CA court: SVP defendant must be competent

Appellate court bucks national trend

In another important SVP decision, a California appellate court has ruled that it is Unconstitutional to civilly commit a sex offender who is incompetent to stand trial.

The courageous decision in the case of Ardell Moore tackles head-on the fiction that merely labeling something as "civil" takes away the due process protections that automatically confer to criminal defendants:

"Irrespective of the fact a commitment under the SVPA [Sexually Violent Predator Act] is labeled civil rather than criminal, the defendant’s liberty is severely curtailed," the Court pointed out.

Ardell Moore is diagnosed with paranoid schizophrenia. Mental health evaluators have described him as floridly psychotic and delusional.

In its well-articulated decision, the court detailed much the same rationale as has long been recognized for criminal defendants. When a defendant is put on trial while incompetent, he becomes "a mere spectator," not able to correct erroneous information, assist his attorney, or testify effectively on his own behalf. All of this substantially increases the probability of a sham proceeding and a resultant miscarriage of justice.

"An incompetent defendant will have no opportunity to discuss his prior behavior and motivating reasons for such behavior with the state's evaluator or with a defense expert, or be able to explain to a jury why the state expert’s rationale for the diagnosis and volitional impairment is not justified. A defendant who is incompetent is at a great disadvantage, as he cannot meaningfully testify in his own behalf, cannot cooperate with his own counsel, nor assist his defense experts in understanding the basis for his behavior or provide evidence to rebut an evaluator’s potentially erroneous conclusion."

The appearance of a kangaroo court has not bothered courts in four other states -- Massachusetts, Iowa, Missouri and Texas -- which have all approved trials of incompetent SVP defendants based on the legal fiction that the proceedings are "civil."

Those cases are:

• Massachusetts: Commonwealth. v. Nieves (2006) 846 N.E.2d 379
• Iowa: In re Detention of Cubbage (2003) 671 N.W.2d 442
• Missouri: State ex rel. Nixon v. Kinder (2003) 129 S.W.3d 5
• Texas: In re Commitment of Fisher (2005) 164 S.W.3d 637

The unanimous opinion by the Court of Appeal in the Second Appellate District (Los Angeles) was a case of first impression, meaning the issue had not previously been addressed by a California appellate court.

Leaning heavily on last year's opinion in People v. Allen, in which the California Supreme Court held that defendants in SVP proceedings have a Constitutional right to testify over the objection of their attorneys, the court reiterated that "in every case" an SVPA defendant has the constitutional right to testify and to present his side of the story, and "mental competence is a prerequisite to the exercise of that due process right. Absent mental competence, a defendant cannot testify or participate meaningfully in the SVPA proceeding."

Moore was convicted in 1987 of kidnapping, forcible rape and forcible rape in concert and was sentenced to 25 years in state prison. As his parole date neared, he was flagged by state evaluators as a possible Sexually Violent Predator.

Two state evaluators, licensed psychologists Beryl Davis and Gary Zinik, testified against him at his trial. Both testified that he suffered from paranoid schizophrenia and was off his medications and too incoherent to talk with them when they tried to evaluate him. Despite his inability to rationally engage with them, they opined that he would likely reoffend sexually if released.

Testified Davis, "When we talk about volition and somebody's ability to control their behavior, when you're florid psychotic, you lose that volitional control, and somebody with a sexually [sic] preoccupation and inability to control themselves sexually would be a significant high risk."

Not surprisingly, after waiving his right to a jury trial Moore lost his trial and was civilly committed. The trial judge ruled that his incompetency did not matter, because the proceeding was civil and not criminal. Quoting from the Massachusetts case of Nieves, the court held:

"We see no reason why the public interest in committing sexually dangerous persons to the care of the treatment center must be thwarted by the fact that one who is sexually dangerous also happens to be incompetent."

Since 2000, Moore has been housed off and on at Atascadero State Hospital, where he has remained floridly psychotic, according to subsequent evaluators.

In early 2007, psychologist Vianne Castellano, Ph.D. evaluated Moore and opined that he was incompetent to stand trial: "He is neither able to understand the nature and the purpose of these proceedings nor is he able to cooperate in a rational manner with his counsel or the psychological evaluators."

The appellate ruling means his case will be remanded to the trial court for a new determination of whether he is competent to stand trial. If he is found incompetent, he will be entitled to competency restoration treatment at a state hospital.

As the appellate justices pointed out in their unanimous opinion, there is no real down side. In the event that an SVP defendant is found incompetent to stand trial, neither public safety nor state finances are affected. The defendant remains in custody in a state hospital, as he would have been had he been civilly committed, and "the fiscal burden to the state remains essentially the same."

The ruling is HERE. A previous appellate opinion in the case is HERE.

Voodoo science update

Remember my post back in March on the critique of "voodoo" brain science? That article has generated a tremendous amount of buzz, both academically and in the popular press. For those of you who want more info, a neuroscientist blogging at Neuroskeptic (motto: "More brains than a zombie's stomach") has an excellent analysis of the article and the resultant controversies, replete with lots of links. The most extensive discussion and collection of links I have found is over at the Amazing World of Psychiatry blog. Happy reading!

Hebephilia struck by third blow

Down but not out?

It may be too soon to call it the death knell, but this week's ruling by a federal judge in Massachusetts certainly dealt a reeling blow to the highly contested pseudo-diagnosis of hebephilia and its ever-more-marginalized adherents.

In the third of three back-to-back decisions in federal court, U.S. District Judge Joseph Tauro said hebephilia just doesn't pass muster as a basis for civilly committing someone as a "sexually dangerous offender."

Hebephilia -- sexual attraction to adolescents -- certainly exists in nature, but the Government failed to meet is burden of establishing by clear and convincing evidence that it amounted to "a serious mental illness, abnormality, or disorder" as required for civil commitment, wrote the judge. Simply put, "hebephilia is not generally recognized as a serious mental illness by the psychological and psychiatric communities."

The case involved Todd Carta, who was due to be released from federal prison after serving time for computer-based child pornography. Carta has a lengthy history of sex with underage males, ages 13 on up, and has acknowledged an attraction to adolescent boys.

The Government's expert, psychologist Amy Phenix, diagnosed Carta with "Paraphilia Not Otherwise Specified: Hebephilia," which she defined as a sexual preference for "young teens . . . 'till about age seventeen."

Phenix's position was countered by psychologist Leonard Bard, who testified that Carta had no diagnosable mental disorder. Bard identified numerous problems with the diagnosis of hebephilia, including its absence from the Diagnostic and Statistical Manual of Mental Disorders (DSM) and the prevalence of sexual attraction to adolescents among normal men.

The judge got it. In a thorough and well reasoned decision, he deconstructed the legal use of this nebulous diagnosis brick by brick. Perhaps most impressive was his clearly articulated understanding of the importance of adequate empirical research to support a diagnosis:

"Most importantly, the Government has failed to demonstrate that a diagnosis of hebephilia or paraphilia NOS: hebephilia is supported by research in the field of psychology…. Most of the articles put forward by the Government were published by coauthors Dr. Blanchard and Dr. Cantor. Dr. Bard criticized the work of Dr. Blanchard and Dr. Cantor, testifying that they are both on the editorial board of the journal that publishes their findings, which has at least the potential to damage the integrity of the peer-review process. Dr. Bard also criticized the research underlying their conclusions for failing to include a control group and for eliminating a large portion of the samples, among other problems. The five replies criticizing Dr. Blanchard's recent article proposing inclusion of hebephilia in the DSM-V suggest that Dr. Blanchard's work is not widely accepted. Dr. Bard testified that 'it’s the same group that is published over and over again trying to justify [a diagnosis of hebephilia], and they have failed.' "

The judge acknowledged that by ordering Carta's release he was not suggesting the convicted sex offender is a model citizen, but just drawing a line in the sand between criminality and mental disorder: Absent a widely recognized mental disorder it is Unconstitutional to "order indefinite commitment on the basis of the offensiveness of Respondent's conduct alone."

This is the third federal ruling in a row against hebephilia. The only other federal courts to address its use both rejected it as a basis for civil commitment. Those cases were U.S. v. Shields and U.S. v. Abregana, both decided last year.

Normally, this might be a "Three Strikes and You're Out" situation. Put the tired old construct to bed.

But fans are frantically trying to rehabilitate and rejuvenate hebephilia by getting it added to the next edition of the DSM (DSM-V). This would get around at least one of the many concerns expressed by Judge Tauro and others, over "the lack of any clear criteria" for making the diagnosis. Spearheading the DSM-V effort is Raymond Blanchard of the Centre for Addiction and Mental Health in Canada, who not only sits on the editorial board of the journal that published his research (as Judge Tauro pointed out in his opinion), but also serves on the DSM-V Sexual and Gender Identity Disorders Work Group. From that influential position, he is lobbying for the addition of hebephilia or a newly minted term – pedohebephilic disorder (what a mouthful!) to the diagnostic bible.

With the DSM-V work groups stacked (see my related posts HERE), we may just have to wait and see. But in the meantime, All Hail to Massachusetts, for landing a solid blow against pseudoscience in the forensic arena.

Judge Tauro's decision is HERE. A list of articles on "Hebephilia and the DSM-V Controversy" is HERE; for more on hebephilia see my essay, "Invasion of the hebephile hunters: Or, the story of how an archaic word got a new lease on life."

Photo credit: Noel Kerns' "Closed," Creative Commons license (entrance to the defunct Mission Four Outdoor Theatre in San Antonio, Texas)

New entry in porn-rape debate

With the controversy raging over whether pornography encourages sexual aggression, an important article has gone to press. Based on a review of the existing evidence, the authors say it is time to discard the hypothesis that pornography leads to sexual violence. Despite the theory's inherent appeal, the evidence to back it up just isn't there.

That's according to Christopher Ferguson of the Criminal Justice Department at Texas A&M and Richard D. Hartley of the University of Texas in San Antonio. As they summarize it in their Abstract:

The effects of pornography, whether violent or non-violent, on sexual aggression have been debated for decades. The current review examines evidence about the influence of pornography on sexual aggression in correlational and experimental studies and in real world violent crime data. Evidence for a causal relationship between exposure to pornography and sexual aggression is slim and may, at certain times, have been exaggerated by politicians, pressure groups and some social scientists. Some of the debate has focused on violent pornography, but evidence of any negative effects is inconsistent, and violent pornography is comparatively rare in the real world. Victimization rates for rape in the United States demonstrate an inverse relationship between pornography consumption and rape rates. Data from other nations have suggested similar relationships. Although these data cannot be used to determine that pornography has a cathartic effect on rape behavior, combined with the weak evidence in support of negative causal hypotheses from the scientific literature, it is concluded that it is time to discard the hypothesis that pornography contributes to increased sexual assault behavior.

The article, forthcoming in Aggression and Violent Behavior, is available online pending print publication, but it requires a subscription.

Experts must be effective teachers

In my years as a legal affairs reporter, I developed a lasting respect for jurors and their decision-making process. People who take the time and energy to perform their civic duty are earnest in wanting to do the right thing. Increasingly, they are sophisticated and educated consumers who are innately curious about the topics at hand. Frequently, however, they are turned off by expert witnesses, who may resemble one of the following:

1. Ivory Tower: arrogant and condescending
2. Swordsman: combative, defensive, hostile, nitpicky
3. Waffler: uncertain and inconsistent
4. Automaton: stiff, robotic, confusing, unintelligible
5. Salesman: slick and overzealous

"Under all of these negative terms," advises trial consultant Richard Gabriel, "lies one fundamental problem: the lawyer and the witness did not have the intention of truly communicating with today’s jury."

The solution? Understand jurors’ innate skepticism and boredom, and become an effective teacher, "the translator for the jury in their journey into a foreign land." Writing in the current issue of The Jury Expert, Gabriel says the expert witness must be both understandable and relevant. How?

• Good teachers break down complex topics into understandable language, without being condescending.

• Good teachers anticipate questions. They "make sure they answer those questions, no matter how basic or obvious they seem."

• Good teachers understand that students have different learning styles, and they use "a mixture of tools to convey their information."

• Good teachers display passion. "Aside from a purely professional or academic interest, experts who resonate with jurors seem to have a personal connection that drives them to a particular level of excellence in their chosen field."

• Good teachers narrate stories. They "know that even the driest subjects can be made interesting by highlighting the conflict, the characters, the action, or the environment within the story."

The full article, "Redefining Credibility: Turning Expert Witnesses into Teachers," which includes a lot of practical tips, is online HERE. Author Richard Gabriel is president of Decision Analysis trial consulting firm and co-author of Jury Selection: Strategy and Science.

Photo credit: Xin Le 88's portrait of her tutor (Creative Commons license)

Essential reading on sex offender civil commitment

Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State
by Eric S. Janus, William Mitchell College of Law

I just got around to reading this insightful book, and I wanted to recommend it to all of my blog readers. Law professor Eric Janus cogently explains why sexual predator legislation, despite its allure of zero tolerance for sexual violence, makes for very bad public policy.

Predator laws will never work, he argues, because they target only a tiny fraction of sexual violence. An empty "cleansing ritual," they require no fundamental societal change. But they are far from harmless. They siphon vast sums of money away from other programs that could do more good for more people. And they reinforce a distorted notion of sexual assailants as mainly stranger rapists with abnormal psychological makeups.

On a potentially more dangerous level, they provide a template for the resurrection of preventive laws on a massive scale. Janus reminds us of the historical struggle that went into dismantling earlier preventive detention laws that locked up outsiders for what they might (or might not) do. These included slave laws, the internment of Japanese-Americans during World War II, and eugenic programs to forcibly sterilize and incapacitate "mental defectives." Sexual predator civil commitment laws are especially dangerous because we can all unite around hating the archetypal sexual bogeyman, and the "science" of risk prediction has a scientific and naturalized veneer that makes preventive detention seem more palatable.

One of Janus' most interesting arguments is that -- perhaps accidentally-- the sexual predator laws have become a powerful force for the politically conservative agenda of dismantling hard-fought feminist rape reforms. The "tabloid model of gender violence" epitomized in these laws favors biological and psychological explanations over sociocultural ones, and supports the patriarchal rape myth that rapists "lack control" over their sexual impulses.

My review continues HERE. (As always, I appreciate "Yes" votes at Amazon, as they help with my ratings and the placement of my book reviews.)

Excerpts from the book are online HERE.

Can 'gatekeeper effect' bolster weak opinions?

The much ballyhooed Daubert decision of 1993 was intended to minimize the effect of so-called "junk science" in the courtroom. ("Junk science," by the way, was a term popularized by the book Galileo's Revenge, part of an orchestrated corporate attack on class action litigation, but that's a story for another day.) But Daubert may be having a paradoxical effect instead, of lending greater credibility to expert witness opinions.

That is the premise of the lead article in Psychology, Public Policy and Law, by Nick Schweitzer and Michael J. Saks of the Law and Social Psychology Research Group at Arizona State University.

The "gatekeeper effect" is the label being given to this phenomenon, of jurors giving extra weight to scientific evidence just because it has been vetted by judges.

Remember that formal rules of evidence are aimed at excluding improper evidence from jurors' consideration. And under the U.S. Supreme Court's ruling in Daubert, judges have become more and more responsible for filtering evidence prior to its admission.

Two experiments tested whether mock jurors (as usual, university undergrads rather than real-life jurors or eligible jurors) were more persuaded by evidence when they thought a judge had filtered it. The findings: A key predictor of how much stock the jurors put in scientific evidence was whether they thought a judge had deemed it acceptable.

Why is this potentially problematic? Judges, as many of us know, are not always well prepared to serve as filterers of scientific evidence. Some of them do not do it well. Also, in many jurisdictions, Daubert is not the law, so jurors may be assuming incorrectly that the evidence they hear has passed through a filtering system.

Concludes the article, "When judges allow expert testimony to reach the jury, they are implicitly lending credence to the testimony, increasing its persuasiveness. This tips the scales toward the party offering the expert witness, perhaps affecting the jury's verdict. Ironically, a landmark Supreme Court decision motivated in large part by a desire to shield jurors from 'junk science' could serve to heighten the impact of false or misleading scientific evidence when judges allow it through the courtroom gates."

I find it a bit troubling that jurors may be persuaded by expert testimony that is false, misleading, or scientifically weak, based on incorrect assumptions about the process. I don't, however, find it too terribly surprising.

The article, "The gatekeeper effect: The impact of judges' admissibility decisions on the persuasiveness of expert testimony," is available upon request from lead author N.J. Schweitzer.

Embitterment disorder: The latest from DSM-V

My regular readers know all about the DSM-V revision controversies (click HERE for more), and the efforts of some psychiatrists to make the manual ever-more-expansive, until just about nearly every human condition becomes a formal pathology.

But, really, folks. Post-traumatic embitterment disorder? Isn't that going a bit far?

The L.A. Times' Shari Roan has the story of how some psychiatrists want to create a formal label for embittered people bent on revenge. We all know them; now we'll have a handy-dandy acronym -- PTED -- by which to refer to them.

The article is part of Ms. Roan's ongoing coverage of the heated DSM debates at the American Psychiatric Convention in San Francisco. Today's coverage is here.

MORE DSM NEWS: A letter in the current New England Journal of Medicine on the pharmaceutical influence over the DSM-V development process, and the resultant "crisis of credibility" in psychiatry, is online HERE. The authors are Lisa Cosgrove, Ph.D., of the University of Massachusetts; Harold J. Bursztajn, M.D., of Harvard Medical School; and Sheldon Krimsky, Ph.D., of Tufts University.

Oops! Another accidental deportation

Getting arrested, even on a minor charge, can be hazardous in unexpected ways. Especially if you are mentally impaired and have brown skin and/or a Latino surname.

Remember Pedro Guzman, the cognitively handicapped Los Angeles man who was arrested on a minor trespassing charge and accidentally deported to Mexico, where he disappeared for months?

Now, it's happened again.

This time, a North Carolina native who speaks not a word of Spanish ended up on a cross-national odyssey after ICE scooped him up from a local county jail and shipped him off to Mexico. Perhaps fortunately, what with the swine flu and all, Mexico quickly deported him to the Honduras, which deported him to Guatemala. In all, Mark Lyttle bounced among Latin American prisons and homeless shelters for four months before the U.S. Embassy in Guatemala finally confirmed his U.S. citizenship.

Lyttle is mentally retarded and mentally ill. Although his surname does not hint at a Mexican nationality, he has dark skin, thanks to the Puerto Rican ancestry of his birth father. ICE claims Lyttle falsely identified himself as a native of Mexico, a claim Lyttle adamantly denies.

And just as Lyttle was finally making his way home again, you'll never guess what happened: immigration officials at the Atlanta airport tried to deport him yet again!

The Raleigh News & Observer has the story HERE. My blog posts on the 2007 case of Pedro Guzman are HERE.

NCIC critiques actuarial risk tools

The promise of violence risk prediction in corrections has "trumped actual performance," warns a report from the National Council on Crime and Delinquency.

Indeed, in its pell-mell rush to implement defensible, "evidence-based practice," the criminal justice field has abandoned clarity and parsimony in favor of a confusing hodge-podge of practices that lack proven reliability and validity, asserts the report, A Question of Evidence.

The report is authored by Christopher Blair, executive vice president of the NCCD, which is the oldest criminal justice research organization in the United States and a pioneer in evidence-based classification schemes in child protection and foster care.

The report critiques the sloppy use of buzzwords such as "criminogenic needs" and "protective factors." "These are important concepts, but ones that require a significantly deeper level of assessment than many risk models currently provide. As such, they can raise false expectations and lead to inappropriate case plans and services."

The NCIC is advocating that juvenile and adult corrections administrators step back and take a critical look at the actuarial tools, lest flawed instruments, approaches, and terminologies become so entrenched that they are impossible to change.

The report is available HERE.

Forensic Psychology Unbound

That's the clever title of a new website launched by a group of forensic psychologists promoting an online, open-access journal. The first issue of the Journal of Forensic Psychology is in the works, and editor Greg DeClue is encouraging interested professionals to submit manuscripts. The journal will be free and accessible to anyone with Internet access. This stands in stark contrast to most professional journals, which have long been critiqued for being extremely costly and inaccessible to professionals without a subscription or members of the public who don’t have access through academic databases.

The new journal features several of the same editorial board members as a more narrowly focused effort at an open-access forensic psychology journal, the Journal of Sexual Offender Civil Commitment, launched by psychologist Joseph Plaud in 2005. Board member R.K. McKinzey sponsors a third online, open-access forensic psychology site, Web Psych Empiricist, with a neuropsychology emphasis. The breadth of interest areas of editorial board members bodes well for the new journal.

Sponsoring the new project is Professional Resource Press, which was founded by psychologist Larry Ritt a few decades ago, and is a continuing education sponsor approved by the American Psychological Association.

You can help the project succeed by submitting manuscripts, taking the APA-approved Continuing Education offerings, or simply donating money -- online, of course. The home page sports a piggy bank which is not yet open for business.

Profiling the Drug Wars

Wouldn't it be a drag to get arrested for something you did not do based solely on the word of a lying, mentally ill drug addict?

That's what happened to Regina Kelly in rural Hearne, Texas in 2000. Ensnared in a mass arrest of suspected drug dealers at her housing project, the young single mother was charged with selling drugs in a school zone. Despite her insistence that she was innocent, her court-appointed attorney pressured her to accept a plea bargain to avoid many years in prison and the loss of her children. With no criminal record and no drugs found on or near her, she refused.

Instead, with the help of the American Civil Liberties Union she filed a class action suit, Regina Kelly v. John Paschall. Since the case settled four years ago, the local drug task force has been disbanded.

As it turns out, bogus statements by "snitches" trying to curry favor with police are a leading cause of wrongful convictions (along with faulty eyewitness evidence and wrongful confessions). In the U.S. Drug Wars, this especially affects those who, like Kelly, are poor and Black. Texas seems like an unlikely leader in the campaign to reform such practices. But, prompted by the Hearne case and another mass drug arrest the year before in Tulia, the Lone Star State became the first in the United States to enact legislation requiring that the statements of confidential informants be corroborated by other evidence.

The case was reported by PBS' cutting-edge Frontline back in June 2004; a similar documentary was made about the more infamous bust in Tulia, Texas. But now, a fictionalized version of Kelly's story is set to reach a broader, mainstream audience. Co-director Bill Haney says that when he heard about Kelly's case on National Public Radio as he was driving along, it so moved him that he pulled his car over to the side of the road and cried.

In American Violet, "Dee Roberts" (Nicole Beharie) is the plaintiff in a class-action case over racial discrimination in drug enforcement. Tim Blake Nelson plays David Cohen, the ACLU lawyer who sues racist district attorney Calvin Beckett (Michael O’Keefe) on her behalf.

Kelly says the film is "90 percent accurate." The depositions, the courtroom scene in which she fights to retain custody of her children, and many other scenes are word-for-word accounts.

"I'm hoping that somehow, this film is going to get the message out there for someone to look in on this town and other towns that go through the same thing that we go through," Kelly told the Chicago Tribune. "Because something has to happen, and this has to stop."

With this film, Kelly may get her wish. Like Clint Eastwood's magnificent The Changeling (see my review HERE), this tale of a defiant woman's struggle against corrupt law enforcement strikes a universal chord. But unlike The Changeling, American Violet also addresses present-day criminal justice themes of racial profiling and coerced plea bargaining.

Get out and catch it.

The L.A. Times has an informative review HERE. Grits for Breakfast has compiled a list of links to other media reviews. For more information on the true case, see Kelly's website. Or, you can watch Kelly on YouTube. My prior posts on confidential informants are HERE.

DNA science on trial

My least-favorite crime show is CSI. And my least-favorite line in that show is "The science never lies." Talk about a whopper!

With all of the revelations lately about faulty science -- from handwriting identification to fingerprint evidence, ballistics, arson investigation, and even bite marks -- it is reassuring that at least one type of scientific evidence rests on a solid foundation.

That's DNA, of course. After all, as I have heard DNA experts testify many times in court, the likelihood of a wrong DNA match is something along the lines of one in 1.1 million, or less.

But what if that's just one way to run the math? What if you can run it another way, and the odds of a wrong match rise to a whopping one in three? And what if the FBI knows this, and is working feverishly to keep such information hidden from the public and out of the courts?

That is the alarming cover story by Pulitzer Prize-winning author Edward Humes in this month's California Lawyer magazine.

As Humes cogently explains, the problem is not so much with the matching of crime scene DNA to a known suspect. The problem is with the cold cases, when a database spits out a match to an offender who is not already identified as a suspect. The larger the databases get, the greater the odds of a wrong match by pure chance. Especially if the crime scene DNA is degraded, and fewer than the ideal 13 loci (DNA locations) are available for comparison.

This problem was confirmed by a technician at a DNA lab in Arizona back in 2001. Running an experiment by comparing all 60,000 offenders in her state's database, she was shocked to find about 90 coincidental matches. The FBI, unhappy over her disclosure, "began threatening sanctions against crime labs that shared such information with anyone outside of law enforcement," Humes reports.

Experts maintain that wrong matches are becoming more and more inevitable, given the increasing sizes of DNA databases. In California, for example, with the third-largest DNA databank in the world, a new policy of profiling everyone arrested for -- not just convicted of -- a felony is enlarging the database by 35,000 profiles per month.

Donald Kennedy, a former Food and Drug Commissioner who contributed to the recent National Research Council report critiquing the management of government forensic labs, confirmed that the science "is being shut out of court."

That may be forced to change, depending on the outcome of several appeals around the United States. For example, a 71-year-old wheelchair-bound man convicted of a 1972 rape-murder in San Francisco is appealing his conviction on the grounds that the jury was not allowed to hear the alternate statistics. Although John Puckett had other sex offense convictions, only a cold hit to some badly degraded DNA at the crime scene tied him to this one. There were no eyewitnesses, footprints, fingerprints, or confessions. (The case is People v. Puckett, No. A121368, Cal.Ct.App., 1st District, May 1, 2008.)

The National Research Council is calling for change. In their February report, they recommend improving reliability and transparency by taking the databases out of the hands of law enforcement and prosecutors entirely.

In the meantime, jurors -- hearing only the cheerleading version of the science -- will keep believing the CSI mantra that the science never lies.

Edward Humes's report in the California Lawyer is online HERE.

Brave judge tosses sexual assault conviction

Jessica's Law: Cruel and unusual punishment?

Jurors in criminal cases are generally kept blind as to the punishment that will be imposed if they find someone guilty. For that reason, one juror was dismissed during deliberations in a trial in Sonoma County, California, when he learned the potential outcome. The juror said he could not sleep once he realized that his guilty vote on a sexual assault charge could send the young defendant to prison for life.

Apparently, the judge in the case was similarly troubled.

Instead of sentencing 24-year-old Jaime Hernandez Gonzalez to life in prison yesterday, Judge Gary Medvigy dismissed the jury's conviction of assault with the intent to commit a sex crime during a burglary. He replaced it with a lesser conviction, residential burglary, which carries a maximum of six years in prison.

But the judge -- a former prosecutor and an Army reserves brigadier general who was decorated for his service in Iraq -- didn't stop there. In tossing the conviction, he read a lengthy statement questioning prosecutors' commitment to justice in light of the facts of the case.

Sentencing a young man with no prior criminal record to spend the rest of his life in prison for a crime that involved no violence or completed assault is so "grossly disproportionate" that it constitutes cruel and unusual punishment, the judge ruled.

In the rather bizarre case, Gonzalez entered a home through an unlocked sliding door, stripped naked, and accosted two sleeping women, removing the pajama bottoms of one. When the women screamed and ran away, Gonzalez fled too. The women testified that Gonzales appeared "zombie-like" or "comatose" during the assault, even when they screamed at him.

The judge slammed the 2006 Jessica's Law expansion under which Gonzalez was convicted, which mandates life imprisonment for sexual assault during a burglary, as "poorly drafted." He said it may be so overly broad as to be unconstitutional, because it requires the same punishment for crimes "involving minimal misconduct" as those involving severe violence and danger.

The District Attorney’s Office expressed outrage and threatened an appeal.

Meanwhile, the legal community in sleepy Sonoma County was abuzz over the judge's highly unusual action, according to news reporter Lori Carter, who covered the trial for the Santa Rosa Press-Democrat. Carter quoted a veteran attorney as calling the decision "gutsy":

"A lot of judges wouldn't do that because of politics. They're worried about reelection," said defense attorney Walter Risse.

Medvigy's conscientious stance will definitely cost him. The public hysteria over sex offending is manifested in the online comments to the Press-Democrat coverage, with vitriolic attacks and calls for the judge's ouster far overshadowing the few attempts at rational discourse.

The Press-Democrat article and related background coverage is HERE.

Photo credit: Press-Democrat

Hat tip: Tim Derning

Salon on Army PTSD diagnosis scandal

Many of my forensic psychology students have signed up with the military after getting their graduate degrees. A main reason is to get the student loan monkey off their back; the military will forgive their massive debts. That is hard to resist. But at what price service?

Today's Salon features an audiotape of civilian psychologist Douglas McNinch explaining to a combat veteran the pressure the military puts on treatment providers not to diagnose Posttraumatic Stress Disorder:

"I will tell you something confidentially that I would have to deny if it were ever public. Not only myself, but all the clinicians up here are being pressured to not diagnose PTSD and diagnose anxiety disorder NOS [instead]."

The audiotape, secretly recorded by a patient labeled "Sgt. X," confirmed what "wounded soldiers and their advocates have long suspected -- that the military does not want Iraq veterans to be diagnosed with PTSD."

Why not? Because Posttraumatic Stress Disorder would require paying for expensive, intensive treatment, including possibly lifelong disability payments. Large numbers of vets suffering from severe trauma might also dampen public enthusiasm for war, and make recruitment even more difficult than ever.

After the tape surfaced, the Senate Armed Services Committee refused to investigate, and the Army conducted its own internal investigation that cleared itself of any wrongdoing. What a surprise.

Perhaps some of you have seen Michael Moore's award-winning documentary, Fahrenheit 9/11, which shows predatory recruiters prowling shopping malls in poor communities scouring for fresh meat. Or the harrowing movie Stop-Loss, about how hard it is for some to get out of the Army once they have served their time.

Many young people come home damaged or destroyed, with invisible but severe traumatic brain injuries (as I blogged about two years ago) or severe psychological trauma. After the military chews them up and spits them out, psychologists like my former students are supposed to put them back together again.

But, hey, it's really not that bad. It's only Anxiety Not Otherwise Specified. How hard can that be to treat?

"COMING HOME" is the title of the excellent Salon investigative series about U.S. Army troops who have returned from Iraq. Focusing on troops at Fort Carson, Colorado, Salon reporters reviewed more than two dozen incidents of suicide, suicide attempts, prescription drug overdoses and murder, much of which "could have been avoided if the Army did a better job of recognizing and treating the symptoms of post-traumatic stress disorder."

Those of you who are attending next week's Forensic Training Institute in Oakland, California, will get to hear more about diagnostic shenanigans and the controversy over forensic use of the PTSD diagnosis. (Hopefully it's not too late to sign up, if you haven't done so already.)

New book reviews

In the mood for some spring reading? My review of The Wrong Guys by Tom Wells and Richard Leo is now available online at the California Lawyer website. Here is how the review begins:

Innocent people do not confess. Especially to rape and murder.

That is the belief of most people, including jurors, judges, attorneys, and even the very police detectives who induce false confessions. It is supported by TV police dramas, in which the cops always nail the guilty, and the guilty then tell all.

The belief is strengthened by the emotional nature of confessions. Jurors find such declarations the most compelling of all evidence. And once a jury votes to convict someone who has confessed, reversal or exoneration is well-nigh impossible.

The Norfolk Four case is the perfect vehicle to challenge this misguided faith. A routine investigation into the murder of a young sailor's wife in 1997 turned into a runaway train, as detectives blindly pursued a gang-rape scenario that was inconsistent with physical evidence suggesting a lone assailant. Each time a suspect's DNA failed to match the sample found at the crime scene, the detectives added another suspect, essentially at random, until their list grew to at least eight.

The review continues HERE.

Or, for true crime, fiction, or other recent books, here are a few of my most recent reviews on Amazon. As always, please help boost my reviewer rank -- and let me know that you are reading my stuff -- by clicking on "yes" if you find a review helpful:

• Body Parts by Caitlin Rother

• Evaluation of Juveniles' Competence to Stand Trial by Ivan Kruh and Tom Grisso

• Mount Misery by Samuel Md Shem

• The Other Side of Desire: Four Journeys into the Far Realms of Lust and Longing by Daniel Bergner

Postpartum psychosis stirs Texas controversy

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

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

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

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

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

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

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

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

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

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

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

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

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

Grits for Breakfast

For further information:

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

Forensic Training Institute – April 16

Diagnostic Controversies In Forensic Practice

For those of you in or near California, it's not too late to register for this full-day training workshop coming up in just three weeks. It is presented by yours truly and Craig Lareau, JD, PhD, ABPP, who has just written an excellent chapter on the DSM-IV for the upcoming 6th edition of the classic Faust (Ziskin) reference work, Coping with Psychiatric and Psychological Testimony.

We are gearing this toward advanced-level forensic practitioners. Topics include:

• The DSM in court
• Antisocial Personality Disorder and Psychopathy
• Diagnosis in Sexually Violent Predator (SVP) proceedings
• Posttraumatic Stress Disorder

The all-day (9:00-4:00) training is a preconvention special hosted by the California Psychological Association in Oakland. It provides 6 units of CE credits, and costs $175 for CPA members and $225 for non-members.

Click HERE for more information and to register online.

Gender twist on "post-apocalpytic trolls"

I've written previously about troll colonies. They are the exiled sex offenders living under bridges, including most famously the Julia Tuttle Causeway in Florida. Now, for perhaps the first time, a woman has been forced to join their ranks. Here is what one columnist had to say about this sad, and senseless, development in a world gone mad:

Woman joins sex-offender group
Guest essay by Fred Grimm, Miami Herald*

It's as if Voncel Johnson has been thrust into a bizarre social experiment.

Forcing so many men to live like post-apocalyptic trolls beneath a bridge in the middle of Biscayne Bay wasn't quite mad enough. Now they've added a woman.

For two years, a colony of convicted sex offenders under the Julia Tuttle Causeway has lived in a public health travesty, without water or toilets or electrical service. They sleep in tents, shacks, the back seats of cars in the last realistic address in metropolitan Miami unaffected by city and county sex-offender residency laws.

The numbers have been growing steadily as more convicted sex offenders emerge from prison and are consigned to finish out their wretched lives under a bridge.

The population was up to 52 men Monday. And Voncel Johnson.

Gender equity

In a peculiar nod to gender equity, the Florida Department of Corrections informed her last week that she too had only one residency option in Miami-Dade County -- the Tuttle. ''They just give me a blanket and a pillow and sent me . . . here?'' she asked, talking over the incessant thump-thump-thump of the freeway traffic overhead. "I just broke down.''

A community backward enough to create a subterranean de-facto prison camp of male sex offenders thrusts a single woman into the mix -- just to see what happens.

It's an ironic setting for Voncel Johnson. The 43-year-old woman, who grew up in poverty and neglect in the Brownsville section of Miami, told me she was sexually molested at age 6 and gang-raped at 16. ''I have a hard time trusting men,'' she said.

In 2004, Johnson pleaded guilty to a charge of lewd and lascivious exhibition (without physical contact) with a minor. She claimed Monday the charge was unfounded but at the time a plea offer with one year probation and no prison time seemed prudent. Except she twice failed to meet sex-offender registration requirements. Her probation was revoked. She did 10 months at Broward Correctional Institute.

Common refrain

She repeated a common refrain -- sometimes delusional -- among the bridge outcasts. "I never would have done that plea deal if I'd known they'd send me here. I could've fought those charges.''

But offender laws leave the state Department of Corrections no options for a sex offender. Voncel Johnson's parole officer did find her a motel room for three days last week. And she was offered a slot in a residential offender program in another county. But Johnson refused to leave Miami. "All my family lives here. I've never been any place but Miami.''

It was probably a foolish decision, but Johnson harbors some vague notion about gutting it out beneath the Tuttle until her parole ends May 5. ''Then I can find some place to live.'' She seems unable to grasp that residency restrictions are forever.

Meanwhile, the men beneath the Tuttle gave her a battered old camper trailer. ''We watch out for her,'' insisted Juan Carlos Martin, who has been under the bridge so long that the address on his driver's license reads ''Julia Tuttle Causeway Bridge.'' He said it was as if city, county and state officials purposely cram more and more men into an unliveable, hopeless, crowded space, knowing that eventually something awful might happen. And now they add a woman.

Martin said, "They need to get her out of here.''

*From today's Miami Herald, posted with the written permission of columnist Fred Grimm. More columns by Fred Grimm are HERE.

Related blog posts:

• Trolls evicted (February 14, 2008)
• Exiles in the promised land (December 13, 2007)
• Sex offenders must live as trolls (April 16, 2007)
• A bridge as a last resort (May 1, 2008) – Guest essay by Seattle Times columnist Danny Westneat about a similar situation in Washington
• Exiles in their own land: Sex offenders and the history of banishment in Western culture (September 14, 2007)

Sex Offender Laws: Failed Policies, New Directions

Here's an important new book for you folks who work with sex offenders:

In response to many high-profile cases of sexual assault, federal and state governments have placed a number of unique criminal sanctions on sex offenders. These include residency restrictions, exclusionary zones, electronic monitoring, and chemical castration. However, the majority of sex offender policies are not based on empirical evidence, nor have they demonstrated any significant reductions in offender recidivism. In fact, some of these policies have unintended consequences, which actually increase the likelihood of sexual offenses.

In this book, Richard Wright critically analyzes existing policies, and assesses the most effective approaches in preventing sex offender recidivism. This provocative and timely book draws from the fields of criminal justice, law, forensic psychology, and social work to examine how current laws and policies are enacted and what to-date is known about their efficacy. In response to the failed policies of sex offender laws, this book presents alternative models and approaches to sex offense laws and policies.

Topics include:

• History and politics of sex offender laws
• Internet sex stings
• Registration and community notification laws
• GPS monitoring
• Residency restrictions
• Chemical and surgical castration
• Civil commitment
• Death penalty
• Containment approach
• Sexual violence and restorative justice
• Victim impact

Richard G. Wright is a criminal justice professor at Bridgewater State College in Massachusetts and a nationally known expert on sex offender laws.

Crazy but sane, Texas court rules

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

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

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

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

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

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

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

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

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

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

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

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

Competent and sane, you betcha.

The Dallas News story is HERE.

Wired update on fMRI court case

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

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

Hat tip: Ken Pope