Jam-packed new issue of psychiatry-law journal

The latest issue of the Journal of the American Academy of Psychiatry and the Law is now available online, with interesting articles on competency, insanity, dangerousness, practice guidelines, diagnosis in SVP proceedings (a topic I am addressing in an upcoming training and an article in press), and much more:

• Revisiting the Politics of Dangerousness by Gregory B. Leong

• Mandated Community Treatment: Applying Leverage to Achieve Adherence by the illustrious John Monahan

• Clinical Practice Guidelines as Learned Treatises: Understanding Their Use as Evidence in the Courtroom by Patricia R. Recupero

• Commentary: When Is a Practice Guideline Only a Guideline? by Howard Zonana

• Forensic Applications of Cerebral Single Photon Emission Computed Tomography in Mild Traumatic Brain Injury by Hal S. Wortzel, Christopher M. Filley, C. Alan Anderson, Timothy Oster, and David B. Arciniegas

• Applications of Functional Neuroimaging to Civil Litigation of Mild Traumatic Brain Injury by Robert P. Granacher, Jr

• The Conditional Release of Insanity Acquittees: Three Decades of Decision-Making by Barbara E. McDermott, Charles L. Scott, David Busse, Felecia Andrade, Michelle Zozaya, and Cameron D. Quanbeck

• Biases That Affect the Decision to Conditionally Release an Insanity Acquittee by Patrick K. Fox

• Conceptualizing and Characterizing Accuracy in Assessments of Competence to Stand Trial by Douglas Mossman

• Facts and Values in Competency Assessment by Alec Buchanan

• Making Consent More Informed: Preliminary Results From a Multiple-Choice Test Among Probation-Referred Marijuana Users Entering a Randomized Clinical Trial by Daniel B. Rounsaville, Karen Hunkele, Caroline J. Easton, Charla Nich, and Kathleen M. Carroll

• Defining Mental Disorder When It Really Counts: DSM-IV-TR and SVP/SDP Statutes by Allen Frances, Shoba Sreenivasan, and Linda E. Weinberger

• Testimony by Mentally Ill Individuals by Yuval Melamed

The LEGAL DIGEST section includes the following summaries and analyses:

• Competence to Waive Miranda Rights by Aimee Kaempf and Debra A. Pinals

• Waiver of Postconviction Relief (PCR) and PCR Counsel by Kimberly A. Larson and Albert J. Gruzdinskas

• Videotaped Confessions and Miranda Rights by Paul Noroian

• Guardianship and Autonomy in Decision-Making by Deepak Dev and Debra A. Pinals

• Competence to Plead Guilty and Seek the Death Penalty by Casey Helmkamp, Hal S. Wortzel, and Richard Martinez

• Mitigating Evidence in a Death Penalty Case by Gregory Kellermeyer, Hal S. Wortzel, and Richard Martinez

• Mental Retardation and the Death Penalty: Addressing Various Questions Regarding an Atkins Claim by Jacob Widroff and Clarence Watson

• Sum of Errors and Due Process Owed to Mentally III Defendant by Elena del Busto and Clarence Watson

• Termination of Parental Rights by Sarah Rasco and Heidi Vermette

And there's even more, believe it or not – check out the full table of contents here.

Memory: The sharper, the falser

One of the most surprising things about memory is that contrary to popular belief, the more specific the detail, the less likely the memory is to be accurate. And while gaps in a memory are generally believed to indicate an unreliable memory, the reality is that gaps are virtually a hallmark of the remembering process.

"People still have this intuitive belief that if someone recounts a memory, it must be true if they display strong emotions," says Cara Laney, lecturer in forensic psychology at the University of Leicester. "But I've been studying memory so long that I don't trust very many of my childhood memories at all."

From rose-tinted views of childhood to clear recollections of events that never happened, research shows that memories are both suggestible and inherently idealised.

The rest of UK Guardian reporter Kate Hilpern's fascinating summary of memory research, "Is your mind playing tricks on you?"” in online here. The accuracy of memories is of central import in the field of forensic psychology, as well as related fields such as criminal investigation. So, if Hilpern's brief summary whets your appetite for more, I highly recommend scholar Daniel Schacter’s The Seven Sins of Memory: How the Mind Forgets and Remembers (my Amazon review is here). After reading about the seven sins, you’ll never think the same about your own memory, or anyone else's.

Willie Bosket: Tale of a wasted life

Imagine spending one day all alone in a 9-by-6-foot room.

Now, imagine spending one week in that room. How about one year? It seems almost unbearable.

But Willie Bosket hasn't been in that room for just a day or a week or a year. He has spent two entire decades there, and he is scheduled to be there for another four - until the year 2046. In fact, since the age of 9, the 45-year-old New Yorker has been locked up for all but about two years of his life. He gets three showers a week, plus one hour a day of solitary "recreation."

If that is not torture, I don't know what is.

As today's New York Times describes him, the man who at age 15 killed two people on a New York subway is "a paradox, a man of charm and extraordinary intelligence but also of inexplicable fits of rage." His story also exemplifies the human spirit at its most enduring:

Despite his bleak situation, Mr. Bosket refused to concede defeat: "I'm not broken down and never will be."
His life has always been empty, he said. "I grew up with nothing," he said. "I was born with nothing. I still have nothing. I will never have nothing. Forty-five years of living the way I have lived, I like 'nothing.' No one can take 'nothing' from you."

"I've become so callous to the poking of the sword that, literally, instead of bleeding to death, the blood was drained and I became absent of concern, void of emotions, cold - plain cold to the degree that not much affects me anymore," he said.

Yet Mr. Bosket did hint at something of a life of suffering.

"If somebody came to me with a lethal injection, I'd take it," he said. "I'd rather be dead."

The full story, "Two Decades in Solitary" by John Eligon, is here. If Bosket's name sounds familiar, it is because he is rather infamous. It was his case that led to New York's law allowing children to be tried as adults. His family is the subject of a controversial 1995 book by journalist Fox Butterfield, All God's Children: The Bosket Family and the American Tradition of Violence (available in a new paperback edition this year) that traces the family's descent from slavery in South Carolina. The Crime Library also has an online version of Bosket's life story. The prisoner portrait above was drawn by his father, Butch, when he was an inmate at the Wiltwyck School for Boys as a child; by the time his son Willie was born, Butch himself was already serving life in prison.

Hang 'em high county to reverse course

Dallas will review all pending executions

Texas executes far more people than any other U.S. state. And within Texas, Dallas County is second only to Harris County (Houston). But now, a crusading prosecutor is set to reverse course, calling for a potential halt to all proceedings until the guilt of each condemned man can be ascertained.

"I don't want someone to be executed on my watch for something they didn't do," said the maverick D.A.

As today's Dallas Morning News reports,

Troubled that innocent people have been imprisoned by faulty prosecutions, District Attorney Craig Watkins said Monday that he would re-examine nearly 40 death penalty convictions and would seek to halt executions, if necessary, to give the reviews time to proceed.

Mr. Watkins told The Dallas Morning News that problems exposed by 19 DNA-based exonerations in Dallas County have convinced him he should ensure that no death row inmate is actually innocent.

"It's not saying I'm putting a moratorium on the death penalty," said Mr. Watkins, whose reviews would be of all of the cases now on death row handled by his predecessors. "It's saying that maybe we should withdraw those dates and look at those cases from a new perspective to make sure that those individuals that are on death row need to be there and they need to be executed."

He cited the exonerations and stories by The News about problems with those prosecutions as the basis for his decision. The exonerations have routinely revealed faulty eyewitness testimony and, in a few cases, prosecutorial misconduct.

Fred Moss, a law professor at Southern Methodist University, said he had never heard of another prosecutor in the country who had conducted the type of review Mr. Watkins proposed.

"It's really quite extraordinary," Mr. Moss said.

Under Watkins' proposal, all pending death cases will be reviewed by his office's Conviction Integrity Unit, which was created last year.

It remains to be seen whether this remarkable about-face will rub off on Harris County, which as of the latest count had surpassed the next-highest state (Virginia) in number of people executed.

The full story is here. Related coverage in the Dallas Morning News is here.

Prosecuting Internet-based sex crimes

Can expert witnesses play a role?

The following facts come from a court case much like several that I have been involved in:

Dennis Joseph is a 40-year-old married man with a 6-year-old daughter. He spends a lot of time on the Internet. Indeed, one might say he is addicted. Once upon a time, he entered the online chat room "I Love Older Men," and began chatting with "Teen2Hot4U."

"Teen2Hot4U" identified herself as "Lorie," a 13-year-old girl. Lori eventually introduced him to her friend Julie, also 13. Eventually, after lots of back-and-forth chatting, Joseph and Julie arranged to meet.

Joseph later said he was not planning to have sex with an underage girl, he just wanted to see if Julie was a real teen or an adult woman engaged in role-playing.

He got his answer when he showed up at the Franklin Street Station Cafe in Manhattan for the meeting. Instead of a teenage girl, the real Julie was a grown man by the name of Austin Berglas who happened to be an FBI agent and who promptly arrested him. "Teen2Hot4U,"meanwhile, turned out to be a 55-year-old crusader named Stephanie Good who made her reputation surfing the Internet looking for sexual predators to report to Berglas; she even wrote a book on her exploits, grandiosely titled "Exposed: The Harrowing Story of a Mother's Undercover Work with the FBI to Save Children from Internet Sex Predators."

At his federal district court trial in New York, Joseph said he had thought all along that Lorie and Julie were probably adults, based on their sexual knowledge, but he played along as part of his practice of online fantasy role-playing.

His wife backed him up. She testified that Joseph liked muscular woman and was addicted to sexual fantasy role-playing. He even belonged to an Internet group called "Muscleteens," she testified, that solicits pictures of young female bodybuilders.

In his defense, Joseph had also planned to call an expert witness, Dr. James Herriot. Not the James Herriot of veterinary fame, but a professor at the Institute of Advanced Human Sexuality in San Francisco who has researched sexual communication on the Internet. Dr. Herriot would have testified about the fantasy role-playing that takes place in Internet chat rooms.

The trial judge barred Herriot's expert testimony. Joseph was convicted and sentenced to eight years in federal prison. This week, the Second Circuit Court of Appeals overturned the conviction. Although the reversal was on unrelated grounds, the appellate opinion includes a lengthy plea for the judge to reconsider that exclusionary ruling.

"Although the admission or exclusion of expert testimony is [at] the discretion of the court, we urge the District Court to give a more thorough consideration to the defendant's claim to present Dr. Herriot's testimony…. Dr. Herriot's field of study and experience qualified him to offer relevant testimony…. Dr. Herriot's opinions appear to be highly likely to assist the jury to 'understand the evidence.' … Although some jurors may have familiarity with Internet messaging, it is unlikely that the average juror is familiar with the role-playing activity that Dr. Herriot was prepared to explain in the specific context of sexually oriented conversation in cyberspace…. Obviously a jury would not have to accept Joseph's claim that he planned only to meet 'Julie' to learn who she was and that he lacked any intention to engage in sexual conduct with her, but the frequent occurrence of such 'de-masking' of chat-room participants might provide support for the defense."

In a case similar to Joseph's, Dr. Herriot was allowed to testify and the defendant was acquitted, the appellate ruling noted. (That case is U.S. v. Wragg, 01 Cr. 6107.)

The ruling, United States v. Joseph, 2008 WL 4137900 (2nd Cir. 2008), is online here.

Hat tip: Colin Miller (EvidenceProf Blog). Photo credit: Kim Dench ("Temple Dancer"), Creative Commons License.

Convention crackdown redux

Domestic espionage and arrests get little attention

I try to steer away from electoral politics on this blog, despite the abundance of tantalizing fodder. But the federal law enforcement crackdown on convention protestors - which has gotten little mainstream media attention - is worth noting, harkening back as it does to the bygone era of Cointelpro and the Chicago 7.

Marjorie Cohn, a prominent law professor at the Thomas Jefferson School of Law and the author of a new book called Cowboy Republic, has written an eye-opening piece on the "preemptive tactics" to contain protests surrounding the Republican Convention in Minnesota. Salon.com is also giving the issue some press.

Cohn's report, online here, documents FBI-led infiltration of leftists including - in a modern-day twist on the infamous old Cointelpro snooping - a group of vegans, as well as preemptive searches, seizures and arrests by teams of 25-30 officers in full riot gear with weapons drawn.

The raids targeted members of "Food Not Bombs," an anti-war protest group that provides free vegetarian meals every week in hundreds of cities all over the world. The group fed rescue workers at the World Trade Center after 9/11 and Gulf Coast evacuees after Hurricane Katrina. Also targeted was I-Witness Video, a civil libertarian police watchdog group.

City council members in St. Paul, Minnesota have expressed outrage over law enforcement actions "that appear excessive and create an atmosphere of fear and intimidation for those who wish to exercise their first amendment rights," according to Cohn's article.

Analyzing the legal basis for the crackdown, Cohn states:

Preventive detention violates the Fourth Amendment, which requires that warrants be supported by probable cause. Protestors were charged with "conspiracy to commit riot," a rarely-used statute that is so vague, it is probably unconstitutional. [Bruce Nestor, president of the Minnesota chapter of the National Lawyers Guild] said it "basically criminalizes political advocacy."

Glenn Greenwald over at Salon.com says the most extraordinary thing about the heavy-handed crackdown is how little media attention or outcry it has provoked:

So here we have a massive assault led by Federal Government law enforcement agencies on left-wing dissidents and protesters who have committed no acts of violence or illegality whatsoever, preceded by months-long espionage efforts to track what they do. And as extraordinary as that conduct is, more extraordinary is the fact that they have received virtually no attention from the national media and little outcry from anyone. And it's not difficult to see why. As the recent "overhaul" of the 30-year-old FISA law illustrated -- preceded by the endless expansion of surveillance state powers, justified first by the War on Drugs and then the War on Terror -- we've essentially decided that we want our Government to spy on us without limits. There is literally no police power that the state can exercise that will cause much protest from the political and media class and, therefore, from the citizenry.

Perhaps the lack of attention was because everyone was too busy parodying surprise vice presidential candidate Sarah Palin? (See that more entertaining story over at Newsweek.)

The Salon article, online here, has links to other coverage. Cohn's column, "Preemptive strike against protest at RNC," is online here. The sketch above (in case you are too young to remember it!) is of Bobby Seale, the Black Panther who was shackled and gagged during the "Chicago Seven Conspiracy Trial" stemming from the antiwar protests outside the Democratic National Convention exactly 40 years ago.

Hat tip: Jane

Trapped in a treatment mall

The article by that title in this month's California Lawyer reminds me of the Eagles lyrics:

You can check out anytime you want,
But you can never leave.

"Pause for a moment in the sun-dappled area they call The Mall at Coalinga State Hospital, and it looks for all the world like Anytown, U.S.A. Against the south wall is the barber shop ("Back at 3:30" announces a sign in the window), and close by is the post office and the Union Square Cafe. Other destinations are known by names that make the facility sound more like a California theme park than a hospital: the Calistoga Dental Office, the Moss Landing Lending Library, the Candlestick Park Visitor's Center. Everything is Disneyland spotless, down to the buffed tile floors.

"But things aren't all they appear to be at Coalinga State Hospital--not by a long shot. The compound's theme-park veneer masks a much harsher reality: Coalinga is a long-term treatment facility for rapists and pedophiles. And most of the 762 patients currently in residence may never leave--except in a box."

The article continues here. The online version has lots of statistical trivia on California's Coalinga State Hospital, a frequent topic of this blog:

• A plague in Coalinga
• Titanic State Hospital
• Problems continue at newest California commitment center

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)

NPR series on confidential informants

Confidential informants are the lifeblood of law enforcement's effort to fight crime. But the best informants are generally very bad people - ruthless criminals - and while their information helps the FBI crack cases, the practice of using these informants is fraught with risk.

So begins an interesting 3-part NPR series by Dina Temple-Raston on the pitfalls of law enforcement reliance on informants.

Part One, "Bulger Case Changed FBI's Role With Informants," features the infamous case of Whitey Bulger, the Irish godfather who corrupted two FBI agents back in the 1970s.

Part Two is entitled, "Some FBI Agents Pay High Price For Using Snitches."

And in Part Three, "Legislator Aims To Regulate FBI Behavior," we hear about the controversial proposal by Rep. William Delahunt (D-MA) to subject FBI agents to criminal prosecution if they don't alert local law enforcement when one of their informants commits a crime.

Illustration: Popular Science August 1958; credit to Radio River (Creative Commons license).

Underground ruling on underground rules

SVP practice alert

This post is mainly to alert those of you practicing in the SVP area. The decision is from California, but may have relevance in other jurisdictions.

First, the background:

We all know about statutes and case law. But what about all those little government agency regulations that guide the enforcement of the laws? How are they issued and enforced?

Well, it turns out that in California, there is an Administrative Procedure Act (APA) that very specifically defines these rules and regulations and how they are to be issued and enforced. Rules include any "regulation, order, or standard of general application" that a state agency adopts in order to "implement, interpret, or make specific the law enforced or administered by it." And before issuing or enforcing any such rule, a state agency must file it with the Secretary of State and have it formally adopted as a regulation.

Who regulates the regulator? In California, that's the job of the little-known Office of Administrative Law (OAL).

OK, so now you understand the process. And here's why I am writing about it:

State's SVP protocol in violation

This month, the Office of Administrative Law handed down a decision against California's Department of Mental Health (DMH), saying its internal manual for SVP evaluators is an illegal "underground regulation." That's the OAL's term for a rule that is issued or enforced without the required approval of the Secretary of State.

The OAL held that the 68-page "Clinical Evaluator Handbook and Standardized Assessment Protocol" violates the law because it requires psychologists and psychiatrists on the state's panel of experts "to evaluate persons in accordance with the [manual’s] protocol."

The 2007 manual "mandate[s] how the evaluation is conducted and how the results of the evaluation are presented," despite the fact that the DMH "does not have the authority to dictate or control the standards or clinical profession of psychology or psychology," the OAL ruled.

The DMH had argued that the protocol was not a regulation, but just a general guide to assist clinical evaluators in making "case-specific determination[s] using their education, experience, and expertise ... in the exercise of their independent professional clinical judgment." The OAL found this argument unconvincing, quoting the manual as saying it "specifies the questions that must be answered and formats to be used." The handbook specifies how to conduct the clinical interview, collect historical information, and perform an assessment of a person's risk for sex offense recidivism.

The case was brought by Michael St. Martin, a leading activist among the sex offenders being civilly detained at Coalinga State Hospital.

What does the ruling mean in practice?

Once the OAL identifies a governmental rule as an "underground regulation," the agency is prohibited from enforcing it.

There is no muscle behind the proclamation, however, in that the OAL does not impose sanctions.

The OAL does mention that attorneys may bring up the regulation's status as an issue in any subsequent litigation. That means defense attorneys will have a heyday with state SVP panelists, some of whom are earning a cool half-million dollars per year cranking out these evaluations. Prepare for cross-examination questions on whether the evaluation methodology has any scientific basis and whether it has been peer reviewed.

The full decision is here. Photo credit: Eole (Creative Commons license).

Psychologist may not testify, judge rules

A Vermont judge has ruled against allowing a psychologist to testify in a child pornography case aginst a prominent local man.

The defense had sought to call Thomas Powell to testify about two issues:

• Whether pamphlets found in the home of Stewart Read were pornographic, and

• Whether the boys pictured in the pamphlets were under the age of 16.

District Judge Karen Carroll said Powell did not have the expertise to testify about either topic. First, he is not a medical doctor so he cannot be an expert on the anatomy of boys, she ruled. Second, it is up to the jury to determine what constitutes pornography, following community standards.

"Why should the jury care what Tom Powell thinks is lewd?" Judge Carroll asked. She said the defense attorney was trying to have Powell "come in and give his opinion" rather than just state facts helpful to the jury.

Although laws vary somewhat by jurisdiction, in general professionals are only allowed to testify as "experts" if they possess specialized knowledge that is beyond the realm of laypeople and will assist the trier of fact (such as a jury or judge) to understand the evidence and/or decide an issue.

On the face of it, the judge’s opinion certainly appears sound.

The full article, in today’s Rutland Herald, is online here.

Study: Easier to implant negative false memories in children

This new study has potential relevance to forensic psychology, and specifically the automatic faith that some accord to statements made by children in criminal and child custody cases:

Children develop false memories for a negative event more readily than they do for a neutral one. Henry Otgaar and colleagues, who made the new finding, said their work has real-world implications for anyone working with child witnesses: "The argument that is sometimes heard in court - i.e. this memory report must be true because it describes such a horrible event - is, as our data show, on shaky grounds."

Seventy-six children aged between seven and nine years were asked to recall details about a true event that had happened to them the previous year (e.g. that their class had to perform a musical), and either a neutral fictitious event (moving classrooms) or a negative fictitious event (being wrongly accused of copying a classmate's work).

The children were asked about the events, true and fictitious, during two interviews held a week apart. If at first the children were unable to recall any further details, they were asked to concentrate and try again. They were also asked to reflect on the events during the week between interviews, to see if they could flesh out any further details.

Altogether, 74 percent of the children developed false memories for the fictitious event - that is, they said they remembered the event and added extra details about what happened. Crucially, those asked to recall the time they were accused of copying a classmate were significantly more likely to develop a false memory than were those asked to recall the time they had to switch classrooms.

The researchers speculated that children might be more prone to developing false memories of negative rather than neutral events because the two kinds of information are stored differently in the brain. "Negative information is more interrelated than neutral material," they explained. "As a result, the presentation of negative information - either true or false - might increase the possibility that other negative materials become activated in memory. This, in turn, could affect the development of a false memory for a negative event."

- From the British Psychological Society's Research Digest

The study, "Children's false memories: Easier to elicit for a negative than for a neutral event," appears in Acta Psychologica, the International Journal of Psychonomics, 128(2), 350-354. The authors are Henry Otgaar, Ingrid Candel, and Harald Merckelbach of Maastricht University, The Netherlands.

Calif. ruling: Release rehabilitated prisoners

California has a long reputation of denying parole to all "lifers," no matter how old, sick, or demonstrably rehabilitated. Republican Gov. Schwarzenegger has been slightly more lenient than his Democrat predecessor, releasing 192 lifers as compared with Gov. Davis' 9 - but that's still only about one percent of the 16,000 who were eligible.

This week, however, for the first time in recent history, the state's high court ruled in favor of a prisoner in a parole case, upholding the July 2007 release of a woman who had fatally shot and stabbed her lover's wife with a potato peeler. The state's parole board had approved the release of Sandra Davis Lawrence four times since 1993, but three governors, including Gov. Arnold Schwarzenegger, overturned the board's decisions. Lawrence spent almost 24 years in prison.


In its 4-3 ruling, the court cited "overwhelming" evidence of Lawrence's rehabilitation while in prison and her suitability for parole, and said parole decisions must be based on evidence of present danger to the public and not merely the brutality of a crime.

The standard, ruled the Court, is as follows:

The Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the [Parole] Board or the Governor.

UC Irvine Law Professor Carrie L. Hempel, who represented Lawrence as part of a legal clinic at USC, said the court's decision "sends a clear message to prisoners that . . . if they work really hard to rehabilitate themselves they are going to get some justice."

The Los Angeles Times has in-depth coverage. The full ruling is HERE. Photo credit: L.A. Times.

- Hat tip: Sentencing Law & Policy

Call for Papers: Correctional Mental Health Care and the Law

Behavioral Sciences & the Law announces a forthcoming special issue on Correctional Mental Health Care and the Law, to be edited by Alan R. Felthous, MD. Manuscripts (and especially research reports) on topics related to mental health services in jails and prisons are especially welcome:

Ethical issues in correctional mental health care, including:

• Assessment techniques
• Psychopathological issues relevant to correctional settings
• Therapeutic and rehabilitative approaches for chronic offenders
• Assessment and management of malingering or misuse of services

Legal issues in mental health services, including:

• Patterns and trends of legal actions
• Service changes due to class action lawsuits

Manuscripts should be 20 to 30 doubled-spaced typewritten pages and should comply with the editorial and referencing style of the most recent edition of the Publication Manual of the American Psychological Association or the Harvard Law Review Associations The Bluebook: A Uniform System of Citation (but not both). Manuscripts should be submitted by April 1, 2009.

Opposing expert no safeguard against junk science

That's the conclusion of an interesting study in the current (August) issue of Law & Human Behavior. The researchers, criminology professor Lora Levett from the University of Florida and Margaret Bull Kovera, a prominent social psychologist and expert on eyewitness identification, found the following:

We tested whether an opposing expert is an effective method of educating jurors about scientific validity by manipulating the methodological quality of defense expert testimony and the type of opposing prosecution expert testimony (none, standard, addresses the other expert’s methodology) within the context of a written trial transcript. The presence of opposing expert testimony caused jurors to be skeptical of all expert testimony rather than sensitizing them to flaws in the other expert’s testimony. Jurors rendered more guilty verdicts when they heard opposing expert testimony than when opposing expert testimony was absent, regardless of whether the opposing testimony addressed the methodology of the original expert or the validity of the original expert’s testimony. Thus, contrary to the assumptions in the Supreme Court’s decision in Daubert, opposing expert testimony may not be an effective safeguard against junk science in the courtroom.

More guilty verdicts, hmm? That hasn't been my experience in the cases I've been involved in, but it's an interesting finding nonetheless.

The article is restricted to subscribers and purchasers, but you can get the abstract and a “free preview” (the first page) here.

Juvenile transfer increases recidivism

Department of Justice confirms multiple study findings

OK, if you are reading my blog you probably already know this. But it is news when the U.S. Department of Justice reaches a similar conclusion. And, combined with an editorial response by the New York Times, it could signal a changing of the tide.

An article in the Juvenile Justice Bulletin, "Juvenile transfer laws: An effective deterrent to delinquency?" summarizes a series of large-scale studies comparing juveniles who have been transferred to adult with those who have remained in juvenile courts. Despite using different methodologies and being in different jurisdictions with different types of transfer laws (automatic, prosecutorial, or judicial), the results are "strong" and "compelling" in their consistency, reports Richard E. Redding:

"All of the studies found higher recidivism rates among offenders who had been transferred to criminal court, compared with those who were retained in the juvenile system…. Thus, the extant research provides sound evidence that transferring juvenile offenders to the criminal court does not engender community protection by reducing recidivism. On the contrary, transfer substantially increases recidivism."

The New York Times issued a short but sweet editorial response, "The Case for Juvenile Courts," lambasting current juvenile transfer policies as "a terrible mistake":

This country made a terrible mistake when it began routinely trying youthful offenders as adults. This get-tough approach was supposed to deter crime. But a growing number of government-financed studies have shown that minors prosecuted as adults commit more crimes - and are more likely to become career criminals - than ones processed through juvenile courts.

The value of specialized courts for young people is underscored in a new report from the Justice Department’s Office of Juvenile Justice and Delinquency Prevention. After evaluating the available research, it concludes that transferring juveniles for trial and sentencing to an adult criminal court has increased recidivism, especially among violent offenders, and has led many young people to a permanent life of crime.

The juvenile justice system was one of the great reforms of the Progressive Era. The push to go back to trying children as adults began in the mid-1990s, when state lawmakers fixated on a few, high-profile crimes by young people and - convinced there was a youth crime wave - came up with a politically convenient solution.

Young people who commit serious, violent crimes deserve severe punishment. But reflexively transferring juvenile offenders - many of whom are accused of nonviolent crimes - into the adult system is not making anyone safer. When they are locked up with adults, young people learn criminal behaviors. They are also deprived of the counseling and family support that they would likely get in the juvenile system, which is more focused on rehabilitation. And once they are released, their felony convictions make it hard for them to find a job and rebuild their lives.

Nearly every state now has laws that encourage prosecutors to try minors as adults. The recent studies of this approach should lead legislatures to abandon these counterproductive policies.

Hat tip: Grits for Breakfast

News headlines from around the U.S.

The major news outlets are running all kinds of stories relevant to forensic psychology. Here is a sampling.

CSI counterpoint

The fallability of forensic sciences is gaining attention lately. Roger Koppl, director of the Institute for Forensic Science Administration, and Dan Krane, a biological sciences prof at Wright State, co-authored this informative op-ed piece in the Newark (NJ) Star-Ledger:

Defendants should have right to forensic expertise

When patients kill

It is always bad news when someone is certified ready for release from a psychiatric hospital and then commits a violent offense. Take William Bruce: Two months after the 24-year-old schizophrenic was released from a hospital in Maine, he hatcheted his mother to death. Here, the Wall Street Journal finds fault with patients rights' advocates who lobbied for Bruce's release:

A Death in the Family: Aided by advocates for the mentally ill, William Bruce left the hospital -- only to kill his mother

Christian Science Monitor slams sex offender laws

As public awareness mounts regarding restrictive residency laws targeting sex offenders, the Christian Science Monitor joins the fray with this hard-hitting editorial by C. Alexander Evans:

Protecting our kids – or jeopardizing everyone's freedom? Residency laws for child sex offenders flout the Constitution

MoJo's "Slammed: The coming prison meltdown"

And if you've got time for still more reading, a highly recommend the Mother Jones special on incarceration, "SLAMMED." It features at least nine interesting articles, among them:

Hard Time Out: The prison boom comes to the schools

Probation Profiteers: In Georgia's outsourced justice system, a traffic ticket can land you deep in the hole

Why Texas Still Holds 'Em: Forget oil and gold. In the Lone Star state, the boomtown business is locking up immigrants

When Prison Guards Go Soft: Even California's powerful prison guards' union thinks more prisons are a bad idea

Not to mention, a "MoJo Prison Guide" with a glossary of prison slang and answers to such obscure prison trivia as:

• What Do Prisoners Make for Victoria's Secret?
• Which Works Better Behind Bars, Scuba or Buddha?
  

Hat tip: Jane

Guantanamo psychologist takes the Fifth

Court case may fuel debate at annual APA Convention

I've been trying to keep this blog out of the torture debate raging within the American Psychological Association, but I wanted to alert readers to this interesting news angle reported in today's New York Sun.

In a courtroom at the U.S. naval base in Guantanamo Bay yesterday, a psychologist asserted the Fifth Amendment privilege against self-incrimination when called testify about the treatment of a detainee. Her action implies that she could face criminal sanctions or licensure action for her role in the interrogation of detainee Mohammad Jawad.

According to court papers, the psychologist became involved when Jawad's interrogator became concerned over his deteriorating mental state. The detainee had begun speaking to posters on the wall.

The psychologist (whose name is being kept secret by court order) reportedly told the interrogator that Jawad was faking. She recommended that he be placed in isolation in order to weaken his resolve. Nine weeks later, Jawad attempted suicide.

Jawad's military lawyer, Major David Frakt, said the psychologist's refusal to testify is tantamount to admitting "that her conduct was criminal."

The case is likely to figure into the firestorm at this week's annual convention of the American Psychological Association in Boston. The APA is set to vote on whether to ban members from participating in these types of interrogations. A number of psychologists have resigned or are withholding dues in protest of the organization's refusal to take a stronger stand against torture, and more than 1,200 members have signed a protest petition.

The New York Sun article is here. Hat tip to Ken Pope, who has a page of online resources on the controversy. More information is available at the web site of Psychologists for an Ethical APA.

UK forensic psych honored

Pioneer in study of police interrogation tactics

A British forensic psychologist who pioneered in the study of police interrogation tactics and helped to reform such practices in the UK and elsewhere has been honored with an international award.

The European Association of Psychology and Law honored Professor Ray Bull of the University of Leicester with a Lifetime contribution to Psychology and Law award.

In 1991, Dr. Bull was commissioned by the British Home Office to co-author the first draft of the Memorandum of Good Practice on Video Recorded Interviews with Child Witnesses for Criminal Proceedings. He went on to write the government's 2002 Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, Including Children. He has advised police forces in several countries on the interviewing of witnesses and suspects, and he has testified as an expert witness on this topic at a number of trials.

More information is online here.

Yet another DNA child rape exoneration

Excellent journalistic expose

Shortly after sunrise (yesterday), the inmates in the stark prison yard cheered wildly and pumped their fists for Robert McClendon as he took his final steps toward freedom. The Columbus (Ohio) man grinned as he walked past the concrete-block walls and curls of barbed wire, no longer condemned for a child rape that DNA shows he didn't commit.

That is the lead to a story in yesterday's Columbus Dispatch. The case is featured as part of a yearlong investigation by reporters at the Dispatch, who found "deep flaws" in Ohio's system for uncovering wrongful convictions:

"Police and courts regularly destroy evidence. Prosecutors, benefiting from a flawed law, routinely oppose DNA testing. Judges dismiss inmate requests without a reason, as required by law."

The full "Test of Convictions" series - including interactive videos and graphics - is here; the McClendon case is presented here.

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.

"Hot tubbing": Counterbalance for expert partisanship?

Tomorrow's New York Times features a thought-provoking analysis by Adam Liptak of the problem of partisanship in the U.S. system of expert witnesses. Might the solution be "hot tubbing" - a new practice out of Australia?

"In U.S., Partisan Expert Witnesses Frustrate Many"
By Adam Liptak
New York Times, Aug. 12, 2008

Judge Denver D. Dillard was trying to decide whether a slow-witted Iowa man accused of acting as a drug mule was competent to stand trial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were “polar opposites.”

One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded and did not understand what was happening to him. Mr. Wilkins’s verbal I.Q. was 58, the defense expert said.

The prosecution expert, who had testified for the state more than 200 times, said that Mr. Wilkins’s verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was perfectly competent to stand trial.

Judge Dillard, of the Johnson County District Court in Iowa City, did what American judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony. “The two sides have canceled each other out,” Judge Dillard wrote in 2005, refusing to accept either expert’s conclusion and complaining that “no funding mechanism exists for the court to appoint an expert.”

In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid....

Some major common-law countries are turning away from partisan experts. England and Australia have both adopted aggressive measures in recent years to address biased expert testimony....

Hot tubbing in Australia

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues....

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.” ...

England has also recently instituted what Adrian Zuckerman, the author of a 2006 treatise there, called “radical measures” to address “the culture of confrontation that permeated the use of experts in litigation.” The measures included placing experts under the complete control of the court, requiring a single expert in many cases and encouraging cooperation among experts when the parties retain more than one. Experts are required to sign a statement saying their duty is to the court and not to the party paying their bills.

There are no signs of similar changes in the United States. “The American tendency is strictly the party-appointed expert,” said James Maxeiner, a professor of comparative law at the University of Baltimore. “There is this proprietary interest lawyers here have over lawsuits.”

American lawyers often interview many potential expert witnesses in search of ones who will bolster their case and then work closely with them in framing their testimony to be accessible and helpful. At a minimum, the process results in carefully tailored testimony. Some critics say it can also produce bias and ethical compromises....

The United States Supreme Court has expressed concerns about expert testimony, but it has addressed bias only indirectly, by requiring lower courts to tighten standards of admissibility and to reject what some call “junk science.”

The full article is here.

LA Times exposes SVP boondoggle

Back in January, I reported (here) on California's costly and ineffective program for screening Sexually Violent Predators. On Sunday, the L.A. Times reported on how the program is enriching a handful of state psychologists to the tune of more than $1 million in some cases (in addition to their day jobs). The state's 79 evaluators earned a cumulative $24 million in 2007, a figure that is expected to rise in coming years even as funds for more essential public services disappear. It's a story that both the San Francisco Chronicle and the Contra Costa Times have also covered some time ago:

State pays millions for contract psychologists to keep up with Jessica's Law

A 2006 law intended to crack down on sex offenders has proved a bonanza for a small group of private psychologists and psychiatrists, 14 of whom billed California taxpayers last year for a half a million dollars or more each, a Times investigation found.

Among the 79 contractors hired by the state to evaluate sex offenders, the top earner was Robert Owen, a Central Coast psychologist who pulled in more than $1.5 million in 2007, according to state records reviewed by The Times.

That's equivalent to working 100 hours per week for 52 weeks at nearly $300 per hour -- top-scale in the private sector.

The No. 2 earner, psychologist Dawn Starr, billed the state $1.1 million in 2007, including $17,500 for a single day in April.

"It's been a boatload of money, to put it colloquially," psychologist Shoba Sreenivasan said during court testimony in November. Working only part time, she billed the state nearly $900,000 last year and at least $290,000 this year…

Dr. Michael First, editor of the American Psychiatric Assn. Diagnostic and Statistical Manual, the standard reference for mental disorders, said most reports require at least 30 hours.

Yet on a single day, Nov. 13, 2007, No. 2-earner Starr billed for five evaluations.On April 23, 2007, she billed more than 17 hours for a range of court-related work and still found time to complete an evaluation, according to her invoices, which were reviewed by The Times.

Dr. Mohan Nair, a psychiatrist with offices in Beverly Hills and Los Alamitos, earned nearly $1 million last year under the state program. He also saw private patients, provided forensic testimony and evaluation for other government agencies, directed a diagnostic lab and supervised residents at two medical centers.

Nair completed up to 20 sex-offender evaluations a month in 2007. Including time billed for legal matters, they comprised just 20% to 30% of his professional practice, he said.

Even at 100 hours per week, he would have had no more than six hours to complete each of five evaluations….

The State Personnel Board recently took up the issue, ruling that the use of contractors violated state law by failing to make an adequate effort to fill evaluator jobs with regular employees. The board ordered mental health officials to replace the contractors with civil servants. Despite an increase in pay to up to $110,000 annually, Mayberg said, just four jobs out of 80 have been filled.

Since then, the department and the union helped to craft a bill to permit the use of contract evaluators until January 2011.

The full story is here.

Hat tip: Daniel Murrie

N.Y. Law School offering online courses

Forensic topics - sex offenders, therapeutic jurisprudence

Professor Michael Perlin, a preeminent scholar in the field of psychology-law and author of an excellent new book on competency, is announcing an exciting array of online, distance learning courses this fall through the New York Law School.

"Courses combine streaming videos, readings, weekly synchronous chat rooms (meaning, class meets at 8:45 on Monday night, say, but you can be home in your pajamas or at a coffee shop, not in Room A 602), asynchronous message boards and two full day live face-to-face seminars (in which skills issues are always emphasized)," says Perlin.

The four courses being offered this fall are:

• Survey of Mental Disability Law (Monday, 8:45-10 pm)
• Sex Offenders (Tuesday, 8:45-10 pm)
• Therapeutic Jurisprudence (Wednesday, 8:45-10 pm)
• Americans with Disabilities Act: Law, Policy and Procedure (Thursday, 8:45-10 pm)

The courses are open to law students, attorneys (CLE is available), mental health professionals, graduate students in psychology and criminal justice, criminal justice professionals, human rights workers, medical students, forensic fellows, advocates, and activists.

More information on the online program in mental disability law, including registration information, is here. You can also directly email Liane Bass, Esq., senior administrator of the program.

Australia: "Circle sentencing" ineffective

Speaking of restorative justice . . .

A restorative justice approach that involves the Aboriginal community in sentencing of Aboriginal offenders has no effect on recidivism risk, according to a new study.

"There was enormous hope that if Aboriginal offenders were brought before members of their own community, they would sit up and take more notice than if they were brought before a white magistrate or a white judge," said Don Weatherburn of Australia's Bureau of Crime Research and Statistics.

More important to reducing crime, he said, are treatment programs for the endemic drug and alcohol problems facing the Aboriginal community.

Of course, as pointed out by Douglas Berman at Sentencing Law & Policy, "the value of community involvement in the sentencing process may have benefits that cannot be measure just through recidivism rates."

The study, "Does circle sentencing reduce Aboriginal offending?" by Jacqueline Fitzgerald, is online in the New South Wales Bureau of Crime Statistics and Reseach publication Crime and Justice Bulletin. The Australian Broadcasting Corporation also has coverage.