Loughner update: Skirmishing over competency

Arguments over who, where, how and what of evaluation   

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

Who should conduct the evaluation?

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

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

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

Where should the evaluation take place?

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

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

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

How should the evaluation be conducted?

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

What should the evaluation address?

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

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

Related post:

• Arizona rampage: Analyzing the analyzers

News flash: Epic trial ends with sanity verdict

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

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

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

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

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

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

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

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

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

Graphics credit: Scott Snow, KSL

Prominent forensic psychologist hired in Ford Hood massacre case

The defense team for Army psychiatrist Nidal Malik Hasan has retained prominent forensic psychologist Xavier Amador. The New York-based expert has been involved in several high-profile cases involving the military, including those of PFC Lynndie England (of Abu Ghraib infamy) and U.S. Army sergeant Hasan Akbar, who killed two fellow officers and wounded 14 soldiers in Kuwait in 2003. He was also a defense expert in the trial of would-be 9/11 hijacker Zacarias Moussaoui.

Amador's hiring came amid hints that Hasan might be resistant to defense efforts to develop evidence of possible mental issues, according to a report in yesterday's Dallas Morning News. The defense dismissed a previous forensic psychologist due to "irreconcilable differences."

The defense team has successfully delayed the military's efforts to have its own panel of psychiatric experts evaluate Hasan. The military's sanity board will evaluate Hasan to determine whether he had a severe mental illness at the time of the shooting, whether he knew right from wrong at the time of his alleged actions, and whether he is competent to stand trial.

Some experts say Hasan may resist any insanity defense due to his medical training and his desire to be seen as motivated by his faith, according to the in-depth report by Lee Hancock of the Dallas Morning News.

Hasan faces the death penalty in the shooting deaths of 13 people at Fort Hood. His Article 32 evidentiary hearing is set to begin Tuesday.

Military suicides skyrocketing

Meanwhile, in the wake of last November's massacre, stressful conditions continue unabated at sprawling Ford Hood in Texas. So far this year there have been 20 suspected suicides, out of at least 125 in the Army overall, according to a report in today's New York Times. The record level of mental breakdown among U.S. soldiers is being attributed to the longevity of combat deployment. Also, after nine years of war, the military is accepting less stable individuals and is increasingly short on qualified mental health personnel.

Critics say that even when service members are identified as severely depressed, they are often just prescribed medication rather than given meaningful help.

Today's New York Times article on military suicides is HERE.

Hat tip: Ken Pope

Mitchell to plead insane

No surprise, but Brian David Mitchell has filed official notice that he plans to go for an insanity defense. Mitchell, as you all know, is awaiting trial in the 2002 kidnapping of Elizabeth Smart in Salt Lake City. The defense notice states an intent to rely upon unspecified "expert testimony as to mental disease or defect." I'm not holding my breath that the trial will start as scheduled on November 1, but when and if it does it is bound to be quite interesting.

I highly recommend that all forensic practitioners read U.S. District Judge Dale Kimball's lengthy ruling on Mitchell's competency to stand trial, issued four months ago. At 149 pages, it's the most comprehensive competency decision I have seen. In describing Mitchell as a cunning malingerer, the decision has plenty of implications for the insanity trial as well.

Utah abolished the insanity defense some years back. The state now uses the restrictive standard of Guilty But Mentally Ill, under which evidence of mental disorder can be introduced only for the restricted purpose of disproving mens rea, or the mental state that must be present in order to be convicted of certain special-intent offenses. (A handy chart showing the insanity standards of each U.S. state is HERE.) However, since the federal government is prosecuting Mitchell, he should still be able to rely upon the defense.

POSTSCRIPT: Subsequent news coverage on the government's response to the insanity filing is HERE.

Excellent overview of insanity evaluations

I just finished Ira Packer's new book, Evaluation of Criminal Responsibility, from the Best Practices in Forensic Mental Health Assessment series. I found it to be an excellent summary manual, and affordably priced to boot. Here is the start of my review; click HERE for the full review:

This crisply written manual provides a balanced summary of the case law, empirical research, and developing practice standards for conducting insanity evaluations. Ira Packer, an award-winning scholar and long-time leader in the field of forensic psychology, brings a wealth of wisdom and experience to this topic. His discussions of controversial topics, such as whether to provide an “ultimate issue” opinion and how to approach the possibility of malingering, are especially balanced and nuanced.

Criminal responsibility evaluations are difficult endeavors both because of their retrospective nature, and also because we can never know for sure what was going on in someone else’s head, especially when that person may have understandable reasons to distort....

My full review is HERE. (Please be sure to click on "yes" if you find the review helpful; that boosts my Amazon ranking.)

Jury rejects Samenow’s lone insanity opinion

During one of my stints as a prison clinician, I had the unfortunate experience of being supervised by a psychologist who believed that prisoners were monsters bent on manipulation, and who thus tried to thwart my attempts to provide treatment. That psychologist's favorite book: Stanton Samenow's Inside the Criminal Mind.

"Criminals think differently" is the basic premise of the well-worn treatise. Samenow rejects out-of-hand most mainstream sociological, environmental, traumatogenic, developmental, biological, and psychological theories of crime, labeling them as absurd, simplistic, or even plain "kooky":

[C]riminals are not mentally ill or hapless victims of oppressive social conditions…. Despite a multitude of differences in their backgrounds and crime patterns, criminals are all alike in one way: how they think…. [A]ll regard the world as a chessboard over which they have total control, and they perceive people as pawns to be pushed around at will…. Some of their most altruistic acts have sinister motives.

Samenow promotes this popular rhetoric on national TV and radio shows such as Good Morning America and the Larry King show. In court, the well-known psychologist has testified for many decades in insanity cases, being called exclusively by the prosecution to attack defendants' claims of insanity. Over time, this one-sidedness started working to defense attorneys' advantage; they were able to rebut his testimony simply by telling juries that Samenow always testified against insanity. (Here is a recent example.)

This month, however, Samenow broke with tradition and for the first time opined in court that a defendant met the legal standard for insanity. He picked a rather unusual case. Unlike most defendants who plead insanity, Evan D. Gargiulo, being prosecuted in Virginia for the shooting death of a cab driver, had no history of psychiatric disorder. The competitive swimmer and former college swim team coach was an engineer for Lockheed Martin and a lieutenant in the National Guard when he shot Mazhar Nazir in the back of the head with his 9 mm pistol.

Gargiulo testified that he shot Nazir in self defense when the Pakistani-born cabbie tried to grab him. He said that after getting a taxi ride home from a nightclub, he realized he had lost his wallet. He went into his apartment, retrieved his gun and car keys, and had Nazir drive him to his car. Once there, he realized he had also lost a roll of cash so could not pay his $130 fare. It was at that point, he claimed, that Nazir became angry and reached over the seat to grab him, making him fear for his safety. The hapless driver died from a single gunshot to the back of his head.

Samenow testified that Gargiulo had led such a sheltered life, and had developed such an exaggerated paranoia, that he could not distinguish right from wrong at the time of the crime. As Tom Jackman of the Washington Post reported it:

Samenow said Gargiulo's dismay at being robbed and his "enormous fear" of Nazir caused him to shoot without thinking of the consequences. "I haven't encountered somebody with this level of fear," Samenow said. He said there is no formal definition of Gargiulo's mental condition in the Diagnostic and Statistical Manual of Mental Disorders, the accepted reference book for courts trying to parse mental illness and criminal culpability.

Samenow said later that his first appearance for the defense in an insanity case in 40 years showed that he has an open mind after decades of examining mentally ill defendants and finding them criminally responsible. He testified that he was paid $25,000 by the defense, which rested with Samenow as its only witness.

The jury didn't buy either the self defense or insanity defenses. After six hours of deliberations, it convicted Gargiulo of second-degree murder and sentenced him to 15 years in prison. To the disappointment of the victim's family, that was 25 years less than the maximum the jury could have imposed.

Gargiulo photo courtesy Fairfax County (Virginia) Police Department

Brian David Mitchell will pursue insanity defense

In the wake of last week's competency finding, a date of Nov. 1 has been set for Brian David Mitchell's federal trial in the kidnap-rape of Elizabeth Smart of Utah. The defense has indicated it plans to mount an insanity defense. As reported by the Associated Press today, a parallel case in state courts has stalled over the question of Mitchell's competency.

I'm still wading through Judge Kimball's 149-page ruling on competency, which I highly recommended to any of you who do competency work. In describing Mitchell as a cunning malingerer, the decision has plenty of implications for the insanity trial as well.

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.

Asperger’s: Here today, gone tomorrow?

Would erasure from DSM impact forensic use?

It was just a few years ago that Asperger's Disorder exploded into the public consciousness. But just as suddenly, if the DSM-V authors have their way, it may disappear, absorbed back into the spectrum of autism disorders from whence it came.

An intriguing story in today's New York Times describes the controversy that is heating up as the DSM-V work groups prepare to issue their final diagnostic proposals in January.

As Times reporter Claudia Wallis notes, Asperger's is "one of the most intriguing labels" in the diagnostic book:

"Children with Asperger's syndrome, a mild form of autism, are socially awkward and often physically clumsy, but many are verbal prodigies, speaking in complex sentences at early ages, reading newspapers fluently by age 5 or 6 and acquiring expertise in some preferred topic -- stegosaurs, clipper ships, Interstate highways -- that will astonish adults and bore their playmates to tears."

The sudden rise of this "once obscure diagnosis," diagnosed four times more often in boys than girls, accounts for much of the apparent rise in autism, which now has a prevalence rate of about 1 percent among U.S. children.

Although self-described "Aspies" and their families distinguish Asperger's from the more stigmatized label of autism, experts quoted by the Times say the distinctions are confusing and not scientifically based.

Asperger's in the forensic context

At the same time that it faces formal extinction, Asperger's is seeing ever-escalating use in the criminal courts, in cases ranging from violent crime to computer hacking and child pornography possession.

Typically, the diagnosis is proposed by defense attorneys seeking to mitigate the mental state required for a crime. A hallmark of the disorder is severe problems understanding social rules and nuances, and therefore navigating social situations. Sometimes, the profound deficit in social reasoning explains crimes that otherwise are simply bizarre, and lacking in rational motivation. Consider this scenario, adopted from a case I worked on:

You’re on an excursion with a recreational group, walking through a downtown area. The group encounters a red light. Seeing no traffic, everyone jaywalks. All except the young man with Asperger’s, whose can’t break a rule. No one notices as he gets left behind. When he finally finds the group again, he is furious, and punches the group leader in the face.

In this case, the defendant had a particularly severe and clearcut case that had been diagnosed and treated at a specialty clinic from the time he was a toddler. Thus, it could not be argued that the diagnosis was being manufactured with a pretextual goal in the legal context.

In other cases, especially when an alternate and rational motivation is at least equally plausible, the defense has met with less success. For example, as I blogged about last year, it was unsuccessfully advanced in the case of Hans Reiser, the oddball computer programmer who killed his wife and buried her body in the hills of Oakland, California.

In an article on "the geek defense" in Slate magazine, science writer Erica Westly gives other examples of Asperger's recent deployment in court, some successful and some not.

• Astonishingly, a jury in Galveston, Texas acquitted billionaire real estate heir Robert Durst in the murder and dismemberment of his neighbor under the theory that Asperger's made him incapable of premeditating the crime.

• Lisa Brown of the United Kingdom was not so lucky. The 22-year-old woman was sentenced to life in prison in the murder of her mother after a judge ruled that her lack of empathy did not mitigate the gravity of the crime.

Explanation for collecting child porn

The compulsive behaviors and zealous collecting of many individuals with Asperger's is being invoked to explain certain types of criminal conduct, such as computer misconduct or child pornography collecting.

Computer hacker Gary McKinnon

The Slate article features the high-profile case of Gary McKinnon, the British computer geek who hacked into U.S. military and NASA computers looking for proof that the U.S. government had covered up evidence of UFO landings. He claims Asperger's made him compulsively driven to search for evidence of alien spacecraft.

This type of defense is ready-made for compulsive collecting of child pornography images. In an Iowa case this year, a judge reduced a pornography possession sentence after concluding that Asperger's "might very well explain the number of images" the man had acquired. Similarly, across the Atlantic a 21-year-old student in the United Kingdom was sentenced to just four months in jail for possession of 922 pornographic images of children. Other courts have been less sympathetic to this version of a diminished capacity defense.

Anecdotally, I have heard of Asperger's arguments backfiring. Introduced as mitigation in cases of violent and/or sexual offending, Asperger's may become aggravating by increasing jurors' fear of a defendant because he is perceived as strange and therefore more unpredictable.

At risk in prison

In a final forensic angle, the extreme social awkwardness of Asperger's sufferers puts them at risk in prison, where social interactions are highly scripted and regulated. In one case I was involved in, a prisoner incurred new criminal charges stemming from a bizarre fight triggered by his misperception of social cues.

Indeed, computer hacker McKinnon is raising this issue in an attempt to avoid extradition to the United States. Given his condition, incarceration in a U.S. prison would amount to torture, he contends. As evidence, he cites a 2007 study by psychiatrist David Allen finding that imprisonment is extremely stressful and confusing for men with Asperger's, who find it hard to successfully interact with guards and other prisoners and thus spend much of their time hiding out in fear.

No one knows whether or how exclusion from the upcoming DSM-V, due to be published in 2012, might affect deployment of the diagnosis in court. After all, even if it is not a separate diagnosis, Asperger's will still presumably exist as a condition on the autism spectrum. And, as regular readers of this blog know, plenty of less valid diagnoses are invoked in court despite their absence from the DSM.

Although I understand the logic of the DSM-V work group, I cannot help but wonder -- given the massive influence of the pharmaceutical industry in shaping and perpetuating psychiatric diagnoses -- whether they would be proposing Asperger's for elimination if a money-making drug was available to treat it.

Somehow, I think not.

Further resource:

Barry-Walsh, J.B., & Mullen, P.E. (2004). Forensic aspects of Asperger's Syndrome. Journal of Forensic Psychiatry and Psychology, 15, 96-107.

Spokane case illustrates sensationalism in coverage of insanity defense

Alarmist misinformation predominates

"Criminally Insane are often released." That's the headline on an AP story that ran in major U.S. dailies -- including the New York Times -- over the weekend. The case, involving the escape of a forensic patient from a state hospital in Spokane, Washington, has the Washington citizenry in a state of frenzied outrage. The CEO of the hospital has been forced to resign, and ever-opportunistic politicians are calling for abolition of the insanity defense.

In the spotlight is Phillip Paul, a schizophrenic man who killed an elderly woman in 1987, allegedly because voices in his head told him she was a witch. Found not guilty by reason of insanity, he was hospitalized at Eastern State Hospital in Spokane, Washington. Twenty-two years later, on Sept. 17, he walked away while he and 30 other forensic patients were on a supervised jaunt to the county fair. He was captured about three days later after a highly publicized manhunt.

Sunday's report is a classic example of the sensationalism and misinformation swirling around the insanity defense. Unfortunately, instead of critical inquiry, many reporters leap onto the bandwagon of misplaced public hysteria, and many editors likewise fail to think before grabbing a juicy-looking story to fill a news hole.

The AP article, by reporter Nicholas Geranos, amps up both public alarm and indignation:

"Instead of being straitjacketed and locked away as might be depicted by film or fiction, Paul has spent time living and working in downtown Spokane, fathered a child, created music videos and racked up $85,000 in credit card bills…. His escape … exposed a little known truth: The criminally insane often live among us, with little or no supervision."

Eek! Lock your doors! Not only are bogeyman sex offenders getting ready to snatch your kids on Halloween, but now we've got the "homicidal maniacs" (in the words of one newspaper columnist) loose among us.

Downplaying the facts

Contrary to the article's implications, Paul was not "living among us, with little or no supervision." Not at all. He was locked up in a state hospital. Escapes are rare, but they do happen. And rarely does any violence ensue.

The alarmist news coverage downplays facts that could reassure the public and reduce rather than amp up hysteria. First of all, Paul was captured uneventfully after about three days. And, during his brief foray into freedom, he did not commit any new crimes as far as we know.

Paul's risk for violence is not high. The homicide for which he was found Not Guilty by Reason of Insanity (NGRI) occurred 22 years ago. He has not exhibited any violent behavior in years, according to hospital spokespersons. Indeed, he is described as a "model patient."

If Paul was mentally unstable or at high risk of violence, he would not have been allowed out on the field trip. Such excursions were routine at the hospital (and its larger sister facility, Western State Hospital outside of Tacoma, Washington), rewards and incentives for stability and good behavior. Now, they have been entirely suspended.

Paul's low risk for violence in the community is substantiated by the fact that, over the past couple of decades, he has been released from the hospital several times. Once, he lived with his family; another time, he stayed at an assisted living center.

Media coverage accuses the staff of lax supervision. Certainly, it was a mistake to let Paul walk away; the staff who accompanied him reportedly let him take a backpack, which may not have been searched and may have contained food. However, during periods when he was conditionally released into the community, he was monitored and rehospitalized whenever he was noncompliant with medications or his symptoms worsened. That sounds like good supervision, not bad.

Successful insanity defenses rare

It is ludicrous to make generalizations about the dangers posed to the public by the criminally insane based on a very rare event such as this, involving a model patient who hurt not a single hair on anyone's head.

But the current frenzy, and in particular the politicians who are using the incident to bolster their popularity, are distorting the larger nature of the insanity defense as well.

In Washington, as in the majority of U.S. states, the standard for legal insanity is the M'Naghten test, which requires that a defendant be unable to tell the difference between right and wrong. The insanity defense is rarely invoked as a defense. One eight-state study found that the defense was used in less than 1% of cases.

There are many reasons for the rarity of the defense. Strategically, defense attorneys often do not pursue it because a defendant risks serving more time -- especially in less serious cases -- than if he or she pled guilty. Also, the standard is hard to meet. Contrary to public opinion, forensic psychologists and psychiatrists who evaluate a defendant's mental state are most likely to conclude he or she does not meet the legal threshold for insanity.

A survey of the general public indicated that people think the defense is successful about 35% of the time. Although success rates vary by jurisdiction, it is probably more accurate to say the defense is successful only about one-fourth of the time. In the broad majority of successful cases, the offender had a previously documented psychiatric disorder and the insanity disposition results from a plea bargain. In other words, contrary to the public's image of dueling experts in court, the defendant was so obviously crazy at the time of the offense that prosecutors agree to hospitalization rather than conviction and imprisonment, and no trial ensues.

One reason for the enduring controversy over the insanity defense is the misperception that the defense is a way to beat the rap. In reality, acquittees are sent to locked state hospitals that look very much like prisons. They get out only if they are found to no longer suffer from a mental disorder that makes them dangerous. Studies suggest the average length of hospitalization varies from around 4 years (in California) to more than 10 years (in Missouri). Longer hospitalizations are especially likely in serious or high-profile cases.

Even when a patient is released, there are usually strings attached. Under "conditional releases," patients are monitored for treatment compliance. If they violate terms of their release, such as by using drugs or not taking prescribed medications, they are immediately rehospitalized. Such revocations occur in an estimated 35% to 50% of releases, according to a California study. Phillip Paul, indeed, had been rehospitalized under just such circumstances in the past.

The implication of the news coverage is that insanity acquittees are dangerous to the public. But studies suggest that, as a group, people found NGRI are less likely to recidivate than the average felon released from prison. And the best predictor of subsequent violence is not mental illness, but the quantity and nature of prior crimes.

Moreover, the most feared type of crime by schizophrenics -- homicides of strangers -- "are exceptionally rare events," according to a large-scale international study from Australia, Canada, Finland, and the Netherlands that was just released in Schizophrenia Bulletin.

"What the [research] shows, more than anything else, is that the public fear of the mentally ill is completely misplaced," said Dr. Matthew Large, one of the researchers from the University of New South Wales, Australia. "These events are so rare that they are almost impossible to study, yet the fear of serious violence by the mentally ill is a major cause of stigma.”

Ultimately, the public's rage in this case focalizes on the fateful field trip: "How dare those inept government bureaucrats let a homicidal maniac out for fun? Let him suffer!" This venting of pent-up rage has the same punitive tone directed against prison officials in the past for letting prisoners have television sets or make phone calls.

In these tough economic times, public anger against the government is high. But punitive policies toward either forensic mental patients or prisoners will not increase public safety. Quite the contrary. Ultra-punitive policies only produce more embittered citizens who, just like the critics, are too quick to rage.

Hat tip: KK

Elizabeth Smart testifies at competency hearing

Kidnap victim Elizabeth Smart provided dramatic testimony today in David Mitchell's long-anticipated competency-to-stand-trial hearing.

But Mitchell wasn't in the room to hear her. He was removed from the courtroom when he refused to stop singing a Mormon hymn, as he does whenever he comes to court.

Smart's testimony was ostensibly intended to establish that Mitchell was acting rationally in order to further his criminal conduct, rather than being motivated by religious delusions as the defense has maintained.

A "calm, poised, articulate" Smart testified that Mitchell was obsessed with sex and used religion to further his predatory goals. She described Mitchell as "evil, wicked, manipulative, sneaky, slimy, selfish, greedy."

But defense attorney Robert Steele said Smart's testimony hinted that Mitchell is delusional, according to coverage in the Salt Lake Tribune. Last week, he argued unsuccessfully that Smart should not be allowed to offer opinions about Mitchell's state of mind or motivations.

Mitchell has refused to submit to any psychological evaluations or diagnostic tests.

His wife and co-defendant, Wanda Barzee, has twice been found incompetent for trial and is undergoing forced treatment with antipsychotic medications. Her next competency hearing is scheduled for Oct. 23.

A transcript of Smart’s 100-minute testimony is online HERE.

My Guardian commentary on Jaycee Dugard saga

The Guardian of UK asked me to write a comment on the extraordinary saga of Jaycee Lee Dugard. I'm posting the first few paragraphs here, with a link to the Guardian website for the full article and the comments, many of which are quite interesting. (I posted a couple of my own comments to the comments.)

In these harsh economic times, the saga of Jaycee Lee Dugard is especially riveting to the public imagination. Our horror and revulsion unite us. Who can we blame? How could this monster hide amongst us while committing unspeakable acts against innocent children?

Our collective furor and thirst for vengeance run counter to the principles of our justice system, under which a criminal defendant is presumed innocent until proven guilty. Psychiatric issues will make justice especially slow for Phillip Garrido, the registered sex offender who is accused of holding Dugard hostage for 18 years, after kidnapping her in June 1991 when she was just 11. (Garrido and his wife Nancy have both denied the charges.)

Initial evidence points toward a psychosis. In an interview from jail, Garrido called Dugard's story "heartwarming" and referenced secret documents and "hundreds and hundreds of thousands" of lawsuits. And that is just the tip of the iceberg. The wonders of the internet allow us to travel back in time and enter his mind, via rambling blog posts about voices in his head, mind control, and religious delusions of himself as the savior.

Ironically, more than a year ago Garrido referenced the potential for psychotic symptoms to cause violence against children. A woman who drowned her three children in the San Francisco Bay was, he wrote, "led by a powerful internal and external (hearing) process that places the human mind under a hypnotic siege that in time leads a person to build a delusional belief system that drives them to whatever course of action they take."

My Guardian (UK) commentary continues HERE. Please feel free to add your comments and opinions at either the Guardian website or here.

Excerpt from Garrido's Voices Revealed blog

Dueling experts: Farcical spectacle that should be abolished?

Dueling psychiatric experts are an appalling farce and "a travesty of the profession and the law," according to an op-ed in yesterday's Boston Globe.

The opinion piece comes in the wake of the high-profile sanity trial of Christian Karl Gerhartsreiter (GAYR'-hahrtz-ry-tur), a German con artist who used a string of fake identities (including "Clark Rockefeller") to establish himself in wealthy circles in New York, Boston and Los Angeles. Last month, a jury rejected the defense theory of insanity and convicted him in the kidnapping of his 7-year-old daughter. He was sentenced to four to five years in prison.

Psychiatrist Stephen Bergman (who writes fictional parodies of psychiatry under the pen name Samuel Shem) critiqued the various experts for, respectively:

• charging too much money (one expert got $10,000, which ain't a whole lot these days)
• giving opinions on TV ahead of the trial
• spending only 2.5 hours with Gerhartsreiter
• not having prior experience testifying in court

The prosecution's expert, psychiatrist James Chu, diagnosed narcissism and sociopathy. He testified that Gerhartsreiter exaggerated his symptoms and knew what he was doing was wrong.

Two defense experts, forensic psychologist Catherine T.J. Howe and forensic psychiatrist Keith Ablow, a Fox News commentator, both testified that Gerhartsreiter suffered from delusional disorder (grandiose type) and narcissistic personality disorder, and was insane when he fled to Baltimore with his daughter during a custody dispute.

Bergman saved most of his vitriol for the DSM diagnostic enterprise, which is so tainted by profiteering and bias that a "circus atmosphere" is almost inevitable when it is brought into court:

"The lucrative link between a diagnosis and a drug to treat it, when diagnosis itself is culture-bound and often subjective, pollutes the impartiality of the 'Diagnostic and Statistical Manual.' … If psychiatric diagnoses and treatments have an element of fuzziness, how could doctors paid by one side or the other not come up with a diagnosis wanted by their employer?"

His solution?

Do away with experts that are paid by either side. Instead, have a neutral panel whose opinions are binding.

Bergman makes some legitimate points, especially about how flaws in the system of psychiatric diagnosis impact forensic cases. (See my new article on this topic HERE.) And, some of his criticisms of these particular experts may be legitimate (although, ironically, he got their roles backwards*). Indeed, the defense appeal argues that the government's expert was unqualified and applied the wrong legal standard for criminal responsibility.

But, overall, Bergman misses the forest for the trees.

The adversarial system entitles each side to present its best case in court. To foreclose that option just because experts sometimes differ would be fundamentally unfair. After all, as a colleague of mine put it, disagreements are not unique to psychiatry: "Engineers routinely disagree in court over the cause of a collapsed bridge, just as chemists disagree in court over the nature of a substance."

And just because they disagree, that doesn't mean that the experts are dishonest or lack integrity, as Bergman implies.

Unfortunately, high-profile insanity trials like this one skew the perceptions of the public and pundits like Bergman. In reality, insanity (which varies by jurisdiction but generally requires that the defendant did not know the difference between right and wrong) is rarely invoked as a defense, and is even more rarely successful. One eight-state study found that the defense was used in less than 1% of cases, and was successful only about one-fourth of the time. In 90% of the successful cases, the offender had been psychiatrically diagnosed prior to the crime.

Even when the defense is invoked, the "dueling experts" phenomenon is rarer than people think. The vast majority of insanity cases are resolved behind the scenes because the experts for both sides are in substantial agreement. In such cases, a trial -- with its attendant publicity -- never takes place. (See Before and After Hinckley: Evaluating Insanity Defense Reform.)

Another public misconception is that successful use of the insanity defense allows people to "get off" for the crime. In reality, most insanity acquittees are sent to locked state hospitals that look very much like prisons. They often spend more time locked up than if they had been convicted of their crime.

Bottom line: A defendant's right to the best possible defense should not be foreclosed just because of errors or hype in the rare celebrity case.

----------
* Bergman wrote: “For the prosecution: one psychiatrist, famous from Fox TV and psychiatric thrillers, was paid $10,000 for his expertise as part of an 'insanity defense,' testimony that was challenged by his offering opinions about Rockefeller on TV in advance of the trial; a prosecution psychologist agreed with his diagnosis, basically of a narcissistic character who was 'delusional' -- that is, insane. For the defense: a psychiatrist who had seen the accused once for 2 1/2 hours and had never before testified in court came up with the diagnosis of narcissism and sociopathy -- that is, not insane." In reality, the two experts he said were prosecution witnesses were actually defense-retained, and the expert he labeled as "for the defense" was actually the prosecution's.

Postpartum psychosis stirs Texas controversy

A proposal to carve out a reduced penalty for a very limited type of infanticide is causing quite a furor in Texas.

The law being proposed by two state legislators would make postpartum disorder a legal defense for women who kill their children in the first 12 months of life. The defense would not come into play until after a conviction. Then, at the sentencing phase, jurors could hear mitigating expert testimony about the mother's mental state that could reduce the sentence to a state jail term.

Similar laws are on the books in 29 nations -- including Britain, Australia, and Canada -- but this would be the first in a U.S. state.

Currently, postpartum psychosis cases are very disjointed under the law; some women are found insane and go to mental hospitals, while others with almost identical crimes are found guilty of murder and go to prison. Women may still attempt an insanity defense if this law is passed, but it is difficult to prevail under the narrow legal theory of insanity.

It will be interesting to see whether the modest law passes. If it does, that will be a sign that the Hang 'em High state is becoming a kinder, gentler place.

It won't come easy, though. Since the legislation was proposed last week, Texas talk radio and the internet have been abuzz with amateur pundits who fear a wave of mothers murdering their children if they know they can get away with it.

What a joke. Most women who kill their children while in a state of postpartum psychosis or severe depression are so overwhelmed with guilt when they regain their senses that they can barely go on. Many commit suicide the first chance they get.

Readers will recall that Texas was the site of probably the most high-profile case of filicide in recent years. Andrea Yates, who drowned her five children in the bathtub in 2001, was found not guilty by reason of insanity and remains psychiatrically hospitalized.

After that came Dee Schlosser, who in 2004 killed her daughter by cutting off her arms. Police found Schlosser soaked in blood and humming a hymn; she believed her deed was an offering to God. She too was found insane.

The Schlosser case may be making Texans especially prone to outrage at the moment. Just a few months ago, they learned Schlosser is being released from a state mental hospital, and some equate that to "getting away with murder." But as Lucy Puryear, MD, an expert witness at Yates' insanity trial, commented over at Women in Crime Ink:

Dee Schlosser will never live a carefree life. She must live with the knowledge and memory of killing her child. She will no longer be able to care for or have contact with her other children, and her marriage ended in divorce. What kind of life will she have? Can you imagine waking up every day to that horror?

She is no longer psychotic, she is on medication, she will be monitored by a psychiatrist to make sure that she remains well. So why should she remain in the hospital; just so our sensibilities are appeased? That's a waste of money. Her being in the hospital does not protect you or your children. Dee Schlosser has no intention of coming to your house to cut off the arms of your child.

Puryear makes a good point. And probably most people would agree, when they think about it, that women like Schlosser and Yates aren't much of a danger to society. The problem is that people don't think. A mother killing her child triggers such visceral rage that the only color people see is red.

Grits for Breakfast

For further information:

• Text of the proposed legislation (HB 3318)
• Grits for Breakfast: Should postpartum psychosis be a legal defense?
• Postpartum Progress blog: Will Texas Be First State With An Infanticide Law?
• Dallas Morning News: Proposed Texas House bill would recognize postpartum psychosis as a defense for moms who kill infants

Crazy but sane, Texas court rules

Remember Andre Thomas, the eye-plucking Texas prisoner I blogged about back in January? The delusional schizophrenic guy who killed his wife and two children, ripped out their hearts, and then walked into a police station and confessed? The fellow who plucked out one eye shortly after the crime, and the other eye just a couple of months ago?

Yesterday, in rejecting an appeal of his death sentence, a Texas appellate court ruled that Thomas "is clearly 'crazy,' but he is also 'sane' under Texas law."

At Thomas' trial, the defense argued that the killings were the result of insane delusions caused solely by Thomas' mental disease. Prosecutors countered that his psychosis was caused or aggravated by his voluntary use of alcohol, drugs and prescription drugs.

The court also rejected an appeal argument that Thomas was not competent to stand trial at the time of his 2005 trial:

"Although reasonable people might well differ on the questions of whether (Thomas) was sane at the time he committed these murders or competent at the time he was tried, those issues were appropriately addressed by the defense, the prosecution, trial judge, and the jury during the trial," wrote Judge Cathy Cochran of the Texas Court of Criminal Appeals in a concurring opinion.

Scott Henson over at Grits for Breakfast found the ruling ludicrous:

It's just ridiculous to send somebody who's so obviously nuts to death row - what's the moral point of killing a guy who'd mutilate himself to death if you let him? What's the insanity defense for if not cases like this one? … How can the court just assume Thomas' substance abuse wasn't a symptom of his mental illness - a form of self-medication, perhaps? Which came first, the chicken or the egg?

Psychiatrist Lucy Puryear, writing at Women and Crime Ink, agreed:

Non-mentally ill people do not pluck their own eyes out for some secondary gain…. To those of you who would suggest that I am soft on crime, consider this novel idea. How about we make mental health treatment available in the community to those who need it. Had Mr. Thomas been adequately treated and monitored he never would have killed his family or plucked out his eye. Three people would be alive today and an enormous amount of money would be saved keeping him out of the prison system. That's not soft on crime, that's preventing crime.

As one solution, Dr. Puryear advocates specialized mental health courts, which are popping up quite regularly in courts around the United States these days:

Instead of the revolving door from prison to back on the streets where psychiatric care is lacking, then back in prison when another crime is committed, these persons can be put into a system where follow-up is mandatory and resources are available.

Tragically, Thomas had twice sought psychiatric help at local hospitals shortly before the crime, but had not stuck around voluntarily and could not be detained against his will.

Competent and sane, you betcha.

The Dallas News story is HERE.