Documentary explores town's polarization over transgender murder

Forensic psychologist key element in gay panic defense

For 20 minutes, Brandon McInerney sat patiently behind Larry King in their junior high school computer classroom. Then, the budding white supremacist pulled out a handgun and shot his transgender classmate twice in the back of the head. Larry died two days later, on Valentine's Day.

The 2008 murder polarized the community of Oxnard, California. The chasm widened during the highly publicized trial three years later, when a pair of private defense attorneys managed to turn the homicide into a reverse civil rights case for beleaguered heterosexuals and white people. With the help of a forensic psychologist, they were able to convince seven out of 12 jurors that Larry King had provoked his own death through his gender transgression. After the mistrial, several jurors became outspoken advocates for Brandon, wearing "Save Brandon" bracelets and raising money for his retrial.

Director Marta Cunningham

"He [Brandon] was solving a problem," explained juror Diane Michaels, an OR nurse. “Where are the civil rights of the one being taunted by another person who’s cross-dressing? He had no one he could turn to because the school was so pro-Larry King’s civil rights, but where was Brandon’s civil rights?"

"It was the high heels, the makeup, the behavior," agreed Karen McElhaney, a fellow juror and a surgical nurse, as the jurors bonded over wine and hors d'oeuvres at one of their homes.

Through such candid interviews with family members, teachers, students (including two eyewitnesses), attorneys and jurors, first-time film director Marta Cunningham explores the conflicting ideologies regarding both gender diversity and social tolerance that Larry King’s murder graphically exposed. Cunningham spent four years and collected 350 hours of footage for Valentine Road (the name of the street on which Larry is buried), a Sundance award-winner debuting on HBO. She hopes that schools will use the film as an educational tool to promote tolerance. 

Forensic psychologist blames the victim

This blog's readers will be especially interested in the role of the forensic psychologist, who helped sell the victim-blaming theme at trial. The testimony of Donald Hoagland gave the jurors an "expert" imprimatur on which to hang their hat.

 ABC News trial coverage featuring voice of 

forensic psychologist Donald Hoagland as he testifies

"What Larry was doing was an extreme form of bullying, an extreme form of sexual harassment," Donald Hoagland told the filmmaker. "Guys don’t hit on guys. Brandon was thinking he needed to get rid of Larry. He needed to save everyone from this scourge that had come upon this school."

At the trial, Hoagland testified that the cross-dressing victim's flirtation threw 14-year-old Brandon into a fit of homicidal rage. He testified that King's declaration that he was changing his name to Leticia triggered a dissociative state in which Brandon temporarily lost track of reality, according to the Ventura County Star.

The fatal flaw with that gay panic theory of the crime is that McInerney made advance plans to kill King. He announced his plan to several people the day beforehand, according to testimony during the eight-week trial, and also acquired and loaded the gun and brought it with him to school. He shot King twice in the back of the head during a first-period class.

Jurors who voted against a murder conviction said that Larry King's request to be called by a girl's name gave Brandon a "green light" to execute him. One juror even wrote to the judge after the trial to protest the "witch hunt" against the killer, citing the victim’s "long history of deviant behavior."

"They made a murder victim the cause of his own murder," marvels Detective Dan Swanson, a hate crime expert who testified at the trial.

Prosecutor Maeve Fox, who ultimately agreed to a plea deal of 21 years for Brandon, said the case exposed the deep layer of intolerance in society, an intolerance that is even carried into the jury box.

Unfortunately, the documentary gives short shrift to another central factor in community support for Brandon. A decision by the prosecutor's office to try the 14-year-old suspect as an adult led to widespread public opposition. Brandon faced 51 years to life in prison if convicted in adult court. A coalition of dozens of gay and lesbian groups even joined the chorus of pleas to try the boy as a juvenile.

Cunningham's direction is understated. Rather than hitting the viewer over the head with a message or point of view, she allows the characters to speak for themselves, interspersing their dialogue with artful sketches, news footage and school surveillance video. The resulting nuanced tale forces audience members to think for themselves about the moral implications of the tragedy.

Ultimately, Valentine Road is a sad and haunting story about two lost boys struggling for identity in a violent world. For the two boys were alike in many ways, both of them abused, neglected and lacking competent adult mentorship as they navigated the perilous journey to adulthood. Larry had been bullied since the third grade for his effeminacy; Brandon was dependent on a bullying father who physically abused him, while his methamphetamine-abusing mother was homeless. 

Yet for all its pathos the film also shines a ray of hope. Even as the defense team vigorously promoted a victim-blaming narrative, youths from the local community came together to honor Larry King and to use his death to promote a message of tolerance. One can only hope that the film will be shown far and wide, and will contribute to that worthy endeavor.

VALENTINE ROAD WILL AIR OCTOBER 24 ON HBO. IT IS ALSO AVAILABLE ON DEMAND. CLICK HERE FOR THE FULL SCHEDULE.

RELATED STORY: "The Hidden War Against Gay Teens," Alex Morris, Rolling Stone, Oct. 10, 2013

* * * * *

My prior coverage of the case: 

• What caused middle school tragedy? 14-year-old Brandon McInerney to be arraigned Thursday (June 10, 2008) 
• More on the McInerney antigay murder case: Defense may use emerging science of adolescent brain development (June 11, 2008)  
• Gay panic defense: Slain boy accused of provocation (Aug. 10, 2011) 
• Jury deadlocks in gay panic trial (Sept. 2, 2011)  
• Gay panic defendant gets 21 years (Nov. 23, 2011) 

Hat tip: John Lewis

'Digital lynch mob' assaults expert witness in televised murder trial

Imagine you are testifying in a high-profile murder case being live-streamed over the Internet. Suddenly, an angry mob swarms all over you. More than 10,000 people sign an online petition urging a boycott of your lecture contracts. Your book gets a thousand negative hits on Amazon. You are stalked, and a photo of you dining with the trial attorney is posted on Facebook, implying unethical conduct. You even get death threats.

That is the social media-coordinated avalanche that hit domestic violence expert Alyce LaViolette, testifying for the defense in the capital murder trial of Jodi Arias. The unrelenting cyber assaults so rattled LaViolette that she suffered an anxiety attack that landed her in the emergency room.

But the ER visit may only encourage the cyber-stalkers, who revel online over her discomfiture and obvious emotional deterioration over the course of seven grueling days of court testimony.

This type of Internet mobbing, in which cyber-posses enforce social norms through public shaming, is becoming more and more commonplace. One of the most widely known examples of such Internet vigilanteism was the 2005 case of "Dog Poop Girl," a South Korean woman who gained infamy after she refused to clean up after her dog on a Seoul subway; the harassment eventually escalated to the point that she was forced to quit her university job. 

But what was LaViolette's crime?

The domestic violence counselor had the audacity to opine that Jodi Arias was a victim of domestic violence -- that she was dominated and abused (physically, emotionally and sexually) by the man she eventually killed. Such an opinion bolsters Arias's claim that she killed her ex-boyfriend in self defense.

Murder tragedies as entertainment

Unfortunately for LaViolette, her analysis runs counter to the dominant narrative in a gendered morality play produced by media conglomerate Turner Broadcasting and distributed through its cable channels HLN, CNN and In Session. In this good-versus-evil melodrama, Arias is a psychopathic female who killed a morally righteous man in a fit of jealous rage. Period. End of story. Airbrushed out are all the nuances, the shades of grey inevitably present in any such violent tragedy. 

The burgeoning infotainment industry has perfected a profit-making formula of sensationalized true-crime "reporting" that plays on viewers' emotions, whipping audiences into a frenzy of self-righteous indignation in which they clamor for guilty verdicts -- very often against female transgressors. Nancy Grace's shrill ranting over the Casey Anthony murder acquittal garnered HLN a record of almost three million viewers. More recently, HLN went after another woman, Elizabeth Johnson, suspected in the mysterious disappearance of her baby. 

The Arias case seems Heaven-sent for this voyeuristic style of entertainment, in which vulturous pundits mete out tantalizing morsels of crime "facts" to their addicted audience. Travis Alexander provides titillation from the grave via thousands of graphic emails, instant messages, texts and phone chats in which he degrades his paramour as a "whore," "slut," "corrupted carcass" and "three-hole wonder" whom he can sexually violate at will. For her part, Arias is a demonstrable liar. When her ex-boyfriend was found with a gunshot wound to the head, a slit throat, and more than two dozen stab wounds, she initially claimed innocence. After police demolished her alibi defense, she then claimed that two intruders broke into the home and killed Alexander, before finally admitting to the killing but claiming self defense.

Cast in the starring role of swashbuckling hero in this sordid drama is prosecutor Juan Martinez, a dapper man with a quick mind and an acerbic style, whose meteoric rise from the son of Mexican immigrants to a top government attorney is the stuff of American legend. Women line up outside the Maricopa County, Arizona courthouse, swooning at the sight of him as they jockey for photographs and autographs.

"This is murder trial as entertainment," Josh Mankiewicz, a correspondent for NBC's Dateline program (which ran two segments on the case), told reporter Michael Kiefer of the Arizona Republic. "This is not a trial like O.J. (Simpson's) that sheds new light on society. This is not about race or money. It's a perfect tabloid storm. It is occurring in the absence of any other tabloid storm."

Nancy Grace, "Dr. Drew" and the other pundits capitalizing on such trials foster a false sense of intimacy by calling everyone by first names. They encourage vicarious audience participation on Facebook, Twitter, online polls and other social media. But this is no value-neutral production. This is an archetypal trope that requires a guilty verdict; as one insightful media critic noted, acquittals do not produce the desired catharsis.

Public shaming run amok

In such an emotionally charged climate, anyone affiliated with the defense automatically becomes a villain. However, it is interesting to observe the disparate treatment of LaViolette as compared with a male expert witness, psychologist Richard Samuels. The prosecutor aggressively attacked them both. Playing not only to the jurors but to his sizeable out-of-court fan base, Martinez paced back and forth like a tiger smelling blood, demanding of his cornered prey that they give only "yes or no" answers to his myriad questions. Under his withering cross-examination, both witnesses came across as defensive and evasive. Both were vulnerable due to their confirmatory biases -- a failure to seek out evidence that might disconfirm their case theories. But, objectively, Samuels would seem to invite at least as much criticism as LaViolette, due to his bumbling style, his test scoring errors, and his questionable case formulation (he diagnosed posttraumatic stress disorder using a rating scale on which Arias endorsed a fictitious trauma, of witnessing Alexander's murder at the hands of imaginary intruders).

However, the public's palpable fury against LaViolette far outstrips that targeting Samuels. Consistent with the Turner Network's gendered narrative of criminal villainy, the cyber-posse is fueled by a potent combination of misogyny and homophobia: The expert witness in their crosshairs is "emasculating," "a bull dyke," "a man-hater," "fat," "buck-teethed," "a bitch."

The Internet fosters this culture of hate. Its cloak of anonymity is disinhibitory, emboldening people to spew bile with impunity. In The Cult of the Amateur, Andrew Keen warns that the deluge of anonymous online content is altering public debate, manipulating opinion, blurring the boundaries between experts and the uninformed and weakening the vitality of professional media -- newspapers, magazines, music and movies.

The proliferation of bottom-feeders on Twitter and YouTube is one thing. But it is quite another thing when cyber-bullying seeps into the courtroom, intimidating witnesses and threatening the presumption of innocence.

Can inundated jurors remain unbiased?

Legal experts worry that a virtual deluge of unreliable and biased information -- readily available at the click of the mouse or a TV remote -- is undermining jurors' neutrality. In their off hours, curious jurors in the Arias case can tune in not only to the cable TV and social media debacle, but can watch the defendant's entire videotaped police interrogation -- including excised portions -- as well as a police interview with Arias's parents, in which they speak of her mental problems. Pro- and anti-Arias websites have sprung up. And it's not just outsiders who are furiously Tweeting, texting and blogging about the case.  Witnesses are watching the trial from home and texting the prosecutor with suggestions for cross-examination. Jodi Arias herself is tweeting from the jail, through a friend. ("HLN is an acronym for Haters Love Negativity," she tweeted.)

It would be naive to suppose that the Arias jury is immune to the inflammatory rhetoric swirling around the Internet. Some of the more sarcastic questions that jurors submitted for the expert witnesses sounded scripted by Nancy Grace. For example, one juror asked psychologist Samuels whether a bad haircut could induce posttraumatic stress disorder (PTSD), Samuels's diagnosis for Arias.

Yet trial judge Sherry Stevens -- who allowed cameras into the courtroom in the first place -- is now relying on the honor system rather than regaining control by sequestering the jury.  Complained defense attorney Kirk Nurmi: "The court asks the question of the jurors every morning, 'Have you seen anything on the media?' No one raises their hand... It is a fairy tale to assume that this jury is not hearing any of this. It is all over the news."

Kiefer, the Arizona Republic reporter who broke the story of witness LaViolette's cyber-bullying, gave examples of juror social-networking misconduct in other cases: A Michigan juror who posted a Facebook preview of her verdict ("Gonna be fun to tell the defendant they're GUILTY"); a juror in Britain who polled her social-media "friends" as to whether she should find a defendant guilty.

With more and more successful appeals of verdicts due to such Internet or social-media interference, according to a Reuters Legal survey, an appeal of any guilty verdict in the four-month Arias trial is a virtual certainty.

But any appeal will not mend the reputations of the expert witnesses called by the defense. As a retired Maricopa County Superior Court judge told Michael Kiefer, the Arizona Republic reporter, "it's the electronic version of a lynch mob."

Sree Sreenivasan, a journalism professor at Columbia University, told Kiefer he had never seen anything like the attack on LaViolette, but that it likely will become "standard operating procedure in prominent cases" -- witness intimidation taken to its logical extreme in a public culture of shaming and vilification.

If so, experts may think long and hard before about accepting referrals in high-profile cases. That, in turn, could have a chilling effect on defendants' rights to a fair trial.

Michael Kiefer's insightful Arizona Republic reports on the social media debacle are HERE, HERE and HERE. A full collection of the live-streamed trial videos is located HERE.

Texas SVP jurors ignoring actuarial risk scores

Expert witness for defense makes a (small) difference, study finds

The fiery debates surrounding the validity of actuarial tools to predict violence risk begs the question: How much influence do these instruments really have on legal decision-makers? The answer, at least when it comes to jurors in Sexually Violent Predator trials in Texas:

Not much.

"Despite great academic emphasis on risk measures - and ongoing debates about the value, accuracy, and utility of risk-measure scores reported in SVP hearings - our findings suggest these risk measure scores may have little impact on jurors in actual SVP hearings."

The researchers surveyed 299 jurors at the end of 26 sexually violent predator trials. Unfortunately, they could not directly measure the relationship between risk scores and civil commitment decisions because, this being Texas, juries slam-dunked 25 out of 26 sex offenders, hanging in only one case (which ultimately ended in commitment after a retrial).  

Instead of the ultimate legal outcome, the researchers had to rely on proxy outcome measures, including jurors' ratings of how dangerous an individual was (specifically, how likely he would be to commit a new sex offense within one year of release), and their assessment of how difficult it was to make a decision in their case.

There was no evidence that jurors' assessments of risk or decision difficulty varied based on respondents' scores on risk assessment tools, which in each case included the Static-99, MnSOST-R and the PCL-R. This finding, by the prolific team of Marcus Boccaccini, Daniel Murrie and colleagues, extends into the real world prior mock trial evidence that jurors in capital cases and other legal proceedings involving psychology experts are more heavily influenced by clinical than actuarial testimony.

What did make a difference to jurors was whether the defense called at least one witness, and in particular an expert witness. Overall, there was a huge imbalance in expert testimony, with almost all of the trials featuring two state experts, but only seven of 26 including even one expert called by the defense.

"Skepticism effect"

The introduction of a defense expert produced a "skepticism effect," the researchers found, in which jurors became more skeptical of experts' ability to predict future offending. However, jurors' lower risk ratings in these cases could also have been due to real differences in the cases. In SVP cases involving legitimately dangerous sex offenders, defense attorneys often have trouble finding experts willing to testify. In other words, the researchers note, "the reduced ratings of perceived risk associated with the presence of a defense expert may be due to nonrandom selection … as opposed to these defense experts' influencing jurors."

A back story here pertains to the jury pool in the Texas county in which civil commitment trials are held. All SVP trials take place in Montgomery County, a "very white community," an attorney there told me. A special e-juror selection process for SVP jurors whitens the jury pool even more, disproportionately eliminating Hispanics and African Americans. Meanwhile, many of those being referred for civil commitment are racial minorities. The potentially Unconstitutional race discrepancy is the basis for one of many current legal challenges to the SVP system in Texas.

Once a petition for civil commitment as a sexually violent predator is filed in Texas, the outcome is a fait accompli. Since the inception of the state's SVP law, only one jury has unanimously voted against civil commitment. Almost 300 men have been committed, and not a single one has been released.

Overall, the broad majority of jurors in the 26 SVP trials were of the opinion that respondents were likely to reoffend in the next year. Based on this heightened perception of risk, the researchers hypothesize that jurors may have found precise risk assessment ratings irrelevant because any risk was enough to justify civil commitment.

In a previous survey of Texas jurors, more than half reported that even a 1 percent chance of recidivism was enough to qualify a sex offender as dangerous. To be civilly committed in Texas, a sex offender must be found "likely" to reoffend, but the state's courts have not clarified what that term means.  

Risk scores could also be irrelevant to jurors motivated more by a desire for retribution than a genuine wish to protect the public, the researchers pointed out. "Although SVP laws are ostensibly designed to provide treatment and protect the public, experimental research suggests that many mock jurors make civil commitment decisions based more on retributive motives - that is, the desire to punish sexual offenses—than the utilitarian goal of protecting the public…. Jurors who adopt this mindset may spend little time thinking about risk-measure scores."

All this is not to say that actuarial scores are irrelevant. They are highly influential in the decisions that take place leading up to an SVP trial, including administrative referrals for full evaluations, the opinions of the evaluators themselves as to whether an offender meets civil commitment criteria, and decisions by prosecutors as to which cases to select for trial.

"But the influence of risk scores appears to end at the point when laypersons make decisions about civilly committing a select subgroup of sexual offenders," the researchers noted.

Bottom line: Once a petition for civil commitment as a sexually violent predator is filed in Texas, it's the end of the line. The juries are ultra-punitive, and the deck is stacked, with government experts outnumbering experts called by the defense in every case. It remains unclear to what extent these results might generalize to SVP proceedings in other states with less conservative jury pools and/or more balanced proceedings.

• The study, "Do Scores From Risk Measures Matter to Jurors?" by Marcus Boccaccini, Darrel Turner, Craig Henderson and Caroline Chevalier of Sam Houston State University and Daniel Murrie of the University of Virginia, is slated for publication in an upcoming issue of Psychology, Public Policy, and Law. To request a copy, email the lead researcher (HERE).

Jury Expert: Timely focus on false confessions

"Why on earth would anyone, anywhere, ever confess to a serious crime they did not commit? Especially something like murder? Seriously? Mock jurors find this hard to believe." In the latest issue of the Jury Expert, two trial consultants present the research on why people falsely confess and the cascade of errors that follow a false confession.

The release of the documentary The Central Park Five makes Douglas Keene and Rita Handrich's overview, "Only the Guilty Would Confess to Crimes": Understanding the Mystery of False Confessions, especially timely. The consultants provide a concise summary of current research findings and references, making it an excellent resource for criminal attorneys, investigators, judges, law enforcement officials, students of law and public policy and, of course, forensic professionals. It is followed by commentaries from widely renowned false confession expert Saul Kassin and three others, including your blogger.

My essay, "Disputed confessions: The many hats of the expert witness," may be of special interest to this blog's readers, as it details the role of the expert witness in cases involving disputed confessions. I discuss the distinctions between "pure" academic research and clinical assessment, and the role of the forensic expert in evaluating both psychological vulnerabilities that might contribute to an unreliable confession and the separate issue of a suspect's comprehension of the mandatory Miranda rights waiver.

In an accompanying feature in the November/December issue, jury consultant Diane Wiley of the National Jury Project provides a supplemental jury questionnaire covering the issues attorneys need to address in a false confessions case.

And there's even more on the confessions topic in the new issue, hot off the press today: Rita Handrich reviews the 2010 volume, Police Interrogations and False Confessions: Current Research, Practice, and Policy Recommendations, edited by well-known scholars Daniel Lassiter and Christian Meissner.

The main feature (with accompanying essays) is HERE; my essay is HERE, and the entire current issue and back issues of the always-excellent Jury Expert can be accessed HERE. For you tweeters, the Jury Expert's Twitter feed is HERE.

Another one bites the dust: Hollow SVP prosecution no match for jurors' common sense

15 minutes.

After a five-week trial, that's how long it took a jury in a rural Northern California county to decide that an openly gay man who had served two years in prison for a forcible oral copulation of an acquaintance back in 2003 did not merit civil commitment as a sexually violent predator.

The prosecution's case featured a lone government psychologist whose opinion rested on a hollow combination of homophobia, bogus psychiatric diagnoses and trumped-up risk estimates. The psychologist cited archaic (and discredited) Freudian theory to claim that the ex-offender's crime at age 23 was evidence of an "oral incorporation" fixation caused by a domineering mother and an absent biological father. As a legal basis for civil commitment, he cited the bogus disorder of "paraphilia not otherwise specified-nonconsent,” and he used the Static-99R actuarial tool to present a highly inflated estimate of risk.

Testifying for the defense were four psychologists, including two retained by the defense, a government evaluator who had changed her mind (or "flipped," in the current parlance) and the man's treating psychologist at Coalinga State Hospital, who testified in no uncertain terms that "Mr. Smith," as I will call him, is neither mentally disordered nor likely to reoffend.

The defense team had barely left the courthouse when the court clerk summoned them back, saying the jury had reached a verdict. Their astonishingly fast decision hints that the jurors agreed that this case was an egregious example of overzealous prosecution and a waste of their valuable time.

Prior to being screened for possible civil commitment, Mr. Smith had been on parole in the community for 14 months without getting into any trouble whatsoever. Indeed, he was busy doing good works. His sexually violent predator screening stemmed from an entirely accidental parole violation connected with his charity work for a local gay rights organization. He had a special parole condition forbidding any contact with children. When a fellow member of the executive board brought his child to an awards ceremony, Mr. Smith was exposed to "incidental contact as one might have while shopping at a market," in the words of the parole hearing officer. Unfortunately for Mr. Smith, this was just one month after California voters enacted Jessica's Law, which allows for civil commitment of sex offenders who have only one qualifying victim rather than the previous minimum of two.

The prosecutor's strategy, as is typical in weak cases, was to hurl as many prejudicial, pseudoscientific labels as possible in Mr. Smith's direction, and hope a few might stick and scare jurors into voting for civil commitment: Psychopath, antisocial, homosexual, paraphilic, high risk, etc.

While licensed as a psychologist, the government's expert had not done what clinical psychologists are trained to do: Psychological testing, individualized case formulation, etc. Rather, as he boldly admitted on the witness stand, he relied on an assistant to cull through Mr. Smith's hospital records and pull out negative behavioral reports for him to review. Wow! Can you spell B-I-A-S?

In my testimony, which stretched over the course of three days, I stressed that Mr. Smith was neither sexually deviant nor likely to reoffend. His risk of sexual reoffense, I testified, was no greater than that of any other garden-variety sex offender. (The base rate of sexual recidivism among convicted sex offenders in California -- similar to the rest of the United States -- hovers around 6 percent or less.) I explained how growing up gay in a homophobic family and community causes sexual identity confusion that can lead to sexual acting out and other delinquent behavior in adolescence and early adulthood, and how Mr. Smith had changed as he matured and accepted his sexuality. I further debunked the accuracy of the Static-99R "actuarial" risk estimates assigned in this case, and the pretextually applied diagnoses of "paraphilia not otherwise specified-nonconsent" (which I've blogged about repeatedly) and antisocial personality disorder, a red herring that was invoked despite Mr. Smith's exceptionally good conduct in the community and while in prison.

Stacking the deck

The prosecutor tried to stack the deck by striking from the jury all gay people or those who admitted having relatives or close friends who are gay; he also challenged those with advanced educational degrees. I guess he thought it would be easier to pull the wool over the eyes of an uneducated jury. It just goes to show that times have changed: Even in a rural county, antigay discrimination is no longer considered acceptable, and jurors don't need PhD's to recognize bias and pseudoscience when they hear it.  

The verdict was likely a bitter-sweet moment for Mr. Smith, who had spent more than four years incarcerated at Coalinga awaiting trial. Luckily, he has close friends to stay with while getting on his feet.

This is my third SVP case in a row that evaporated when finally exposed to the light of day. Like Mr. Smith's case, one of the other two also featured prominent antigay bias; the other targeted an immigrant. In neither case were the men either pedophiles or rapists.

I suppose I should feel pleased to see such gross miscarriages of justice thwarted. Instead, I find myself horrified by the unfettered power wielded by rogue psychologists, assigned to a case by luck of the draw. Whereas many government evaluators reserve "positive" findings for the rare sex offenders who are truly deviant and at high risk to reoffend, others are just hacks who are raking in obscene amounts of public funds while making little effort to truly understand these men, their motivations, their circumstances, or their pathways to desistance.

Especially frightening is the unconscious bias that creeps into SVP prosecutions. The constructs of "mental disorder" and "risk for reoffense" are malleable, lending themselves to use as pretextual weapons of prejudice wielded against gay men, racial minorities (especially African American men) and immigrants.

Clearly, people shouldn't get away with sexual misconduct. But none of these men had. All had pleaded guilty and served their time, only to be ambushed at the end of their prison terms with misguided efforts to indefinitely detain them based on purported future risk.

As it turned out, each case was about as solid as a house of cards. It didn't take gale-force winds like Hurricane Sandy's to flatten them.

Evaluators flipping like pancakes

The "flipping" of government evaluators illustrated this weak foundation. In two of the three cases, after reading the more thorough and individualized reports of the defense-retained experts, government psychologists abruptly changed their minds and decided that their previously proffered diagnoses of "paraphilia not otherwise-nonconsent" were invalid.

On the one hand, I applaud the openness and ethical backbone such a change of heart signals. But these "flips" also demonstrate the whimsical, nonscientific nature of the commitment process. The longer I work in these trenches, the more I realize that the random assignment of evaluators and attorneys (on both sides) exerts as much influence on the outcome as does the true level of future risk to the community that an ex-offender poses.

Indeed, the real reason Mr. Smith -- clearly not a sexual predator to anyone with a whit of commons sense -- was taken to trial, at a total cost to the citizenry of hundreds of thousands of dollars, was not because of his high risk, but because of a rigid prosecutor who was blind to the writing on the wall.

In contrast, the government dismissed the other two cases (one in the Midwest and one in the South) on the eve of trial. One case involved a gay man who had a brief sexual interlude with a teenage male relative; the other involved an immigrant who had gone on two dates with an underage teen girl he met on an online dating site (his misconduct never went beyond petting). Both had served substantial prison terms. But, again, garden-variety sex offenders, not the depraved, sex-crazed monsters likely envisioned by jurors when they are told they will be deciding a "sexually violent predator" case.

Bottom line: Should a random clinical psychologist, earning hundreds of thousands of dollars a year churning out boilerplate pseudoscientific garbage, be allowed to decide the fates of others?

At least in this one case, 12 discerning and conscientious jurors answered that question with a resounding "NO."


ON OTHER,TOTALLY UNRELATED NOTES: If you're looking for an intelligent movie in theaters now (always a challenging search), ARGO earns a qualified thumbs-up from me; my review is HERE. (If you find the review helpful, please click on "yes" at the bottom.) I've also just finished reading a thoroughly researched and well-written cultural biography of John Brown, Midnight Rising, that positions his raid on Harper's Ferry as a seminal moment in the lead-up to the Civil War. Tony Horwitz previously wrote Conservatives in the Attic, which -- as the descendant of Southerners -- I found spot-on.

Juror’s bad dream becomes defense nightmare

What would you do if you were defending a man accused of bludgeoning someone to death with a baseball bat, and a juror disclosed having a nightmare in which the defendant chased her around with a baseball bat?

You might request that the juror be dismissed.

That’s what happened this week in a murder trial St. Lawrence County, New York.

But the judge denied the defense request, despite a plea from the juror's family that she is emotionally overwhelmed by the case. Besides her nightmare, the juror also told the court that she started crying when she saw her father sitting in a recliner that reminded her of the chair in which the dead man was found.

The ruling shocked the defendant.

"I just about fell over," defendant Wayne T. Oxley Jr told a reporter. "I was pretty shocked she stayed on the jury. I kind of lost my breath."

The prosecuting attorney said it wouldn't be fair to discharge a juror just because of what she dreamed. "Dreams are dreams, you can't make them not happen," said the attorney.

Prominent forensic psychologist Saul Kassin of the John Jay College of Criminal Justice disagreed.

"It's clear she has formed a negative emotional opinion," Kassin told a reporter from the Watertown Daily Times. "If I were on the defense team, that would make me nervous. People often have difficulty separating reality from fantasy."

This is Oxley's third trial. The first ended with a conviction for second-degree murder, later overturned on appeal. A retrial ended in a hung jury. If Oxley is convicted and successfully appeals based on the juror's emotional bias, Judge Jerome J. Richards's ruling could end up a nightmare for him as well.

Free access to forensic articles

The Journal of Forensic Sciences, published by the American Academy of Forensic Sciences, is offering free access to select articles, including several of potential interest to this blog’s audience. Click on any of the below titles to read (and/or download) the full article.

The CSI Effect and the Canadian and the Australian Jury

By Janne A. Holmgren and Judith Fordham 

Abstract:  Television shows, such as CBS's CSI and its spin-offs CSI: Miami; CSI: Las Vegas; and CSI: New York, have sparked the imagination of thousands of viewers who want to become forensic scientists. The shows' fictional portrayals of crime scene investigations have prompted fears that jurors will demand DNA and other forensic evidence before they will convict, and have unrealistic expectations of that evidence. This has been dubbed the "CSI effect." This phenomenon was explored using results from a Canadian study based on 605 surveys of Canadian college students who would be considered jury-eligible and Australian quantitative and qualitative findings from a study that surveyed and interviewed real posttrial jurors. Information about the way jurors deal with forensic evidence in the context of other evidence and feedback about the way in which understanding such evidence could be increased were gained from both these studies. The comparison provides insights into the knowledge base of jurors, permitting adaptation of methods of presenting forensic information by lawyers and experts in court, based on evidence rather than folklore. While the Canadian juror data showed statistically significant findings that jurors are clearly influenced in their treatment of some forensic evidence by their television-viewing habits, reassuringly, no support was found in either study for the operation of a detrimental CSI effect as defined above. In the Australian study, in fact, support was found for the proposition that jurors assess forensic evidence in a balanced and thoughtful manner.

Understanding Juror Perceptions of Forensic Evidence: Investigating the Impact of Case Context on Perceptions of Forensic Evidence Strength

by Lisa L. Smith, Ray Bull and Robyn Holliday 

Abstract:  The most widely accepted model of juror decision making acknowledges the importance of both the case-specific information presented in the courtroom, as well as the prior general knowledge and beliefs held by each juror. The studies presented in this paper investigated whether mock jurors could differentiate between evidence of varying strengths in the absence of case information and then followed on to determine the influence that case context (and therefore the story model) has on judgments made about the strength of forensic DNA evidence. The results illustrated that mock jurors correctly identified various strengths of evidence when it was not presented with case information; however, the perceived strength of evidence was significantly inflated when presented in the context of a criminal case, particularly when the evidence was of a weak or ambiguous standard. These findings are discussed in relation to the story model, and the potential implications for real juries.

Forensic Identification Science Evidence Since Daubert: Part II—Judicial Reasoning in Decisions to Exclude Forensic Identification Evidence on Grounds of Reliability

by Mark Page, Jane Taylor and Matt Blenkin 

Abstract:  Many studies regarding the legal status of forensic science have relied on the U.S. Supreme Court's mandate in Daubert v. Merrell Dow Pharmaceuticals Inc., and its progeny in order to make subsequent recommendations or rebuttals. This paper focuses on a more pragmatic approach to analyzing forensic science’s immediate deficiencies by considering a qualitative analysis of actual judicial reasoning where forensic identification evidence has been excluded on reliability grounds since the Daubert precedent. Reliance on general acceptance is becoming insufficient as proof of the admissibility of forensic evidence. The citation of unfounded statistics, error rates and certainties, a failure to document the analytical process or follow standardized procedures, and the existence of observe bias represent some of the concerns that have lead to the exclusion or limitation of forensic identification evidence. Analysis of these reasons may serve to refocus forensic practitioners’ testimony, resources, and research toward rectifying shortfalls in these areas.

Additional free articles from the Journal of Forensic Sciences on a variety of forensic topics may be found HERE.

Special journal issue on psychology-law available for free!

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

  FULL CONTENTS - CLICK ON BELOW LINKS TO DOWNLOAD  

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

"Jurors Gone Wild": Blogging, texting, tweeting in court

On his blog, "Juror No. 7" portrayed the defense lawyer as "whacked out" and having a "Columbo detective-style of acting stupid." He complained about the court's long breaks and likened court staff to "Caltrans freeway workers" who always seem to be "picnicking alongside the freeway." … After complaining about the length of the 19-day trial, he told his readers that he had volunteered to be foreman to "expedite matters." During deliberations, he used his cell phone camera to photograph the murder weapon -- a 15-inch saw-toothed knife -- and posted the image on his blog.

Although an appellate court upheld the defendant's conviction, finding Juror No. 7’s conduct harmless, appellate attorney Linda C. Rush disagreed:

"The problem with his blog was, the responses he got were affirming his cynical attitude toward the judge and the process. He created an audience, and during deliberation he was playing to an audience that other jurors didn't even know was there."

Juror antics like this are no longer unusual, according to an article in the current issue of California Lawyer magazine. Judges and attorneys are finding themselves struggling with "how to protect a defendant's Sixth Amendment right to a fair trial when jurors are awash in social media, potentially contaminating the integrity of the proceedings," writes Pamela MacLean:

Leslie Ellis, a jury consultant with TrialGraphix in Washington, D.C., says she advises her clients to monitor jurors' Facebook, MySpace, or Twitter accounts and blogs during a trial to make sure none are discussing the case outside court sessions. "That's how a lot of jurors have been caught," she says.

Another possible alternative, raised in a case that may soon be taken up by the California Supreme Court, involves making all private social media communications posted by a juror during trial available to defense counsel.

But how much monitoring is too much? At what point will jurors begin to feel like criminal suspects and balk at serving altogether? And is all this much ado about nothing?

The full California Lawyer article is online HERE.

Related post: Blogging jurors (Nov. 26, 2008)

Special issue, Current Directions in Psychological Science

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

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

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

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

• The Psychology of Trial Judging by Neil Vidmar

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

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

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

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

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

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

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

• Eyewitness Identification by Neil Brewer and Gary L. Wells

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

Untattoo You

What happens when you cross the Avon Lady with a Neo-Nazi murder defendant?

Guest essay by Sam Sommers*

Several colleagues and students forwarded to me this story from the NY Times describing a criminal defendant in Florida whose attorney successfully petitioned the court to pay for a cosmetologist to help him cover up his swastika tattoos with makeup before trial each morning. The basis for the request was the defense's (quite reasonable) concerns that jurors would have a hard time remaining impartial as they sat in judgment of someone adorned by Neo-Nazi symbols.


The case raises a wide range of interesting questions involving the psychology of law, physical appearance, first impressions, and daily interaction–the very issues often at the heart of this blog. Questions such as:

Should the court have agreed? 

While the unusual nature of the request is what has rendered it newsworthy, similar issues arise in a wide range of cases. Defendants often change clothes before entering court in order to prevent them from having to appear in front of the jury in a prison jumpsuit. Similarly, defendants in custody may be unshackled outside of the presence of the jurors so as to avoid undue bias.

The question becomes, though, should such accommodation apply to tattoos? After all, the defendant in the Florida case presumably chose to decorate himself in Neo-Nazi images. Should the taxpayers foot the bill to cover up decisions that the defendant made of his own free will? Moreover, the prosecution alleges that the attacks in question were motivated by hate: one assault victim was attacked allegedly for associating with a Black man; the homicide victim was gay. Reactions to the case might be different had the defendant gotten the tattoos earlier in life and long since forsworn the ideology associated with them. This wasn't the case here.

Can the issue be reframed? 

Many people I've spoken with have suggested, as alluded to above, that since the defendant chose these tattoos, he should be stuck with the repercussions of that decision. But the issue becomes more complex when you consider that the question for the court was not simply whether the defendant should be allowed to cover his tattoos, but rather whether the court would pay for it. Because a tattooed defendant with the money for his own removal/cover-up would be free to do as he wished.

Most people I've talked to have trouble with the idea that the court would pay for a Neo-Nazi charged with hate crimes to cover up swastika tattoos. But when the same question is reframed, most of the same people agree that a poor defendant charged with capital crimes should be entitled to just as vigorous a defense as a wealthier defendant in the same situation. Pitched this way, the issue becomes more complicated.

Couldn't the judge just remind the jurors to stick to the evidence and ignore the defendant's appearance? 

Sure. And as the division director for the Florida attorney's office argues in the Times article, "We believe the jurors listen to judges' instructions."

But while I have no doubt that jurors often try to follow the rules they're given, examples to the contrary abound. For instance, years ago I published a few research studies indicating that evidence still impacts a jury even after it has been ruled inadmissible. Moreover, judicial instructions to avoid prejudice or partiality have not been sufficient to eliminate other forms of disparity, such as the increased likelihood that a defendant in a capital trial will be sentenced to death when his victim is White as opposed to non-White.

It remains the case that sometimes jurors decide they'd rather not hew to the letter of the judge's instructions. And other times, jurors aren't even aware in the first place of the biases that they're supposed to be avoiding.

If this defendant gets money to change how he looks, what about other defendants similarly disadvantaged by appearance? No good legal debate is complete without the proverbial slippery slope argument, so where do we go from tattoo guy? Should relatively unattractive defendants be allowed to ask for makeovers? Given stereotypes about overweight individuals and self-control, what about an obese defendant in a negligence case? Clearly, the slope isn't so slippery as to allow a defendant from a traditionally disadvantaged minority group to appear in court in whiteface, but where should the line be drawn?

When symphony orchestras wanted to reduce bias in the hiring of musicians, they had candidates audition behind a screen so that gender was not apparent. Accordingly, one of my students in class last week asked, why not do the same to mask the demographics and background of a criminal defendant? Not a proposal that you're likely to see anytime soon in a courtroom near you, but interesting fodder for discussion nonetheless.

So I now turn the question to you, dear readers... Court-sponsored tattoo cover-ups: misguided use of public funds or necessary protection of defendant rights?

Sam Sommers is an award-winning social psychology professor at Tufts University who has served as an expert witness on bias.

*This essay originally appeared on Dr. Sommers' Psychology Today blog, The Science of Small Talk. Reposted with the written permission of Sam Sommers.

Previous guest essay by Sam Sommers: On police, profiling, and Henry Gates (July 28, 2009)

The Psychology of jury voir dire

How many times have you debriefed jurors after they rendered their verdict and been surprised by what they told you? Jurors don't deliberate based on facts and argument. They deliberate based on their perception of the facts and arguments. And it is the juror's belief system that accounts for the varying way that jurors perceive facts and arguments.

That is the start of an informative how-to piece in The Jury Expert by psychologist Matthew L. Ferrara, a trial consultant based in Austin, Texas.

The current issue of The Jury Expert has several other interesting articles, including:

• Police deception during interrogation and its surprising influence on jurors' perceptions of confession evidence by Krista D. Forrest & William Douglas Woody

• Do we need Einsteins in the jury box? The role and impact of juror IQ by Alison Bennett

• What the literature tells us about the jury foreperson by Traci Feller

Photo: "The Jury," John Morgan, 1861 (Public domain; source: Wikimedia commons)

Rare juror speaks out after sexual predator trial

Civil commitment unfair, says law-and-order Floridian

Juror Number 6 is a conservative, law-and-order Republican. But she was appalled when she realized that in the United States, someone can be indefinitely detained not for what he has done, but for what he might do in the future.

Kathy Martin spoke to a news reporter after she and her five colleagues refused to civilly commit a convicted sex offender. Robert Richard Sanzone, age 34, had finished the prison term imposed in 2004 for having sex with one 15-year-old girl and trying to coax a second girl into sexual intimacies.

Martin said that she was struck by the similarities between the 2002 film Minority Report and Florida's Jimmy Ryce Act, under which sex offenders who are determined to still be a danger to society may be held indefinitely for so-called treatment.

"I didn't realize in America you could be given an indefinite sentence," the registered nurse told reporter Richard Prior of Florida's St. Augustine Record. “I'm not a bleeding-heart liberal, but I would like to think someone can't incarcerate me because they think I might do something."

Martin said she and the other members of the 5-woman, 1-man jury were skeptical of the reliability of the Static-99 actuarial risk assessment tool.

She also expressed concern about civilly committing someone for having consensual sex with a teenager.

"This is supposed to be about violent sexual predators, and I kept waiting for the violence to come up. I kept waiting for one of the witnesses to say he threw (them) against the wall or pushed (them) to the ground or pulled a knife. When I realized that wasn't going to happen ... well, I listened politely to the closing argument, but by that time I'd made up my mind."

Florida's Jimmy Ryce Act was passed in 1998 after Juan Carlos Chavez raped, beat, dismembered, and murdered 9-year-old Jimmy Rye in 1995. Chavez is currently awaiting execution on Florida's death row. The Ryce Act parallels sexually violent predator civil commitment laws in 20 U.S. states.

The articulate juror said she understands why horrific crimes lead to new laws, but she doesn't like that knee-jerk practice.

"When a brutal case occurs, the public wants to do something. It makes us feel better that we passed a law. This law has unintended consequences that can come back and bite someone's behind. I think these laws are just feel-good measures."

Two psychologists, Amy Swan and Mary Anne Etheridge, testified in favor of civil ccommitment for Sanzone. Dr. Etheridge diagnosed Sanzone with "fetishism" -- in this case toward underwear -- as well as the ubiquitous antisocial personality disorder.

Psychologist Deborah Leporowski, the lone defense witness, disputed the prosecution psychologists' estimation of Sanzone's risk, and said many of his early problems could be attributed to teenage impulsivity and immaturity.

Sanzone will remain on special sex offender probation for many years, and will be banned from schools, playgrounds, or other places where children congregate.

Richard Prior's fascinating interview with juror Kathy Martin is HERE.