"The Tim Masters Case: Chasing Reid Meloy"

That's the title of a hard-hitting article focusing on forensic psychologist Reid Meloy's troubling role in the Tim Masters case in Colorado that many of my forensic psychologist readers have been following closely. This continues to be quite the cautionary tale for the rest of us.

"Meloy's reports and opinions about Masters' artwork have been the source of controversy from the beginning, but never so much as during recent courtroom testimony in which reams of material was introduced for the first time that bring into question not only Meloy's objectivity but whether or not he even came to his conclusions independently," writes journalist Greg Campbell of Fort Collins (Colorado) Now.

Campbell hunted down Meloy at a 4-day youth violence risk assessment training course in San Diego, where Meloy was giving a talk entitled "Adolescent and Young Adult Mass Murder: Assessment and Management of a Catastrophic Risk." He describes Meloy as a "rock star" in the crowd of law enforcement officials, psychologists and education professionals:

" ... taking second billing in the world's small population of celebrity forensic investigators to Roy Hazelwood, Gregg McCreary and John Douglas if only because he never worked for the FBI as they did, and because he's not technically a 'criminal profiler,' a career that has proved so popular in recent American pop culture. His resume more than compensates for being just a step below these movie- and TV-show-inspiring pioneers, however. He is a professor at two San Diego universities, a faculty member of the San Diego Psychoanalytic Institute and former chief of the San Diego County Forensic Mental Health Division. He's written more than 170 papers published in peer-reviewed journals and has written or edited 10 books. Currently, he operates a private forensic practice, consults with the FBI on counterterrorism measures and works to analyze threats to British politicians and the Royal Family. He is a diplomate in forensic psychology of the American Board of Professional Psychology.

"Meloy made no reference to Masters in his presentation, which was focused on the characteristics of mass murderers like Columbine killers Eric Harris and Dylan Klebold, Omaha mall shooter Robert Hawkins, and Virginia Tech killer Seung-Hui Cho. In general terms, Meloy outlined traits of these killers that were similar to traits he attributed to Masters. They tend to be loners. They use fantasy to compensate for shortcomings in their lives. They have poor family relationships. They have a fascination with weapons and war."

Campbell repeatedly emphasizes Meloy's refusal to publicly comment on the case or his role in it. He quotes Meloy as telling him: "I don't want to say anything extrajudicially. It's just too sensitive. ... There will be a time and a place."

"The forensic psychologist has never been shy about his opinion that Tim Masters' doodles made him a killer ... but now that charges are dropped, Reid Meloy has only one thing to say: 'No comment.' "

"Although he now doesn’t want to say anything extrajudicially, Meloy was interviewed for a 2000 documentary about the case that appeared on the A&E Network's 'Cold Case Files.' The show is an uncritical ode to how Meloy, Broderick, Gilmore and Blair [the police detectives] joined forces to crack the case using something akin to mentalism.

" 'After spending six months on the case, I felt I understood the motivations for this homicide and that I had become convinced that Timothy Masters was the individual that had committed this homicide,' Meloy said on the show.

"For Meloy, Masters' drawings represented a 'fantasy rehearsal' for the crime, especially a doodle on Masters' math homework of a knife-wielding hand cutting a diamond shape that Meloy interpreted as a vagina, 'which may have been a rehearsal of the genital mutilation,' as he wrote in his first report to Broderick.

"Equally damning in Meloy's interpretation was a picture Masters drew [that] depicted one figure dragging another, which was apparently wounded or dead, from behind. The wounded figure was riddled with arrows and blood seemed to flow from its back. The figure's heels dug furrows in the ground similar to furrows found where Hettrick’s body was dumped.

"Entirely discounting the presence of the arrows - which had nothing whatsoever to do with the murder - Meloy wrote in his report that this picture represented the crime as it actually happened."

Campbell describes Meloy's role as pivotal to Masters' conviction, providing the only "evidence" of guilt:

"Meloy was the cornerstone of that prosecution - without him, it's unlikely that Masters would have been arrested in the first place. To date, he has provided the only 'evidence' in the nearly 21 years since the murder that implicated Masters in any way: an analysis of Masters' boyhood doodles, crude sketches and violent short stories that - even in the complete vacuum of physical evidence connecting Masters to the crime - convinced Meloy he was guilty.

"Meloy drew his conclusion based on a review of certain evidence provided to him by [Detective] Broderick, including Broderick's own categorization and interpretation of Masters' fictional productions, police videotapes and suspect interrogation transcripts, among many more items.

"Meloy did not, however, speak to or interview Masters himself.

"It apparently wasn't necessary.

"In his first report to Broderick he plainly states in several places that Masters committed the crime - referring to him not as a 'suspect,' but a 'perpetrator' - and he was apparently so convinced that he sent a pretrial letter to then-Larimer County DA Stuart Van Meveren in which he hoped for a 'successful prosecution.'

"And thanks to Meloy's testimony, they got it.

"In court, the jury was bombarded with Masters' scary pictures that were shown on a large video monitor while Meloy pointed out features of them that he testified showed pairing of sex and violence; evidence of 'picquerism,' the sadistic pleasure derived from stabbing; degradation of women; and fascination with weapons and death.

"In his first report to Broderick, Meloy wrote that Masters killed Hettrick because he felt abandoned by his mother, who died unexpectedly almost exactly four years to the day before the murder. He opined that her death, an 'emotionally distant' relationship with his father who spent a lot of time away from home while on active duty in the Navy, the departure of his sister from their home to join the U.S. Army, and his retreat into a fantasy world combined to create a boiling kettle of latent violence just waiting to erupt.

" 'A retreat into such a compensatory narcissistic fantasy world, replete with sexuality and violence, works for awhile, but at a great cost,' Meloy wrote. 'The unexpressed rage continues, depression may ensue, and anger toward women as sources of both pain (abandonment) and erotic stimulation builds.'

" 'Sexual homicide represents the solution, particularly in the form it took in this case: If I kill a woman, she cannot abandon me; if I desexualize her (genital mutilation) she cannot stimulate me,' he wrote. 'These are not conscious thoughts for Tim Masters, but likely represent the unconscious beliefs that drove his behavior the night of Feb. 11, 1987, when he killed and sexually mutilated Peggy Hettrick, a victim of choice and opportunity. Ms. Hettrick represented all Women (sic) to Tim Masters.' "

The full article is online here. Also at that website are copies of some of Masters' so-called "scary doodles."

Fascinating new twists in Tim Masters case

Expert witness psychologist cited FBI profiler who had rejected prosecution theory of case

The forensic psychology angles in Tim Masters' ongoing motion for a new trial in Fort Collins, Colorado are increasingly fascinating. Here are a few of the newest:

Roy Hazelwood, the pioneering FBI profiler, was hired as a police consultant but rejected the police theory of the case, which linked 15-year-old Masters to a 1987 sex-murder based on the boy's doodles. Police withheld this information from defense attorneys at Masters' 1999 trial, and Hazelwood was never called as a witness.

With Hazelwood giving a thumbs-down to the police theory, prominent forensic psychologist Reid Meloy became the prosecution's star witness. He did exactly what Hazelwood had cautioned against, connecting Masters to the killing based on a series of violent sketches. Ironically, Meloy cited Hazelwood's theories on profiling as a basis for his opinion.

In addition to the "scary doodles," as they have been dubbed by the media, Meloy theorized that the date linked the killing to Masters, because it was the anniversary of the date that Masters' mother had gone to a hospital. But the information now being turned over by prosecutors suggests that this theory was fed to Meloy by Fort Collins police.

No physical evidence has ever linked Masters to the crime. The newly revealed police notes reflect that authorities were suspicious of a suspected sex offender who lived nearby and later killed himself. Authorities destroyed evidence linking that man, eye surgeon Richard Hammond, to the murder, and did not provide his name to the defense.

The ongoing hearings are aimed at getting a new trial for Masters, who is serving a life sentence, and also getting sanctions against the original prosecutors, both of whom are now judges, for withholding evidence.

The moral for forensic psychologists: Carefully protect your neutrality and independence; never let partisans for one side or the other influence (or appear to influence) your theories or findings.

Note: A more recent post on this case is here.

For my earlier blog posts on this case, click HERE and/or HERE. A Denver Post video, "The Story of Tim Masters," shows details of Masters' police interrogations. The Pro Libertate blog has case analysis, graphics, and links. A blog dedicated to the case, Free Tim Masters Because, has a lengthy page devoted to the role of Dr. Meloy.

Other news coverage includes:
Undisclosed Masters evidence nags, Denver Post, Dec. 20, 2007Notes in Masters case wanted "profile" stricken, Denver Post, Dec. 18, 2007Attorneys: It was the doctor - Master’s defense says Hammond had all the makings of real killer, Reporter Herald (Loveland, CO), Dec. 18, 2007Testimony returns to subject of expert, Reporter Herald, Dec. 17, 2007

Did forensic profile go too far?

Psychological profile helped convict teen who maintains his innocence

Police detective Jim Broderick in Fort Collins had set his sights on 15-year-old Tim Masters. He was convinced that the boy had kidnapped, sexually mutilated, and murdered a woman.

No physical evidence tied the boy to the crime. But for years after the 1987 crime went cold, Detective Broderick continued to insist that Masters was the killer.

The detective was haunted by Masters’ oddness during questioning, his collection of survival knives, and the timing of the woman’s death - within a day of the fourth anniversary of the boy's mother's death. But most troubling of all, according to a Denver Post expose on the case, were Masters’ violent sketches. Especially one featuring a blade tearing into a diamond shape.

Finally, in 1995, Broderick telephoned forensic psychologist Reid Meloy and asked him to study Masters' artwork. “Meloy had developed a reputation as an expert witness on sexual homicides,” writes Post reporter Miles Moffeit. “He even disclosed a deeply personal fascination with the subject, according to court testimony, saying he himself had sexually sadistic fantasies.”

Without interviewing Masters, Meloy wrote a damning opinion: Masters fit the profile of a killer because he was a loner who came from an isolated or deprived background and harbored hidden hostility toward authorities as well as violent fantasies. This was a displaced sexual matricide, stemming from Masters' feelings of abandonment by his dead mother. "The killing of Ms. Hettrick translated Tim Masters' grandiose fantasy into reality," Meloy wrote.

Meloy’s profile helped garner a conviction, and in 1999 Masters was sentenced to life in prison.

Now, a legal team has launched what the Post characterizes as “one of the most ambitious and expensive bids ever in Colorado to prove a man's innocence.” The investigation focuses on a sexually deviant medical doctor who lived near the scene of the killing; the doctor committed suicide and police destroyed much of the physical evidence that could have tied him to the crime.

Watch the Denver Post's online video, “The Story of Tim Masters,” which shows details of Masters' interrogations at the hands of police.

My more recent posts on this topic are here, here, and here.

Thanks to Denver forensic psychologist Michael Karson for bringing this case to my attention.

"The Scary Doodles Case"

The tale of a teenage doodler,
a disputed confession,
and a forensic psychologist

One of the most interesting disputed conviction cases in the news these days is the case of Tim Masters in Colorado, which I first blogged about back in July. If you haven't read up on it yet, it's worth checking out.

The Rocky Mountain News is pulling no punches in calling for a new trial for Masters, who was only 15 when the murder in question occurred. The News' most recent editorial, entitled "In need of a new trial: Prosecution handicapped Tim Masters' original defense," begins like this:

The worst thing you can say about a legal system is that it railroads defendants - convicts and sentences them without allowing juries to hear the full story and without investigators pursuing equally viable suspects. That's why the case involving a Colorado prisoner named Timothy Lee Masters is so important - and why it is critical that he be granted a new trial.

For purposes of this blog, the case is intriguing because of the disputed confession (see my earlier post) and also because of the central role of J. Reid Meloy, a prominent forensic psychologist. Meloy "worked hand-in-glove with prosecutors," even reviewing the arrest warrant before it was served. The News editorial comments:

Forensic psychologist Meloy's analysis, so crucial to the prosecution's theory, at times has the tone of a pulp crime thriller. Portentous but debatable conclusions are scattered throughout, such as: 'Sexual homicides are often unconscious displaced matricides'; '[the victim] also resembled his deceased mother, which is of enormous psychological significance . . .' ; and, Masters 'knows the distinction between slicing and stabbing, terms that generally would not be distinguished by the lay person.'

Indeed, it was largely on the basis of Masters' violent doodles – and Meloy's interpretation of them – that the boy was convicted, legal observers say. Prosecutors "bombarded" jurors with blown-up images of the doodles, projected onto the wall of the courtroom.

The News article continues here.

My more recent posts on this case are here and here.

The Denver Post has additional coverage of the case and an online video, "Sketchy Evidence: The Story of Tim Masters." The Pro Libertate blog has case analysis, graphics, and links. And there's even a blog devoted solely to the case, Free Tim Masters Because, which has a lengthy page devoted to the role of Dr. Meloy. See further commentary on this topic at the Witness LA blog.

"Misfeasance not malfeasance"

Detective won't face charges in Tim Masters case

A special prosecutor has decided not to file criminal charges for perjury or illegal eavesdropping against the Colorado detective who spearheaded the investigation of 15-year-old Timothy Masters for the murder of Peggy Hettrick, a case about which I have blogged extensively (click here for my past posts).

You will recall that Lt. James Broderick was convinced of the boy's guilt despite the absence of any physical evidence linking young Masters to the crime. He continued to pursue him for years, finally hiring prominent forensic psychologist Reid Meloy to render an opinion based on Masters' personal sketches. That opinion helped garner a conviction; after a decade in prison, Masters was recently freed based on DNA evidence.

Prosecutor Ken Buck said that although he uncovered "several flaws" during his "limited investigation," he did not believe that Broderick engaged in deliberate criminal conduct, nor was there a "reasonable likelihood" that a jury would convict the detective at trial.

A separate investigation into whether prosecutors in the case violated professional standards is due to conclude soon. That investigation is by the Colorado Supreme Court's Office of Attorney Regulation. The former prosecutors, Terry Gilmore and Jolene Blair, are both now judges.

The Colorodoan quotes one former police investigator in the case, Linda Wheeler-Holloway, as saying that the prosecutor's decision is no surprise.

"People didn't play fair. By not telling the whole story, leaving things incomplete, that kind of skewed things in their favor…. There was a lot of faults committed in a lot of arenas that led to the wrongful conviction of Tim Masters."

Writer Pat Hartman, who has an extensive blog on the case entitled "Free Tim Masters Because," has a scathing denunciation of the prosecutor’s decision.

"This wrapup of Broderick's involvement is inadequate and unsatisfactory. It's like watching an elephant be pregnant for months and then give birth to a mouse. Now there's supposed to be an internal [police] investigation…. With this tepid whitewash as precedent, it’s not difficult to foresee the results of that investigation.”

The prosecutor's 11-page report is here. The Coloradoan and the Denver Post have news coverage.

Breaking news flash: DNA evidence may exonerate Masters

I've been blogging about the fascinating case of Tim Masters in Colorado, who was convicted in part based on a prominent forensic psychologist's testimony about his doodles.

Yesterday, in a stunning development in the twisting case, it was announced that reanalysis of the DNA linked it to a different man who had once been a suspect in the case. The prosecutor has recommended that Masters be freed pending a new trial, but police detectives are stubbornly sticking with their original theory that the 15-year-old Masters was the killer.

Jan. 22 postscript: Tim Masters is being freed today. He was busy packing his family photos and other belongings but was planning to leave behind his television, coffee pot, and prison-issued clothes. The Daily Camera has the story.

CNN has the story and related links.

For more background, especially on the forensic psychology angle, see my earlier posts, including:

Fascinating new twists in Tim Masters case

The Scary Doodles case

Did forensic profile go too far?

Masters scandal highlights need for oversight of prosecutors

Revelations of official malfeasance such as occurred in the Tim Masters case cause a massive erosion of public confidence in the judicial system. The potential upside is reforms to safeguard other citizens from being similarly railroaded.

For example, "Masters is free, but justice not yet served" is the headline of a hard-hitting editorial in the Coloradoan, calling for just such reforms.

But reforms will not come easy. As a new book explains, prosecutors in the United States wield ever-growing power under new laws granting them unfettered "prosecutorial discretion" in charging and sentencing decisions.

Arbitrary Justice: The Power of the American Prosecutor is the book, authored by public defender Angela J. Davis (no, she's not the same Angela Davis you're probably thinking of).

Arbitrary Justice does two things:

• It exposes the "dangerous shift in power from judges to prosecutors" (in the words of law prof Barry Schenk of Innocence Project fame) happening in the courthouse trenches.

• It provides a detailed agenda for reforms aimed at safeguarding defendants, victims, and the public at large.

Hat tip: Corrections Sentencing. Photo is of author Angela J. Davis. See more about the book at its dedicated web site. More blog posts on the Tim Masters case are listed here.

By popular demand: Expert testimony at Masters trial

Readers wondered if I knew how to obtain the actual transcript of forensic psychologist J. Reid Meloy's testimony at the trial of Tim Masters. (That's the apparent wrongful conviction case that I've blogged about most recently here). So, by popular demand, I've uploaded the transcript here:

J. REID MELOY TESTIMONY

Dr. Meloy waxes eloquent on sexual homicide, rehearsal fantasies, the paraphilia of picquerism, the Rorschach inkblot test, and more. He psychoanalyzes the 15-year-old Masters' military fiction and violent drawings of Freddy Krueger. On cross-examination, he even references his own sexually sadistic and predatory fantasies. Happy reading!

5th-grader suspended for vampire drawing

Perhaps I am too fixated on Halloween (I promise to stop now!), but I found this story out of Savannah, Georgia fascinating, with its hysterical and racist undertones. Of course, this 5th-grader's troubles were nothing compared to what happened to high schooler Tim Masters when he drew scary pictures.

Halloween drawing scares teacher, gets student in hot water

Fifth-grader Jordan Hood thought the bloody vampire he drew in art class was scary, but he had no idea it would elicit a horrifying response from one of his teachers.

Tuesday morning, Jordan was assigned to draw a scary Halloween mask in art class.

By the end of the day, Jordan was being told he could not return to Pooler Elementary School until he passed a psychological evaluation....

During art class Tuesday, Jordan drew a scarred vampire with bloodshot eyes and with blood dripping from its nose, mouth and down its cheeks. Art teacher Lloyd Harold helped the boy shade the sketched eyes to give the drawing an even creepier look.

"The assignment was to draw a scary mask or picture - basically a Halloween activity," Harold said.

As a final gory touch, Jordan used a red marker to write "I Kill For Blood" under his drawing.

The picture was not destined for the cover of Fangoria magazine, but it fulfilled the requirement for fifth-grade Halloween art.

However, when Jordan's homeroom teacher, Melissa Pevey, saw the drawing, she found it disturbing. Pevey was concerned enough to contact assistant principal Valerie Johnson and Campus Police.

But it wasn't blood and gore that bothered Pevey.

She believed the blood looked a lot like gang-related teardrop tattoos, and she thought the words "I Kill For Blood" could be tied to an infamous Los Angeles street gang known as The Bloods.

Jordan's mother, LaKisha Hood, was shocked to find that her son's art lesson had evolved into a gang investigation.

"They told me the droplets could actually be a gang symbol for the number of people he killed," she said.

Burnsed said the district has asked teachers to be wary of anything that might be harmful to students. He also said the district has provided gang-identification training.

He did not know whether classroom teachers were trained in gang symbolism.

"The teacher was concerned and referred it to the Campus Police," Burnsed said. "(Campus Police Capt. Joan) Sasser wasn't sure that it meant anything."

So they resolved the issue by requiring Jordan to undergo psychological testing with Gateway Mental Health.

Jordan's family didn't want him to miss school, so he went in for testing first thing Wednesday morning - getting him back to school in time for the fall dance that afternoon.

Although he only lost about two hours of instruction, his mother fears the incident also might cost him a bit of innocence and trust.

"He didn't know anything about gang symbols until the teacher accused him," she said. "We moved to Pooler thinking he'd be in a more diverse school with better opportunities.

"And so far, it hasn't been a pleasant experience."

The full story is here. I have previously highlighted the story of Tim Masters, who was convicted of murder in large part due to a series of "scary doodles."

Hat tip: The excellent blog, Don't taze me, Bro!

Meanwhile, shocking revelations by Canadian pathologist

Let's turn now from the Masters to a case of expert witness malfeasance that's been sending shockwaves through the criminal justice system up in Canada. Back in November, I blogged a couple of times about forensic pathologist Charles Smith, whose decades of expert testimony for the government compounded the misery of grieving parents by sending many to prison for the accidental deaths of their children.

This week, Dr. Smith took the stand in the ongoing judicial inquiry and made a couple of shocking revelations:

1. Biased for prosecution

Most shockingly, he admitted that, far from being the neutral scientist he portrayed himself to be, he actually was biased in favor of the prosecutors who hired him.

"I honestly believed it was my role to support the Crown attorney. I was there to make a case look good," he admitted in his first day of testimony before an ongoing judicial inquiry into what went wrong in the cases.

2. "Ignorant"

Second, he admitted that he was "profoundly ignorant" of the criminal justice system. In stating this, he apologized for the "mistakes" he made during some two decades of performing child autopsies in cases of suspicious death.

3. Trained others experts

Despite now admitting to bias and ignorance, back in the day Dr. Smith lectured other doctors on how to be an expert witness in court. In court today, he was shown a speech he delivered entitled, "See You in Court: The Invitation You Can't Refuse," in which he cautioned doctors never to be an advocate for one side or the other. How's that for hypocrisy.

Among those whose lives were torn apart by Smith’s "mistakes" are several mothers who spent years in jail until the cases against them fell apart, and a man who was finally exonerated after spending more than a decade in prison for the death of his niece.

One commonality among many of the cases was the socioeconomic status of the accused, who included racial minorities, aboriginals, and single mothers. Although the adversarial system is premised on an equal fight between the accused and the government, economically disadvantages defendants do not have the wherewithal to obtain their own experts to challenge the government's experts. This is especially dangerous when the expert – as in Smith’s case - appears neutral, well qualified, and scientific.

These multiple emerging scandals - which include the Colorado case of Tim Masters, the British case of Sir Roy Meadows (who falsely accusing dozens of mothers of so-called "Munchausen's Syndrome by Proxy") and the Mississippi case of forensic odontologist Michael West - are driving home the fact that experts are not infallible and should not be accepted without skepticism.

More on the Smith hearings, including video coverage, is at the Toronto Star and the Charles Smith Blog. My prior posts on the case are here and here. My blog post on forensic odontologist Michael West (a bite-mark expert) is here.

Backlash growing against criminal profiling

UK Guardian: "Psychological profiling 'worse than useless' "

In the beginning, there was Malcolm Gladwell's 2007 masterpiece in the New Yorker, exposing criminal profiling as clever sleight of hand. Three years later, reports in both New Scientist and the Guardian of UK are expressing mounting concerns over the pseudoscientific technique made bigger than life in fictional TV shows.

Leading the backlash is psychology professor Craig Jackson of the Centre for Applied Criminology at Birmingham City University. He will critique the scientific validity of profiling at the British Science Festival this week. Not only is profiling unscientific, say Jackson and a growing chorus of others, but it risks bringing the field of psychology into disrepute. As Ian Sample reports in today's Guardian:

In many cases, offender profiles are so vague as to be meaningless, according to psychologist Craig Jackson. At best, they have little impact on murder investigations; at worst they risk misleading investigators and waste police time, he said.

"Behavioural profiling has never led to the direct apprehension of a serial killer, a murderer, or a spree killer, so it seems to have no real-world value," Jackson said.

Despite profiling's lack of demonstrated validity, police forces around the world bring in behavioral experts in complex or high-profile cases, often to appease victims' families or the media. In the UK, for example, The Home Office keeps a register of experts who are qualified to render offender profiles based on crime information, the Guardian reports.

"It is given too much credibility as a scientific discipline. This is a serious issue that psychologists and behavioural scientists need to address," [Jackson] said. "People believe psychologists like 'Cracker' can exist." In the 1990s television series, police apprehended criminals with help from an overweight, chain-smoking alcoholic psychologist.

Jackson quoted one behavioural scientist as saying he "climbs inside the minds of monsters" and "takes the expression frozen on the face of a murder victim and works backwards."

"They bring themselves forward as if they are shamans who are cursed by nightmares and picturing dead people," Jackson said.

Jackson argues that, since people from marginalized groups are the primary victims of murder, "if we really want to deliver on the objective of reducing the numbers of people who fall victim to violent crime, then we would be just as well concentrating on eradicating homophobia, prejudice against sex workers and the elderly, rather than 'delving' into the heads of serial killers."

In an interview published today in the London Evening-Standard, the vice-chair of the British Psychological Society's forensic psychology division distanced forensic psychologists from criminal profiling. Carol Ireland said forensic psychologists worked in a wide range of areas, including offender risk assessments and interventions, helping victims, and conducting research.

A critical report by Jackson and two colleagues, "Against the Medical-Psychological Tradition of Understanding Serial Killing by Studying the Killers," is slated for publication next month in the legal journal Amicus Curiae, published by the Institute of Advanced Legal Studies at the University of London.

Related news coverage:

• "Crime 'crackers' no better than witch doctors, says psychologist," London Evening-Standard, Sept. 14, 2010

Related blog resources:

• Of profiling, astrology, and magic : Malcolm Gladwell exposes the tricks of forensic profilers (Nov. 7, 2007)

• Criminal profiling strikes out again: British case also features missteps by police, prosecutors, tabloid media (Dec. 24, 2008)

• Pseudoscience in policing (Oct. 19, 2008)

• What's it take to become a forensic psychologist? Profilers. Silence of the Lambs. The criminal mind. So eerie, so glamorous. (Sept. 19, 2007)

• "The Tim Masters Case: Chasing Reid Meloy" (Feb. 2, 2008)

• Fascinating new twists in Tim Masters case : Expert witness psychologist cited FBI profiler who had rejected prosecution theory of case (Dec. 20, 2007)

• Report provides blueprint for reducing wrongful convictions (July 9, 2007)

Who wants us to wear wizard suits, and why?

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

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

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

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

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

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

Is that all there is?

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

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

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

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

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

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

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

Walter Olson, Senior Fellow, Cato Institute

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

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

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

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

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

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

Notes:

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

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

Calif.: Custody evaluators facing lost immunity

Among forensic psychologists, child custody evaluators face the highest rate of licensure board complaints. The courts request their help in the most acrimonious parenting disputes, and it is easy to get caught in the crossfire. Even though 99 percent of all board complaints are ultimately dismissed, defending oneself is stressful, time-consuming, and expensive.

Over the past 20 years, aggrieved parents have deluged psychology licensure boards with frivolous, manipulative and mean-spirited complaints. Fearing that the onslaught would discourage professionals from agreeing to assist courts in high-conflict parenting cases, legislatures in many U.S. states have increased statutory protections. In the past decade, Florida and West Virginia passed immunity statutes for court-appointed evaluators. Colorado went even further, barring licensing board complaints over child custody evaluations, requiring that complainants instead take their claims back to the original trial court.

But legislation being proposed in California would turn in the opposite direction, dismantling quasi-judicial immunity protections for evaluators and other neutral professionals who assist the courts in parenting disputes. The current version of the proposed Assembly Bill 2475, heading to the state Assembly's Judiciary Committee on May 4, would add the following section (43.94) to California’s Civil Code:

"The doctrine of judicial immunity or quasi judicial immunity shall not apply to exonerate any private third party appointed by the court in an advisory capacity based on his or her professional expertise, who provides a report or findings to the Court in a proceeding under the Family Code, with the intention that the Court act in one way or another based on such report or findings, from liability for acts performed within the scope of his or her appointment in violation of laws, rules of court, or professional standards. This section shall apply to private individuals such as special masters, minor's counsel, investigators, therapists, evaluators, receivers, bankruptcy trustees, experts, factfinders, and other persons specifically appointed by the courts in an advisory capacity based on their professional training or expertise."

I was initially suspicious that perhaps the "Men's Rights Movement" had a hand, as this increasingly powerful international lobby is making a concerted effort to reform child custody laws to favor men, and especially men accused of abusing their partners and children. Men's rights advocates claim that a feminist-run court system systematically violates men's civil rights, that a large proportion of abuse allegations are false, and that men "are victims of an unrecognized epidemic of violence at the hands of abusive wives," as reported in an expose in Slate. On the legal front, Respecting Accuracy in Domestic Abuse Reporting (RADAR) claims credit for blocking four federal domestic-violence bills, among them an international expansion of the Violence Against Women Act, according to the Slate report. Extrajudicially, movement members go so far as to applaud acts of violence perceived as retaliation against the feminist status quo.

But Assemblyman James Beall, the sponsor of AB 2475, does not appear allied with this regressive movement. Rather, he bills himself as a progressive Democrat who fights for the rights of children, families, the poor, and the disabled. Previously, he sponsored legislation (AB 612) to ban the use of Parental Alienation Syndrome -- a favorite of the father's rights movement -- from family courts.

NOTE: After I wrote this post, I did a bit more research on AB 612, and realized it was even more extreme than his new proposal. It would have allowed parents to sue any expert witness who relied upon "an unproven, unscientific theory." This would have included not only Parental Alienation Syndrome, its ostensible target, but a gamut of other evidence. After all, not much in any field of science is completely proven and uncontested. Luckily, that bill was defeated, perhaps explaining this new attempt. -- May 8, 2010

As it turns out, AB 2475 is supported by opponents of the men's rights movement, including an organization called the Protective Parents Association. This group lobbies on behalf of mothers who say the courts impede their efforts to protect their children by giving joint or sole custody to abusive fathers. "[T]he court responds to women attempting to protect their children from an abusive father with a knee-jerk reaction, assigning gender-biased labels to women to minimize or ignore the abuse in a reckless disregard of the safety of the child," writes association director Karen Anderson. By gender-biased labels, she is referring, no doubt, to Parental Alienation Syndrome.

So, AB 2475 may turn out to be a case of failure to anticipate unintended consequences. As readers know, politicians often propose a law in a knee-jerk response to a high-profile event, tweaking existing mechanisms without adequate anticipation of potential future deployments. Ironically, the bill could open the floodgates for attacks on neutral evaluators by the very same angry men with money who most often invoke the pseudoscientific construct of Parental Alienation Syndrome in custody cases.

When I telephoned Assemblyman Beall's office today to get more background, a staff member was cagey about the bill's impetus and minimized its intended scope, saying it was meant to only apply to mediators and not to child custody evaluators. Clearly, the current language belies this claim. So far I have been unable to turn up any specific case or cases that prompted this bill. Rather, it may be a misguided effort to stop evaluators from using the construct of Parental Alienation Syndrome against mothers in custody cases.

By way of background, various types of immunity for professionals involved in the legal system have a long history. Judicial immunity (immunity for judges) was implemented on public policy grounds in England all the way back in the 17th century. Similarly, witness immunity enjoys a long history, based on the principle of encouraging people to testify honestly and without fear of reprisal. Prosecutors performing their job duties are protected by qualified immunity, while psychologists and teachers enjoy statutory immunity when the law requires them to report child abuse.

Under the construct of quasi-judicial immunity, courts across the United States have repeatedly held that court-appointed experts must have some protection from intimidation in order to feel confident and free to make neutral and independent findings. As Karl Kirkland and colleagues point out in an enlightening review, this bolsters both the integrity of the judicial process and public welfare more generally.

This does not mean evaluators can say or do whatever they want. Immunity is never absolute, nor should it be. But forensic evaluators actually face enhanced scrutiny and risk as compared with other clinicians due to the adversarial nature of legal cases. As Greenberg and colleagues point out in another excellent review (reference below), errors that might go unnoticed or be addressed constructively in therapy are much more likely to be exposed through the adversary process; the opinions of forensic experts must stand up to intense scrutiny and vigorous cross-examination.

But it seems an error to allow parties whose goal is often to subvert the legal process (for example by getting an evaluator removed from a case) to drive honest, hard-working, and experienced professionals away from child custody work through spurious harassment. Consider the data. California logged the most licensing board complaints over child custody evaluations of any U.S. state during the 1990s. Yet according to the review by Kirkland and colleagues, out of all of those 1,660 complaints, only a single one -- that's right, ONE -- led to a formal finding against the psychologist.

* * * * *

For a good expose of the men's rights movement, see the Slate article by Kathyrn Jones, Men's Rights Groups Have Become Frighteningly Effective: They’re changing custody rights and domestic violence laws. In researching the issue of immunity for expert witnesses, I also consulted the following excellent sources (none, unfortunately, accessible online):

• Quasi-Judicial Immunity for Forensic Mental Health Professionals in Court-Appointed Roles, by Karl Kirkland, Kale E. Kirkland, Glen D. King, and Guy J. Renfro, Journal of Child Custody (2006)
• Lessons for Forensic Practice Drawn from the Law of Malpractice, by Stuart Greenberg, Daniel Shuman, Stephen Feldman, Collin Middleton, and Charles Patrick Ewing. In: Forensic Psychology: Emerging Topics and Expanding Roles (2007)
• A Comprehensive Guide to Child Custody Evaluations: Mental Health and Legal Perspectives by Joanna Bunker Rohrbaugh (2007)
• Clinician's Guide to Child Custody Evaluations, 3rd Edition, by Marc J. Ackerman (2006)

Photo: "The Dads Who Fought Back" (2006 video)