Psychopathy guru blocks critical article

Will case affect credibility of PCL-R test in court?

Despite recent evidence that scores on the Psychopathy Checklist-Revised (PCL-R) vary widely in adversarial legal contexts depending on which party retained the evaluator, the test has become increasingly popular in forensic work. In Texas, indeed, Sexually Violent Predator (SVP) evaluators are required by statute to measure psychopathy; almost all use this test. It is not surprising that prosecutors find the PCL-R particularly attractive: Evidence of high psychopathy has a powerfully prejudicial impact on jurors deciding whether a capital case defendant or a convicted sex offender is at high risk for bad conduct in the future.

But a current effort by the instrument's author, Robert Hare, to suppress publication of a critical article in a leading scientific journal may paradoxically reduce the credibility of the construct of psychopathy in forensic contexts.

That's the opinion of two psychology-law leaders, psychologist Norman Poythress and attorney John Petrila of the University of South Florida (two authors of a leading forensic psychology text, Psychological Evaluations for the Courts), in a critical analysis of Dr. Hare's threat to sue the journal Psychological Assessment. The contested article, "Is Criminal Behavior a Central Component of Psychopathy? Conceptual Directions for Resolving the Debate," is authored by prominent scholars Jennifer Skeem of UC Irvine and David Cooke of Glasgow University. The study remains unpublished.

"[T]he threat of litigation constitutes a serious threat to academic freedom and potentially to scientific progress," write Poythress and Petrila in the current issue of the International Journal of Forensic Mental Health. "Academic freedom rests on the premise that advances in science can only occur if scholars are permitted to pursue free competition among ideas. This assumes that scholars have the liberty to do their work free from limitations imposed by political or religious pressure or by economic reprisals."

According to Poythress and Petrila, after the critical article passed the peer-review process and was accepted for publication, Dr. Hare's lawyer sent a letter to the authors and the journal stating that Dr. Hare and his company would "have no choice but to seek financial damages from your publication and from the authors of the article, as well as a public retraction of the article" if it was published. The letter claimed that Skeem and Cooke's paper was "fraught with misrepresentations and other problems and a completely inaccurate summary of what amounts to [Hare's] life's work" and "deliberately fabricated or altered quotes of Dr. Hare, and substantially altered the sense of what Dr. Hare said in his previous publications."

In general, defamation claims must prove that a defendant made a false and defamatory statement that harmed the plaintiff's reputation. Truth is an absolute defense. Critical opinions are also protected from defamation actions, as are "fair comments" on matters of public interest.

In this case, the contents of Skeem and Cooke's contested article have not been made public. However, it is hard to see how critical analysis of a construct that is enjoying such unprecedented popularity and real-world impact would NOT be of public interest.

Poythress and Petrila express concern that defamation claims against opposing researchers, while traditionally rare, may be becoming more common, leading to a potentially chilling effect on both individual researchers and the broader scientific community. Like so-called SLAPPS -- Strategic Lawsuits Against Public Participation -- used by corporations and other special interest groups to impede public participation, even meritless defamation lawsuits extract heavy penalties in terms of lost time and money and emotional distress.

Judges have been critical of pretextual deployment of defamation lawsuits, Poythress and Petrila report; a judge in one case warned that "plaintiffs cannot, simply by filing suit and crying 'character assassination!,' silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation."

Potential negative effects of defamation threats against scientific researchers include:

1. Researchers avoid conducting critical research out of fear of lawsuits.
2. Academics decline to serve as volunteer peer reviewers for academic journals due to loss of anonymity in defamation suits.
3. Journal editors self-censor on controversial topics.

As Poythress and Petrila conclude:

Because publication of the article by Professors Skeem and Cooke has effectively been long delayed, if not ultimately suppressed, one clear impact of this threat to sue is that researchers who may have been willing to investigate alternative models of psychopathy that might have been derived from the Skeem and Cooke article are not able to do so, simply because the article is unavailable. Because science progresses, in part, both by confirming viable models and disconfirming nonviable ones, the suppression of information relevant to constructing candidate models for empirical evaluation can be viewed as impeding the progress of science….

[I]t seems clear from our review that such threats strike at the heart of the peer review process, may have a chilling effect on the values at the core of academic freedom, and may potentially impede the scientific testing of various theories, models and products. In our view it is far better to debate such matters in peer review journals rather than cut off debate through threats of litigation.

In court, meanwhile, the effects of Dr. Hare's threat may prove paradoxical. Attorneys whose clients could be prejudiced by introduction of the Psychopathy Checklist may be able to discredit the instrument by pointing to the suppression of critical literature about the underlying construct of psychopathy.

POSTSCRIPT: Just hours after I posted this, alert readers advised me that: (1) Dr. Skeem discusses the as-yet-unpublished article in her 2009 book, Psychological Science in the Courtroom: Consensus and Controversy, co-authored by Kevin Douglas and Scott O. Lilienfeld (page 179 in the Google book view is HERE), and (2) according to Dr. Hare's website, he has a response in press (which, ironically, cites the Skeem and Cooke article as being published last year).

The full article is: "PCL-R Psychopathy: Threats to Sue, Peer Review, and Potential Implications for Science and Law. A Commentary," by Norman Poythress and John P. Petrila, in the current issue of the International Journal of Forensic Mental Health. The abstract if available HERE; the full article requires a subscription.

Dr. Hare's response is: "The role of antisociality in the psychopathy construct: Comment on Skeem & Cooke (2009)." Hare, R. D., & Neumann, C. S. (in press). Psychological Assessment.

Of related interest:

• "The Dark Side of Peer Review," by Stephen D. Hart, also in the current issue of the International Journal of Forensic Mental Health (abstract HERE)

• "Does interrater (dis)agreement on Psychopathy Checklist scores in Sexually Violent Predator trials suggest partisan allegiance in forensic evaluations?" by Murrie, D.C., Boccaccini, M.T., Johnson, J.T., & Janke, C. (2008). Law & Human Behavior, 32, 352-362 (abstract HERE)

"CSI Effect": Fact or fiction?

Since introduced by Time magazine in 2002, the "CSI Effect" has become a cultural staple, imbued with the imprimatur of fact. The judicial system and media discuss it as a grave problem; the FBI has even produced a video warning of its impact. Just last week, the Economist of London issued an uncritical report asserting the reality of the effect, based on an upcoming article in Forensic Science International.

However, as Mind Hacks pointed out, both the Economist story and the underlying FSI article rely mainly on anecdotal evidence. The scientific verdict is not yet in.

Indeed, when I last discussed the phenomenon here, two years ago, a study by Michigan Judge Donald Shelton was raising doubts. Judge Shelton found scant evidence to support claims by prosecutors that jurors' unrealistic demands for hard scientific evidence were causing unjustified acquittals. As the debate continues, I thought it time for an update.

I find it ironic that a phenomenon being blamed for injecting a biased expectation of science into the courtroom has not in itself been subjected to much scientific scrutiny. After all, anecdotes are not science; they can be used to prove almost anything.

As it turns out, some legal scholars are putting the CSI Effect to empirical scrutiny, and -- guess what -- a measurable effect in the predicted direction is hard to prove. In fact, if Crime Scene Investigation and other enormously popular forensic TV shows are having any effect, it may be in the opposite direction -- toward making juries more conviction-prone.

Mind Hacks provided links two excellent scholarly analyses, both available online and well worth reading. The first, by Simon Cole, a Criminology, Law and Society professor at UC Irvine, and doctoral student Rachel Dioso-Villa, was published last April in the Stanford Law Review. The second, by media law professor Kimberlianne Podlas of the University of North Carolina, was published in October in the Loyola of Los Angeles Entertainment Law Review.

Podlas initially devised a creative plan: She would ask prosecutors to give her details of cases in which they believed an acquittal was due to the CSI Effect; then she would have defense attorneys review the case files for alternate explanations. But, she found, 19 of the 20 cases provided to her by prosecutors had actually resulted in convictions, thereby disproving the effect.

Lacking any "real" CSI cases to analyze, she devised a mock jury case in which she manipulated the strength of the scientific evidence. She found no evidence of a difference in outcome between heavy and light viewers of the TV show Crimes Scene Investigation. As she wrote:

"What is labeled a CSI Effect may more accurately be described as a rationalization embraced by members of law enforcement who find themselves on the losing side of a prosecution. By attributing a loss to CSI's wrongful influence, a prosecutor can obtain an explanation yet maintain a belief that an acquittal was misguided. Although this cognitive rationalization is understandable, it should not be mistaken for empirical proof that the CSI Effect operates anywhere other than in the minds of those proposing it."

In their excellent critical overview, Cole and Dioso-Villa go further, suggesting a propaganda parallel between the CSI Effect and the "litigation explosion" myth promulgated in the 1970s through a well-funded insurance industry campaign against civil plaintiff's attorneys. As in that instance, popular belief persisted even after social scientists thoroughly debunked the claimed explosion in litigation:

"Tort reformers' narratives captured a much greater share of media attention than did those of scholars…. Indeed, in the wake of media claims about the litigation explosion, socio-legal scholars documented that media coverage of civil law overwhelmingly emphasized plaintiff victories and high punitive damage awards. Thus, the supposed existence of a litigation explosion became educated common sense among jurors and even judges."

Remember the McDonald's coffee spill and the microwaved poodle, urban legends still infamous today? These tales, Cole and Dioso-Villa argue, are akin to the "horror story" anecdotes of the CSI Effect, such as the supposed case in which a jury acquitted a rapist despite incriminating DNA evidence, just because soil found in the victim's cervix was not tested:

"Echoing the litigation explosion, CSI effect discourse is widely disseminating through the American public the belief that television drama is disadvantaging criminal prosecutions. And yet, the available evidence does not support this claim. Indeed, the available evidence suggests that the opposite may just as easily be the case: forensic-themed police procedural dramas may actually advantage the prosecution in criminal cases."

Cole and Dioso-Villa: Investigating the ‘CSI Effect’ Effect

As shown in the above table, Cole and Dioso-Villa's analysis of several hundred media reports since 2002 revealed not one, but six claimed effects of forensic television shows on popular culture, depending upon the constituency doing the talking. The most dominant of these, the "strong prosecutor's effect," maintains that watching crime dramas makes jurors more likely to acquit guilty defendants. But, the scholars argue, the available evidence suggests an opposite effect:

"Jurors who are consumers of the popular media might believe that prosecutors are typically disadvantaged in criminal trials; that high expectations for forensic evidence are 'unreasonable'; and that criminal convictions are becoming increasingly rare and difficult to achieve. Jurors who believe these things might be more sympathetic to prosecutors out of sympathy for the perceived underdog or in attempt to correct for the perceived excesses of antecedent juries. Claiming to be disadvantaged is a familiar trope in trial advocacy, especially in opening and closing arguments; prosecutors frequently point out that they bear the burden of proof, whereas defense attorneys often refer to their lack of resources or to the awesome power of the state."

This is a similar conclusion to that of Podlas, who wrote:

"If there is a CSI Effect, narrative theory and common sense suggest that it will benefit law enforcement. CSI features the fantastical world of forensics and smart police work. …This story may cultivate the notion that forensic scientists and their methods are legitimate and reliable, thus bolstering the prosecution’s case…. Indeed, scientific evidence is very seductive to jurors, and they tend to overvalue its probity and overestimate its infallibility."

Although the CSI Effect pertains to criminal court while the Litigation Explosion myth targeted the civil realm, they share a similar distrust of jurors, that is, of the ability of common citizens to be fair and find the truth. This lack of faith, from my experience as a court observer over several decades, is misplaced.

Hat tip: Mind Hacks

Killing and culpability: A reader participation exercise

A TALE OF TWO HOMICIDES

INSTRUCTIONS TO READERS: Below, I present two hypothetical scenarios. After reading both, please stop. Do not read further. Consider which killer you think is more culpable. By way of background, assume that both killers are young, white, and employed, with little or no arrest histories. Assume that both victims were also white, upstanding citizens, well regarded in their communities.

Case 1: Street Brawl

The killer, age 20, was walking with a friend after leaving a party when a group of about six drunken strangers surrounded the pair. Insults and challenges were exchanged. The killer yelled at the men to back off. Instead, they continued to close in. He pulled a knife with a 3½-inch blade and waved it around. A scuffle ensued. One man was stabbed and killed.

Case 2: Avenging a Wrong

The killer, age 32, armed himself with a .44 revolver and went to the home of a former neighbor whom he had known for many years. He confronted the man over past wrongs. Words were exchanged. The killer shot the victim once in the chest. Before leaving, he waited about 30 minutes to make sure his victim was dead.

STOP. Consider: Which killer do you think is more culpable, legally and/or morally? Why? What sort of punishment do you think would be fair?

Have you formed a tentative opinion? If not, what else would you need to know before deciding? Now, I will provide a few facts about the victims. See if they are relevant to your thinking.

Case 1: Street Brawl

The victim was a member of a college fraternity that was infamous for its rowdy partying. On his MySpace page, he bragged about an earlier fight in which he and his fraternity brothers beat up a man, “grind[ing] his face into the coarse pavement of the sidewalk while several of [us] are taking turns on his ribs and dome.”

Case 2: Avenging a Wrong

The killer told police that the victim had sexually molested him from the age of 11 until his late 20s, a few years before the homicide. After the crime, other men came forward to say that the dead man had taken advantage of positions of trust to sexually molest them, too.

STOP. Do these facts alter your opinion about culpability in any way? How? Why? What degree of guilt would you infer? What do you think would be a just resolution in these cases?

Finally, let's consider community reaction. Does this change your opinions about either case?

Case 1: Street Brawl

The university town is divided. On one side are the victim’s largely well-to-do supporters, who say he was a fine young man with a good reputation who was about to graduate with honors in nuclear engineering from a prestigious university. On the other side are supporters of the working-class defendant, who say that he was just defending himself.

In a perhaps unprecedented twist, residents of the fraternity row where the crime took place have filed a class-action lawsuit against the local fraternities. Claiming that nuisance behavior has left them living under a virtual state of siege, they are seeking an injunction against the fraternities through an innovative application of a California law banning "criminal street gangs."

Case 2: Avenging a Wrong

The small town is united behind the killer. Townspeople have held rallies and affixed bumper stickers to their cars. They say he did them a service by ridding the community of a child molester. Even the victim's wife thinks punishment should be lenient.

Recognize either case yet? Of interest is the different spins they are getting. A central theme in both stories is bad moral character. But in one case it is the victim's character that is condemned, while in the other case it is the killer's.

CASE 2:

This is the case getting national and even international attention. On Feb. 8, 2009, in the small California logging town of Fort Bragg, Aaron Vargas killed 63-year-old Darrell McNeill, a former youth group leader and popular furnishings salesman. Vargas is being portrayed as a victim and his crime as understandable or even heroic. His sister is even slated to appear on Oprah Winfrey's TV show to talk about his family's "ordeal."

The facts are being spun accordingly. News account focus not on the large (.44) caliber of the gun, for example, but rather its status as an "antique Civil War replica." (Hey, it still fired.) The gap of several years between when Vargas "broke off the relationship" and when he ultimately killed the older man is largely ignored. (Where was the immediate, heat-of-the-moment provocation?)

The case resolution? A lenient plea bargain. Vargas just pleaded no contest to voluntary manslaughter. He will serve no longer than 10 years in prison, and may even get probation.

Was that what you expected, or thought fair? Why or why not?

CASE 1:

Meanwhile, 170 miles away in cosmopolitan Berkeley, Andrew Hoeft-Edenfield is on trial for first-degree murder stemming from a May 3, 2008 incident that began when the victim and a group of friends walked up to Hoeft-Edenfield and his friend and ordered them to leave fraternity row. Fueled by a deadly mixture of testosterone and alcohol, the incident "quickly escalated as Hoeft-Edenfield pulled out his knife and his friend Adam Russell began swinging an almost full bottle of Bacardi rum at the crowd," according to a news account.

While Hoeft-Edenfield claims he was defending himself from a drunken mob bent on violence when he stabbed fraternity member Christopher Wooton once in the chest, the prosecutor is trying to prejudice jurors against him by imputing his moral character.

"He has a persona, a wannabe thug or an actual thug," she told the jury in her opening statements. As visual proof, she held up his backpack with gangsta-rap-style writings such as "Thug Life," "Money, Guns, Marijuana," and "Killer Drew."

Hoeft-Edenfield's attorney countered that this depiction of her client's moral character could not be farther from the truth. Hoeft-Edenfield is "an example of what hard work can accomplish," she told the jury. A working-class young man from South Berkeley, galaxies away in social class from the elite university for which Berkeley is famous, he had overcome a learning disability, graduated from high school, gotten a job, and was attending college. The fight, she said, was "sparked by the fraternity brothers who were drunk and eager to prove they owned the street," according to a news report. "What he remembers is that he is surrounded by five or six guys, he's got guys stomping him, and all he hears is yelling."

If you were on the jury, how might you vote? Why?

In criminal responsibility evaluations, we forensic psychologists are charged with carefully dissecting an accused's state of mind at the moment of a homicide. Did he form an intent to kill? Did he know right from wrong, in that moment? Was he intoxicated? What were his motivations? These mental state inquiries are tricky enough.

Moral character is a much more elusive construct. Good and evil are never as black-and-white as partisans portray them. Yet, as these two cases illustrate, simplistic moral narratives can be constructed that either lionize or demonize a criminal defendant. These narratives then influence the decision-making of prosecutors, judges, and jurors as to the appropriate punishment, based on perceived moral blameworthiness.

It will be an interesting juxtaposition if Hoeft-Edenfield gets convicted of first-degree murder and goes to prison for a heat-of-the moment stabbing that appears to have been provoked, while a vigilante who proactively took the law into his own hands gets a light sentence for voluntary manslaughter.

If Hoeft-Edenfield is found guilty of murder, a working-class young man may want to think twice about sporting gangsta-style accessories while carrying a knife for self defense. Unless, of course, he kills a child molester. In that case, the public may applaud him.

A good yarn needs both a hero and a villain. The question is: Who gets which role?

POSTCRIPT: After a four-month trial, Hoeft-Edenfield was found guilty of second-degree murder and sentenced to 16-to-life in prison. That sentence was later overturned on appeal, and he accepted a plea bargain in which he would serve 12 years in prison with no credit for time served or good time. Meanwhile, in what the media dubbed "a crushing disappointment" to his family and supporters, Fort Bragg killer Aaron Vargas received a nine-year prison term.

Readers: I encourage you to post your reactions to this exercise in the online "comments" section of the blog.

My follow-up reports on the Hoeft-Edenfield case:

• Surprise reversal in "killing and culpability" self-defense case: Judge slams defense lawyer as inept, dishonest (May 1, 2014)
• "Killing and culpability" sentences handed down (June 16, 2010) 
• Race, class, and self defense: Berkeley fraternity case spotlighted (July 21, 2010) 

Further background on the unusual class-action lawsuit against the fraternities:

• American Lawyer: Suit Tries Gang Strategy Against Frat Boys
• Press release: "Lawsuit to curtail the culture of alcohol abuse and violence in the fraternities at UC Berkeley"

Related blog post: Vigilante justice against sex offenders (October 2007)

Photos: (1) Aaron Vargas, (2) Andrew Hoeft-Edenfield, (3) Christopher Wooton

Teen sexting resources

"Sexting" is a hot topic these days, especially in the wake of this month's U.S. Third Circuit Court of Appeals ruling in Miller v. Mitchell that it is unconstitutional to prosecute teens for child pornography solely based on their cell phone photos. The highly publicized Pennsylvania case illustrated the unintended consequences of current sex offender hysteria. The district attorney's office in Wyoming County had threatened to prosecute a teenage girl on felony child pornography charges unless she underwent mandatory reeducation. An appellate court barred the prosecutor from retaliating against young Ms. Doe for invoking her constitutional right not to attend the education program.

Related resources:

• An excellent overview by Tamar Lewin of the New York Times, "Rethinking Sex Offender Laws for Youth Texting"

• A TV news video of forensic psychology students speaking about teen sexting at a state government hearing in Connecticut

• The website of the Center for Safe and Responsible Internet, containing a wealth of information and resources on the widely hyped teen sexting phenomenon
  

Asperger's ruling: Judge should have allowed experts

In the latest of several recent forensic cases involving Asperger's, an appellate court has ruled that a judge committed a reversible error in excluding expert evidence on the condition.

The 9th U.S. Circuit Court of Appeals overturned seven counts of arson against a California physicist who with his buddies had vandalized and torched more than 130 vehicles back in 2003.

William "Billy" Cottrell is described in news accounts as a talented young physicist who was diagnosed with Asperger's, a high-functioning form of autism, during his 2004 trial for arson and conspiracy.

In its ruling, the appellate court let stand a conviction for conspiracy. But the court held that aiding and abetting of arson requires a specific intent in that Cottrell must have knowingly participated in the crimes and tried through his actions to make them succeed. Thus, it was reversible error not to allow expert evidence of a mental condition that might have impacted the defendant's subjective judgments.

The defense had proposed a theory in which Asperger's prevented Cottrell from understanding what his friends were up to until it was too late; once he figured it out, he supposedly tried to stop them.

Local mental health professionals quoted in the Pasadena Star-News differed as to whether an Asperger's defense might have succeeded in mitigating Cottrell's culpability.

On the one hand, psychologist Bruce Hirsch said Asperger's could have reduced Cottrell's ability to understand the situation, as people with the condition often cannot tell when they are being lied to.

"What you're really talking about is a social naivete and, yes, people with Asperger's can be very socially naive," Hirsch is quoted as saying. "They are so bound to the truth that the concept of lying doesn't even exist in their mind. Somehow the social reasoning of people with Asperger's is very concrete, very black and white, and they don't get that people tell lies."

On the other hand, marriage and family therapist Amy Keller said the defense theory of Asperger's does not take into account the rigid morality of most Asperger's patients.

"I find that, after working with a lot of Asperger's patients, that they are so stubborn," Keller told the newspaper. "They're not that easily influenced. If anything, they're very clear about right and wrong."

Either way, the appellate reversal will not have a practical import on Cottrell. Prosecutors decided not to retry him, because it would not have impacted his 100-month federal prison term.

Cottrell will soon be taking the bus back to the Arizona federal prison where he teaches physics and cosmology classes to fellow prisoners.

The unpublished opinion in U.S. v. William Cottrell is HERE; the most recent Pasadena Star-News story is HERE.

Hat tip: Ken Pope

Further resources:

• Asperger’s: Here today, gone tomorrow: Would erasure from DSM impact forensic use? (Nov. 3, 2009 blog post)
• The short life of a diagnosis (Nov. 9, 2009 New York Times op-ed by Simon Baron-Cohen)
• Forensic aspects of Asperger's Syndrome, Barry-Walsh, J.B., & Mullen, P.E., Journal of Forensic Psychiatry, 2004, Volume 15, pages 96-107.

Wales: Another prime-time automatist

In my last post, I blogged about the Toronto sexual assault case in which a man was acquitted on the grounds that he was asleep. Now, I bring you a second high-profile case of sleep disorder, that of a Welch man acquitted in the killing of his wife because he was dreaming at the time.

Sleep experts for the prosecution and defense agreed that Brian Thomas's behavior was consistent with automatism, meaning at the time he killed his wife, his mind had no control over what his body was doing.

During last week's trial, the jury was instructed that there are two types of automatism: insane automatism and non-insane automatism. Based on which type they chose, Thomas could have either been acquitted or found not guilty by reason of insanity and hospitalized.

But suddenly, in mid-trial, the prosecutor had second thoughts and dropped his effort to obtain an NGI verdict, allowing Thomas to walk free. A prosecution psychiatrist, Dr. Caroline Jacob, had testified that Thomas was not a risk to the public.

Thomas was described as a gentle family man who had been married to his childhood sweetheart for 40 years. He called police to say he had killed his wife because he thought she was an intruder.

Click on above image to see a brief video of Thomas after the acquittal

In an odd coincidence, the Journal of Forensic Sciences had just published an article describing clinical cases with eerie similarity to Thomas's. Carlos Schenck and colleagues at the Minnesota Regional Sleep Disorders Center found about 40 cases in the literature in which people, mainly men, had engaged in complex and violent behaviors while enacting dreams. The authors found a pattern with clear forensic implications, because dream behaviors could be misinterpreted as suicidal or homicidal. That's what happened in Thomas's case: To his family's dismay, he spent 10 months in jail awaiting trial. The actual cause of such behaviors, according to the article, is not malice but Rapid Eye Movement sleep behavior disorder (RBD), in which the normal muscle atonia present during REM sleep is absent, allowing sleepers to physically enact their dreams.

In a strong similarity to Thomas's case, the majority of cases involved choking and headlocks. Thomas had gotten his wife in a headlock and then strangled her.

In another similarity, in about half the cases the patient either had a neurologic disorder or was taking medication for psychiatric disorders. Thomas had just stopped taking antidepressant medication, and the withdrawal was causing nightmares.

What were the other most common behaviors found in the study?

In second place was jumping off the bed. And in third place, with seven cases, came defenestration. That one might have been difficult here, as Thomas and his wife were vacationing in an RV at the time of the killing.

The BBC has further coverage of the case. The abstract of the Journal of Forensic Sciences article, Potentially Lethal Behaviors Associated With Rapid Eye Movement Sleep Behavior Disorder: Review of the Literature and Forensic Implications, is HERE.

Unconditional discharge in Canadian "sexsomnia" case

In a fascinating criminal responsibility case, a Toronto man who was reportedly asleep when he sexually assaulted a woman six years ago has been unconditionally discharged as no threat to the public.

A trial judge had acquitted Jan Luedecke on the basis that he could not have formed the criminal intent to commit a sexual assault. The Ontario Court of Appeal quashed that ruling, saying Luedecke should have been found not criminally responsible due to a mental disorder. The case was then sent to the Ontario Review Board for a determination of Luedecke's dangerousness.

At trial, evidence was presented that a sleep clinic had confirmed Luedecke's sleep disorder, along with a family component (both his mother and brother have sleep disorders). Under the defense theory, his sleep disorder manifested in "sexsomnia," or sexual behavior while asleep. According to trial testimony, he had "sleep sex" with four former girlfriends prior to the assault. The assault took place at a house party after he ingested magic mushrooms and consumed 16 alcoholic drinks; he was also working long hours without sleep.

"The combination of those intoxicants and his sleep disorder brought on the illness," his lawyer, Frank Addario, president of the Criminal Lawyers' Association, was quoted in the Toronto Star as saying. As the assault was described in the press:

The woman woke up to find a strange man lying on top of her, engaged in sexual intercourse.

"Who the hell are you and what are you doing?" the woman demanded

"Jan," the bewildered-looking man replied.

Under Canadian law, the options available to the review board included commitment to a hospital, release to the community under specified conditions, or absolute discharge.

The board relied heavily on risk assessments conducted by forensic psychiatrist Lisa Ramshaw and forensic psychologist Percy Wright. Dr. Ramshaw noted that Luedecke was ashamed and remorseful, making him "less likely to repeat the behaviour." (Although that is popularly believed, I'm not sure it's an empirically supported contention.) Dr. Wright reported that Luedecke had taken steps to control his sexsomnia, including reducing his stress, limiting his alcohol consumption to two drinks a week or less, and sleeping "safely" with no access to women who aren't his partner.

In granting Luedecke a full discharge, the board noted that he had been living free in the community for six years without incident.

I have no problem with the sleep disorder or the role of intoxication. But, oddly enough, Luedecke was reportedly wearing a condom during the assault. How does that little factoid fit in to the somnambulism theory?

I guess anything is possible.

The Globe and Mail, Toronto Star and CBC News have more case coverage.

Adolescent immaturity reduces culpability, say researchers

APA amicus brief in two upcoming high court cases
on life without parole for juveniles

Adolescents may not possess the maturity to be held to adult levels of responsibility for violent crimes, according to an article in the current issue of American Psychologist by Laurence Steinberg, a professor of developmental psychology at Temple University, and colleagues.

"Adolescents likely possess the necessary intellectual skills to make informed choices about terminating a pregnancy but may lack the social and emotional maturity to control impulses, resist peer pressure and fully appreciate the riskiness of dangerous decisions," Steinberg was quoted in Science Daily as saying. "This immaturity mitigates their criminal responsibility."

The researchers studied the differences in various cognitive and psychosocial capacities among 935 research participants, ages 10 to 30. Significant differences in mature decision-making were found between the 16- to 17-year-olds and people just four or five years older.

"It is very difficult for a 16-year-old to resist peer pressure in a heated, volatile situation," Steinberg said. "Most times, there is no time to talk to an adult to inject some reason and reality to the situation. Many crimes committed by adolescents are done in groups with other teens and are not premeditated."

Two friend-of-the-court briefs filed by the American Psychological Association in cases heard by the U.S. Supreme Court spurred questions about differences between cognitive and interpersonal maturity and the apparent inconsistency between APA's positions in the two cases. In its amicus brief filed in Roper v. Simmons (2005), the case that abolished the juvenile death penalty, APA presented research showing that adolescents are developmentally immature in ways that are relevant to their criminal culpability. In an earlier brief filed in Hodgson v. Minnesota (1990), which upheld adolescents' right to seek an abortion without parental approval, APA presented research regarding cognitive abilities that bear on medical choices, showing that adolescents are as mature as adults.

The APA differentiated these two scenarios by looking at the decision-making processes required for each situation. In the Hodgson case, APA described adolescents as being competent to make informed and sound health care decisions. In the Roper case, APA characterized adolescents as too short-sighted and impulsive to warrant capital punishment, no matter what the crime.

These issues are likely to be at the forefront of two U.S. Supreme Court cases -- the cases of Joe Sullivan and Terrance Graham -- slated to be heard this month, involving the constitutionality of sentencing juveniles to life without the possibility of parole. Sullivan, now 33, was 13 years old when he and two older boys broke into a home, where they robbed and raped an elderly woman. After a one-day trial, Sullivan was sentenced to life in prison with no chance for parole. The APA has filed an amicus brief presenting relevant research, including Steinberg's most recent study, to the court.

Adolescents' legal rights, said Steinberg, should be guided by accurate and timely scientific evidence on the nature and course of psychological development. "It is crucial to understand that brain systems responsible for logical reasoning and basic information processing mature earlier than systems responsible for self-regulation and the coordination of emotion and thinking," he said.

Further resources:

Laurence Steinberg, Elizabeth Cauffman, Jennifer Woolard, Sandra Graham, Marie Banich. Are Adolescents Less Mature than Adults? Minors' Access to Abortion, the Juvenile Death Penalty, and the Alleged APA 'Flip-Flop'. American Psychologist, 2009; Vol. 64, No. 7.

Supreme Court to consider juvenile 'lifers': Does life without parole for minors who didn't kill constitute cruel and unusual punishment? By David Savage, Los Angeles Times (Sept. 28, 2009)

FRONTLINE: When Kids Get Life.

The Polanski debacle: Polish schizophrenia?

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Veteran with PTSD won’t do time for robberies

Last month I wrote about the potentially landmark case in which an Army veteran was found insane in the armed robbery of a pharmacy. Sargent Binkley said he robbed that pharmacy and one other of painkillers to cope with his symptoms of post-traumatic stress disorder.

Yesterday, Sargent pleaded no contest in a separate San Francisco Peninsula robbery committed during the same time period, in exchange for a promise of probation. He had faced at least 12 years in prison.

Binkley cannot be formally sentenced until state hospital doctors find him sane and no longer dangerous. The ability of the white West Point graduate and former Eagle Scout to garner sympathy among jurors and prosecutors bodes well for his stay at the hospital. If I had to bet, I would predict state hospital psychiatrists will agree to a quick release.

Armed robbers are rarely found insane when their crimes appear rational, goal-directed, and premeditated. Additionally, California law does not allow for an insanity verdict based on addiction alone.

The defense had argued that Binkley was traumatized by two events -- guarding a mass grave in Bosnia and shooting a teenager during a Honduran drug raid. Prosecutors countered that Binkley exaggerated his military service and that his claim of involvement in drug interdiction in Honduras was pure fantasy. Further, they said, his addiction to pain pills stemmed not from military-related activities but from a hip injury incurred while he was running away from a production assistant for the Fox reality TV show "Temptation Island" after a bar fight.

The trial featured dueling psychiatric experts who agreed that Binkley suffers from PTSD, but disagreed on whether his symptoms were of sufficient magnitude as to render him insane, or incapable of knowing right from wrong at the time of the robberies.

The case comes amid growing interest in the plight of veterans returning from the wars in Iraq and Afghanistan. Military leaders acknowledge that multiple deployments in particular put a severe strain soldiers and their families, and can increase the likelihood of domestic violence, alcohol abuse, and symptoms of post-traumatic stress disorder.

To handle a wave of arrests of soldiers, special courts for veterans are opening in several states, including Arizona.

Related stories:

Insanity verdict for soldier with PTSD: Case heralded as landmark for traumatized veterans (blog post, Jan. 14, 2009)

Ex-Army captain won't do time for two holdups (San Francisco Chronicle, Feb. 19, 2009)

Focus on violence by returning GIs (New York Times, Jan. 2, 2009)

New court is sought to aid vets charged with crimes (Arizona Republic, Jan. 6, 2009)

Reaching out to returning vets (Wisconsin Law Journal, Feb. 6, 2009 – subscription required)

Insanity verdict for soldier with PTSD

Case heralded as landmark for traumatized veterans

Photos: Sargent Binkley before and after
In a potentially landmark case, a jury in the San Francisco Bay Area has acquitted a former Army captain who used a 9mm handgun to rob a pharmacy because he was addicted to painkillers.

The Santa Clara County jury found West Point graduate Sargent Binkley not guilty by reason of insanity after hearing testimony that he suffered from post-traumatic stress disorder as a result of his military experiences in Bosnia and Honduras. Binkley is still awaiting trial for a similar robbery in nearby San Mateo County.

Armed robbers are rarely found insane when their crimes appear rational, goal-directed, and premeditated. Additionally, California law does not allow for an insanity verdict based on addiction alone.

The defense argued that Binkley was traumatized by two events -- guarding a mass grave in Bosnia and shooting a teenager during a Honduran drug raid. His father testified that he became addicted to morphine-based painkillers after dislocating his hip in Honduras while running away from an alcohol-fueled fight over a woman.

The trial featured dueling psychiatric experts who agreed that Binkley suffers from PTSD, but disagreed on whether his symptoms were of sufficient magnitude as to render him insane, or incapable of knowing right from wrong at the time of the robberies.

Dr. Jeff Gould, originally appointed by the court in adjacent San Mateo County, testified for the prosecution that Binkley's PTSD did affect his judgment but did not render him insane.

Dr. Kenneth Seeman testified for the defense that Binkley manifested symptoms of psychosis, depression, suicidality, and anxiety in addition to PTSD and was incapable of knowing right from wrong.

Prosecutor Deborah Medved challenged Seeman on why he did not render any of these diagnoses in his original report, written a year prior to testimony. In his written report, according to news reports, Seeman opined that Binkley's insanity was due to his drug addiction. In California, addiction is barred as a basis for the legal defense of insanity. Seeman responded to the prosecutor’s challenge by saying his diagnoses had evolved over the course of his two subsequent evaluation sessions with Binkley.

In another unusual twist suggesting that the jury may have been motivated at least in part by sympathy for the defendant, the pharmacist whom Binkley robbed of Percocet testified for the defense.

The case has been the subject of web sites and petition drives pleading for leniency due to Binkley's status as a veteran. A group of military veterans had regularly attended Binkley’s court hearings. "It's a great day for our veterans who have come back suffering from PTSD to now know they can receive justice," said one, Vietnam veteran and West Point graduate Alan Lubke.

Binkley had faced a minimum term of 12 years in prison. Now, he will undergo a mental health evaluation aimed at determining whether he should be psychiatrically hospitalized or ordered into outpatient treatment.

"I am expecting the doctors will determine he has regained his sanity and is no longer a danger," said defense attorney Chuck Smith. "I hope he will be released relatively soon, like within the next six months."

San Jose Mercury News coverage is here. San Francisco Chronicle coverage is here.

Related resources:

• New York Times (Jan. 1, 2009): Focus on violence by Returning GIs
• Arizona Republic (Jan. 6, 2009): New court sought to aid vets charged with crimes

The case for videotaping interrogations

Detective's candid call for reform

I've been a police officer for 25 years, and I never understood why someone would admit to a crime he or she didn't commit. Until I secured a false confession in a murder case.

So begins a Los Angeles Times opinion piece by Jim Trainum, a Washington DC police detective who runs a cold case unit and lectures on interrogations and false confessions and other police investigation topics.

Like most people, Trainum was firmly convinced that only the guilty confess to crimes. And, like most police, he believed his suspect's confession - obtained without threats or abuse - was "solid."

Even after an "ironclad alibi" forced dismissal of charges, the detective and others continued for years to think she was guilty: After all, she had confessed. And even her own attorney thought she was guilty of killing the man, who had been robbed, beaten, and dumped in a river.

Trainum's thinking underwent a dramatic change only years later, when he reviewed the videotape of the mid-1990s confession in light of more contemporary understanding of false confessions:

"We ignored evidence that our suspect might not have been guilty, and during the interrogation we inadvertently fed her details of the crime that she repeated back to us in her confession," he realized.

Trainum's op ed, focusing on the need to videotape interrogations, is here.

Georgia sex offender law unconstitutional

At last week's Association for the Treatment of Sexual Abusers (ATSA) conference in Atlanta, Sarah Geraghty of the Southern Center for Human Rights gave a compelling talk about the inhumanity of Georgia’s sex offender laws, the most draconian in the nation.

Blog readers may recall that Georgia is the state that made devoted mother Janet Allison a homeless, jobless leper simply for allowing her daughter's boyfriend to move into the family home after the daughter became pregnant. (See "Sex Offender Laws Gone Amok, April 10, 2007.)

In Alaska, as national news demonstrates, she might be congratulated. But not in Georgia.

The explicit goal of Georgia legislature was to force all sex offenders to leave the state. And no one was harder hit than the homeless. Homeless offenders were criminalized for not having a valid address to supply to the registry. The second such offense was punishable by life in prison. Yes, you read that right. Life in prison.

Almost as soon as the eloquent Ms. Geraghty left the ATSA podium, however, Georgia's Supreme Court struck down the homelessness provision of the law. In Monday's 6-1 decision, the court found the law unconstitutional because it fails to give homeless offenders a mechanism to comply.

Geraghty's group had brought the case on behalf of William James Santos, who was kicked out of a Gainesville homeless shelter and then arrested for failing to register with Georgia's sex offender list.

As reported in the New York Times, this is one of several challenges to the 2006 law.

Geraghty told the ATSA convention that it won't be the last. Around the nation, she is seeing signs of change; courts in several states have struck down various provisions of the new laws.

The case, Santos v. State, is online here.