High court ruling on juvenile sentencing: What's it mean?

Two things strike me about Monday's headline-grabbing high court rulings in Miller and Jackson, banning mandatory sentences of life without parole for juvenile killers.

Mandatory versus discretionary sentencing

First, the U.S. Supreme Court did not outlaw sentences of life without parole (LWOP) for juveniles, even though we are one of the only countries in the world to impose such punishment. The cases only take issue with mandatory LWOP sentences. In doing so, the justices are restoring a bit of the discretion traditionally afforded judges and juries to weigh mitigating factors before imposing a sentence.

Second, the court's opinions -- there’s a whopping five in all! -- reflect an escalating ideological tension over what counts as "cruel and unusual punishment" (banned by the Eighth Amendment) under the "evolving standards of a mature society."

Bryan Stevenson of the Equal Justice Initiative argued the case

For the court’s bare majority of five, evolving standards suggest that children should be treated differently from adults. Thus, the cases of Evan Miller and Kuntrell Jackson are logical extensions of previous rulings banning the death penalty for juveniles (in the case of Roper), and life without parole for juveniles convicted of non-homicide offenses (in Graham).

In this line of thinking, the majority leaned on psychological research and an amicus brief by the American Psychological Association. Luminaries in our field (including Elizabeth Cauffman, Tom Grisso, Terrie Moffitt, Jen Woolard, Larry Steinberg, John Edens, Alan Kazdin, Donald Lynum and Edward Mulvey) helped inform the court of what brain science reveals about "the hallmarks of youth," in the words of Justice Kagan: "immaturity, impetuosity, and failure to appreciate risks and consequences."

Only two justices, Stephen Breyer and Sonia Sotomayor, wanted to go further than eliminating mandatory LWOP sentences. In their concurring opinion, they stated their opinion that the Supreme Court's recent ruling in Graham prohibits imposing the penultimate punishment on minors who did not intend to kill. Here, 14-year-old Kuntrell Jackson merely went along with a group of older boys, one of whom killed a video store clerk in the course of a robbery. He did not kill, nor was there evidence he intended the death.

Society evolving toward harsher punishment

Kuntrell Jackson of Arkansas,
14 at the time of his crime

The court’s conservative dissenters, however, lambasted the majority for "march[ing] toward some vision of evolutionary culmination" favoring rehabilitation over retribution. "Unless confined, the only stopping point for the Court’s analysis would be never permitting juvenile offenders to be tried as adults." To the minority, there is no contradiction between the ever-harsher penal policies in 21st century America and the "evolving standards of a mature society." Wrote Chief Justice Roberts in his dissent:

[T]here is little doubt about the direction of society’s evolution. For most of the 20th century, American sentencing practices emphasized rehabilitation of the offender and the availability of parole. But by the 1980’s, outcry against repeat offenders, broad disaffection with the rehabilitative model, and other factors led many legislatures to reduce or eliminate the possibility of parole, imposing longer sentences in order to punish criminals and prevent them from committing more crimes. Statutes establishing life without parole sentences in particular became more common in the past quarter century. And the parties agree that most States have changed their laws relatively recently to expose teenage murderers to mandatory life without parole.

Commenting over at Slate, appellate judge Richard A. Posner cast the whole notion of "evolving standards of a maturing society" as a sick joke:

Evan Miller, also 14, an abuse victim who killed
a neighbor in a drug-induced haze

The concept of cruel and unusual punishments is based on "the evolving standards of decency that mark the progress of a maturing society." Is the United States a maturing society? Surely not in the realm of criminal law, a real disaster area -- we imprison a higher fraction of our population than any civilized nation (and than most of the uncivilized ones), many for trivial crimes involving mind-altering drugs less dangerous than alcohol or cigarettes; life sentences are imposed with abandon; prosecutorial discretion is very broad and often exercised irresponsibly; and judges' sentencing discretion, also broad, is exercised much of the time in an intellectual vacuum.

Posner, a senior lecturer at the University of Chicago Law School, also took issue with using "brain science" to draw a hard line between juveniles and other defendants:

I am struck by the court's reference to "brain science." The court has learned from brain science that teenagers are immature! But we knew that. The problem with using it as a basis for distinguishing between murderers of different ages is that many adult murderers have problems with their brains, too. Why is it not cruel and unusual to sentence them to life in prison? A categorical distinction between a 17-year-old and an 18-year-old seems arbitrary, and in any event a reflection of feelings about children (if teenagers can be called children) rather than of the teachings of brain science. If the court had said -- what I imagine the justices in the majority feel, that emotion dictated the outcome -- that a sentence of life imprisonment (with no parole of course) imposed on a 14-year-old is extremely distasteful, it would have the considerable virtue of candor.

Getting down to the brass tacks 

So, what does this ruling mean in practice, and how will it play out?

As it now stands, 29 of the 38 U.S. states that allow sentences of life without parole for juveniles have provisions for such sentences to be mandatory. All told, about 2,000 of the 2,500 people serving LWOP sentences for crimes committed as minors were sentenced under laws mandating that punishment.

It is not clear how many of these convicts will be eligible for relief. Legal pundits are already debating the retroactive applications of Miller and Jackson. (See HERE and HERE.)

Most likely, as a lawyer colleague predicted, some prisoners in states with vigorous advocacy offices may benefit, while those in other states will continue to languish.

For more background, see my post at my Psychology Today Witness blog on the Lives of Juvenile Lifers report: "No other country condemns children to life behind bars" (click HERE).

Bow ties: The simple solution to expert witness credibility

If you are a lawyer anxious over how your expert witness will perform on the witness stand, you can always instruct the expert to don a bow tie: It's just the ticket for that "nerdy nod of credibility."

That's just one of the scintillating nuggets of advice for turning a ho-hum expert into a "great" witness in the latest issue of The Jury Expert, a publication of the American Society of Trial Consultants. Other advice from Doug Carner of Forensic Protection includes instructing the expert to be confident and relaxed and not to be "the hero."

Reading the column made me thankful that the attorneys I work with have more common sense than to focus on the superficial. I would be less than thrilled to have an attorney client making wardrobe recommendations (bow tie or not) or ordering me to just relax.

I don't mean to sound cynical about trial consultants. I'm sure there is a valid place for them in helping prepare witnesses -- especially novitiates -- for trial. But in my opinion, substance is far more important than style. And that's very hard to teach in a simple advice column. So attorneys are better off choosing the right expert in the first place than scrambling to prepare their witness via last-minute wardrobe tips.

Critically, a good expert witness must have legitimate expertise in the topic at hand. Without legitimate expertise, it is hard to be calm and confident. He or she should also be thorough, taking the time to research the issues and understand the specific case facts. And, above all, the witness should convey honesty and humility.

An attorney who has to tell the witness not to play "the hero" has already made a big mistake. That narcissistic expert should have been avoided in the first place. As a colleague once remarked, it helps us to remain humble if we remember that we are just one piece of evidence, like a maggot on a dead body.

Fortunately, The Jury Expert editors had the good sense to solicit rebuttals from other trial consultants, who took issue with Carner's column.

Forensic psychologist Stanley Brodsky, a widely published authority on trial consultation, called Carner's wardrobe advice "demeaning." Experts don't need to be told to dress up for court. And although one or two exceptions come to mind, most of us won't feel more comfortable in a bow tie.

Brodsky also objected to Carner's advice that experts should just "stick to the facts." What distinguishes expert testimony from the testimony of lay or fact witnesses, he pointed out, is that experts are supposed to present not just facts but -- that's right -- expert opinions.

In another rebuttal, trial consultant Elaine Lewis said Carner only stated the obvious, without giving any real insights on how to achieve better results. "For example, we are told an expert 'should remain relaxed' but there is no suggestion on how to accomplish this," she noted.

Ellen Finlay, who brings the perspective of a former trial attorney to her trial consultant practice, said much of what looks like poor witness preparation stems from inadequate law school training in how to craft a compelling direct examination. A well-crafted direct examination provides a road map for jurors and witnesses and is the single most effective way to "communicate your story to both the jury and your own witnesses," she coaches.

If I was in the business of advising attorneys on preparing expert witnesses for trial, I would tell them not to scrimp on time. The biggest mistake I see attorneys making is to throw their cases together at the last minute. Attorneys need to fully explain to their experts their theory of the case, their voir dire and direct examination approach, and what to anticipate from cross-examination.

If the expert is left hanging in the wind, the case will suffer, bow tie or not.

SVP risk tools show 'disappointing' reliability in real-world use

Rater agreement on three instruments commonly used  to assess sex offenders' risk of recidivism is much lower in practice than reported in the tools' manuals, according to a new study out of Florida.

Faring most poorly was the Psychopathy Checklist (PCL-R). Correlations of scores between two evaluators hired by the same agency were in the low range. On average, psychologists differed by five points on the instrument, which has a score range of of zero to 40. In one case, two evaluators were apart by a whopping 24 points!

Agreement among evaluators was only moderate on the Static-99 and the MnSOST-R, two actuarial risk assessment instruments for which scoring is relatively more straightforward.

The study, published in the respected journal Psychological Assessment, was a collaboration between scholars from the Department of Mental Health Law and Policy at the University of South Florida and researchers with the Florida Department of Children and Families. It utilized archived records culled from the almost 35,000 individuals screened for possible Sexually Violent Predators (SVP) civil commitment in Florida between 1999 and 2009. The researchers located 315 cases in which the same individual was evaluated by separate clinicians who each administered both the PCL-R and at least one of the two actuarial measures within a short enough time frame to enable direct scoring comparisons.

It would be a mistake to lean too heavily on the results of a single isolated study. But the present study adds to a burgeoning body from several groups of independent researchers, all pointing to troubling problems with the accuracy of instruments designed to forecast risk of recidivism among sex offenders.

Related study: Psychopathy and sexual deviance not predictive

Collectively, the research has been especially critical of the ability of the highly prejudicial construct of psychopathy to add meaningfully to risk prediction in this high-stakes arena. Indeed, just this week another study has come out indicating that neither psychopathy scores nor sexual deviance measures improve on the accuracy provided by an actuarial instrument alone.

An especially interesting finding of that Canadian study is that reoffense rates were still below 12 percent over a 6-year followup period for even the most high-risk offenders -- those with high risk ratings on the Static-99R plus high levels of psychopathy and sexual deviance (as measured by phallometric testing). This makes it inappropriate to inflate risk estimates over and above those derived from Static-99R scores alone, the authors caution.

Item-level analysis finds varying rates of accuracy

A unique contribution of the Florida study is its analysis of the relative accuracy of every single item in each of the three instruments studied. Handy tables allow a forensic practitioner to see which items have the poorest reliability, meaning they should be viewed skeptically by forensic decision-makers.

For example, take the MnSOST-R, a now-defunct instrument with a score range of –14 to 31 points. The total gap between evaluators was as wide as 19 points; the items with the greatest variability in scoring were those pertaining to offenders' functioning during incarceration, such as participation in treatment.

Meanwhile, the weak performance of the Psychopathy Checklist owes much to the items on its so-called “Factor 1,” which attempt to measure the personality style of the psychopath. As I've discussed before, rating someone as “glib,” “callous” or “shallow” is a highly subjective enterprise that opens the door to a veritable avalanche of personal bias.

Piggy-backing off a recommendation by John Edens and colleagues, the Florida team suggests that the prejudicial deployment of the Psychopathy Checklist may be superfluous, in that scores on Factor 2 alone (the items reflecting a chronic criminal lifestyle) are more predictive of future violence or sexual recidivism.

Next up, we need to identify the causes of the poor interrater reliability for forensic risk prediction instruments in real-world settings. Is it due to inadequate training, differing clinical skills, variable access to collateral data, intentional or unintentional bias on the part of examiners, adversarial allegiance effects (not a factor in the present study, since both evaluators were appointed by the same agency), or some combination?

In the meantime, the fact that two evaluators working on the same side cannot reliably arrive at the same risk rating for any particular individual should certainly raise our skepticism about the validity of risk prediction based on these instruments.

The studies are:

Reliability of Risk Assessment Measures Used in Sexually Violent Predator Proceedings. Cailey Miller, Eva Kimonis, Randy Otto, Suzonne Kline and Adam Wasserman. Psychological Assessment. Published online 7 May 2012. Advance online publication. Click HERE to contact the authors.

Does Consideration of Psychopathy and Sexual Deviance Add to the Predictive Validity of the Static-99R? Jan Looman, Nicola A. C. Morphett and Jeff Abracen. International Journal of Offender Therapy and Comparative Criminology. Published online 28 May 2012. Click HERE to contact the authors.

Inter-rater reliability of the PCL-R total and factor scores among psychopathic sex offenders: Are personality features more prone to disagreement than behavioral features? John Edens, Marcus Boccaccini and D. W. Johnson. 2010. Behavioral Sciences and the Law, 28 (1), 106–119. 

Related blog posts: 

• Psychopathy: A Rorschach test for psychologists?
• Study: Psychopathy score fails to predict sexual recidivism   
• NPR series on psychopathy in court

Civil capacity assessment comes of age

What do these three situations have in common?

• A young adult with chronic schizophrenia refuses medication because she believes she is being poisoned 

• A middle-aged adult struggles to pay his bills after a traumatic brain injury from a motorcycle accident 

• An older adult with dementia revises a will to favor one stepchild over another

All are situations in which a forensic practitioner may be called upon to render an opinion on the individual's capacity, whether to make medical decisions, handle finances, or execute a will. As the population ages and family structures become increasingly complex, the demand for such civil capacity assessments is growing exponentially.

So it is only fitting that the inaugural text in the National Academy of Neuropsychology’s new series on evidence-based practice focuses on civil capacities. The book brings together theoretical developments, research findings and practice recommendations in this complex and expanding area.

Volume editor George Demakis, a psychology professor at the University of North Carolina with considerable clinical experience conducting civil capacity evaluations, has brought together an impressive array of experts. Together, they discuss the research and practice in a range of civil capacities, including financial, healthcare decision-making, testamentary (executing a will), driving, personal care and guardianship.

The field's evolution is clearly visible in this book's chapters. Only 26 years ago, Tom Grisso issued his paradigm-shifting call for the assessment of "functional capacities." Here, rather than focusing on diagnostic labels or one-size-fits-all checklists of ability, chapter authors urge practitioners to carefully explore the individual's real-life functioning, including through collateral reports and even direct evidence of performance (for example, by observing a subject's driving).

A central goal of the book is to provide practical guidance. Each chapter contains an illustrative case example and discusses the range of capacity instruments available in that particular niche. Later chapters focus on the nuts and bolts of data collection, report writing, and testifying. There's even a chapter from the perspective of "the legal consumer," in which two North Carolina court officers tell us what they would like to see in a civil capacity assessment report. Although it's rather elementary stuff for the seasoned forensic practitioner, the chapter makes for a useful teaching tool for students and other novitiates.

In a glowing review for PsyCritiques, Jennifer Moye calls the text "a must read" that is "certain to advance the field." Her one substantive critique is that it gave short shrift to how values and individual differences (including multicultural and educational influences) play into expert judgments of capacity. This is an important issue, considering the liberties that can be lost when people are declared incompetent to make their own medical decisions or to live independently in the community.

For a more thorough discussion of the issue of social status and capacity assessment, from the perspective of medical treatment, I recommend an essay by Susan Stefan in a special 1996 issue of Psychology, Public Policy and Law on the MacArthur Treatment Competence Research.

I was also a bit disappointed to see that last year's book by colleagues Adam Alban and Eric Mart on testamentary capacity didn't get even a nod. The book, The Practical Assessment of Testamentary Capacity and Undue Influence in the Elderly, is an excellent practitioner guide, which even includes a CD-ROM of assessment tools in this area.

These minor quibbles aside, Civil Capacities is a major advance that is sure to become an essential text for those working in this area, including neuropsychologists, forensic psychologists, attorneys and judges.

My Amazon review of Civil Capacities in Clinical Neuropsychology: Research Findings and Practical Applications is HERE. If you find it useful, please click on "YES," this review was helpful.

Jail confidentiality, Part II: Open season on insanity consultants

Do insanity consultations fall under the attorney-client privilege? 
Not in DeKalb County, Georgia

POSTSCRIPT: In 2015, the Georgia Supreme Court overturned Henry Neuman's murder conviction based on the trial court's harmful error of violating attorney-client privilege by forcing the defense consultants to turn over their records to prosecutors. My blog post on this ruling is HERE.  

In civil court, expert consultants may be kept secret under attorney-client confidentiality rules. Even with testifying experts, an amendment to the Federal Rules of Evidence allows civil attorneys to avoid handing over the experts' reports until they are in their final form.

Is the situation similar in criminal court? Criminal attorneys often assert that the work product of an expert who is retained only as a consultant -- not as an expert witness -- can be kept confidential under the attorney-client privilege doctrine. But consider this scenario:

An attorney wants to know whether insanity might be a viable defense in a murder case. He decides to retain a psychologist as a consultant. The psychologist agrees to meet with the defendant and give the attorney an initial assessment.

Being an ethical practitioner, the psychologist obtains informed consent from the defendant. He explains that since he is just a consultant and won’t be testifying as an expert in the case, the information that he collects will only be shared with the attorney.

But he is wrong. The next thing he knows, he has been slapped with a subpoena ordering him to bring his notes and test data to court and be prepared to be questioned by the district attorney about his findings. If he refused to cooperate, the prosecutor threatens to search his office and seize the records; a search warrant is already in hand.

Peter Thomas. Photo credit: Chris 
North, Reporter Newspapers

This was the rude introduction to forensic psychology that greeted Peter Thomas of Georgia, a novice to criminal work and court proceedings. He was yanked into the middle of the headline-grabbing case of Hemy Neuman, a high-level General Electric manager who had ambushed and shot to death a subordinate's husband, entrepreneur Russell "Rusty" Sneiderman, outside a preschool in a wealthy suburb of Atlanta, Georgia.

The prosecutor in the Neuman case learned of Thomas's involvement through an old trick -- underhanded but effective -- of monitoring the jail's visitor logs.  

Neuman's attorneys vigorously objected to the subpoena and the legality of the pretrial discovery hearing. Allowing prosecutors to interview Thomas would have a "chilling effect" on defense attorneys' ability to use experts, lest they do their clients "more harm than good," attorney Robert Rubin argued to the court. 

"Mr. Neuman was told, at the beginning of his meeting with Peter Thomas, that his disclosures during the course of that interview would be disclosed only to his legal team," Rubin and co-counsel Douglas Peters wrote in a legal motion objecting to the disclosure. "Mr. Neuman was NOT given the standard warnings usually given during a court ordered evaluation that by cooperating in the evaluation he was waiving his Fifth Amendment privilege. Mr. Neuman did not knowingly waive any privilege, including Fifth Amendment or attorney-client."

But DeKalb Superior Court Judge Gregory Adams was unmoved. He ordered Thomas and, later, a second psychologist, to hand over their evaluation notes forthwith. He said he would first view the materials to protect any information that might fall under the protection of the attorney-client privilege.

Case law murky

The U.S. Supreme Court has never clarified whether the prosecution can discover and use evidence generated by non-witness defense psychiatric experts when criminal defendants raise the insanity defense, leaving lower courts divided on the issue, according to an overview in the Fordham Law Review.

The Third Circuit is an example of an appellate court that has ruled that attorney-client privilege applies in this situation. In its 1975 ruling in U.S. v. Alvarez, it held that "effective assistance of counsel with respect to the preparation of an insanity defense demands recognition that a defendant be as free to communicate with a psychiatric expert as with the attorney he is assisting." In that case, a psychiatric consultant rendered an unfavorable opinion regarding the viability of an insanity defense for a defendant facing trial for kidnapping. The defense went ahead with an insanity defense anyway, without calling the expert to testify. Knowing of the initial expert's opinion, the government subpoenaed him and, over defense objection, the trial court compelled him to testify. The Third Circuit overturned the conviction.

Other courts, however, "have held that merely by asserting the insanity defense, criminal defendants waive all claims of privilege with respect to any prior psychiatric evaluations," reports Elizabeth Maringer in the law review. A prime example was the 1976 case of Edney v. Smith, involving a man facing trial for kidnapping and murdering his ex-girlfriend's 8-year-old daughter. Edney pleaded insanity and called a psychiatrist who testified in support of this plea. The court then allowed the prosecution to call, in rebuttal, the original psychiatrist who had examined Edney for trial preparation purposes and who did not believe that Edney was mentally ill. The New York Court of Appeals upheld Edney’s conviction, ruling that pursuing an insanity defense automatically waives the attorney-client privilege.

The threat of prosecutorial discovery puts defense attorneys in a Catch-22 situation as they weigh options in cases in which mental illness is a potential issue. On the one hand, as Maringer notes, counsel “risk creating witnesses for the prosecution” when they investigate a mental health defense, especially if they use court-appointed experts. On the other hand, they risk violating their client's rights if they do not thoroughly investigate this line of defense.

"The obvious chilling effect upon defense attorneys' willingness to investigate and pursue the insanity defense for their clients conflicts with the policies underlying the Sixth Amendment," Maringer states. "In addition, risk of disclosure diminishes defendants' willingness to cooperate with counsel and psychiatric experts."

'Celebrity angels and demons made me do it'

Hemy Neuman

Neuman's insanity defense was ridiculed in the press. The love-struck defendant claimed that he had heard the voice of a demon who sounded like Barry White and seen an angel who looked like Olivia Newton-John, who ordered him to kill the husband of his love interest.

The defense called at least three mental health experts. Psychologist Adriana Flores testified that in her expert opinion Neuman was suffering from erotomanic delusions and was insane at the time of the killing. Neuman told her he had been visited by a "she-demon" who told him the Sneidermans' children were his.

"He believed he was the father of the children, they were his children and were in danger," Flores testified. "It was his duty to rescue them, to protect them by killing Rusty [Sneiderman], then he could be with his children. 

Another defense expert, psychiatrist Julie Rand Dorney, testified that Neuman showed signs of "paranoia, depression, social isolation, confusion and magical thinking, which could mean psychosis."

The prosecution, meanwhile, painted Neuman as a calculating killer who planned Sneiderman's shooting for months, going to gun shows, taking a gun safety course, going to target practice, renting a car for the shooting and wearing a disguise, according to ABC News coverage.

Psychiatrist Pamela Crawford, called by the government, said she believed Neuman was faking his symptoms. "His discussion of [the demons] was inconsistent," she testified. "At one point he says, 'I know they are not real,' then later says, 'I just want the demons to go away.' He's not even consistent in the same interview."

"The defendant is serving up an insanity sandwich and he's been serving it up since 2010 and he wants you to eat it," District Attorney Robert James told the jury.

Not too surprisingly, the jury rejected Neuman's insanity bid. Neuman was found guilty but mentally ill and sentenced to life in prison without parole.

Appeal may clarify law - at least in Georgia

The judge's decision to turn over Thomas's assessment data to the prosecution will likely figure prominently in Neuman's appeal.

Neuman’s attorney, Robert Rubin, said the prosecution's pretrial subpoena ploy forced the defense to change strategies, and to call Thomas as a witness in order to prevent him from becoming a prosecution witness. Thomas, who had never before testified in court, conceded under cross-examination that he did not test for malingering, and that Neuman may have been faking insanity.

The case should serve as a cautionary one for pretrial consultants. Unless and until this murky area of the law gets cleared up, it is prudent when conducting an insanity evaluation -- even if you are just a consultant and not expected to testify -- to let the defendant know that the information you are collecting may ultimately be discoverable.

After all, you never know who is looking over your shoulder when you sign your name on the jail log. It could be a prosecutor with a subpoena in one hand and a search warrant in the other.

The law review article, available online, is: "Witness for the prosecution: Prosecutorial discovery of information generated by non- testifying defense psychiatric experts" by Elizabeth F. Maringer, Fordham Law Review 62 (3), 1993.

Confidentiality and jail forensic evaluations (Part I of II)

Prosecutor secretly records forensic psychology evaluation 

Alameda County Courthouse, Oakland

The other day, I was evaluating an inmate at the county jail, when we both heard a series of faint clicking sounds. He immediately jumped to the conclusion that "they" were eavesdropping on us.

Nonsense, I thought.They were probably just opening the door of an adjacent visiting room.

But in the nearby county of Alameda (Oakland, California), the legal community is abuzz over an incident in which jail deputies actually did eavesdrop on at least one confidential interview between a forensic psychologist and a criminal defendant.

What's most astonishing is that the prosecutor who requested the surveillance, an experienced trial attorney, did not seem to realize she was doing anything wrong. Several days after ordering the tape-recording, Deputy District Attorney Danielle London presented it to the defendant's attorney, apparently planning to use it as leverage in the case.

The expert who was illegally recorded was conducting an evaluation aimed at determining whether "intimate partner syndrome" (synonymous with battered women’s syndrome) was relevant to explaining why defendant Marissa Manning stabbed her husband to death during a fight.

Santa Rita Jail deputies routinely eavesdrop on conversations between inmates and their friends and families, and audiotapes of such conversations can be used as evidence against defendants. But attorney-client conversations are supposed to be off limits. The district attorney's nonchalance about such a basic violation of attorney-client privilege has observers wondering whether this is a one-off situation or part of a larger pattern.

"This incident has placed the Public Defender's Office on red alert," Diane Bellas, the county's chief public defender, told a newspaper reporter. "It is a felony to record the conversation between an inmate and her attorney or others who are presumed to maintain confidentiality on the inmate's behalf.”

"A prosecutor's intrusion into a defense preparation in this way severely undermines the right to counsel and the ability of a defendant to investigate a case" agreed Charles Weisselberg, a professor of law at the nearby Boalt Law School of the University of California in Berkeley. "It's pretty egregious and striking."

London has been suspended pending an internal investigation.

Coming up in Part II: Confidentiality and jail sign-in logs

Research: Romney's anti-gay assault fits typical pattern

Romney then

Outed for physical and verbal abuse of gay classmates during high school, U.S. presidential candidate Mitt Romney is trivializing the incidents as "pranks" and "dumb things," and claiming not to know the boy he assaulted was gay.

To me, his response came as no surprise. This is precisely what most gay-bashers think and say, according to my groundbreaking research on the motivations of perpetrators.

In the first empirical research into prevalence rates of and motivations for antigay harassment and violence by noncriminal young adults, I found antigay behaviors like Romney's to be alarmingly commonplace. One in 10 young adults in the politically liberal San Francisco Bay Area admitted to physical violence or threats against presumed homosexuals, and another 24 percent acknowledged name-calling. The percentages were even higher among young men. The frequency of self-acknowledged antigay behaviors among a general population sample was consistent with victim studies in which large proportions of lesbians and gay men report sexuality-related victimization.

Like Mitt Romney, most gay-bashers with whom I conducted followup interviews insisted that they were not motivated by hatred of homosexuals. This despite the fact that many of their assaults fell within legal definitions of a hate crime. Many, like Romney, were instead acting as self-appointed enforcers of gender norms for male and female behavior.

Washington Post reporter Jason Horowitz was able to track down five former classmates of Romney’s who gave similar accounts of how Romney led a "vicious" assault against a closeted gay classmate at his prestigious boarding school in Michigan. The victim, John Lauber, was "perpetually teased for his nonconformity and presumed homosexuality." Romney reportedly became incensed about Lauber’s bleached-blond hair that draped over one eye:

"He can’t look like that. That’s wrong. Just look at him!" an incensed Romney told Matthew Friedemann, his close friend in the Stevens Hall dorm, according to Friedemann's recollection. Mitt, the teenage son of Michigan Gov. George Romney, kept complaining about Lauber's look, Friedemann recalled.

A few days later, Friedemann entered Stevens Hall off the school's collegiate quad to find Romney marching out of his own room ahead of a prep school posse shouting about their plan to cut Lauber's hair. Friedemann followed them to a nearby room where they came upon Lauber, tackled him and pinned him to the ground. As Lauber, his eyes filling with tears, screamed for help, Romney repeatedly clipped his hair with a pair of scissors.

"It happened very quickly, and to this day it troubles me," said [Thomas] Buford, the school's wrestling champion, who said he joined Romney in restraining Lauber. Buford subsequently apologized to Lauber, who was "terrified," he said. (Buford later became a prosecutor. )

Soon after the incident, Lauber disappeared, expelled for smoking a cigarette. He died of liver cancer in 2004.

In defending himself, Romney told Fox News that he "had no idea what that individual's sexual orientation might be."

But that misses the point.

Romney now

In my in-depth interviews with antigay assailants, all insisted that their assaults were not driven by animus toward homosexuals. Rather than punishment of homosexuality per se, their assaults on presumed homosexuals were aimed at punishing those who violated mandatory sex role norms. Boys who do not conform to expected gender norms are labeled very early on as "sissies" or "fags" and subjected to merciless bullying. This peer policing is a very effective way of enforcing hierarchical gender relations. 

By wearing his hair in a feminine manner, Lauber had violated the antifemininity norm that is part of the bedrock of traditional masculinity, which apparently dominated at the elite Cranbrook School.

Romney's verbal denigration of another former classmate, also a closeted homosexual, fits this same pattern. When Gary Hummel tried to speak up in English class, Romney shouted “atta girl!” at him, Hummel told the Post.

So, Romney's assaultive and bullying conduct was not so much to punish Lauber and Hummel for being gay as for being different, for having the audacity not to conform to his chest-thumping notions of manliness. This contempt for insufficiently masculine men is a core feature of our culture, helping to explain Romney's self-righteousness and his facile dismissal of his harmful conduct as innocent hijinks.

Hebephilia update: DSM-5 workgroup stubbornly clinging to pet diagnosis

Salvador Dali*: The Average Bureaucrat

A few weeks ago, I reported on an open letter to the American Psychiatric Association, calling for it to reject three controversial expansions of sexual paraphilia diagnoses that are being promoted by government evaluators in civil commitment cases.

A lot has happened since then. The only one of the three controversial diagnoses still in the running for official status has been altered for the umpteenth time. An esteemed journal is issuing a scathing critique. And the open letter is generating buzz in the blogosphere.

The open letter has garnered more than 100 signatures, many from prominent forensic psychologists and psychiatrists in the U.S. and internationally. If you intend to sign on but haven’t yet, act now because I understand it will be submitted very soon. (Click HERE to review the text; click HERE to email your name and professional title to co-author Richard Wollert.)

Hebephilia gets yet another makeover 

This week, the Sexual Disorders Workgroup for the upcoming fifth edition of the APA's diagnostic manual toned down its proposal to turn sexual attraction to young teens into a mental disorder. As psychiatrist Allen Frances explains at his DSM5 in Distress blog, hebephilia is still there -- you just have to read the small print to see it:

Dali: Enchanted Beach with Three Fluid Graces

Confronted by universal opposition from the rest of the field, the DSM 5 group has been forced progressively to whittle down their pet, but they so far have refused to just drop it altogether. 'Hebephilia' first lost its free-standing independence and was cloaked as Pedohebephilia. When this didn't fly, the term was dropped altogether in the title but the concept was slipped into the definition of Pedophilia -- which was expanded out of recognition by having a victim age cut-off of 14 years. No one accepted this outlandish suggestion and now finally the work group comes back with ‘early pubescent children' and tries to keep 'hebephilia' as a term in the subtype. The instability of the criteria sets associated with this concept is additional evidence that the fervor for its adoption stems from emotional loyalty rather than reasoned review of its weak conceptual and research base. How can the group vouch for the reliability of the diagnosis when the concept and criteria are changing every month? This is no way to develop a diagnostic system.

The staunch insistence on this transparent attempt to turn statutory rape into a mental disorder owes in large part to the makeup of the sexual disorders workgroup. As Frances notes, "the most wayward of all the DSM 5 work groups" is "lopsidedly dominated" by psychologists from a sex clinic up in Toronto, whose ambition is "to find a place in DSM 5 for their pet diagnosis."
Although the group's other outlandish proposals, Paraphilic Coercive Disorder and Hypersexuality, have been shelved for the time being, Frances worries that putting them in the appendix "for further study" is still risky:

Recognizing that the jig is up on the grand design, members of the DSM 5 sexual disorders work group have been heard saying they may have to settle for an Appendix placement for their three hothouse creations. This would create forensic dangers. We have learned from the abuse of "Paraphilia Not Otherwise Specified" in Sexually Violent Predator cases that any (even remote) legitimization by DSM 5 is certain to be misconstrued and misused in the courtroom. 

Come on guys. This is absolutely absurd just on the face of it…. So back to the drawing board, DSM 5 sexual disorders work group. The grand dream is lost -- now at least make sure you don't mess up on the fine print.

On the professional listservs today, some conspiracy theorists were speculating that the new wording signifies a plot to enhance the standing of physiological testing in sex offender assessment. The latest proposed criteria for "pedophilia, hebephilic type" require "equal or greater sexual arousal from prepubescent or early pubescent children than from physically mature persons." How to determine that fuzzy standard? Enter the penile plethysmographer, a new niche career track, penis cuff at the ready to measure who is aroused by what.

"There is withering criticism already that the DSM is being expanded to sell more drugs," wrote one colleague. "Now it appears that psychiatry and psychology are conspiring to use the DSM to spur PPG tests -- tests which risk leaving patients with traumatic and indelible memory traces. Do most psychiatrists really want to open this door?!"

Orwellian thought police? 

The mere idea of allowing the American Psychiatric Association to dictate "normal" sexuality frightens English Professor Christopher Lane. Lane, whose book Shyness: How Normal Behavior Became a Sickness exposed the unscientific inner workings of the DSM-III committee, expressed shock over the first listed criterion for the shelved disorder of hypersexuality: "Excessive time is consumed by sexual fantasies and urges, and by planning for and engaging in sexual behavior." On his Side Effects blog, Lane mused:

Dali: Femme a Tete de Roses

"Excessive time"? What exactly does that mean, and according to whose standards? That's not a small or trivial matter to settle when the APA is talking in vague generalities about the nation’s libido -- how much sex it wants and how much sex the APA thinks it should think about wanting. The APA is talking about how much time Americans can devote to sexual fantasy before it suggests that we’re mentally ill if our preoccupations are stronger than those set by the relevant task force.

Does that initiative seem to overreach a bit, even to the point of sounding almost Orwellian? It does so to me. If we're to have criteria, are quotas next, including for fantasy? It’s as if the East Coast offices of the APA had morphed into those of the Thought Police in Orwell's 1984, warning citizens that they’d overstepped their "sexual thought quota" for the week and must be rationed -- or punished accordingly.

Lane analyzed hebephilia through his characteristic historical lens:

It's an archaism, a throwback literally to 19th-century psychiatry, but refers to practices that were as central to the Classical age -- and thus to Western democracy -- as were Socrates, Plato, and especially Plato’s Symposium, one of the foundational books in the West on eros and love.

The APA is already trying to determine how long normal grief should last before it’s thought pathological. Its brisk, jaw-dropping answer: two weeks. Do we really want the same organization dictating how often we can think about sex? These kinds of proposals can only end badly.

Leading journal tackles the controversy

The good news this week, which should have all of us jumping up and down with joy, is that the APA has caved in under massive public pressure and dropped its plan for a new psychosis risk disorder. This disorder would have put thousands if not millions of youngsters at risk of being dosed up with dangerous antipsychotic drugs based on a suspicion that they might go crazy in the future. Mixed Anxiety Depression has also bit the dust.

Dali: Daddy Longlegs of the Evening Hope

But, as featured in a special issue of the esteemed Journal of Nervous and Mental Diseases due out in June on the raging diagnostic controversies, there are still many battles ahead as the bloated DSM-5 enters the final stretch. The special issue will tackle diagnostic inflation, pharmacological conflicts of interest, controversies with the newly revamped personality disorders, and problems with diagnostic reliability in the recent field trials. Hebephilia, often neglected amidst controversies with wider impact such as psychosis risk syndrome and the pathologization of normal grief, merited an article in this special issue.

 In "Hebephilia and the Construction of a Fictitious Diagnosis," forensic psychologists Paul Good and the late Jules Burstein make a strong case for abandoning this faux disorder, which will only make the APA more of a laughingstock in the future.

Good and Burstein catalog an assortment of empirical problems. These range from the difficulty of reliably measuring "recurrent and intense" sexual arousal to problems determining the pubertal status of a young teenage victim. They also challenge the very idea that sexual attraction to pubescent minors is a mental illness, rather than merely illegal.

Although the Sexual Disorders Workgroup hides behind a fictive notion of a pure and ethereal "science," Good and Burstein clearly believe that hebephilia, if added to the DSM-5, will be mainly invoked in a partisan manner in forensic proceedings, in order to justify harsher punishment and involuntary civil detention. Because of its power to do harm, they say, its scientific grounding should be especially strong. If it does manage to worm its way into the DSM, they say, it should still be challenged in court:

We believe the admissibility of the proposed revision to DSM-5 that would include Hebephilia as a type of Pedophilia could be challenged in a court of law based on current legal standards. For example, since there is no professional consensus or general acceptance in the scientific community to support the notion of Hebephilia as a mental disorder, it would have difficulty passing the Frye test for admissibility. Similarly, without a widely established body of peer-reviewed, validation research and repeated studies showing inter-rater reliability in the laboratory and among clinicians in the field, Hebephilia would also have difficulty meeting the criteria specified in the Daubert standard.

Indeed, this is just what has been happening to hebephilia in federal court, where at least three civil detention petitions in a row have been thrown out due to the level of controversy in the field over this purported condition.

With all of this tumult, it seems that the DSM-5 excesses are producing a backlash against the American Psychiatric Association and, indeed, fueling disenchantment with the whole enterprise of psychiatric diagnosis.

As Frances writes, the turnaround on psychosis risk syndrome came about due to a combination of:

• extensive criticism from experts in the field
• public outrage
• uniformly negative press coverage
• abysmal results in DSM-5 field testing

For the first time in its history, DSM 5 has shown some flexibility and capacity to correct itself. Hopefully, this is just the beginning of what will turn out to be a number of other necessary DSM 5 retreats. Today's revisions should be just the first step in a systematic program of reform.… This is certainly no time for complacency. Much of the rest of DSM 5 is still a mess. The reliabilities achieved for many of the other disorders are apparently unbelievably low and the writing of the criteria sets is still unacceptably imprecise.

Who needs reliability? 

Frances calls for slowing down the process to allow for additional field testing and, more importantly, an independent scientific review of all the remaining controversial DSM-5 changes. But the DSM-5 folks are taking a different tack. Faced with field trial results showing very poor reliability -- not much better than chance -- for many of their proposed diagnoses, they want to change the definition of what counts as minimally adequate.

Dali: Autumn Cannibalism

It’s pretty ironic: The DSM-III went down in history for elevating the importance of reliability at the expense of validity. Remember, diagnostic reliability just means that similarly trained raters see a certain symptom presentation and call it by the same label. It says nothing about external validity, or whether the label is meaningful in explaining a real-world phenomenon. But reliability is basic. If a diagnostic label cannot be reliably applied, you can't even start talking about its validity. And now, the same psychiatric organization that reified the kappa reliability statistic as the be-all, end-all of science is trying to tell us that traditional kappa levels are unrealistically high for psychiatric research.

Historically, psychiatric reliability studies have adopted the Fleiss standard, in which kappas below 0.4 have been considered poor. In the January issue of the American Journal of Psychiatry, Helena Kraemer and colleagues complained that this standard is unrealistically high, and lobbied for kappas as low as 0.2 -- traditionally considered poor -- to be deemed "acceptable."

Former DSM-III guru Robert Spitzer and colleagues object to this proposal in a letter in the latest issue of the Journal. "Calling for psychiatry to accept kappa values that are characterized as unreliable in other fields of medicine is taking a step backward," they state. "One hopes that the DSM-5 reliability results are at least as good as the DSM-III results, if not better."

Alas, just wishing won't make it so. Despite its grandly stated ambitions, the DSM-5 will likely go down in history as a major gaffe by American psychiatry in its continuing struggle for world dominance.  

Remember to check out the open letter 

and send in your name, if you are in agreement with it.

Further reading:

• American Sex and American Psychiatry: The APA is trying to determine how much sex we can fantasize about by Chris Lane at Side Effects
• DSM 5 Rejects 'Hebephilia' Except for the Fine Print: Now the devil is in the details by Allen Frances at DSM5 in Distress
• Wonderful News: DSM 5 Finally Begins Its Belated and Necessary Retreat: Perhaps this will be the beginning of real reform by Allen Frances at DSM5 in Distress

*Salvador Dali: "One day it will have to be officially admitted that what we have christened reality is an even greater illusion than the world of dreams."

The homicidal triad: Predictor of violence or urban myth?

For at least half a century, legend has told of a "triad" of ominous childhood behaviors -- cruelty to animals, firesetting, and enuresis – said to predict future violence.

The so-called "Macdonald triad" (also known as the homicidal triad or the Hellman and Blackman triad) is taught in criminology and psychology courses, used by forensic practitioners in assessing risk, and has even made its way into Law and Order: Special Victims Unit. Especially, it’s become a staple among aficionados of the trendy serial killer.

But is the syndrome valid?

Providing the most definitive exploration to date is Kori Ryan, a former criminology student at the California State University, Fresno who delved into the "evolutionary history" of this tantalizing construct for her as-yet unpublished master's thesis. Her ultimate conclusion:

Even though the literature on violent behavior contains many references to the Macdonald triad (and its aliases), collectively these studies do not provide sufficient evidence of its ability to predict violence, nor, in fact, of its existence as a bona fide phenomenon.

Instead, childhood enuresis, firesetting and animal cruelty more likely represent three among many indicators of severe childhood abuse. In other words, the presence of one or more of these elements in the histories of some violent offenders can be explained by the fact that violent offenders are often the products of child abuse. More importantly, relying upon these behaviors as predictors of future violence would lead to many false positives, punishing children who might not be violent in the future.

One of many misleading websites

Roots of the legend 

Gulliver's Travels

Forensic psychiatrist John Macdonald is generally credited with "discovering" the triad. In a 1963 article in the American Journal of Psychiatry, entitled "The Threat to Kill," he gave his clinical impression that "a history of great parental brutality, extreme maternal seduction, or the triad of childhood firesetting, cruelty to animals and enuresis" can signal those who will eventually threaten homicide. His article was based on his work with 100 patients at the Colorado Psychopathic Hospital in Denver, Colorado who had threatened -- but not necessarily committed -- violence. 

Over the next few decades, the idea "attracted a dedicated following" and gradually expanded to encompass various forensic groups, including sexual sadists, recidivist firesetters and -- most salacious -- serial killers.

Ryan traces the history of cultural interest in these behaviors all the way back to Greek mythology and early Western fiction, such as Jonathan Swift's 1726 Gulliver's Travels, in which Gulliver puts out a fire with his own urine, much to the chagrin of the Imperial Majesty, thereby linking urination with fire and revenge.

Early psychoanalytic thinkers also placed heavy emphasis on these behaviors, seeing them as products of arrested psychosexual development and sublimated sexual and sadistic urges. Psychoanalyst Melanie Klein, for example, saw bedwetting as a daughter’s sadistic revenge against her mother.

Empirical research: Triad goes bust

Two psychiatrists were the first to empirically evaluate the Macdonald triad, according to Ryan. Studying 84 incarcerated offenders in 1966, Hellman and Blackman reported a positive association between the triad and future violence. Accordingly, some took to labeling the phenomenon as the “"Hellman and Blackman triad."

But subsequent attempts to replicate Hellman and Blackman's findings were unsuccessful. Even John Macdonald himself voiced later doubt about the triad's validity. After trying to test his own clinical theory, Macdonald reported in his 1968 book, Homicidal Threats, that he could find no statistically significant association between homicide perpetrators and early problems with firesetting, cruelty to animals, or enuresis.

Likewise, in an examination of 206 sex offenders at the Massachusetts Treatment Center for Sexual Dangerous Persons, Prentky and Carter (1984) found "no compelling evidence" for the idea that the triad predicted adult criminality. They did, however, note that the individual components of the triad were common among people raised in highly abusive home environments.

Some years later, this was also the conclusion of Jonathan Pincus, in his 2001 book on convicted murderers. Pincus described "a forensic assessment protocol in which bed-wetting, firesetting, and cruelty to animals (among other behaviors) are considered 'hallmarks' of childhood abuse," notes Ryan.

Indeed, it seems far more likely that one of Macdonald’s five original indicators that didn’t go on to fame has more explanatory power as a cause of later violence: parental brutality.

Dangerous ramifications

"The frequency with which discussions of violent offenders (of various types) include mention of the Macdonald triad suggests its general acceptance as a predictor of violent behavior," notes Ryan.

This continuing prominence owes in large part to the triad's promotion by prominent FBI profilers in the 1988 book, Sexual Homicide: Patterns and Motives. Like Macdonald’s, the FBI study was anecdotal, small-scale and lacking in any statistical analyses or control groups. Studying 36 sex killers, Douglas, Burgess and Ressler found that many manifested one or more elements of the triad. Unfortunately, notes Ryan, the authors did not report which factors were present in which subjects, or how many of these killers evidenced all three components of the triad.

Ryan warns that promotion of the triad has real-world ramifications, in that children who exhibit one or more of these behaviors "might be falsely labeled as potentially dangerous."

For example, police officers exposed to the triad in undergraduate criminology courses may target young offenders who have lit a fire or harmed an animal -- both fairly common behaviors among troubled youth -- as future sex fiends or serial killers. (Enuresis, with less face validity as an indicator of sadism, has tended to drop from more contemporary renditions of the triad.)

Ignoring the miniscule base rate of serial killers, even veterinarians are encouraged to identify those who hurt pet animals as potentially lethal: "Many known serial killers began their careers by hurting pet animals," warn the authors of a 2004 article in one veterinary journal. "It is well known in the criminology field that people who perpetrate acts of cruelty on animals, frequently escalate to torturing humans, usually the young and helpless."

Rather than throwing the baby out with the bathwater, Ryan says researchers could do more research to understand these behaviors in context. For example, might arson be a coping mechanism in children who have experienced severe emotional abuse, rather than a marker for future aggression? Are some elements of the triad indicators for future violence when they co-occur? More fundamentally, is there any set of behaviors that can legitimately be considered a behavioral syndrome predictive of later violence?

The study is: The Macdonald triad: Predictor of violence or urban myth? The abstract is HERE; the full text can be requested from the author via ResearchGate (HERE). The author, Kori Ryan, can be contacted HERE.*

*Links updated 12/1/16.

Composites illustrate problems with eyewitness recall

Take a minute to examine this display of composites. Notice the wide variations in features -- eyes, apparent age, bone structure, etc.

DNA evidence links 11 rapes in East Los Angeles over the past 16 years to this so-called "Teardrop Rapist." Based on the similarities in modus operandi and description, police believe he is responsible for at least 17 other rapes, for a total of 28 or more.

But, as these sketches show, the victims have strikingly different recall. They give his height as between a pint-sized 5 foot 2 inches and 6 feet. His weight fluctuates between 130 and 200 pounds. His age varies between 27 and 40.

Even the teardrop(s), an especially distinctive feature, are recalled differently. Some victims saw one teardrop; some reported up to three -- or none at all (police say he may have had them removed). The teardrop(s) were usually spotted on his left cheek, but occasionally they were seen on his right.

About the only constants are his eyes (brown), his ethnicity (Hispanic), and the fact that he wears a head covering. 

In 1999, police arrested a 21-year-old man for the attacks. Given the problems with eyewitness accuracy so amply illustrated here, the existence of DNA evidence proved a lucky break for him: He was exonerated.