"Legal pointillism": New approach to competency

First-hand account by witness against Brian David Mitchell

Competency to stand trial focuses on a different time frame than insanity and many other psycholegal constructs. We want to know the defendant’s present state of mind, not what he was thinking or doing in the past. Is he capable of understanding the legal proceedings at this point in time (and in the near future), and assisting his attorney on his own behalf?

But at the competency trial of Elizabeth Smart kidnap suspect Brian David Mitchell, the prosecutor is expanding the traditional scope of competency to encompass the defendant’s entire life, in a technique being labeled "legal pointillism." As he reportedly told an assembly of his witnesses this week:

Each of you has a dot to contribute. (Mitchell) wants us to be close, to just see the dots. We're standing back and viewing the big picture.

This strategy means bringing in a whopping 29 witnesses, including people from Mitchell's distant past who have no direct knowledge of his current mental state. Among these is Alysa Landry, a news reporter for the Daily Times of Farmington, New Mexico. She knew Mitchell for about five months in 1997, when the kidnap suspect lived at a home that prosecution expert Michael Welner labeled as "an al-Qaeda training ground for fundamentalist Mormons."

In a rare first-person account of such an experience, Landry says she underwent about 10 hours of questioning by attorneys, psychologists, and detectives in preparation for this week's testimony.

Finally, the moment of her testimony arrived:

I told of the mind games, power struggles and escalating violence in the house. I also told of Mitchell's self-important and demeaning attitudes and his mission to reinstate the laws of polygamy and consecration, both of which were abandoned during the church's early history.

I waited 12 years for someone to listen to my story, but I was not prepared for the vulnerability or isolation I felt after testifying…. Immediately after stepping from the witness box Tuesday, FBI agent Eric Lerohl asked me again if I was OK. I wasn't. My breath was quick and my fingers were beginning to spasm from lack of oxygen....

The pointillism strategy seems to go as follows: Mitchell is evil. Ergo, he is malingering psychosis. Ergo, he must be competent. We'll have to see if it flies. If so, expect to see it again soon, in a courtroom near you.

Landry's full account, "From cult to witness chair," is HERE. Background on the case is HERE.

Wired update on fMRI court case

Wired reporter Alexis Madrigal has just written a comprehensive update on the breaking news story about an attempt to get the "No Lie MRI" introduced in court.

Her article is online HERE, and includes links to other related coverage. My prior blog posts on this topic are HERE and HERE. The Deception Blog has additional links.

Hat tip: Ken Pope

Upcoming forensic training workshops

Forensic Training Institute - Diagnostic Controversies
April 16 (CA)

Your host (Karen Franklin) and colleague Craig Lareau will present this all-day training at the California Psychological Association convention in Oakland, California. Geared toward advanced-level forensic practitioners, we will focus on current diagnostic controversies in the field including those surrounding Antisocial Personality Disorder, Psychopathy, the sexual disorders as used in Sexually Violent Predator (SVP) proceedings, and Posttraumatic Stress Disorder.

Click HERE for more information and online registration.

Assessing Malingering and Miranda Rights Waiver
April 24 (VA)

If you want to get away from the cold and visit a pretty place, you might want to check out this excellent training down in Charlottesville, Virginia. Richard Rogers, whom most of you all know as a leading forensic psychology practitioner and scholar, is presenting this full-day training sponsored by the always-excellent Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia. Dr. Rogers will be presenting one-half day on malingering (the topic of his classic reference text) and one-half day on evaluation of Miranda Rights, another of his specialty areas.

Click HERE for more information and to register.

Assessing Violence Risk in Community Settings
May 22 (VA)

This is a chance to hear from John Monahan, probably the foremost expert on this topic. Monahan has authored or edited 15 books and written hundreds of articles; his work on violence risk is frequently cited by courts, including the California Supreme Court in the landmark Tarasoff v. Regents and the United States Supreme Court in Barefoot v. Estelle, in which he was referred to as "the leading thinker on the issue" of violence risk assessment. This training is also sponsored by the Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia.

Click HERE for information and registration.

Latest on controversial "Fake Bad Scale"

I wanted to alert my psychologist readers to the latest in the controversy over the "Fake Bad Scale" of the Minnesota Multiphasic Personality Inventory, a topic I have blogged about previously (HERE). If you are planning to use this Scale, you should be aware of this article and the others on both sides of the controversy.

The Fake Bad Scale (FBS) was developed to identify malingering of emotional distress among claimants in personal injury cases. It was recently added to MMPI-2 scoring materials, resulting in its widespread dissemination to clinicians who conduct psychological evaluations.

The latest article, in the interesting new journal Psychological Injury & Law, summarizes concerns about the Scale's reliability, validity, and potential bias against women, trauma victims, and people with disabilities.

The article concludes that the scale is not sufficiently reliable or valid to be used in court:

"Based on a review and a careful analysis of a large amount of published FBS research, the FBS does not appear to be a sufficiently reliable or valid test for measuring 'faking bad,' nor should it be used to impute the motivation to malinger in those reaching its variable and imprecise cutting scores. We agree with the conclusions of the three judges in Florida that the FBS does not meet the Frye standards of being scientifically sound and generally accepted in the field, and that expert testimony based on the scale should be excluded from consideration in court. The samples used to develop the FBS are not broadly representative of the populations evaluated by the MMPI-2, nor are its criteria used to define malingering objective and replicable. There is insufficient evidence of its psychometric reliability or validity, and there is no consensus about appropriate cut-off scores or use of norms."

The article is "Potential for Bias in MMPI-2 Assessments Using the Fake Bad Scale (FBS)." The Abstract and a "free preview" are online HERE; the full article requires a subscription but can be requested directly from the first author, James Butcher. Butcher and co-authors Carlton Gass, Edward Cumella, Zina Kally and Carolyn Williams present just one side of the heated controversy; a rebuttal is scheduled for publication in an upcoming issue of the journal, followed by other pro and con articles.

Related blog resources:

New MMPI scale invalid as forensic lie detector, courts rule: Injured plaintiffs falsely branded malingerers? (March 5, 2008) – contains links and citations to other sources

"Fake Bad Scale": Lawyers advocate exposing in court (May 20, 2008)

A list of FBS references and statement from the test's publisher is HERE

Hat tip: Ken Pope

Goldilocks and the 3 Bears

When the Bear family came home from an evening of foraging at the local Chinese buffet, Mama Bear noticed that someone had been eating in her kitchen.

"Who ate the crab cake and left the crumbs on the counter?" she asked.

"Not I," said Papa Bear.

"Not I," said Baby Bear.

Papa Bear went upstairs and saw that someone had been sleeping in his bed. In fact, that someone was still sleeping, curled up in Papa Bear's blanket on the bed, with his shoes, socks, and pants lying on the floor.

"Who's been sleeping in my bed?" Papa Bear asked.

No, wait a minute, scratch that. Modern bears have cell phones. So Papa Bear did not confront the intruder. Instead, he quietly crept downstairs, gathered up Mama Bear and Baby Bear, and went outside to call the police.

Goldilocks was still asleep when police rolled up.

"What are you doing in my house?" demanded the brazen, modern-day Goldilocks of police.

As it turns out, poor Goldilocks was a 50-year-old man who - with the recent economic downturn - had just lost his job. He was apparently so drunk that he entered the wrong bed in the wrong house. In fact, he got off the bus a full eight miles from his own home in Damascus, Maryland.

The drunken Goldilocks was apologetic.

"I'm so sorry. I'm so sorry," he told the Bears. "And by the way, you have a very comfortable bed."

The modern-day Bears were also a good deal more charitable than in the original tale.

Mama Bear, a middle school teacher named Joanne Breiner, packed up a container of homemade chicken soup, homemade cookies, and spareribs for Goldilocks.

"I think her mom would have been disappointed if we didn't feed the intruder," said Papa Bear (aka Bob Breiner).

In the modern saga, by the way, Baby Bear was 16 years old and had carelessly left the front door unlocked.

Police would not reveal Goldilocks' real name, saying only that he had no criminal record.

Why am I posting about Goldilock and the Bears?

Because in forensic psychology we sometimes get cases like this. Indeed, I had a case very similar to this one, except the Goldilocks in my case was arrested and prosecuted for burglary. In my case, Goldilocks had not been drinking; rather, he was sleepwalking while in an altered state due to an extremely high fever. His charges were dismissed based on witness accounts of his illness, medical records that substantiated his fever and lack of blood-alcohol, and his documented history of somnambulism (sleepwalking).

In the forensic context, the Diagnostic and Statistical Manual of Mental Disorders (DSM) cautions about the possibility of malingering - or faking - of such fugue-like states in order to avoid criminal responsibility.

"Criminal conduct that is bizarre or with little actual gain may be more consistent with a true dissociative disturbance," states the DSM-IV-TR.

That must have been what police concluded in Goldlilocks' case. Instead of arresting the embarrassed fellow, they released him to his wife. After all, most burglars don't just eat the crabcake and go to bed.

The Washington Post has the story.

Of child molestation and crystal balls

How much can a forensic psychologist really tell?

Defense attorneys regularly telephone me seeking an expert to testify that their client does not "fit the profile" of a child molester.

"What profile?" I want to ask. Men who molest children have no special profile. They come in all shapes and sizes.

After explaining this, I always pass on such cases.

Some forensic psychologists disagree. They think there is a profile, or that we can reliably determine the veracity of children who say they were abused.

Forensic psychologist excluded

In Louisiana, after the courthouse reopened following Hurricane Gustav, one such expert was slated to testify in the high-profile trial of church pastor Louis D. Lamonica.

The defense planned to call the forensic psychologist to tell jurors how to judge the veracity of abuse allegations made by children. No can do, ruled Judge Zoey Waguespack; the children's veracity is up to the jury to decide. Prosecutors had cited Supreme Court precedents to support that position.

The jury began deliberating yesterday. They must decide whether Lamonica molested his two young sons or falsely confessed, as the defense maintains, because he was being controlled by a self-proclaimed prophet who had tortured him, deprived him of sleep, and forced him to wear a dress and two rubber snakes.

The jurors' job won't be easy. Lamonica's sons - both now adults - testified that they were never abused. They, too, allege their confessions were the result of control by self-proclaimed prophet Lois Mowbray, who was arrested but never charged in the case. The boys testified that Mowbray controlled their mother and had her coerce the boys into accusing their father.

The bizarre case harkens back to the largely discredited satanic ritual abuse hysteria of the 1980s. In his tape-recorded confession, which was played for jurors, Lamonica talked about a child-sex ring at his Hosanna Church that practiced satanic cult rituals. Former church members also testified that the church had devolved from an established church into a Christian cult where worshippers publicly confessed and vomited to cast out the demons of sin. The allegations rocked the small town of Ponchatoula, about 40 miles northwest of New Orleans.

Ironically, the case broke when Lamonica himself walked into the local sheriff's station back in 2005 and began babbling about having molested children, taught them to have sex with each other and with a dog, and poured cat blood over the bodies of his young victims. At his trial, Lamonica testified that was all lies.

Unfortunately, the jurors won't have much in the way of science to guide them in choosing which of Lamonica's two diametrically opposed stories to believe.

But wait! High-tech mind reading in the works

While not in time to help Lamonica's jurors, scientists are feverishly working on new technologies to enable us to differentiate truth from lies. The science holds promise, they say, for identifying pedophiles based on their mental attitudes toward children.

Researchers tout the Implicit Association Test (IAT), developed by Harvard scholars to measure unconscious racism, as having the potential to sniff out pedophiles and even psychopathic murderers. (See Gray et al, 2003 and 2005.) A modified IAT called the Timed Antagonistic Response Alethiometer (TARA) can classify responders as liars or truth tellers based on the speed at which they classify sentences and "manipulate response incongruities," they claim. (See Gregg, 2007.) Other researchers have been working to adapt functional magnetic resonance imaging (fMRI) into a lie-detection tool, with mixed results. (See Ganis et al, 2003, and Iacono & Lykken, 1999.)

The current issue of Psychological Science presents an article summarizing this research and offering a new tweak, the autobiographical IAT (aIAT), which researchers boast "outperforms currently available lie-detection techniques."

The authors concede that this and other emergent technologies do "leave important neuroethical issues unresolved." (See Wolpe et al 2005.)

You don't say.

In the forensic realm, it seems particularly problematic to equate attitudes with behavior. After all, many more men lust after children and teens than go on to commit illegal sex acts against them.

The Psychological Science article is: "How to Accurately Detect Autobiographical Events," by Giuseppe Sartori, Sara Agosta, Cristina Zogmaister, Santo Davide Ferrara, & Umberto Castiello. The abstract is available online, and the full article can be requested from the first author.

The Lamonica story, from the Advocate in Baton Rouge, Louisiana, is here. You can search the newspaper's database using the keyword Lamonica for additional case coverage. A New York Times article on the original arrests is here. The Rick A. Ross Institute, which bills itself as a repository for information on cults, has much more on the Hosanna Church here.

A few of my prior related blog posts are:

• Why the next civil rights battle will be over the mind

• Forensic brain scanning: Online resources

• Using lie detectors to monitor sex offenders

• The evidence does not lie – or does it?
  

Scholarly articles referenced in this post are:

Ganis, G., Kosslyn, S.M., Stose, S., Thompson, W.L., & Yurgelun-Todd, D.A. (2003). Neural correlates of different types of deception. Cerebral Cortex, 13, 830–836.

Gray, N.S., Brown, A.S., MacCulloch, M.J., Smith, J., & Snowden, R.J. (2005). An implicit test of the associations between children and sex in pedophiles. Journal of Abnormal Psychology, 114, 304–308.

Gray, N.S., MacCulloch, M.J., Smith, J., Morris, M., & Snowden, R.J. (2003). Violence viewed by psychopathic murderers. Nature, 423, 497–498.

Gregg, A.I. (2007). When vying reveals lying: The Timed Antagonistic Response Alethiometer. Applied Cognitive Psychology, 21, 621–647.

Iacono, W.G., & Lykken, D.T. (1999). Update: The scientific status of research on polygraph techniques: The case against polygraph tests. In D.L. Faigman, D.H. Kaye, M.J. Saks, & J. Sanders (Eds.), Modern scientific evidence: The law and science of expert testimony (pp. 174–184). St. Paul, MN: West Publishing.

Wolpe, P.R., Foster, K.R., & Langleben, D.D. (2005). Emerging neurotechnologies for lie-detection: Promises and perils. The American Journal of Bioethics, 5 (2), 39–49.

Photo credits: ora mia and Josh Bancroft (Creative Commons license)

Using lie detectors to monitor sex offenders

Pro and con arguments

Polygraph testing is widely used with convicted sex offenders in the United States to assist in their treatment and supervision, and in 2007 legislation was passed in England enabling a national trial of mandatory testing in the probation service.

In next month's issue of Legal and Criminological Psychology, a British journal, a forensic psychiatrist and a forensic psychologist debate the pros and cons of this approach:

Don Grubin, MD of Newcastle University in the UK endorses the use of polygraphy to monitor whether sex offenders are adhering to their treatment plans. Polygraphy, he argues, is an effective method for "getting a complete sexual history, checking compliance with treatment and supervision and gaining information about an individual's offending."

Gershon Ben-Shakhar, Ph.D. of Hebrew University of Jerusalem objects: "Polygraph examinations have no value as a scientific method for detecting deception and uncovering information the examinee does not wish to disclose."

The full arguments are in September's special issue on human rights in forensic practice; a press release from the British Psychological Society (the journal's publisher) is here. Unfortunately, although I have linked you to the abstracts, you have to pay or subscribe to a journal service to get the entire articles.

Two new journals

Just what we all need – more journals!

Psychological Injury and Law

The first issue of Psychological Injury and Law has hit the news stands.

Well, not exactly. But it's hit the web, and articles in the premiere issue are available for free downloads without a subscription.

The journal bills itself as "a multidisciplinary forum for the dissemination of research articles and scholarly exchanges about issues pertaining to the interface of psychology and law in the area of trauma, injury, and their psychological impact."

Spearheading the new journal - and an associated new organization, the Association for Scientific Advancement in Psychological Injury and Law - is Gerald Young, a psychology professor at York University in Ontario and co-author of the text, Causality of Psychological Injury: Presenting Evidence in Court and similar texts.

Young and colleagues hope to promote research, guide the application of that research in forensic cases, and improve cross-disciplinary communication.

Topics of focus will include PTSD, chronic pain, traumatic brain injury, and malingering.

Articles in the first issue, available here for free download, include:

• Expert Testimony on Psychological Injury: Procedural and Evidentiary Issues

• Forensic Psychology, Psychological Injuries and the Law

• Psychological Injury and Law: Assumptions and Foundations, Controversies and Myths, Needed Directions

• Posttraumatic Stress Disorder: Current Concepts and Controversies

That final article, by Steven Taylor and Gordon Asmundson, provides a concise summary of PTSD research, with a focus on malingering in the forensic context.

Happy downloading!

The Jury Expert

Also new online is the American Society of Trial Consultants' The Jury Expert. Now in its second issue, the e-journal "features articles by academics, researchers, popular writers and speakers, and trial consultants. The focus is on practical tips for litigators and
on the accurate interpretation and translation of social sciences
theory into litigation practice."

The current issue includes articles on case themes, witness preparation, an overview of eyewitness research, tips for using RSS feeds, a new form of forensic animation, and the use of religion research in legal cases.

The Jury Expert will publish six times per year and - best of all - subscriptions are free.

Check it out here.

Case study on malingering diagnosis

I was excited when I picked up my mail today to find an advance copy of the latest issue of the Journal of Forensic Psychology Practice, with a long overdue article by me on malingering. As you can probably guess from the title, "Malingering as a Dichotomous Variable: Case Report on an Insanity Defendant," the article evolved out of a forensic case in which I was retained. I testified as an expert witness on the issue of insanity. The article critiques certain practices at an unnamed but easily identifiable state hospital.

Here is the abstract:

Malingering in forensic contexts has garnered increased attention in recent years. As a result, the past two decades have seen the development of more than a half dozen instruments to assess response styles. Although these instruments are gaining unprecedented popularity among forensic practitioners, there is little research on how closely practitioners adhere to the published guidelines for administration or interpretation. This article provides a case study of the use of one popular instrument, the Structured Inventory of Reported Symptoms, in an insanity case. Misinterpretation of the defendant’s scores contributed to the misclassification of malingering, which was used to bolster the government’s case at trial. This case suggests the need for better training and more caution when using instruments to assess response styles in forensic contexts.

"Fake Bad Scale": Lawyers advocate exposing in court

When a controversial test is being used against their client, attorneys may weigh the following questions:

• Should I seek an evidentiary hearing (under Frye or Daubert) and try to exclude the test?

• Or, should I let the test come in as evidence, and educate the jury about weaknesses in the underlying science?

This question regularly comes up at Sexually Violent Predator trials, regarding the controversial Static-99 risk assessment tool. Now, it is coming up in civil personal injury trials, regarding the MMPI-2's "Fake Bad Scale" (which I blogged about here back in March).

Increasingly, attorneys are choosing the second option when the science underlying a test is weak. They are openly critiquing the test and its findings, and allowing jurors to form their own conclusions. Yesterday's Lawyers USA features an article on how plaintiffs' attorneys are "turning the tables" on the Fake Bad Scale:

Although plaintiffs' attorneys are unanimous in despising the Fake Bad Scale, there is a mini-debate about whether it is more effective to exclude the test before trial or allow it in and discredit it while cross-examining the defense expert.

"It's a tough call, frankly," said Dorothy Clay Sims, a founding partner of Sims, McCarty, Amat & Stakenborg in Ocala, Fla., who has won three hearings over excluding the test.

"Frye and Daubert hearings are tough, but courts don't seem to like this test, so it's difficult to give up a hearing that you have a good chance of winning," she said. "On the other hand, once the Fake Bad Scale is demystified for the jury, and you pierce through it, they look at the defense doctor and say 'Oh, come on.' "

The article features the case of Sarah Jenkins, a medical receptionist who suffered tissue injuries and cognitive problems after her pick-up truck was hit by a delivery truck. She scored in the faking range on the Fake Bad Scale.

Rather than fighting to exclude the test, experienced trial attorney Dean Heiling made it a centerpiece. He cross-examined the defense expert at length about the test, and through his own expert exposed the controversy in the field about the test's validity.

Most interestingly, he put his client on the stand in rebuttal, and had her go through each test item and her answer with the jury.

Jurors deliberated only three hours before awarding a verdict of $225,749.

The lesson to forensic psychologists: Know your tests, and know their weaknesses.

The full story, by Sylvia Hsieh, is here, although it is only available to subscribers. For more on the controversy over the scale, see my previous post here.

Hat tip: Ken Pope

Why the Next Civil Rights Battle Will Be Over the Mind

Guest essay by Clive Thompson*

Trolling down the street in Manhattan, I suddenly hear a woman's voice.

"Who's there? Who's there?" she whispers. I look around but can't figure out where it's coming from. It seems to emanate from inside my skull.

Was I going nuts? Nope. I had simply encountered a new advertising medium: hypersonic sound. It broadcasts audio in a focused beam, so that only a person standing directly in its path hears the message. In this case, the cable channel A&E was using the technology to promote a show about, naturally, the paranormal.

I'm a geek, so my first reaction was, "Cool!" But it also felt creepy.

We think of our brains as the ultimate private sanctuary, a zone where other people can't intrude without our knowledge or permission. But its boundaries are gradually eroding. Hypersonic sound is just a portent of what's coming, one of a host of emerging technologies aimed at tapping into our heads. These tools raise a fascinating, and queasy, new ethical question: Do we have a right to "mental privacy"?

"We're going to be facing this question more and more, and nobody is really ready for it," says Paul Root Wolpe, a bioethicist and board member of the nonprofit Center for Cognitive Liberty and Ethics. "If the skull is not an absolute domain of privacy, there are no privacy domains left." He argues that the big personal liberty issues of the 21st century will all be in our heads - the "civil rights of the mind," he calls it.

It's true that most of this technology is still gestational. But the early experiments are compelling: Some researchers say that fMRI brain scans can detect surprisingly specific mental acts - like whether you're entertaining racist thoughts, doing arithmetic, reading, or recognizing something. Entrepreneurs are already pushing dubious forms of the tech into the marketplace: You can now hire a firm, No Lie MRI, to conduct a "truth verification" scan if you're trying to prove you're on the level. Give it 10 years, ethicists say, and brain tools will be used regularly - sometimes responsibly, often shoddily.

Both situations scare civil libertarians. What happens when the government starts using brain scans in criminal investigations - to figure out if, say, a suspect is lying about a terrorist plot? Will the Fifth Amendment protect you from self-incrimination by your own brain? Think about your workplace, too: Your boss can already demand that you pee in a cup. Should she also be allowed to stick your head in an MRI tube as part of your performance review?

But this isn't just about reading minds; it's also about bombarding them with messages or tweaking their chemistry. Transcranial magnetic stimulation - now used to treat epilepsy - has shown that it can artificially generate states of empathy and euphoria. And you've probably heard of propranolol, a drug that can help erase traumatic memories.

Let's say you've been assaulted and you want to take propranolol to delete the memory. The state needs that memory to prosecute the assailant. Can it prevent you from taking the drug? "To a certain extent, memories are societal properties," says Adam Kolber, a visiting professor at Princeton. "Society has always made claims on your memory, such as subpoenaing you." Or what if you use transcranial stimulation to increase your empathy. Would you be required to disclose that? Could a judge throw you off a jury? Could the Army turn you away?

I'd love to give you answers. But the truth is no one knows. Privacy rights vary from state to state, and it's unclear how, or even if, the protections would apply to mental sanctity. "We really need to articulate a moral code that governs all this," warns Arthur Caplan, a University of Pennsylvania bioethicist.

The good news is that scholars are holding conferences to hash out legal positions. But we'll need a broad public debate about it, too. Civil liberties thrive only when the public demands them - and understands they're at risk. That means we need to stop seeing this stuff as science fiction and start thinking about how we'll react to it. Otherwise, we could all lose our minds.

*Reprinted with the written permission of the author from Wired magazine. Clive Thompson writes about science, technology, and culture for the New York Times Magazine, Wired, Discover, and others. Find out more about him at his blog, Collision Detection.

Two major competency cases in court

Self-representation and execution at issue

• Should a higher level of competency be required for being one's own lawyer than for standing trial with a real lawyer?

• How competent must someone be in order for the state to kill him?

Those two issues were in court yesterday in separate but somewhat related cases, one before the U.S. Supreme Court and the other in a widely awaited Texas appellate court ruling.

Competency to represent oneself

Although it was eclipsed by the OJ trial happening at the same time in Los Angeles, some readers may recall the farcical spectacle of Colin Ferguson's trial. Ferguson was the delusional man who opened fire on the Long Island Railroad, killing six people and wounding 19 more. After firing his prominent attorneys, he represented himself and presented a bizarre, delusionally based defense. He was found guilty, naturally, and received six consecutive life terms.

The Ferguson spectacle was enabled by the high court's 1993 opinion in Godinez v. Moran. Tom Moran was a severely depressed, suicidal defendant who waived the right to an attorney in a double murder case, pled guilty without presenting any evidence, and was promptly sentenced to die. The Supreme Court held that the same low standard of competency exists for all criminal proceedings.

Proponents of allowing mentally ill defendants to represent themselves despite questionable understanding and judgment cite the Sixth Amendment's right to self-representation. Legal scholar Michael Perlin, who just published an excellent book on competency, calls this argument a "pretextual" rationalization.

The competing positions were at the forefront of oral arguments before the U.S. Supreme Court yesterday in the case of Indiana v. Edwards. The case involves Ahmad Edwards, a schizophrenic man whom a trial judge ruled was competent to stand trial for a robbery-shooting but incompetent to represent himself.

The state of Indiana argued before the high court yesterday that allowing states to set their own, higher standards for self-representation ensures both fairness for accused individuals and the dignity of the courts.

Edwards' attorney countered that "the expressed premise of the Sixth Amendment and of our adversarial system generally is that the defense belongs to the accused and not to the state."

The high court justices were divided along predictable lines. Justice Stephen Breyer and Anthony Kennedy seemed concerned about people ending up in prison because they were too disturbed to represent their best interests at trial. But Justice Antonin Scalia said that's just too bad for them – if a defendant makes a poor choice, it is "his own fault."

A ruling is expected within the next few months.

Competency to be executed

The legal standard is much lower for competency to be executed. If you've got a basic understanding that you committed a crime and the state is going to kill you for it, you're good to go (to the Pearly Gates, that is).

That's the "Ford standard" set in the 1986 case of Ford vs. Wainwright, in which the Supreme Court ruled that executing a person who is severely mentally ill constitutes cruel and unusual punishment.

Last year, the highly polarized Supreme Court declined to clarify the somewhat vague Ford standard, issuing a 5-4 opinion on narrow procedural grounds in the closely watched Panetti v. Quarterman case (see my previous blog posts here and here; the opinion is here).

Yesterday, a Texas court responded by affirming convicted killer Scott Panetti's competence to die. Indeed, said the U.S. District Court for the Western District of Texas, "if any mentally ill person is competent to be executed for his crimes, this record establishes it is Scott Panetti."

Panetti, who killed his estranged wife's parents, was found competent to stand trial after two jury trials on that issue. Unlike Ahmad Ewards, he was allowed to represent himself at his 1995 murder trial despite being floridly psychotic and delusional - and he's been regretting it ever since. During his trial, he rambled insanely and tried to subpoena Jesus Christ, John F. Kennedy, and other dead people.

"The record of Panetti's competency hearings and trial is not pretty," the appellate court conceded. "For better or worse, however, the issues of Panetti's competence to stand trial and his insanity defense have been tried, appealed, reviewed in state and federal habeas proceedings, and conclusively put to rest. Panetti is not permitted to relitigate these arguments in his proceedings under Ford."

The court’s 62-page opinion is interesting reading. It reviews the facts of the case, the exhaustive history of appeals, and the expert witness testimony of numerous well-regarded forensic experts called by both sides. The case even involved expert testimony by a forensic psychiatrist and neurologist, Dr. Priscilla Ray, on the science behind competency opinions, that is, "the extent to which psychiatric science can assist the Court in assessing competence to be executed, particularly with regard to the concept of rational understanding."

In discussing Panetti's "rational understanding" of his situation, the court also contemplated evidence suggesting that Panetti was exaggerating his schizophrenic disorder to avoid the needle. Yesterday's opinion cited the results of widely used tests of malingering, including the Structured Inventory of Reported Symptoms (SIRS) and Green's Word Memory Test (WMT).

At the end of the day, after reviewing all of the evidence, the Court held:

"Panetti is seriously mentally ill…. While the extent to which Panetti has been manipulating or exaggerating his symptoms is unclear, it is not seriously disputable that Panetti suffers from paranoid delusions of some type… However, it is equally apparent … that [his] delusions do not prevent him from having both a factual and rational understanding that he committed [the] murders, was tried and convicted, and is sentenced to die for them…. Panetti was mentally ill when he committed his crime and continues to be mentally ill today. However, he has both a factual and rational understanding of his crime, his impending death, and the causal retributive connection between the two."

The ruling can be found HERE. National Public Radio has coverage and commentary here. A 28-minute video, "Executing the Insane: The Case of Scott Panetti," is available here. An essay by Yale scholar Steven Erickson entitled "Minding Moral Responsibility," which discusses the Panetti case, is available here. The Indianapolis Star has more coverage of Indiana v. Edwards.

Hat tip: Steven Erickson

New MMPI scale invalid as forensic lie detector, courts rule

Injured plaintiffs falsely branded malingerers?

Psychology's most widely used personality test, the MMPI, jumped into the national spotlight today in a fascinating David-and-Goliath controversy pitting corporate interests such as Halliburton against the proverbial little guy.

At issue is the "Fake Bad Scale" that was incorporated into the Minnesota Multiphasic Personality Inventory last year for use in personal injury litigation. A front-page critique in today's Wall Street Journal includes publication of the items on the contested scale, a test security breach that will no doubt have the publisher seeing red.

Although a majority of forensic neuropsychologists said in a recent survey that they use the scale, critics say it brands too many people - especially women - as liars. Research finding an unacceptably large false-positive rate includes a large-scale study by MMPI expert James Butcher, who found that the scale classified high percentages of bonafide psychiatric inpatients as fakers.

One possible reason for this is that the scale includes many items that people with true pain or trauma-induced disorders might endorse, such as "My sleep is fitful and disturbed" and "I have nightmares every few nights." Yet hearing the term "Fake Bad" will likely make a prejudicial impact on jurors even if they hear from opposing experts who say a plaintiff is not faking.

The controversy came to a head last year in two Florida courtrooms, where judges barred use of the scale after special hearings on its scientific validity. In a case being brought against a petroleum company, a judge ruled that there was "no hard medical science to support the use of this scale to predict truthfulness.” Other recent cases in which the scale has been contested include one against Halliburton brought by a former truck driver in Iraq.

The 43-item scale was developed by psychologist Paul Lees-Haley, who works mainly for defendants in personal injury cases and charges $600 an hour for his depositions and court appearances, according to the Journal article. In 1991, he paid to have an article supportive of the scale published in Psychological Reports, which the WSJ describes as "a small Montana-based medical journal."

The scale was not officially incorporated into the MMPI until last year, after a panel of experts convened by the University of Minnesota Press reported that it was supported by a "preponderance of the current literature." Critics maintain that the review process was biased: At least 10 of the 19 studies considered were done by Lees-Haley or other insurance defense psychologists, while 21 other studies – including Butcher's – were allegedly excluded from consideration.

Later last year, the American Psychological Association's committee on disabilities protested to the publisher that the scale had been added to the MMPI prematurely.

Lees-Haley, meanwhile, defends the scale as empirically validated and says criticism is being orchestrated by plaintiff's attorneys such as Dorothy Clay Sims, who has written guides on how to challenge the Fake Bad scale in court.

Even if the scale was valid before today, questions are certain to arise about the extent to which it will remain valid once litigants start studying for it by using today's publication of all 43 items along with the scoring key.

The lesson for forensic practitioners: Be aware of critical literature and controversy surrounding any test that you use in a forensic context, and be prepared to defend your use of the test in court.

The article, "Malingerer Test Roils Personal-Injury Law; 'Fake Bad Scale' Bars Real Victims, Its Critics Contend," which includes ample details on the controversy, is only available to Wall Street Journal subscribers, but you can try retrieving it with a Google news search using the term "MMPI Fake Bad." The University of Minnesota Press webpage on the contested scale is here, along with a list of research citations.

Here are citations to the major pro and con research articles:

"Meta-analysis of the MMPI-2 Fake Bad Scale: Utility in forensic practice," Nelson, Nathaniel W., Sweet, Jerry J., & Demakis, George J., Clinical Neuropsychologist, Vol 20(1), Feb 2006, pp. 39-58

"The construct validity of the Lees-Haley Fake Bad Scale: Does this measure somatic malingering and feigned emotional distress?: Butcher, James N., Arbisi, Paul A., & Atlis, Mera M., Archives of Clinical Neuropsychology, Vol 18(5), Jul 2003, pp. 473-485.

Postscript: Test distributor Pearson Assessments responded with alacrity - not to the heart of the controversy but to the Journal's reprinting of test items. The company, which makes a mint from selling and scoring the MMPI and other psychological tests,got the WSJ to remove the online link to the test items. In a "news flash," Pearson says it is "evaluating the impact of the article" and asks psychologists to report any other instances of "illegal" reproduction of the scale in publications, websites, chat rooms, or blogs.

NOTE: For more of my posts about the MMPI-2's Fake Bad Scale, search the blog using the term "MMPI" (the search box is in the upper left corner of the page).

Detection of feigned mental retardation

The Clinical Neuropsychologist has a new article on the problems in detecting feigned mental retardation. That issue is getting more attention these days in the wake of the U.S. Supreme Court ruling in Atkins v. Virginia, outlawing the execution of mentally retarded defendants. The British Psychological Society's Research Digest blog has more on the study, which is entitled "Identification of feigned mental retardation using the new generation of malingering detection instruments: Preliminary findings."