Damning reconstruction of notorious false confession case

Here's one from the annals of outrageous true crime cases:

On April 17, 1989, a woman was practicing tai chi in New York's Central Park, when a man sexually assaulted her. The rape was interrupted by a passerby who heard her yelling, but not before the woman was severely beaten to the point of requiring hospitalization. The woman gave police a detailed description of her attacker, including the fact that he had fresh stitches on his chin. Checking local hospitals, a detective found a match to an 18-year-old Puerto Rican man who worked nearby.

Mysteriously, the man was never questioned. The victim left town, the detective was transferred out of the sex crimes unit, and the case was closed as unsolved.

But as it turned out, this wasn't just one more rape in the Big Apple.

The East Side Slasher

The man escalated his attacks, terrorizing women in New York City. Dubbed the "East Side Slasher," he raped at least five other women and murdered one. His pattern was to beat or stab the women around the eyes, so they would not be able to identify him.

He was finally caught, when a woman broke free from him and alerted her doorman and a neighbor, who subdued him. Within hours, he had confessed on videotape to four rapes and the murder. With eyewitness identification and DNA evidence conclusively tying him to the crimes, he took a deal of 33 years to life.

Have you recognized this case yet?

While police knew that Matias Reyes was slashing and raping women around Manhattan's East Side during 1988 and 1989, there was one case they didn't think to link him to. That was the assault on Trisha Meili on April 19, 1989, as she was jogging in Central Park -- an assault that would quickly rivet the world.

Trisha Meili

In hindsight, it seems incomprehensible that Reyes was not a suspect. The crime fit his modus operandi, in that Meili was beaten most heavily around her eyes. The assault occurred just two days after the one on the tai chi practitioner, also in Central Park. And, most amazingly, a police officer who knew Reyes chatted with him as he strolled out of the park just minutes after Meili was raped and left for dead.

On his head, Reyes was wearing the victim’s distinctive headphones.

Reyes left his DNA behind. But police never thought to compare it to him. Not until more than a decade later, after he voluntarily confessed.

As we now know, police failed to consider Reyes as a possible suspect in the infamous Central Park Jogger case because they already had their suspects: A group of African American and Latino boys who were causing trouble in the park that night.

Sarah Burns

Through legal documents and myriad interviews (including with Matias Reyes), author Sarah Burns reconstructs this landmark miscarriage of justice, focusing on the role of racism in generating a collective hysteria that overwhelmed all reason: "Race not only inspired the extreme reactions to the crime; it also made it easier for so many to believe that these five teenaged boys had committed the crime in the first place, and no one was suggesting that they might, in fact, be innocent."

(Actually, a couple of intrepid columnists from New York Newsday, Jim Dwyer and Carol Agus, were expressing public doubts during the trial about the strength of the evidence connecting the youths to the crime, but their voices were not enough to turn the tide of public opinion. "We are waiting to see if there is any believable evidence that will connect these kids to the crime. So far, we haven't heard any," wrote Agus. And when referring to one of the youths' statement to police, both columnists placed quotation marks around the word confession, expressing skpeticism that it was authentic, Burns notes. Wrote columnist Dwyer, "nothing close to the words in this statement ... ever sat on the lips of a 14 and a half year old.")

Burns provides fascinating insights into the investigatory myopia that is so often present in false confession cases. Based on her access to the entire trial transcripts, she also critiques the weak defenses the boys received, which made their convictions all the more guaranteed. And she corrects much of the misleading mythology built up around the case. For instance, these boys were not the serious delinquents that the media portrayed them as, nor did most of them come from broken homes.

The first trial

Perhaps most amazing about this case is the vitriolic manner in which certain media outlets and high-profile people continue to insist that the boys are guilty, despite all evidence to the contrary. I hope this excellent historical reconstruction may help to set the record straight. I'm also looking forward to the documentary, which Burns is now working on with her father, filmmaker Ken Burns.

My Amazon review of The Central Park Five: A Chronicle of a City Wilding, is HERE. (If you like it, please click "yes," this review was helpful.) 

POSTSCRIPT:  You've read (or at least read about) the book; now see the movie. The Central Park Five just premiered at a special screening in Cannes. National broadcast on PBS is planned for 2013 or 2014. Meanwhile, the filmmakers -- who include book author Sarah Burns, her father Ken Burns and David McMahon -- are angling for a theatrical release. The Hollywood Reporter has the Cannes review (HERE).

'Case of the missing militant' resolved

Attorney Paul Harris
reads from  To Kill A Mockingbird.*
Photo credit: San Jose Mercury

A quick update on the case of Ronald Bridgeforth, the man I blogged about who turned himself in on shooting charges after 42 years underground: A judge in San Mateo County imposed a very reasonable sentence of one year in county jail. The judge also ordered Bridgeforth to work with at-risk youth in Alameda County (Oakland), California upon his release. That should be no problem for the 67-year-old former militant, who has dedicated his  life to public service.

My original post, Predicting behavior: The case of the missing militant, is HERE.The San Mateo Times and The Daily Mail (UK) have more on the sentencing. A San Jose Mercury slide show is HERE.

*I don't know what passage from To Kill A Mockingbird the defense attorney was reading from at the sentencing hearing, but I am curious.

USA Today probe: Federal SVP program crumbling

Constitutionality of lengthy sex offender detentions questioned

In the six years since the U.S. government authorized civil detention for dangerous sex offenders, it has sought to commit 136 men. Out of those, it has won civil commitments of only 15, or 11 percent.

In contrast, it has either lost, or been forced to dismiss, 61 cases, or 45 percent. (Actually, make that 62.*)

The remaining 59 men (43 percent) are languishing in prison, locked in legal limbo while their cases await resolution. (A 136th man has died.)

An investigative report by USA Today paints a picture of federal prosecutors and their prison "experts" as flailing in their efforts to establish that they qualify as "sexually dangerous persons." The legal criteria for this designation include a history of sexually violent conduct or child molestation and a mental illness that would cause the person difficulty in refraining from such behavior if released.

I put the word "expert" in quotes because many of the prison psychologists drafted to conduct these evaluations and testify in court had no prior experience and little or no training when the law went into effect. As the former psychologist in charge told USA Today, "It was rushed, and initially, I believe, quality probably suffered."

The government's cases "have crumbled because of weak evidence, faulty psychological evaluations and an inability to convince judges the detainees have mental conditions so serious they will find it difficult to not re-offend," the USA Today reports. Due to the low levels of recidivism among convicted sex offenders, "even when the government can prove someone committed sex crimes, it has struggled to show he remains dangerous."

Brad Heath and Amanda Muscavage reviewed thousands of pages of legal filings and interviewed dozens of attorneys, psychologists and former detainees for their report. Their interactive website includes links to 290 documents that they have made available online.

USA Today reporter Brad Heath

In one amazing quote, the psychologist who formerly ran the civil commitment program at Butner, the prison in North Carolina where the detainees are being held, all but admits that clinicians certified men as sexually dangerous even knowing that they did not meet the legal criteria.

"If we thought someone was really dangerous but there wasn't a strong legal case, we might very well still push it for the public interest," Anthony Jimenez said. "Hopefully justice is served in the end."

This is the "consequentialist" approach advocated by some in the sex offender industry, who claim that sexually violent predator cases represent an exception to general forensic practice, in which the end (protecting the public) justifies the means. If anything, however, the high stakes involved when people are threatened with a loss of liberty for something that they might do in the future would seem to demand the opposite approach, of even greater caution and transparency in diagnosis and risk assessment.

As Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital, told the reporters: "We need to be very, very careful in a free society about a system in which a group of people can make statements that result in someone being deprived of their liberty for a future crime. If it's going to be done, it has to be done in a just and fair manner."

One reason for the government’s quagmire is that the federal cases are decided by a judge, rather than a jury. The seasoned judges hearing these cases are less likely to let their emotional reactions to past crimes, some of them pretty upsetting, distract them from the government's legal burden of proof.

For example, in the recent trial of Markis Revland (which I blogged about HERE), the offender had admitted to 149 child molestations. However, the judge found that the government had failed to prove that any of these incidents actually happened, or that Revland had a genuine mental illness.

Similarly, at the trial of Jeffrey Neuhauser (which I blogged about HERE), the judge rejected the controversial label of "hebephilia" as a legitimate mental illness qualifying someone for involuntary detention.

Unfortunately, because they only had access to records that have been made public, the USA Today team didn't have the 411 on some of the most egregious attempts to civilly detain low-risk prisoners. In one case I am familiar with, the government spent four years pursuing civil commitment against a man who was quite clearly not mentally ill, not a rapist, not a pedophile, and not dangerous, only to dismiss the case on the eve of trial.

This case points to an aspect that I wished the USA Today team had delved into: The unusual nature of the federal sex offender population. Although those eligible for civil commitment are supposed to be the worst of the worst, in reality Butner's population is heavily weighted toward an unlikely admixture of:

• Men convicted of possessing or distributing online child pornography, criminalized in 2003, and

• Native Americans.

The second group was the surprise to me. Unlike routine sex offenses that are prosecuted in state courts, crimes committed on Indian reservations are federal offenses.

Up until now, neither the U.S. Justice Department nor any watchdog agency has expressed public concern with whether the the federal civil commitment scheme, with its haphazard and capricious implementation, passes Constitutional muster.

Hopefully, this USA Today report will bring some much-needed attention to just what is going on down there in North Carolina.

Prior blog posts about the federal civil commitment prosecutions:

• Civil commitment petition against Butner, NC prisoner dismissed (Jan. 5, 2012)
• Federal judge tosses hebephilia as basis for civil detention (Jan. 20, 2012)

*The situation remains fluid. Right after the publication of the USA Today report five days ago, I have learned that the government lost yet another trial. This despite a 200-page report from a government expert assigning Steven Wiseman a panoply of mental disorders, including pedophilia, hebephilia and antisocial personality disorder.

Report: 2,500 serving life for crimes committed as children

United States far out of step with global community

Photo credit: Richard Ross, Juvenile in Justice

"Life without possibility of parole for a 13-year-old?!" a European colleague exclaimed, clearly disbelieving my story.

With the Land of the Free far out of step with the rest of the world, wonderment over our criminal justice policies is not uncommon internationally, but nowhere moreso than regarding our treatment of juveniles. We are the only country in the world who condemns juveniles to spend their entire life behind bars for crimes committed as children.

(We're also way out of step in our overall incarceration rates and in our penchant for solitary confinement, too, but that's another story -- see today's New York Times for more on that.)

Now, the first-ever national survey documents numbers far higher than even I imagined: Not just a handful, but more than 2,500 Americans are serving life without parole for crimes committed before the age of 18.

The oldest prisoner in the survey, now 67, has served half a century in prison so far. Just stop for a moment and ponder the implications of that.

The Sentencing Project's report, The Lives of Juvenile Lifers, comes just weeks before the U.S. Supreme Court hears oral arguments in the cases of two 14-year olds, Miller v. Alabama and Jackson v. Hobbs, which will address questions about the constitutionality of sentencing teens to life without the possibility of parole.

The national survey draws a portrait of severe disadvantage experienced by those serving life sentences without parole: Juvenile lifers were exposed to high levels of violence in their homes and their communities. Among the 45 girls serving life, three-fourths experienced sexual abuse before their crimes.

"Most juveniles serving life without parole sentences experienced trauma and neglect long before they engaged in their crimes," stated Ashley Nellis, research analyst of The Sentencing Project and author of the report. "The findings from this survey do not excuse the crimes committed but they help explain them. With time, rehabilitation and maturity, some of these youth could one day safely re-enter society and contribute positively to their families and their communities."

It will come as no surprise to most of you that race has much to do with who gets this draconian sentence. African Americans, who make up only 12 percent of the U.S. population, represented 60 percent of these children -- five times their proportion of the population, They are especially likely to be serving life without parole if they killed a white person.

From a fiscal standpoint alone, the report notes, the costs to states of incarcerating someone from their teens into their twilight years, when health costs rise steeply, is at least $2 million per prisoner.

The report advocates spending more money on prevention programs, instead of warehousing:

Instead of spending scarce resources on warehousing lives that could be transformed, we could be spending money more wisely, helping victims, and improving public safety. The nonpartisan American Law Institute recommends a “second look” after 10 years of imprisonment for life-sentenced youth. Notwithstanding the probability that most prisoners would not be granted release after only 10 years, if even one eligible inmate was determined to be ready for release upon this “second look,” this could save a typical state $1.8 million in needless incarceration. The money saved could instead be directed at prevention and intervention programs that have a strong evidence-base in lowering crime: preschool programs, parenting skills development, multi-systemic therapy, vocational training, substance abuse treatment, and a host of other effective interventions that would reduce crime and repair families and communities from damage associated with violence.

The full report, which I highly recommend, can be read or downloaded HERE.

Of related interest:

Another Bite at the Graham Cracker: The Supreme Court's Surprise Revisiting of Juvenile Life Without Parole in Miller v. Alabama and Jackson v. Hobbs, by by Scott Hechinger, Georgetown Law Journal

Life, with dementia (New York Times article about the growing problem of dementia behind bars)
 

Hat tip: BRUCE

Internet stings: Does the fantasy defense hold water?

Scott Ritter, the former U.N. weapons inspector, was among the most vocal in insisting that the Bush administration fabricated its claims of “weapons of mass destruction” in order to justify the U.S. invasion of Iraq.

Ritter didn’t receive much public gratitude for his efforts to avert a costly and destructive war. Instead, he lost his career and his life gradually unraveled. Sinking deeper into depression, he fled into chat rooms, where he arranged rendezvous with adult women willing to watch him masturbate. At first, the meetings took place in cars or out-of-the-way places. Later, he switched to using a webcam, according to a profile by Matt Bai in the New York Times Magazine.

Then came that fateful day in February 2009 on which, in a Yahoo chat room for adults, he conversed with “Emily.” Although she told him she was 15, Emily was actually a small-town police officer, trolling for sexual predators online.

After doing his usual thing of masturbating in front of the webcam, Ritter announced he was signing off to take a shower.

Not so fast, retorted the officer:

"U know ur in a lot of trouble, don’t you? I’m a undercover police officer. U need to call me ASAP."

"Nah," Ritter typed back. "Your not 15. Yahoo is for 18 and over. It’s all fantasy. No crime."

"I have your phone number and I will be getting your IP address from Yahoo and your carrier," the officer responded. "We can do this 2 ways call me and you can turn yourself in at a latter date or I’ll get a warrant for you and come pick you up."

Ritter turned himself in. At his trial, he testified that he never for a moment believed he was talking to a minor; he assumed he was chatting with a bored housewife pretending to be 15.

Unfortunately for Ritter, jurors were told of his two prior arrests in similar cases, for which he was never prosecuted. In both cases, undercover police had lured him into meetings with fictional teenage girls. His claim that he knew that he was actually talking to undercover police in both cases likely strained the credulity of jurors, who convicted him in the case of “Emily.”

After hearing testimony from a government evaluator who called Ritter a sexually violent predator, the judge sentenced him late last year to a prison term of 18 months to five and a half years.

Fantasy defense succeeds in Queensland

Had it not been for his two earlier cases, Ritter’s defense might not have been all that far-fetched. After all, it worked for Darryl Plumridge of Queensland, Australia back in 2007.

Just like Ritter, Plumridge engaged in online chat with an undercover police officer posing as a teenage girl, in this case a 13-year-old with the screen name of “Erin Princess Baby.”

His defense was simple, according to a forthcoming article in Psychiatry, Psychology and Law: “He claimed that he knew the person with whom he was communicating was an older male and he was simply role playing.”

At trial, he testified that the covert police operative inadvertently supplied various content cues as to his true age and gender. For example, he signed off by saying "see ya later alligator," something no self-respecting 21st-century girl would say. Even more tellingly, he accidentally said he ("she") was at the office when "she" was supposed to be home from school, a glaring error that "she" immediately corrected.

Plumridge was acquitted. 

Study: Can people see through online deception?

Criminologist Robyn Lincoln of Bond University and forensic psychologist Ian R. Coyle, a Gold Coast practitioner and associate professor of law who testified in the case, decided to conduct a study to test the plausibility of Plumridge’s defense. Given the flat nature of internet communication, lacking in physical or tonal cues, can people actually deduce the true age and gender of someone who is pretending to be someone else?

Bottom line? Yes, they often can.

Lincoln and Coyle randomly assigned 46 students as either "deceivers" or "receivers." Each volunteer participant was met off-site and individually led to one of several private study locations, to preclude chance encounters with other participants. Deceivers were instructed to play the role of a 13-year-old girl. Receivers, in contrast, were misled to believe that they might be talking with individuals ranging in age from young children to the elderly. The pairs then chatted with each other for 30 minutes.

Despite the deceivers' best efforts, the majority of receivers were able to correctly identify the age and gender of the person with whom they were chatting, within a five-year bandwidth. None of the receivers believed they were talking to someone under the age of 16.

Thus, the claims of Plumridge and Ritter, that they knew they were chatting with adults but ignored that reality for purposes of fantasy role-playing, appear to have some scientific basis.

As law enforcement officers increasingly partake in trolling the internet for sexual predators in their spare time, it is probably only a matter of time before the Bond University study is introduced into court as evidence.

The study, "No one Knows you’re a Dog on the Internet: Implications for Proactive Police Investigation of Sexual Offenders," has been accepted for publication in Psychiatry, Psychology and Law. Correspondence may be directed to the first author, Robyn Lincoln.

On providing invited testimony in a legislative hearing

Reflections of a forensic psychologist

Floyd L. Jennings, JD, PhD, a clinical psychologist and attorney with a long-time clinical practice, currently works in county government to address the problems of the chronically mentally ill in the criminal justice system. In this capacity, he testified this week before a state legislative committee. Here, he reflects on that experience:

As special resource counsel to the Mental Health Division of the Harris County Public Defender (Houston, Texas), I was asked to provide testimony to the Texas House Subcommittee on Criminal Jurisprudence -- and did so on 29 February 2012.

For those having a history of legislative contact, serving as a witness in a hearing may be not at all discomforting. But to one for whom it was a new experience it was quite different.

First, the charge of the committee was to address whether alternative sentencing for mentally ill persons would be desirable. I argued simply that no changes in sentencing were needed -- because it would be difficult to craft, impossible to implement as it would trade on definitions of applicability, and moreover, courts already have the option of considering a defendant's state of mind as either mitigating or exculpating. 

On the other hand, diversion strategies for the lower-level misdemeanor offender could have enormous cost benefits and not compromise public safety. As well, pre-trial jail psychiatric services could be provided at modest direct cost through the use of physician extenders, and provide just that opportunity for stabilization necessary to enable rapid disposition of the matter, shortening any period of confinement. Finally, I argued that opportunities for post-disposition placement tiered to the acuity of the person would dramatically reduce recidivism.

Second, the affective dimensions of proffering testimony are profound -- the setting is elegant and the committee is seated above the witness much like justices in a supreme court. Witnesses are presented with questions for which there are often no easy answers, but to which some response must be made. My case was no exception.

Third, I learned that the lucidity of the argument may have little consequence. I was upbraided for failing to provide the legislature with specific means of cost savings through transfer of mental health services to the "private sector", although there is no private sector entity with the duty to provide mental health services to the chronically mentally ill on a statewide basis. And even if existing, no private sector entity has the resources to provide such. The tone of questions made it plain that legislators would prefer to have government provide all the goods and services that governments rightly provide, but at no cost, or with private sector funding.

Fourth, the venue of a public hearing is no occasion for stirring rhetoric or confrontation. I felt I should have reminded the committee that the present moment is not the occasion for abandonment of those functions which are uniquely governmental -- the care of the weakest members of society who are ill equipped to care for themselves. But in retrospect, and having viewed the videotape of the proceeding, it was far the better to have remained on task, and narrowly focused upon the committee's charge.

Finally, the message for psychologists, and mental health providers in general, is multifold: Involvement in the legislative process is to venture into unfamiliar and discomforting territory. However, social change is rarely achieved in a sterile environment, or one involving only warm and supportive exchanges. Moreover, to call upon governmental entities to fulfill their statutory duty as well as higher moral purpose, it to expose oneself to a certain amount of discord. In short, it goes with the territory. 

Would I do it again? 

I hope so, because in the course of the day I realized there were many I knew personally who were also participating in the process and there is also something rewarding about believing that perhaps you touched even one person having decision-making power to effectuate change.

The video of Dr. Jennings’ testimony is online HERE (beginning at 1:44:50).

Australians: Proposed paraphilia diagnoses 'dangerously circular'

Proposed expansions of the sexual disorders in the DSM are getting negative attention Down Under, with critics worried about the blurring of lines between bad behavior and mental illness, according to an article in today's Sydney Morning Herald.

The article in Australia's fourth-largest newspaper focuses on the expansion of pedophilia to include a hebephelic subtype and the placement of a "so-called paraphilic coercive disorder" (rape-proneness) in the upcoming manual's appendix as a proposed condition meriting further study.

Most mental health professionals in Australia use the American Psychiatric Association's diagnostic nomenclature, enshrined in the Diagnostic and Statistical Manual of Mental Disorders (DSM), rather than the International Classification of Diseases (IMD), the international standard promulgated by the World Health Organization.

Australian psychiatrists and psychologists worry that the sexual disorder expansions will pave the way for more civil detention, in violation of the United Nations' International Covenant on Civil and Political Rights or, conversely, may be used by sex offenders to minimize or avoid legal punishment.

Indeed, in a case currently in the news in Melbourne, a well-known chef who sexually exploited vulnerable 13- and 14-year-old girls has introduced expert testimony on hebephilia as a mitigating factor. At a presentencing hearing, a defense-retained psychiatrist testified that Simon Humble suffered from hebephilia and would find prison difficult.

In addition to quoting clinicians and scholars in Australia, reporter Amy Corderoy reached across the Pacific to discuss the issue with your faithful blogger, a recent guest in Queensland; her article links back to this blog.

Forensic psychologist blackballed over competency opinions

Imagine that every time you evaluated a criminal defendant, a partisan advocate was standing by your shoulder, ready to accuse you of bias if you thought the defendant was incompetent to stand trial. To make matters worse, imagine you were assigned those defendants most likely to be impaired, due to developmental disabilities that interfere with their ability to understand their cases or work with their attorneys.

That's the pressure being applied to Ray Hendrickson, a respected forensic psychologist in the state of Washington. Accusing him of bias, local prosecutors have succeeded in getting him barred from examining criminal defendants in one Washington county.

"We have made it very clear that we don't approve of Dr. Hendrickson,"' a representative of the Pierce County (Tacoma) prosecutor's office told the local newspaper.

Prosecutors accuse Hendrickson of endangering public safety by finding too many defendants incompetent to stand trial. Hendrickson is a lead psychologist and training director at the Center for Forensic Services at Western State Hospital, one of two state hospitals where criminal defendants undergo competency and sanity evaluations and treatment under Washington’s centralized system.

The beleaguered psychologist is one of the only in-house experts qualified to evaluate defendants who have developmental disabilities as well as mental illness. As a hospital spokesperson pointed out, such defendants often are found incompetent to stand trial because they are too impaired to understand their cases or assist their attorneys in their defense.

The hospital said it acceded to prosecutors' demands under duress, because state law entitles the prosecuting attorney to approve one of the two experts appointed to conduct a competency or sanity evaluation.

To challenge Hendrickson, prosecutors pored over felony cases in which defendants were found incompetent to stand trial. Hendrickson was involved in almost half of 30 such cases over a 3-year period, they claim. One case highlighted in the news involved a developmentally disabled man accused of stabbing his girlfriend. After being found unrestorable to competency, the man was ultimately released from the hospital.

(The local news article incorrectly states that defendants found incompetent to stand trial on violent felony charges typically have their cases dismissed. In actuality, most stand trial after undergoing competency restoration treatment; only a small percentage are found unrestorable after one year of treatment, making them eligible for civil commitment if they remain dangerous.)

Defense attorneys are livid, calling the attack on Hendrickson a naked power play intended to strip criminal defendants of their right to an impartial evaluation. This is at least the second time in recent memory that Pierce County authorities have successfully objected to a respected and skilled evaluator with whom they did not see eye to eye.

Such partisan interference will only increase the pressure faced by many evaluators in state hospital settings, where beds are increasingly scarce, to find defendants competent in order to help the criminal justice process speed things along.

Having done my forensic postdoctoral fellowship in the forensic unit at Western State Hospital in the 1990s, I find this news especially sad. Back when I was there, the unit was a top-notch training site, where evaluators were given the resources, training and support to perform neutral, high-quality forensic evaluations.

Although even back then the state evaluators had a reputation of prosecutorial bias, in reality we had the independence to let the chips fall where they may. As prosecutors were fond of eliciting from us under direct examination, we didn't have to worry about earning referrals, and we got paid the same no matter which side won or lost a case.

But if prosecutors blackball experts with whom they disagree, it will be hard for them to honestly claim that their hand-picked psychologists are truly independent.

Even more ominous is a bill being considered by the state’s legislature that would require only one expert -- approved by the state -- in competency cases. The defense could request a second expert under the proposed law, but such a request would not be automatically granted.

Such a move might seem to make fiscal sense. But, given the poor rates of agreement among competency evaluators, it may be penny-wise but pound-foolish. According to a new study out of Hawaii, for example, competency evaluators disagree in about two or three cases out of every ten. That's in part because competency is nuanced. Evaluators tend to concur in obvious cases involving florid psychosis, but may arrive at different opinions in gray cases in the middle of the competency continuum.

Since judges tend to rubber-stamp experts' opinions, having only one evaluator will substantially increase rates of error. Some cases will be unnecessarily delayed while defendants undergo needless (and costly) treatment; at the other end of the spectrum, some defendants will  be unfairly convicted, undergoing trials without understanding the proceedings or being able to assist their attorneys.

Winnowing the process down to one potentially idiosyncratic opinion, or forcing out well qualified evaluators based upon their rates of incompetency findings, will make the process more unreliable and, in the end, hinder justice.

Related blog post:

How competent are the competency evaluators? Largest real-world study finds modest agreement among independent alienists (Jan. 21, 2011)

Hat tip: Ken Pope

Blogger urges new paradigm for sex offenders

Clarence Opheim, sentenced to 4 years
in prison back in 1988

Among sex offenders in Minnesota, Clarence Opheim is a very important man. After 20 years of treatment, the 64-year-old pedophile will be the second person ever released from civil detention in the North Star State, which holds the dubious distinction of having the highest per capita civil commitment rate.

The other 639 detainees are pinning all their hopes on next month's provisional release. If Opheim can make it, maybe they can too. The only other guy who came out except in a body bag violated his release conditions and in 2003 was returned to detention, where he died at age 45 of a heart attack. [See comments section for more on him.]

The program has been under pressure to release someone; otherwise, it might be found Unconstitutional: The legal premise behind civilly detaining people for crimes that are only remote future possibilities is not that they will be locked up forever, but that they will be treated and then released.

Although some are cheering this as a major turning point in the civil commitment industry, one prominent Minnesota clinician says the celebration is premature: What we really need is a bold paradigm shift in which industry leaders reject civil commitment altogether.

Comparing the civil commitment of sex offenders to the interment of Japanese during World War II, Jon Brandt asks, “If hindsight is 20/20, when we look back at sex offender civil commitment many years in the future, will we be proud of the roles that we had today?"

Brandt, a social worker, directs a residential treatment program for adolescent boys. He is also an expert witness in juvenile proceedings and a frequent professional trainer and media commentator who has addressed the Minnesota legislature on child welfare issues.

In his guest post on the blog of the influential Association for the Treatment of Sexual Abusers (ATSA), Brandt says the industry may have painted itself into a corner through its timidity about releasing sex offenders back into the community:

It is not just in everyone's interest that Mr. Opheim succeeds; it is imperative. Consider the alternative: If the second of only two discharges in MSOP [the Minnesota Sex Offender Program] history fails, for any reason, both failures will be seen as a malfunction of both MSOP and SOCC [sex offender civil commitment]. A second unsuccessful discharge is not only likely to have far-reaching consequences for sexual offender management in Minnesota; a seismic "thud" may well be heard at ATSA listening posts across the country. In addition, it would be hard for the courts to ignore.

SOCC in Minnesota may now be painted into a corner. In the interest of public safety we may have compromised Constitutional protections beyond integrity. Perhaps Ben Franklin's quote is apt, that "those who would give up essential liberty to purchase a little safety deserve neither liberty nor safety."

Brandt urges ATSA to take the lead in challenging civil commitment, based on the low rates of sex offender recidivism established through empirical research including a new survey in Connecticut that found that only 3.6 percent of parolees who had served a prison term for a sex crime were arrested and charged with a new sex crime:

We have very solid empirical evidence to challenge current misguided public policies. We need to get good research to the right folks. We need to infuse policy makers with the necessary information for bureaucracies to champion productive recommendations into meaningful change…. If we use our knowledge and expertise to educate the public, inform our colleagues, and persuade policymakers that best practices should emanate from good science, we might not have to settle for incremental changes. We can help create new paradigms….

If professionals who work with sexual offenders do not challenge the politics, misinformation, and misguided management of sex offender civil commitment, where is a more credible voice going to come from? In an area of public policy where reason is often eclipsed by emotion, ATSA members may be in the best position to know the research, understand competing principles, and advocate for sound rationales. If forensic psychology with sexual offenders is being dominated more by forensics than psychology, I would suggest that the tail might be wagging the dog.

I recommend reading the entire post, available HERE.

Treatment and risk among the most dangerous sex offenders

 Study questions need for lengthy treatment of detainees 

McNeil Island with prison ferry in foreground

McNeil Island is a lonesome place these days. In a cost-saving moving, the state of Washington has shuttered the prison. The McNeil Island Correctional Center was the last of its kind, the twin sister of the more infamous Alcatraz Penitentiary in the San Francisco Bay.

Back when I briefly worked there in the late 1990s, it was a rustic place, its forests and overgrown orchards teeming with deer and other wildlife. Now, it is dominated by a modern civil detention site housing about 284 sex offenders. Built at a cost of $60 million, the Special Commitment Center costs another $133 million* per year to run, at a time of massive cuts to essential public services.

Special Commitment Center (photo credit: Seattle Times)

Although Washington holds the distinction of housing civil detainees on a remote island that can only be reached by air or water, the state's larger quandary is not unique. Swept along by public panics and political posturing, 20 U.S. states have approved civil detention programs that are becoming costly albatrosses.

The 30 other U.S. states, as well as other countries around the world, are in a position to ridicule the obscenely high costs of indefinitely quarantining such small handfuls of offenders.

Our neighbors to the north are far more sensible, as it turns out. At the Regional Treatment Centre (RTC) in Kingston, Ontario, Canada, civil commitment is nonexistent, and the highest-risk sex offenders may be released after an average of just seven months of treatment.

And how many of those bad actors go on to sexually reoffend after their brief but intensive treatment?

Fewer than 6 percent, according to a new study. Although the study's 2.5-year follow-up period is relatively short, the findings echo those of a previous study by co-author Jeffrey Abracen and colleagues, finding that even after nine years, only about 10 percent of offenders released from the RTC had reoffended.

Comparing high-risk Canadian sex offenders with similarly dangerous offenders civilly committed in the U.S. state of Florida, the researchers found the two populations to be virtually identical. Of the 31 sex offenders released in Florida, only one (or 3 percent) sexually reoffended. Because so few sex offenders are being released from civil detention sites in the United States, it is difficult to accurately estimate how many of them might reoffend in the community; this study could help to fill this gap, by providing a proxy group.

The low recidivism rates in Canada after only brief treatment suggests that the interminable treatment regimens at U.S. civil commitment sites, which typically last for years and years, are "more cultural than practical," reflecting the U.S. propensity for severe punishment, according to the study's authors, Robin Wilson and Donald Pake Jr. of Florida and Jan Looman and Jeffrey Abracen of Canada. One downside of such interminable treatment is that offenders may become institutionalized, with negative affects on their personalities, the authors suggest.

The researchers highlighted the fact that despite being among the highest-risk sex offenders from their respective prison systems, both the Canadian and U.S. offenders reoffended at rates far below those predicted by the Static-99 and Static-99R, the most widely used actuarial instruments for predicting recidivism.

These researchers are not the only ones coming to the conclusion that the actuarial instruments drastically overpredict recidivism. In the state of Virginia, lawmakers are questioning the use of the Static-99 after noting that civil commitment recommendations shot up when the state began mandating use of the Static-99 in 2006, jumping from about 7 percent to 25 percent of all sex offenders being released from prison.

"When the test was designated in law in 2006, it was believed that a score of 5 meant that the offender was 32 percent likely to commit another sex crime," according to a news report. "Updates have brought that risk down to about 11 percent. Researchers say that even may be too high."

Echoing what many of us have been saying for several years now, a study by Virginia's Joint Legislative Audit and Review Commission, the investigative arm of that state's General Assembly, concluded that the Static-99 is not all that accurate for assessing the risk of specific individuals, as opposed to groups.

Rather than scrapping the civil commitment program altogether, and saving themselves a cool $23 million per year, the first state to mandate the Static-99 almost did a 180 to become the first state to scrap its use altogether. Proposed legislation would have entirely "eliminate[d] the use of the Static-99 assessment instrument" for civil commitment purposes. For some reason, though, that language was removed from the most current version of House Bill 1271.

Stay tuned. As more solid research begins to overtake the hype, these and other political skirmishes are likely to become more common in financially desperate states. Eventually, I predict the entire civil commitment enterprise will hit the scrap pile as did the old sexual psychopath laws of the 1950s, but not before 20 U.S. states and the federal government squander many, many more millions of public dollars.

The study is: Comparing Sexual Offenders at the Regional Treatment Centre (Ontario) and the Florida Civil Commitment Center by Robin Wilson, Jan Looman, Jeffrey Abracen and Donald Pake Jr., forthcoming from the International Journal of Offender Therapy and Comparative Criminology. To request a copy of this article, you may email co-author Jan Looman (CLICK HERE). Thank you, Dr. Looman.

*See comment by Becky, below, who found the exact cost in the current state budget.

Who wants us to wear wizard suits, and why?

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

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

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

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

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

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

Is that all there is?

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

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

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

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

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

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

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

Walter Olson, Senior Fellow, Cato Institute

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

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

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

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

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

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

Notes:

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

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

Ambitious competency project launched

The National Judicial College has just launched an amazing online resource on competency. The goal of the "Mental Competency – Best Practices Model" is to present practices deemed to be most effective and efficient for handling mental competency issues in the criminal justice and mental health systems.

If you do any competency related work, I strongly encourage you to check out the fabulous website. It's got step-by-step tutorials, taking you all the way from the initial referral to the evaluation and report to contested hearings and competency restoration treatment. The website boasts an array of other resources, including videos of mock competency hearings, sample reports and templates, and links to articles, case law, and state-by-state statutes.

They’ve even started a mental competency blog, which aims to keep readers apprised of court decisions and other competency related news.

With funding from the Department of Justice, the National Judicial College plans to present a series of three webinars on best practices in competency. You can sign up on the website to be notified of the dates, or just watch them after they are posted on the website.

Forensic psychologists who assisted with the ambitious project include Patricia Zapf of the John Jay College of Criminal Justice in New York, Mary Alice Conroy of Sam Houston State University in Texas, Joel Dvoskin of the University of Arizona, Floyd Jennings of the Harris County (Texas) Public Defender's Office, and Karen Bailey-Smith and Lenny Bailey, both of the Georgia Department of Behavioral Health and Developmental Disabilities.

Kudos to all!

California adopts Edwards: OK to deny self-representation to mentally ill

Mentally ill defendants in California may be barred from representing themselves at trial even when they have been found competent to stand trial, the state Supreme Court has decided.

This week's ruling stems from the 2008 U.S. Supreme Court case of Indiana v. Edwards, which held that states may set higher standards for self-representation than for competency to proceed to trial with an attorney.

The court upheld the conviction of Andrew D. Johnson of Vallejo, sentenced under California’s three-strikes law to 85 years to life in prison for two severe assaults.

Earlier in the proceedings, a jury had found Johnson competent to stand trial.The trial judge had initially let Johnson represent himself, but changed his mind based on Johnson’s bizarre behavior and filing of nonsensical motions.

The state high court cautioned that trial courts "must apply this standard cautiously," as under normal circumstances defendants have a Sixth Amendment right to represent themselves: "A court may not deny self-representation merely because it believes the matter could be tried more efficiently, or even more fairly, with attorneys on both sides."

No uniform standard

Several interested parties -- including the California Attorney General, San Francisco Public Defender, California Attorneys for Criminal Justice, and the Office of the State Public Defender -- had filed amici curiae arguing that California courts should have discretion to deny self-representation to "gray-area" defendants such as Johnson.

In their briefs, these parties proposed various standards for competency for self-representation that the court might adopt. But the court declined to adopt any of these specific standards, or those proposed in two recent law review articles, "pending further guidance from the high court."

In a footnote, the court also suggested that courts may choose to include the question of self-representation competence in routine trial-competency evaluation requests, even when the issue has not been raised.

This will leave court-appointed experts in an awkward position, tasked with evaluating "simply whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel."

Such murkiness will increase the complexity of competency evaluations for forensic psychologists and psychiatrists. This is especially problematic in that court-appointed experts are grossly undercompensated, which attracts inexperienced and poorly trained professionals willing to perform what one attorney I know refers to as "drive-by competency evaluations."

When a defendant refuses evaluation

In his appeal, Johnson also complained that none of the experts appointed to evaluate his trial competency ever interviewed him personally. In fact, that was because he refused to meet with any of them.

The court said that the when a defendant refuses to be evaluated, the judge and jury must "do the best they can under the circumstances," as occurred here.

At the competency trial, psychologist Kathleen O'Meara, called by the defense, made clear that her opinion was tentative in that it was based solely on transcripts of the pretrial proceedings, defendant's letters, medical records and conversations with correctional staff. She speculated that defendant might have a paranoid delusional disorder, but that he could also be malingering.

Two psychiatrists called by the prosecution, Herb McGrew and Murray Eiland, both testified that it was not possible to form an opinion on competency without interviewing the defendant.

Sticky wicket

The Edwards decision expands the parens patriae doctrine, subordinating autonomy for ostensible fairness. In deciding that the mentally ill do not have the same constitutional rights as everyone else, the U.S. Supreme Court set up a very difficult situation.

On the one hand, allowing floridly psychotic defendants to represent themselves sanctions court-assisted suicide in that conviction is almost always assured, as in the farcical spectacle of Colin Ferguson's trial in the Long Island Railroad massacre.

On the other hand, since the U.S. trial system gives full authority to the attorney to conduct the defense as he or she sees fit, a defendant who has not consented to legal representation is stripped of the right to present his own defense. And, since no judge wants an inexperienced, potentially disruptive defendant mucking up their courtroom, it is tempting to find a problem defendant competent to stand trial, but then force him to accept an attorney -- and a defense -- that he may not want.

Related reading:

How will Edwards affect competency evaluations? (June 20, 2008 blog post)

Mentally ill: No constitutional right to self representation (June 19, 2008 blog post)

Fools competent to represent themselves at trial: Buffoonery doesn’t qualify under Edwards, appellates rule (July 7, 2010 blog post)

Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant, Erica J. Hashimoto, North Carolina Law Review (2007) [free, open-access download]

Defending Oneself, Erica Hashimoto

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