'Babbling idiot' standard: Squeaky Fromme competency tapes unveiled

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the tapes, Dr. Richmond can be heard questioning Fromme about everything from her involvement with the Manson family to her eating habits and her religion, using the slang vernacular of the day:

Richmond: "The press has made a number of comments to the effect that you’re a rather daft broad wandering about in this world, following ill-begotten causes and so forth. How do you feel about that?"

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

Fromme sounds matter-of-fact and confident, expressing optimism about her chances of being acquitted:

"Oh, I feel, I feel definitely I have probably a 70 percent chance on the percentage scale. I don’t feel that I’ll be convicted of attempted assassination."

In hindsight, her confidence was obviously misplaced.

* * * * *

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

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

"Narcoanalytics" order in Aurora massacre case unprecedented

News flash: There is no such thing as 'truth serum'

The next time the court appoints you to conduct a sanity evaluation, don't forget to order up a vial of truth serum.

In a court order that breaks new legal ground, the judge presiding over the trial of James Holmes ordered the Aurora Colorado massacre suspect to submit to polygraph testing and a "narcoanalytic interview" if he decides to put his mental state at issue.

Chief District Judge William Sylvester ruled that if Holmes elects to pursue an insanity defense, "medically appropriate" drugs can be administered during a forensic examination at the state hospital, presumably to determine whether the mass murder suspect is feigning insanity.

This may be the first time that a court has mandated use of so-called "truth serum" in a sanity evaluation. Indeed, courts have generally taken the opposite stance, of being gatekeepers who exclude the results of both sodium amytal and polygraph examinations from court due to their lack of reliability.

"Mythical aura of infallibility"

In a seminal case, Harper v. State (1982), the George Supreme Court ruled that the use of "truth serum" (sodium amytal) was inadmissible to establish that a murder defendant was being truthful in proclaiming his innocence. "We agree with the trial court that, until it is proven with verifiable certainty that truth serum compels a person to tell the truth, neither the results of truth-serum tests nor the opinions of experts based on the results of these tests shall be admissible in evidence," ruled the court.

Similarly, a defense-retained psychologist published an account of another case from the 1980s in which an appellate court upheld exclusion of "a sodium amytal test" to bolster an insanity defense. The defendant had walked into a nightclub and shot to death a dancer who had jilted him. Under the influence of the barbiturate, the man claimed he thought he was shooting Satan, because the victim had appeared to morph into the devil, "with pitchforks … and fire and everything." In excluding mention of the test, the trial judge expressed worry that a jury "might be overwhelmed by the use of the term 'sodium amytal' and/or 'truth serum' and attribute to it a mythical aura of infallibility."

Back in the 1930s and 1940s, when sodium amytal was all the rage, laypersons and professionals alike believed that people could not lie when under the drug's influence. It turns out that this faith was misguided. Empirical testing showed that although sodium amytal and related drugs lower inhibitions, people remain perfectly capable of lying, withholding information, and exaggerating psychiatric symptoms.

"While it is clear that these substances lower inhibitions and increase loquacity, they provide no assurance as to the truthfulness of the information obtained,” noted attorney Jason Odershoo in a Stanford Law Review analysis focusing on whether such chemicals may legally be deployed against terrorism suspects in the post-9/11 world.

Sodium amytal, or amobarbital, belongs to the same class of barbiturates as Nembutal, Seconal, and Pentothal. As psychiatrist August Piper Jr. describes the procedure, a physician intravenously administers small amounts of the drug (sometimes in tandem with other intravenous drugs like Valium or Ativan) until the subject enters a "twilight state" in which he is relaxed and drowsy but still awake. The drug causes a feeling of warmth and "closeness to the interviewer" that breaks down inhibitions, similar to the effects of acute alcohol intoxication.

However, while sodium amytal makes people more loquacious, it also disrupts memory and increases suggestibility, according to the research summarized by Piper. Reality and fantasy may become hopelessly tangled, such that people cannot distinguish between the two.

Cultural fascination with truth serum in the mid-20th century completely ignored this flawed reality. Rather, the mythology helped to shape the public's understanding of memories as robust and accurate, stored verbatim in the mind just awaiting proper retrieval and extraction. As Alison Winter writes in a 2005 essay on the cultural history of truth serum:

"This view contributed to the production of a public understanding of memory that both diverged from previous claims about memory and recall, and ran counter to the direction of current psychological research. It thus helped lay the groundwork for claims about memory permanence and scientific recall techniques later in the twentieth century."

Perils in Holmes's case

James Holmes's new look

The empirical research suggests not only that Holmes could lie while under the influence of the drugs, but also that subjecting him to a "narcoanalytic interview" could introduce false memories and render his subsequent recall of information potentially even less reliable. As with post-hypnosis statements, this could be a big problem if Holmes decides to testify on his own behalf, either at a trial or a sentencing hearing. Similarly, unreliable information recounted to evaluators during a "narcoanalytic interview" could be given too much credence, thereby jeopardizing the validity of forensic opinions in the case.

But maybe such contamination is the point, writes a commentator at the American Everyman blog. Under the alarmist headline, "Holmes to be Drugged Into Confession -- Apparently Waterboarding is Off the Table," Scott Creighton theorizes: "This 'truth serum' CIA trick will be used to convict Holmes in the court of public opinion before his Vichy lawyers plead him out to life in prison rather than taking it to trial to evaluate the evidence against him." 

Given the recent dispositions of other similar cases such as that of Arizona mass shooter Jared Loughner, maybe the conspiratorially minded blogger is not so far off the mark.

The CIA and a zombie idea

The notion of a magical drug that can ferret out malingering represents a "zombie idea," to borrow a phrase from New York Times essayist Paul Krugman. That is, it is a proposition that has been thoroughly refuted by analysis and evidence, and should be dead -- but stubbornly refuses to stay dead because it serves a political purpose or appeals to public prejudices.

Indeed, Judge Sylvester's court order harkens back to the early to mid-20th century, a time when -- as legal analyst Odershoo recounts -- "the idea of such a magical substance seemed a very real possibility, one holding profound significance for criminal investigation, foreign intelligence, and national security."

The term "truth serum" was coined in the early 1920s by an obstetrician named Robert House, who advocated the use of the barbiturate Scopolamine -- now known as a date-rape drug because of its amnestic properties but at the time administered to women during childbirth to induce a 'twilight sleep' -- in criminal interrogations. Time magazine's 1923 piece, "Medicine: The Truth-Compeller," helped popularize the idea and turned House into a one-hit wonder. In the 1930s, police use of barbiturates on witnesses and criminal suspects became more widespread. During World War II sodium pentothal was used both to treat soldiers suffering from "shell shock" and to detect malingerers trying to duck the military draft.

Then, during the Cold War, the CIA launched a feverish quest for the ultimate "truth drug." Clandestine campaigns with code names such as Projects Chatter, Third Chance, Derby Hat and Bluebird culminated in the ill-fated MK-ULTRA, in which a doctor who was administered LSD leapt to his death from a hotel room window. Revelations of this secret experimentation led to public antipathy towards the spy agency, and a demise in the use of sodium amytal and sodium pentothal as truth serums.

The drugs remain in use as anesthetics, and have also been used by psychotherapists seeking to recover repressed memories. This use has its own sordid history. In 1992, a former patient of eminent Chicago psychiatrist Jules Masserman published an account claiming that the good doctor had repeatedly raped her after administering sodium amytal, purportedly to retrieve her repressed memories of incest. The patient, Barbara Noel, was not the only woman to win a lawsuit over such nefarious abuse.

Legal use officially repudiated 

Use in law enforcement fell rapidly in the wake of a 1963 U.S. Supreme Court ruling that a confession produced under the influence of truth serum was unconstitutionally coerced, and therefore inadmissible. The case of Townsend v. Sain involved a heroin addict who was interrogated after being administered phenobarbital and hyoscine (Scopolamine) to alleviate his withdrawal symptoms. Although India and some other countries still use these drugs in criminal investigations, in the United States their use for that purpose has been "officially repudiated," according to Odershoo.

A scan of the case law suggests that this is by far the most serious case in which narcoanalysis has ever been proposed. Holmes is awaiting trial on 166 felony charges for an attack on Batman moviegoers last July that killed 12 people and wounded 58. His attorneys have mounted a heretofore unsuccessful challenge to Colorado's insanity statute and the judge's interpretation of it. Under Colorado law, the test for insanity is whether the person "who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act." Judge Sylvester has ordered that, if Holmes pleads insanity, he must divulge all information from past mental health treatment. Holmes was seen by a psychiatrist and at least two other mental health professionals at the counseling center of the University of Colorado, where he was a PhD student in neuroscience before withdrawing from school, and his treatment records may contain potentially incriminating information. Such forfeiture of doctor-patient privilege is standard in criminal law when a defendant puts his mental state at issue.

Malingering detection

Holmes's elaborate degree of planning for his attack over at least a four-month period certainly raises a distinct possibility that any claim of mental illness may be feigned. But while no method is foolproof, other techniques have a far better track record at sniffing out deception.

Judge William Sylvester

We have a constantly growing arsenal of formal tools for the assessment of various types of malingering. Especially in high-stakes cases such as this, formal tests are typically augmented by 24/7 observation in psychiatric facilities. It's pretty hard to consistently masquerade as insane when one is under around-the-clock observation by everyone from the doctors and nurses to the janitors. Even one of the most slippery malingerers of insanity, a Mafia don named Vincent "The Chin" Gigante, eventually tripped up and got nailed. 

Judge Sylvester's order is so far removed from both contemporary scientific knowledge and normal legal procedure that it has left many observers scratching their heads. Where did the judge get the wacky idea that truth serum is the way to go? Did he cook it up himself, or was it fed to him by someone who had read a few too many "true crime" books or spy thrillers? Vaughan Bell over at Mind Hacks went so far as to wonder whether "the judge has been at the narcotics himself."

NOTE: An updated version of this essay appears at my Psychology Today blog. That essay explains where Judge Sylvester got this wacky idea, and also references the landmark case of Ramona v. Ramona, in which a father successfully sued his daughter's therapists for implanting false memories of child sexual abuse during a sodium amytal interview, as well as the role of sodium amytal in the Michael Jackson case.  Thanks to psychologist Evan Harrington of the Chicago School of Professional Psychology for alerting me to the Ramona opinion, which features an interesting discussion of relevant case law.

A full set of court documents in the Holmes case is located HERE.

Tipping points: Of life, death and psychological data

Forensic psychologists and the machinery of execution

Andre Thomas, Texas

When Andre Thomas killed his wife and children, he was careful to use three different knives so that "the blood from each body would not cross-contaminate, thereby ensuring that the demons inside each of them would die," as Marc Bookman explained it in an eloquent Mother Jones report. Then, he cut out their hearts and went to the police station to confess. While awaiting trial, he cut out one of his eyes. Later, he cut out the other, eating it in order to keep the government from using it to spy on his mind.

In response to changing social mores and international condemnation (only a handful of countries remains in the business of killing their wayward citizens), the U.S. Supreme Court in 2002 exempted the mentally retarded from execution, following up three years later by exempting juveniles. With this narrowing of the contours of capital punishment, the question of how mentally impaired one must be to avoid execution is increasingly in the forefront. That makes severe mental illness "the next frontier" of capital jurisprudence, in the words of psychology-law scholar Bruce Winick.

How insane?

Executing the floridly insane constitutes cruel and unusual punishment, barred under the Eighth Amendment of the U.S. Constitution. However, the "Ford standard" for competency to be executed is very low; a condemned person need merely understand the link between his crime and his punishment. In Thomas's case, the government insists that he is not insane enough to be spared, despite chronic auditory hallucinations, delusions, and treatment for paranoid schizophrenia. 

Making this case especially ironic is that Thomas has become a poster child for the need for new laws allowing preemptive detention of people whose mental illness makes them dangerous. "At least twice in the three weeks before the crime, Thomas had sought mental health treatment," reports the Texas Tribune in a series on mental health and the criminal justice system. "On two occasions, staff members at the medical facilities were so worried that his psychosis made him a threat to himself or others that they sought emergency detention warrants for him. Despite talk of suicide and bizarre biblical delusions, he was not detained for treatment."

John Errol Ferguson, Florida

With the U.S. Supreme Court declining to draw a bright line, the question of exactly how rational a condemned prisoner's understanding must be in order for an execution to proceed has become central to legal appeals by psychotic prisoners like Thomas. Another current example is the case of John Errol Ferguson, a mass killer in Florida whose October execution was stayed due to concerns about his mental state. Ferguson's long history of paranoid schizophrenia is undisputed; the question is whether his grandiose and religious delusions interfere with his understanding that the state is going to kill him for his crimes, and that when he dies he will be, well, dead.

Ferguson's lawyers have argued that the killer lacks rational understanding, because he believes he is "the Prince of God" and will be returned to Earth post-execution to save the world from a communist plot. The state of Florida counters that all that is required to be competent for execution is that a prisoner have an "awareness" that he is set to be executed for crimes he committed. To resolve the dispute, Florida's governor appointed a panel of experts to collectively evaluate Ferguson; a lower court also heard extensive testimony from prison personnel and other mental health experts, including malingering expert Richard Rogers, who administered a large battery of malingering tests and opined that Ferguson was not faking mental illness. Ultimately, the circuit court found little to distinguish Ferguson's belief system from typical religious ideation:

"There is no evidence in the record that Ferguson’s belief as to his role in the world and what may happen to him in the afterlife is so significantly different from beliefs other Christians may hold so as to consider it a sign of insanity."

How intellectually impaired?

Meanwhile, with the categorical exemption of prisoners with mental retardation from the death row rosters, courts around the nation are seeing pitched battles over intelligence scores that can make the difference between life and death. On each side of the IQ Wars in so-called Atkins hearings (named for the 2002 U.S. Supreme Court decision barring execution of the developmentally disabled) are neuropsychologists whose testimony delves into the technicalities of margins of error, practice effects, and the now-familiar Flynn Effect. This latter phenomenon of IQ inflation, in which scores on any given IQ test rise by about three points per decade, creates a situation in which a person on the cusp of mental retardation might score over 70 -- making him eligible for execution -- on an older IQ test but not on a newer one.

Ronell Wilson, New York

Take the case of Ronell Wilson in New York, who murdered two undercover police officers. His nine-day Atkins hearing earlier this winter featured seven experts dissecting nine IQ scores obtained over a 13-year period. In its 55-page opinion, the U.S. District Court spent many pages explaining why a 95 percent confidence interval (a range of two Standard Errors of Measure on either side of a score, something commonly reported in clinical practice) was inappropriate in Atkins claims, because it could place people into the range of mental retardation even if they score well above 70 on IQ tests. The court instead opted for a 66 percent confidence level. Either way, it was all much ado about nothing: "Even after taking into account the possibility of measurement error, the Flynn Effect, and (to a limited extent) the practice effect," Wilson's IQ scores ranging from 70 to 84 were "simply too high to qualify him under the definition of significantly subaverage intellectual functioning."

As Peter Aldhous reports in the New Scientist, the outcomes of these IQ battles vary widely by jurisdiction (and quality of lawyering, I would imagine). Overall, 38 percent of Atkins claims are successful, according to a study at Cornell Law School, but the success rate is 81 percent in North Carolina compared with only 12 percent in Alabama. A convicted killer named Earl Davis with IQ scores of 75, 76, 65 and 70 was spared execution on the basis of the Flynn effect. But that same effect was not persuasive in the case of Kevin Green of Virginia, whose mean IQ score was actually three points lower than Davis's (71, 55, 74 and 74); Green was executed in 2008.

Texas, meanwhile, which has carried out more than one-third of all executions in the United States since capital punishment was reinstated, has come up with its own unique standard of mental retardation, based on the character Lennie from John Steinbeck's Of Mice and Men. Wrote the Texas Court of Criminal Appeals in a 2004 explication of the level of mental retardation necessary to avoid the death penalty: 

"Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt. But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"

A technical spectacle

Whereas in the real world intelligence and insanity are continuous variables, the law chooses to treat them as dichotomous. Psychologists assist in promoting this legal fiction, helping to sort the condemned into discreet categories of sane or insane, mentally retarded or able-minded. Although the tests we used are supposedly objective, data in this highly polarized area can be skewed to favor one outcome or the other. Neuropsychology experts hired by the defense may focus on the Flynn Effect and argue for large confidence bands around IQ scores. Meanwhile, at least one "go-to" psychologist for prosecutors in Texas took a decidedly different approach, systematically skewing data so that more marginally functioning men were made eligible for execution.

Denkowski's Atkins cases, Texas Observer

George Denkowski developed his own method of evaluating Atkins claims, based on his idea that individuals on Death Row may do poorly on traditional tests because of cultural and social factors rather than lack of intellectual ability. So he discounted evidence that defendants, for example, could not count money or take care of their basic hygiene, reasoning that maybe they just were not taught those skills. With an inmate named Daniel Plata, for example, Denkowski bumped up his IQ score from 70 to 77 and his score on a test of adaptive functioning from 61 to 71. He even  published an article in the American Journal of Forensic Psychology in 2008 in which he explained this system of clinical overrides. Complaints by fellow psychologists that his technique had no scientific basis eventually led the Texas State Board of Examiners of Psychologists to issue a reprimand and to bar him from conducting future intellectual disability evaluations in criminal cases. He admitted no legal wrongdoing but agreed to a $5,500 fine -- a pretty lightweight penalty considering that two of the 29 condemned men he evaluated were executed.

Unethical as his method was, it did give attention to the issues of race and class, which may hide in plain sight when appeals revolve around the technical interpretations of psychological test data. It is Constitutionally impermissible for race to be considered in capital cases. But it stretches credulity to believe race played no role, for example, in the case of eye-plucking Andre Thomas: Thomas is African American, his late wife was white, all of the jurors were white, and four jurors had acknowledged opposition to interracial marriages. In the very last sentence of his closing argument for the death penalty, reported Bookman in the Mother Jones piece, the prosecutor asked jurors whether they would be willing to risk Thomas "asking your daughter out, or your granddaughter out?" This in the town of Sherman, which burned its entire Black district to the ground in 1930 during a race riot triggered by -- what else -- rumors that a Black man had raped a white woman.

Trauma as common denominator

Setting aside the technical criteria for insanity and mental retardation, if one could boil capital cases down to one common denominator, it would be trauma. In my experiences working in the capital trenches, I have found that most Death Row denizens survived horrific childhoods dominated by physical, sexual and emotional torture and neglect, combined with multi-generational patterns of mental illness and violence, all overlaid with hard-core substance abuse.

As forensic psychiatrist Pablo Stuart described this phenomenon in an interview with reporter Scott Johnson at Oakland Effect, a journalism project focusing on violence in Oakland, California, “the fact that there is such consistency on these cases is significant. Some of these people, they just never had a chance.”

* * * * *

Related resources:

The Mother Jones report on Andre Thomas is HERE; the audio podcast, read by M*A*S*H star Mike Farrell, can be downloaded or listened to HERE. My 2009 posts on the Andre Thomas case are HERE and HERE.
 
My prior posts on the Ford standard of competency and the U.S. Supreme Court's decision in the case of Leon Panetti (with links to court rulings and lots of related resources) are HERE, HERE and HERE. The U.S. Supreme Court's 2007 opinion in Panetti v. Quarterman is HERE. A 28-minute educational video, "Executing the Insane: The Case of Scott Panetti," is available HERE.

My 2010 post on the Denkowski case is HERE.

Psychologist Kevin McGrew's master archive on the Flynn Effect is HERE.

Related books include Michael Perlin's Mental Disability and the Death Penalty: The Shame of the States (the first chapter of which can be previewed HERE) and Daniel Murrie and David DeMatteo's Forensic Mental Health Assessments in Death Penalty Cases.

Sanity opinions show "poor" reliability, study finds

Independent evaluators agree only about half the time 

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

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

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

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

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

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

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

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

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

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

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

The researchers said that this is the first study to examine independent evaluations of legal sanity in routine U.S. practice. As such, the levels of agreement among forensic evaluators were "surprisingly poor," and far poorer than the field tends to assume.

[I]n light of our findings, courts should consider carefully the rationale underlying an evaluator's final opinion. Because sanity is a legal (rather than clinical) decision, courts must base their decisions on the data, observations, and clearly articulated inferences that an evaluator provides, rather than simply the evaluator's final opinion…. [T]olerating poor reliability among forensic evaluators is also costly, in that it might undermine goals of equitable justice, undermine confidence in the mental health field, and increase costs associated with inappropriate placements in hospitals, jails, or prisons.

The article, “How Reliable Are Forensic Evaluations of Legal Sanity?” is forthcoming from Law and Human Behavior. Correspondence may be addressed to W. Neil Gowensmith.

Who wants us to wear wizard suits, and why?

A blog subscriber from Spain, Professor Antonio Andres Pueyo of the Universidad de Barcelona, asked me to play Snopes detective on some blogosphere buzz: Was legislation really introduced in New Mexico stating that psychologists and psychiatrists must wear wizard outfits when testifying as experts?

The story turns out to be true. Here’s the actual text:

When a psychologist or psychiatrist testifies during a defendant's competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts. Additionally, the psychologist or psychiatrist shall be required to don a white beard that is not less than eighteen inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding the defendant's competency, the bailiff shall dim the courtroom lights and administer two strikes to a Chinese gong.

The amendment was tacked onto a 1995 bill addressing licensing guidelines for psychiatrists and psychologists in the Land of Enchantment. Approved by a voice vote in the state senate, it fizzled out in the house of representatives.(1)

Although it was never enacted, its author likely owes his 15 minutes of fame to that single little dead-end amendment. It continues to be widely cited in articles and books; now, 17 years later, it has suddenly gained notice in the blogosphere, ping-ponging from Magraken’s BC Injury Law blog to Overlawyered to Mind Hacks, and many more.(2)

But Professor Pueyo's query about the veracity of the fated legislation sparked my curiosity. Why was it written? And why its lasting allure?

Is that all there is?

Yes, it's catchy and colorful. But what accounts for its remarkable staying power and ability to bounce back from the dead? (Can you tell I’ve been reading zombie novels? I just finished Colson Whitehead's Zone One, which I recommend to any of you zombie fans out there.)

The amendment's author, ex-state senator Duncan Scott, wrote it not just as a harmless prank. Satire is a powerful weapon, and the goal of the hard-core Republican, as he told Harper's Magazine at the time, was to highlight his disapproval of the use of insanity pleas in criminal trials. (Ironically, his language confuses insanity with incompetency, which as we all know is a different matter altogether.)

Just as panic over bogeyman sex offenders is all the rage today, a perceived rise in insanity verdicts was a hot-button topic in the 1980s and 1990s, in the wake of John Hinckley's insanity acquittal in the attempted assassination of President Ronald Reagan. The verdict triggered widespread public concern over the reliability of psychiatric testimony, and the U.S. Congress and half of the states changed their laws to limit or eliminate the insanity defense.

In reality, the popular concern was misplaced. Insanity is very rarely invoked as a defense, being used in less than one percent of cases, and it is successful even more rarely. And, contrary to public opinion, forensic psychologists and psychiatrists who evaluate a defendant's mental state are most likely to conclude that he or she does not meet the legal threshold for insanity.

So who continues to cite the wizard amendment in books and articles, and for what purpose?

Not surprisingly, the Scientologists -- haters of all things psychiatric -- were among the first to embrace it. A 1997 article in the Scientology front magazine USA Today (no relation to the newspaper), blaming psychiatry for "the breakdown of law and order," leads off with the amendment.

Other critics of psychiatry, including Thomas Szasz and Tana Dineen, jumped aboard the train, approvingly citing the wizard passage in their books. Even the authors of forensic how-to texts, such as Christopher Slobogin, Ralph Slovenko, and Robert Meyer and Christopher Weaver, took to citing the passage, as a cautionary message about forensic excesses and overconfidence in prediction.

Walter Olson, Senior Fellow, Cato Institute

And then there's the resurrection of the wizard amendment in the blogosphere. No doubt, many posters are just enchanted by the guffaw factor. But it is no coincidence that its most prominent disseminator is Overlawyered. This blog (which claims to be "the oldest law blog") is the mouthpiece of Walter Olson, a senior fellow at the conservative think tank the Cato Institute; formerly, Olson was with the Manhattan Institute, a right-wing think tank founded by former CIA director William Casey.

You have to give these people their props. They are pure geniuses when it comes to spinning the news to illustrate the supposed excesses of the civil trial system, as in the infamous case of the scalding McDonald's coffee. (For more on that, check out the new movie, Hot Coffee.) By exaggerating the costs and ignoring the benefits of the U.S. tort system, they aim to limit class action lawsuits and other methods for citizens to seek redress when they are injured by corporate greed and malfeasance.

And the wizard satire is brilliant in tapping into not only rancor toward the trial system, but also deep-seated cultural hostility toward the intelligentsia, the class resentments so deftly harnessed by Sarah Palin and the Tea Party back in 2008.

As readers know, I am the last to defend arrogant forensic psychiatrists and psychologists; this blog is known for blowing the whistle on our field's excesses: The $500,000 competency report, the "boatloads" of cash earned by some government evaluators, the bogus psychiatric diagnoses being promulgated in sexually violent predator cases.

But, let's face it. By and large forensic evaluators are pawns, not chess masters. We are invited into the legal realm by attorneys and courts, and serve at their discretion. While a few of us may exhibit an arrogance meriting a wizard hat, by and large forensic practitioners are appropriately humble and honest, and make every effort to remain within the limits of our science.

So, while the wizard amendment may be humorous at first blush, the meaning behind the message turns out to be anything but funny.

Notes:

(1) There are different versions of its progress through the legislature. Harper's Magazine, in a July 1995 report, said it was approved by the state senate but rejected by the house of representatives. Another popular scenario has it winning in both the senate and the house, the latter by a vote of 46-14, before being vetoed by the governor. The amendment's author, Duncan Scott, gave a different account to blogger Erik Magraken, saying the language was removed before the bill even reached the house. The online records of the New Mexico Legislature only go back as far as 1996, but if anyone wants to dig back through the paper records, the citation is: Senate Floor Amendment 1 to Senate Bill 459 (Richard Romero), 42nd Leg., 1st Session (New Mexico 1995). 

(2) My favorite blog post on the wizard amendment is by Tom Freeland, a Mississippi lawyer, who said the provision reminded him of one tacked onto a "victim’s rights" bill being pushed through the Mississippi senate, which would have granted victims the right to sit at the counsel table in a criminal trial. A Mississippi senator, Hob Bryan, "annoyed proponents by moving that the provision be waived in murder cases," Freeland reported.

Breivik insanity finding showcases Norway’s progressive system

Sensible and efficient are words that come to mind in reviewing the Norwegian government's handling of mass killer Anders Behring Breivik's legal case.

The court appointed two psychiatrists who worked collaboratively to evaluate Breivik,who admits killing 77 people and injuring 151 others in a mass shooting spree in July.

The psychiatrists spent 36 hours interviewing Breivik on 13 separate occasions before finding him insane at the time of the crimes. Breivik was psychotic and inhabited a ''delusional universe,'' they wrote in their 243-page report.

Although many have expressed surprise, there's not the kind of political grandstanding one might expect with such a politically charged case in the United States or some other Western countries. Even prosecutors are not voicing any objection to the insanity finding.

''Anders Behring Breivik during a long period of time has developed the mental disorder of paranoid schizophrenia, which has changed him and made him into the person he is today,'' prosecutor Svein Holden announced at a press conference.

Inga Bejer Engh, speaking for government prosecutors, also said she was ''comfortable'' with the finding.

An expert panel from the Norwegian Board of Forensic Medicine is expected to approve the finding. If so, Breivik will likely be detained indefinitely in a psychiatric hospital and will not stand trial.

Rehabilitation a central goal

Norway’s criminal justice system stands in stark contrast to the more punitive systems in many other countries. Rehabilitation, rather than just punishment for punishment's sake, is its central goal.

Even if Breivik had been found sane and convicted at trial, his maximum prison sentence would have been 21 years, or at most 30 years if he had been found guilty of crimes against humanity.

For example, a male nurse found guilty of murdering 22 of his elderly patients was released in 2004 after serving just 12 years in prison.

"A lot of resources are put into this. The idea is for people to be able to leave prison and lead a life free from crime,” criminology professor Hedda Giertsen of the University of Oslo told the BBC. "There is help to find accommodation, help with personal finances, education -- nearly half of Norway's prison population is offered some sort of course or education."

Statistics indicate this policy works: Reconviction rates in Norway are about 20 percent, far lower than in other European countries or the United States.

And just think about all of the money Norway will save by avoiding the public spectacle of a lengthy and high-profile trial featuring dueling psychiatric experts. 

Rationality: Don't you love it?

Multiple personality excluded in Texas insanity case

A serial rapist’s attempt to claim insanity based on multiple personality disorder fell flat, as a judge ordered the expert's trial testimony stricken from the record as junk science.

Billy Joe Harris

Psychiatrist Colin Ross testified that Billy Joe Harris, the so-called "Twilight Rapist" who targeted elderly women, suffered from multiple personality disorder -- now known as dissociative identity disorder (DID) -- brought on by childhood abuse.

Ross, who runs the Colin A. Ross Institute that provides trainings on psychological trauma and dissociative identity disorder, testified that the condition’s presence in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association establishes it as a "real and valid disorder."

Ross testified that he gave the defendant three tests for DID. However, in a most unusual procedure, rather than personally administering the tests, he gave them to the defense attorney to administer. Thus, he has no way of knowing for sure who filled in the tests, or under what circumstances. 

Ross testified that the defendant's scores on a screening test, the Dissociative Experiences Scale, were so high that he questioned the test's validity. He also conceded that the defendant was "clearly telling stories that are not true" about other aspects of his life, for example falsely claiming to have served in Iraq when he was actually in Saudi Arabia. However, Ross testified that after getting a chance to talk personally with one of Harris's alters, "Bobby," he was convinced of Harris's claim of multiple personalities.

"I don't think he's faking the dissociative identity disorder," he testified. "I could be wrong."

The real culprit, David the Dog

The defendant, a former prison employee, also took the witness stand, "weaving tales of bestiality, aliens, transvestites and combat heroism," in the words of news reporter Sonny Long. Harris testified that he had three other personalities inside him, including a black Great Dane named David who committed the rapes.

A dramatic moment came during cross-examination, when prosecutor Bobby Bell asked to speak to the defendant's alter, also named Bobby. As Long described the scene:

Harris lowered his head momentarily, raised it back up, rolled his neck and declared in a deep voice to be "Bobby."

Several jurors stifled laughter during the subsequent give-and-take between Harris and Bell, according to Long's account in the Victoria Advocate.

But perhaps even more damaging to Harris's credibility was an audiotape played for the jury in which he talks to his girlfriend about having put on "a good show" in court one day. Earlier that day, he had fallen to the floor and twitched and shook until he was restrained. The girlfriend warned Harris that the telephone call was being recorded, to which Harris replied, "I know it."

Forensic psychologist Walter Quijano also testified for the defense. (If the name sounds familiar, he has been in the spotlight for using race as a risk factor in death penalty cases, as I recently blogged about.) He testified that when multiple personality popped up as an issue, he stepped back because that is not an area of expertise for him. However, he did testify that it is unusual for someone to begin a rape career so late in life. Harris is 54.

Mere presence in DSM doesn’t establish validity

After the defense rested, the prosecution called as a rebuttal witness a Minnesota psychologist and attorney who has made a crusade out of pushing so-called "junk science" out of the courts.

Robert Christopher Barden testified that dissociative identity disorder (aka multiple personality disorder) is a controversial condition looked upon with skepticism by the scientific mainstream. He cited several articles rejecting the condition as a viable diagnosis, despite its presence in the DSM.

"Because something is in the DSM doesn't mean it's reliable or should be allowed in a court of law," he testified, according to an article in the Victoria Advocate. "One of the ways to get junk science out of the legal system is you rely on the relevant scientific community. If something is controversial it means it's not generally acceptable."

Barden said the number of mental health professionals who tout dissociative identity disorder as viable are few and far between.

"There are a few pockets of people left who are doing this," he said. "The scientists I know condemn it to be the worst kind of junk science and dangerous to the public. Controversial and experimental theories should not be allowed to contaminate the legal system."

Concerning the tests given to Harris, Barden said, "There's no magic to these tests. It looks scientific. It looks professional, but when you get down into it, it's junk. It's unusual for a psychiatrist to interpret a psychological test and it's highly unethical for Mr. Cohen [the defense attorney] to give the tests."

After Barden’s testimony that the condition is not generally accepted by the scientific community, despite the fact that it is listed in the DSM, District Judge Skipper Koetter ordered Dr. Ross’s testimony on dissociative identity disorder stricken from the record.

Justice, Texas-style

In the end, the defendant’s overdramatization and courtroom theatrics likely did him in. During the trial, he trembled and twitched and sat in the courtroom with paper stuffed in his ears, which his attorney said was “to keep the voices from speaking to him."

The jury took only 10 minutes to convict Harris, and another 10 minutes later in the month to sentence him to life in prison.

After the verdict, Barden said in a press release that the outcome demonstrates “the power of science-law teams in protecting the legal system from junk science testimony."

Barden has been involved in hundreds of lawsuits, criminal prosecutions and licensure actions across the United States over the past two decades, targeting not only multiple personality disorder but also quack therapists in the repressed memory and rebirthing therapy movements.

Judge Koetter's ruling is not the last word, of course, as it is just one trial judge's opinion. Appellate courts in other states have ruled differently. For example, in the 1999 case of State v. Greene (139 Wn. 2d 64), the Washington Supreme Court held that dissociative identity disorder was a generally accepted diagnosis because it was listed in the DSM-IV, and therefore met the Frye test for admissibility. But the Court went on to say that the applicability of this diagnosis to the issue of criminal responsibility was problematic and that testimony about DID was not "helpful" to the jury. (The Trowbridge Foundation has more information on this case HERE.)

The battle lines over dissociative identity disorder have heated up in the dozen years since that ruling, so who knows how an appellate court might rule today.

For those interested in learning more about the controversy, I recommend the chapter "Dissociative Identity Disorder: Multiple Personalities, Multiple Controversies" by Scott Lilienfeld and Steven Jay Lynn, in their book, Science and Pseudoscience in Clinical Psychology.

Loughner case shines spotlight on forced meds practices

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

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

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

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

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

Government "end run"?

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

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

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

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

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

"I didn’t go to medical school"

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

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

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

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

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

Should pretrial detainees get greater deference?

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

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

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

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

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

Where is this heading?

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

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

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

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

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

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

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

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