmore and Blair [the police detectives] joined forces to crack the case using something akin to mentalism.

" 'After spending six months on the case, I felt I understood the motivations for this homicide and that I had become convinced that Timothy Masters was the individual that had committed this homicide,' Meloy said on the show.

"For Meloy, Masters' drawings represented a 'fantasy rehearsal' for the crime, especially a doodle on Masters' math homework of a knife-wielding hand cutting a diamond shape that Meloy interpreted as a vagina, 'which may have been a rehearsal of the genital mutilation,' as he wrote in his first report to Broderick.

"Equally damning in Meloy's interpretation was a picture Masters drew [that] depicted one figure dragging another, which was apparently wounded or dead, from behind. The wounded figure was riddled with arrows and blood seemed to flow from its back. The figure's heels dug furrows in the ground similar to furrows found where Hettrick’s body was dumped.

"Entirely discounting the presence of the arrows - which had nothing whatsoever to do with the murder - Meloy wrote in his report that this picture represented the crime as it actually happened."

Campbell describes Meloy's role as pivotal to Masters' conviction, providing the only "evidence" of guilt:

"Meloy was the cornerstone of that prosecution - without him, it's unlikely that Masters would have been arrested in the first place. To date, he has provided the only 'evidence' in the nearly 21 years since the murder that implicated Masters in any way: an analysis of Masters' boyhood doodles, crude sketches and violent short stories that - even in the complete vacuum of physical evidence connecting Masters to the crime - convinced Meloy he was guilty.

"Meloy drew his conclusion based on a review of certain evidence provided to him by [Detective] Broderick, including Broderick's own categorization and interpretation of Masters' fictional productions, police videotapes and suspect interrogation transcripts, among many more items.

"Meloy did not, however, speak to or interview Masters himself.

"It apparently wasn't necessary.

"In his first report to Broderick he plainly states in several places that Masters committed the crime - referring to him not as a 'suspect,' but a 'perpetrator' - and he was apparently so convinced that he sent a pretrial letter to then-Larimer County DA Stuart Van Meveren in which he hoped for a 'successful prosecution.'

"And thanks to Meloy's testimony, they got it.

"In court, the jury was bombarded with Masters' scary pictures that were shown on a large video monitor while Meloy pointed out features of them that he testified showed pairing of sex and violence; evidence of 'picquerism,' the sadistic pleasure derived from stabbing; degradation of women; and fascination with weapons and death.

"In his first report to Broderick, Meloy wrote that Masters killed Hettrick because he felt abandoned by his mother, who died unexpectedly almost exactly four years to the day before the murder. He opined that her death, an 'emotionally distant' relationship with his father who spent a lot of time away from home while on active duty in the Navy, the departure of his sister from their home to join the U.S. Army, and his retreat into a fantasy world combined to create a boiling kettle of latent violence just waiting to erupt.

" 'A retreat into such a compensatory narcissistic fantasy world, replete with sexuality and violence, works for awhile, but at a great cost,' Meloy wrote. 'The unexpressed rage continues, depression may ensue, and anger toward women as sources of both pain (abandonment) and erotic stimulation builds.'

" 'Sexual homicide represents the solution, particularly in the form it took in this case: If I kill a woman, she cannot abandon me; if I desexualize her (genital mutilation) she cannot stimulate me,' he wrote. 'These are not conscious thoughts for Tim Masters, but likely represent the unconscious beliefs that drove his behavior the night of Feb. 11, 1987, when he killed and sexually mutilated Peggy Hettrick, a victim of choice and opportunity. Ms. Hettrick represented all Women (sic) to Tim Masters.' "

The full article is online here. Also at that website are copies of some of Masters' so-called "scary doodles."

Masters scandal highlights need for oversight of prosecutors

Revelations of official malfeasance such as occurred in the Tim Masters case cause a massive erosion of public confidence in the judicial system. The potential upside is reforms to safeguard other citizens from being similarly railroaded.

For example, "Masters is free, but justice not yet served" is the headline of a hard-hitting editorial in the Coloradoan, calling for just such reforms.

But reforms will not come easy. As a new book explains, prosecutors in the United States wield ever-growing power under new laws granting them unfettered "prosecutorial discretion" in charging and sentencing decisions.

Arbitrary Justice: The Power of the American Prosecutor is the book, authored by public defender Angela J. Davis (no, she's not the same Angela Davis you're probably thinking of).

Arbitrary Justice does two things:

• It exposes the "dangerous shift in power from judges to prosecutors" (in the words of law prof Barry Schenk of Innocence Project fame) happening in the courthouse trenches.

• It provides a detailed agenda for reforms aimed at safeguarding defendants, victims, and the public at large.

Hat tip: Corrections Sentencing. Photo is of author Angela J. Davis. See more about the book at its dedicated web site. More blog posts on the Tim Masters case are listed here.

By popular demand: Expert testimony at Masters trial

Readers wondered if I knew how to obtain the actual transcript of forensic psychologist J. Reid Meloy's testimony at the trial of Tim Masters. (That's the apparent wrongful conviction case that I've blogged about most recently here). So, by popular demand, I've uploaded the transcript here:

J. REID MELOY TESTIMONY

Dr. Meloy waxes eloquent on sexual homicide, rehearsal fantasies, the paraphilia of picquerism, the Rorschach inkblot test, and more. He psychoanalyzes the 15-year-old Masters' military fiction and violent drawings of Freddy Krueger. On cross-examination, he even references his own sexually sadistic and predatory fantasies. Happy reading!

Breaking news flash: DNA evidence may exonerate Masters

I've been blogging about the fascinating case of Tim Masters in Colorado, who was convicted in part based on a prominent forensic psychologist's testimony about his doodles.

Yesterday, in a stunning development in the twisting case, it was announced that reanalysis of the DNA linked it to a different man who had once been a suspect in the case. The prosecutor has recommended that Masters be freed pending a new trial, but police detectives are stubbornly sticking with their original theory that the 15-year-old Masters was the killer.

Jan. 22 postscript: Tim Masters is being freed today. He was busy packing his family photos and other belongings but was planning to leave behind his television, coffee pot, and prison-issued clothes. The Daily Camera has the story.

CNN has the story and related links.

For more background, especially on the forensic psychology angle, see my earlier posts, including:

Fascinating new twists in Tim Masters case

The Scary Doodles case

Did forensic profile go too far?

Fascinating new twists in Tim Masters case

Expert witness psychologist cited FBI profiler who had rejected prosecution theory of case

The forensic psychology angles in Tim Masters' ongoing motion for a new trial in Fort Collins, Colorado are increasingly fascinating. Here are a few of the newest:

Roy Hazelwood, the pioneering FBI profiler, was hired as a police consultant but rejected the police theory of the case, which linked 15-year-old Masters to a 1987 sex-murder based on the boy's doodles. Police withheld this information from defense attorneys at Masters' 1999 trial, and Hazelwood was never called as a witness.

With Hazelwood giving a thumbs-down to the police theory, prominent forensic psychologist Reid Meloy became the prosecution's star witness. He did exactly what Hazelwood had cautioned against, connecting Masters to the killing based on a series of violent sketches. Ironically, Meloy cited Hazelwood's theories on profiling as a basis for his opinion.

In addition to the "scary doodles," as they have been dubbed by the media, Meloy theorized that the date linked the killing to Masters, because it was the anniversary of the date that Masters' mother had gone to a hospital. But the information now being turned over by prosecutors suggests that this theory was fed to Meloy by Fort Collins police.

No physical evidence has ever linked Masters to the crime. The newly revealed police notes reflect that authorities were suspicious of a suspected sex offender who lived nearby and later killed himself. Authorities destroyed evidence linking that man, eye surgeon Richard Hammond, to the murder, and did not provide his name to the defense.

The ongoing hearings are aimed at getting a new trial for Masters, who is serving a life sentence, and also getting sanctions against the original prosecutors, both of whom are now judges, for withholding evidence.

The moral for forensic psychologists: Carefully protect your neutrality and independence; never let partisans for one side or the other influence (or appear to influence) your theories or findings.

Note: A more recent post on this case is here.

For my earlier blog posts on this case, click HERE and/or HERE. A Denver Post video, "The Story of Tim Masters," shows details of Masters' police interrogations. The Pro Libertate blog has case analysis, graphics, and links. A blog dedicated to the case, Free Tim Masters Because, has a lengthy page devoted to the role of Dr. Meloy.

Other news coverage includes:
Undisclosed Masters evidence nags, Denver Post, Dec. 20, 2007Notes in Masters case wanted "profile" stricken, Denver Post, Dec. 18, 2007Attorneys: It was the doctor - Master’s defense says Hammond had all the makings of real killer, Reporter Herald (Loveland, CO), Dec. 18, 2007Testimony returns to subject of expert, Reporter Herald, Dec. 17, 2007

"The Scary Doodles Case"

The tale of a teenage doodler,
a disputed confession,
and a forensic psychologist

One of the most interesting disputed conviction cases in the news these days is the case of Tim Masters in Colorado, which I first blogged about back in July. If you haven't read up on it yet, it's worth checking out.

The Rocky Mountain News is pulling no punches in calling for a new trial for Masters, who was only 15 when the murder in question occurred. The News' most recent editorial, entitled "In need of a new trial: Prosecution handicapped Tim Masters' original defense," begins like this:

The worst thing you can say about a legal system is that it railroads defendants - convicts and sentences them without allowing juries to hear the full story and without investigators pursuing equally viable suspects. That's why the case involving a Colorado prisoner named Timothy Lee Masters is so important - and why it is critical that he be granted a new trial.

For purposes of this blog, the case is intriguing because of the disputed confession (see my earlier post) and also because of the central role of J. Reid Meloy, a prominent forensic psychologist. Meloy "worked hand-in-glove with prosecutors," even reviewing the arrest warrant before it was served. The News editorial comments:

Forensic psychologist Meloy's analysis, so crucial to the prosecution's theory, at times has the tone of a pulp crime thriller. Portentous but debatable conclusions are scattered throughout, such as: 'Sexual homicides are often unconscious displaced matricides'; '[the victim] also resembled his deceased mother, which is of enormous psychological significance . . .' ; and, Masters 'knows the distinction between slicing and stabbing, terms that generally would not be distinguished by the lay person.'

Indeed, it was largely on the basis of Masters' violent doodles – and Meloy's interpretation of them – that the boy was convicted, legal observers say. Prosecutors "bombarded" jurors with blown-up images of the doodles, projected onto the wall of the courtroom.

The News article continues here.

My more recent posts on this case are here and here.

The Denver Post has additional coverage of the case and an online video, "Sketchy Evidence: The Story of Tim Masters." The Pro Libertate blog has case analysis, graphics, and links. And there's even a blog devoted solely to the case, Free Tim Masters Because, which has a lengthy page devoted to the role of Dr. Meloy. See further commentary on this topic at the Witness LA blog.

New study: Brooklyn, NY prisoner reentry program

Prosecutors push alternatives to crime

Today's New York Times features an editorial on a pioneering prisoner reentry program in Brooklyn, NY. The ComAlert program has been going strong for eight years, and was just the focus of a study by a criminal justice expert at Harvard.

No surprise, the study found that paroled prisoners are more likely to stay out of trouble if they undergo rigorous counseling and drug treatment along with immediate job training and work experience.

The surprise (which isn't mentioned by the Times) is who is running and promoting the innovative program: The Brooklyn District Attorney's Office. Indeed, ComAlert stands for "Community and Law Enforcement Resources Together."

The New York Times editorial is here. A longer article by researcher Bruce Western is online here. Western is the author of Punishment and Inequality in America, an enlightening look at crime, race, and employment that was published last year.

Oregon high court clarifies drug-free school zone law

Prosecutor need not prove defendant's knowledge

A drug dealer need not know of his proximity to a school in order to be convicted under a drug-free school zone law, the Oregon Supreme Court has ruled. The ruling follows similar case law in other states.

Oregon's law is intended to protect children "regardless of whether the dealers know they are within 1,000 feet of a school," the ruling states.

"That's typical with drug crimes when you're looking ... at the social harm as opposed to the mental intent of the seller," commented law professor Laura Appleman.

A 2001 study by the Boston University School of Public Health found that a similar drug zone law was not effective in reducing drug sales near schools.

The full AP story is online at the Oregon Statesman Journal website.

Forensnips III: Last but not least

The ominous Mr. Big: Coming soon to a theater near you

Leave it to the Royal Canadian Mounted Police to make a suspect confess.

Undercover Mounties, posing as members of criminal organizations, study their targets and obtain their loyalty with "gifts of cash, lavish meals, and booze-fueled strip-club trysts." They then involve their murder suspects in phony crimes such as money laundering and mob-style hits, complete with fake blood.

Finally, Mr. Big enters the picture. He is an all-powerful, gun-toting mob boss who "offers the target a terrible choice: Admit to a murder and receive his protection, more money. Or endure his wrath. Transcripts of these encounters, entered as evidence in courts, reveal that Mr. Big does not like to take 'no' for an answer."

The Mounties have conducted hundreds of these astonishing stings in recent years, most of them successful in garnering a confession.

The full article is online at Canada's National Post. Mr. Big is the topic of a 90-minute documentary by writer-producer Tiffany Burns. A clip from the forthcoming movie is also available online.


Epidemic of animal abuse?

With pro football quarterback Michael Vick garnering front-page news in connection with a dog-fighting farm, the Los Angeles Times is now reporting on what they call a "growing wave" of violence against animals by groups of youths. Here's an excerpt:

"Nationwide, an increasing number of animal cruelty cases are being
reported outside city limits: Horses, cows, goats and other farm animals
are being killed, authorities say, often by angry, reckless youths,
perhaps acting on dares.

"Although there are no statistics on such crimes, newspapers detail
scores of cases. Two Texas college students were indicted last fall for
slashing a horse's neck before stabbing it in the heart with a broken
golf club handle. In Pennsylvania in 2005, three joy-riding men killed a
pony named Ted E. Bear that belonged to a 4-year-old boy...."

We've seen alarmist stories before about juvenile crime waves. In fact, they've been coming in cycles since at least the 1950s.

This one could be hype, could be real. You decide.


Double jeopardy or justice delayed?

Last but not least in today’s news roundup, the San Francisco Chronicle is reporting on a man who is being prosecuted anew for a crime that he was already convicted of 35 years ago.

Richard O'Neal was convicted in 1972 of shooting a police officer, and served four years in prison. After his release, he built a steady life as a father, grandfather, and popular city maintenance man.

Now, O'Neal has been rearrested for the same crime, one of nine defendants in the high-profile prosecution of ex-Black Liberation Army members.

Prosecutors call it delayed justice. But the arrest has outraged O'Neal's friends and relatives, who say the 58-year-old San Francisco man paid his debt to society and has spent the past three decades building a reputation for kindness and generosity.

Rape prosecution - an uphill battle

I’ve come across several stories lately pertaining to the difficulty of prosecuting rape cases. Many of you readers will have heard about the recent Nebraska trial in which the judge forbade witnesses – including the alleged victim – from using the word rape (or related words such as “victim,” “assailant,” or “sexual assault kit”). That trial resulted in a hung jury.

You are less likely to have heard about international data coming out of New Zealand, Australia, Great Britain, Scotland, and elsewhere about astonishingly low rape conviction rates in recent years. For example, data from Victoria, NZ indicate that only one of six rapes reported to police proceeds to prosecution and less than one-fourth of those result in a rape conviction. With only a tiny proportion of rapes being reported in the first place, this attrition has led to what some call the “virtual decriminalization” of sexual violence.

While these stories were coming across my desk this month, I happened to be in the middle of a provocative analysis by law professor and former sexual assault prosecutor Andrew Taslitz. Rape and the Culture of the Courtroom uses social science research to explain why rape prosecutions remain so difficult, despite the rape reform laws of the 1980s. Through linguistic analysis of actual cases, Taslitz shows how subtle innuendos, proxies, and other linguistic devices can cue jurors to place the victim into certain cultural narratives, such as that of “slut” or “scorned woman” – in other words, “liar.”

Taslitz’ linguistic analysis jives with my experiences in court. When I’ve been retained as an expert for the government (prosecution) in rape cases in which the defense was consent, I’ve been amazed at how rarely jurors convict even when the evidence is pretty solid and the woman has no plausible reason to lie. Taslitz emphasizes that even jurors who are consciously pro-feminist may fall prey to appeals to subconscious cultural scripts about virtuous womanhood.

Taslitz’ blueprint for legislative reforms includes such controversial ideas as allowing rape victims to present their stories in an uninterrupted narrative, using “intermediaries” rather than defense attorneys to question the victims, and having linguistic experts explain to jurors the effects of subconscious biases on decision-making.

My full review of the book is on Amazon.

The Nebraska trial of Pamir Safi, an Army reservist, is featured at Time Magazine’s online site.

Photo credit: fabbio (Creative Commons license).

Did forensic profile go too far?

Psychological profile helped convict teen who maintains his innocence

Police detective Jim Broderick in Fort Collins had set his sights on 15-year-old Tim Masters. He was convinced that the boy had kidnapped, sexually mutilated, and murdered a woman.

No physical evidence tied the boy to the crime. But for years after the 1987 crime went cold, Detective Broderick continued to insist that Masters was the killer.

The detective was haunted by Masters’ oddness during questioning, his collection of survival knives, and the timing of the woman’s death - within a day of the fourth anniversary of the boy's mother's death. But most troubling of all, according to a Denver Post expose on the case, were Masters’ violent sketches. Especially one featuring a blade tearing into a diamond shape.

Finally, in 1995, Broderick telephoned forensic psychologist Reid Meloy and asked him to study Masters' artwork. “Meloy had developed a reputation as an expert witness on sexual homicides,” writes Post reporter Miles Moffeit. “He even disclosed a deeply personal fascination with the subject, according to court testimony, saying he himself had sexually sadistic fantasies.”

Without interviewing Masters, Meloy wrote a damning opinion: Masters fit the profile of a killer because he was a loner who came from an isolated or deprived background and harbored hidden hostility toward authorities as well as violent fantasies. This was a displaced sexual matricide, stemming from Masters' feelings of abandonment by his dead mother. "The killing of Ms. Hettrick translated Tim Masters' grandiose fantasy into reality," Meloy wrote.

Meloy’s profile helped garner a conviction, and in 1999 Masters was sentenced to life in prison.

Now, a legal team has launched what the Post characterizes as “one of the most ambitious and expensive bids ever in Colorado to prove a man's innocence.” The investigation focuses on a sexually deviant medical doctor who lived near the scene of the killing; the doctor committed suicide and police destroyed much of the physical evidence that could have tied him to the crime.

Watch the Denver Post's online video, “The Story of Tim Masters,” which shows details of Masters' interrogations at the hands of police.

My more recent posts on this topic are here, here, and here.

Thanks to Denver forensic psychologist Michael Karson for bringing this case to my attention.

Predator show slammed

Might mounting criticisms of NBC's "To Catch a Predator" signal a turning point in the cultural hysteria surrounding “sexual predators”?

Criticism is mounting on multiple fronts against the show, which features vigilantes trolling the Web to lure men into sexual liaisons with children.

On the civil front, the show’s former producer claims she was fired after complaining about flagrant violations of journalistic ethics. Marsha Bartel lost her 21-year career with NBC. She alleged in a U.S. District Court lawsuit that NBC provides financial incentives to the shadowy vigilante group Perverted Justice to use trickery and to humiliate targets to “enhance the comedic effect of the[ir] public exposure." She said that in some cases the vigilantes resorted to begging individuals to come to sting locations. Additionally, she charged that police behaved improperly off-camera, for instance “waving rubber chickens in the faces of sting targets while forcing them to the ground and handcuffing them." NBC responded by calling the lawsuit “without merit.” The lawsuit is on-line at: http://shurl.org/predator

On the criminal front, prosecutors have lambasted the series as an unethical blending of law enforcement and show business that does nothing to curtail sexual violence. In Collin County, Texas, for example, the District Attorney said none of 24 recent sting arrests were adequate for prosecution.

"This whole scenario is garbage-in-garbage-out, and here we sit with a pile of garbage,” commented one legal observer. "It's a prosecutor's worst nightmare. The last thing you want is the news media or reality TV shows to be involved in the prosecution or the investigation of the case."

Last fall, the show came under scrutiny when a target shot and killed himself as police stormed his house outside Dallas, Texas. The man, an assistant district attorney, was to be To Catch a Predator's most notorious target. "These people were acting not only as police, but judge, jury and executioner," said the deceased’s sister. "It was about headlines. Making a splash. Making a story. Jumping to conclusions.”

TV news coverage of the Texas cases is on-line at: http://www.wfaa.com/video/?nvid=148433&shu=1

Comedic criticism of the show can be found on YouTube. My favorite of these is the “auditions” for the job of teenage lure. See: http://shurl.org/auditions.

On a more serious note, a Baptist minister has analyzed the high financial costs of the current hysteria. These include not just the obvious costs of incarceration, but such lesser-knowns as declining property values when a registered sex offender moves into a neighborhood. David Hess of New York argues that lawmakers are throwing billions of dollars at a mythological problem, while doing nothing to deter real sexual abusers, mostly family members and friends of their child victims. His analysis is on-line at: http://shurl.org/economic+costs.

Harmful effects of unintentional racism

Research on racism has come a long way since the old days of searching for the “racist personality.” In recent years, researchers have focused on the subtle, modern racism that pervades our culture and that perpetrators can plausibly deny.

Individuals who practice this subtle racism may not even know it. They may believe in fair and equal treatment for all, yet unconsciously harbor negative feelings toward other races. Becoming anxious and uncomfortable in interracial interactions, they adhere to formal rules of behavior while expressing their negative feelings in subtle ways that can be denied or rationalized.

The implications extend into the forensic realm. Studies of police and probation officers show that they often use racial cues to assign blame. An African American who commits a crime is likely to be seen as inherently bad or criminal, while a white person who commits a similar crime is more likely to be excused based on external factors, such as peer influence, poor parenting, or mental illness. Recommended punishments differ accordingly, resulting in greater likelihood of arrest, prosecution, and imprisonment for African Americans.

The unconscious nature of these biases helps to explain divergent rates of arrest, prosecution, and imprisonment despite a lack of conscious racist intent on the part of criminal justice professionals. (Other forces, of course, include persisting economic equalities.) Interestingly, the race of the professional is irrelevant. African American police and probation officers engage in just as much negative racial stereotyping of African Americans as do whites.

Research continues to flesh out the specifics of modern racism. Now come two new studies, one about its pervasiveness and the other about its harmful effects.

The current issue of the American Psychologist reports on “racial microaggressions,” which are defined as everyday indignities, often unintentional, that communicate hostile or derogatory feelings toward racial minorities. Such microaggressions are divided into microassaults (purposeful discrimination or name-calling), microinsults (rudeness and insensitivity), and microinvalidation (exclusion or negation).

The invisibility and deniability of these subtle forms of racism make them especially problematic. The recipient must try to decide whether the offensive behavior was deliberate or unintentional. If the recipient confronts the aggressor, he or she is typically labeled as oversensitive or even paranoid.

The current issue of the American Journal of Public Health reports that subtle racism is more psychologically damaging than overt discrimination. Whereas recipients can “shrug off” overt discrimination, subtle racism is more likely to be committed by colleagues, neighbors, or friends. As such, it causes recipients to feel that people do not like or accept them, thereby lowering self esteem and leading to depression.

Similar research with African Americans has found that subtle racism is most damaging to their physical health.

Sue, D. W., Capodilupo, C., Torino, G., Bucceri, J., Holder, A., Nadal, K., & Esquilin, M. “Racial microaggressions in everyday life: Implications for clinical practice.” American Psychologist, May-June 2007, Volume 62 #4, pp. 271-286.

Noh, S., Kaspar, V., Wickrama, K, “Overt and subtle racial discrimination and mental health: preliminary findings for Korean immigrants.” American Journal of Public Health, July 2007, Volume 97 #7.

First CSI, Now Duke

For several years, prosecutors have had to contend with the so-called “CSI Effect” – jurors' unreasonable expectations for scientific evidence based on fictional TV shows such as CSI and Cold Case.

Now comes the “Duke Effect,” fallout from prosecutorial misconduct in the Duke University lacrosse rape case. Shortly after rape charges were dropped against three lacrosse players, ethics charges were levied against the prosecutor for allegedly withholding exonerating DNA evidence.

Now, defense attorneys nationwide are using the Duke case to paint prosecutors as overzealous advocates, according to an article by Tresa Baldas in today’s National Law Journal.

The article cites a Texas case in which a teacher was accused of pinning down a female student while other students beat her. In his closing argument, defense attorney Edmund "Skip" Davis warned jurors not to allow "that tragedy that nearly fell upon those kids at Duke." The jury took just three minutes to acquit the teacher of assault.

The Duke case worked so well for attorney Davis that he plans to use it again in an upcoming rape trial. Other attorneys nationwide say they are doing likewise, raising the Duke case during both voir dire and closing arguments.

Prosecutors worry that the Duke Effect may hamper their efforts to win convictions.

"[It is] definitely going to make it difficult for us, there's no question about it," Oregon prosecutor Joshua Marquis told the Journal.

Lesson to abusers: Target socially disempowered

In a case that highlights the hypocrisy of get-tough-on-crime policies supposedly driven by sympathy for victims, the juvenile court system continued to send boys to a prominent psychiatrist for at least 16 years after he was first accused of child molestation.

Juvenile court judges continued to send new victims to Dr. William Ayres until 2003, long after the first of multiple complaints against him by boys and their parents. As of the most recent tally, at least 37 men have accused Ayres of molesting them as boys dating back almost four decades.

Economic class disparities between the accusers and the accused likely influenced the failure to prosecute. After all, whom should one believe? A prominent child psychiatrist and former president of the American Academy of Child and Adolescent Psychiatry? Or a disempowered youth who seems destined for state prison?

“You have a prominent psychiatrist saying, 'I didn't do it,' and a troubled youth who's seeing a psychiatrist," Deputy District Attorney Melissa McKowan told the San Francisco Chronicle.

According to the Chronicle article, Ayres might never have been prosecuted without the chance intervention of a freelance writer from New York.

For more media coverage of the Ayres case, go to the blog: http://psychwatch.blogspot.com/.