Aurora massacre: To speak or not to speak?

The blood on the movie theater floor was still tacky when mental health professionals began pontificating on the psychology of the mass murderer. Among the brashest self-promoters was a forensic psychologist who shamelessly asserted his preternatural ability to "look inside the mind" of the Aurora, Colorado massacre suspect.

Much of the psycho-punditry reads like it was pulled from a psychoanalytic fortune cookie:

• James Holmes is a "deeply disturbed" individual. 
• He may, or may not, be psychotic and delusional. 
• He harbors a lot of rage.

Such "armchair psychology" is a natural byproduct of the news media's frenetic competition for online traffic. To object is as pointless as it would have been to stand in the killer's way and shout "stop!" as he opened fire during the Batman movie.

But some are nonetheless voicing criticism, saying it is both misleading and irresponsible to speculate at this early stage about the accused's state of mind. Curtis Brainard of the venerated Columbia Journalism Review goes so far as to call it unethical, a violation of the so-called "Goldwater Rule" of 1973. That principle cautions psychiatrists not to offer a professional opinion without having conducted a psychiatric examination and "been granted proper authorization for such a statement."

While that ethics rule applies only to psychiatrists, the American Psychological Association has a very similar one. Section 9.01 cautions psychologists to "provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements or conclusions."

But it is in the gray area of interpreting these ethics rules that reasonable minds differ. Indisputably, we should not attempt to clinically diagnose Mr. Holmes absent a formal evaluation. But must professionals with expertise in the general patterns underlying mass killings stand silently on the sidelines, refraining from offering any collective wisdom to the public?

As a blogger who frequently comments on breaking news stories pertinent to forensic psychology, I have often grappled with this conundrum. When the UK Guardian asked me to write a commentary on Phillip Garrido, the kidnapper and rapist of Jaycee Dugard, I ultimately decided that providing general information about the forensic implications of the case was an appropriate public service that did not violate any ethics rules.

Consider this commentary by high-profile forensic psychiatrist Michael Welner on a Washington Post blog:

Mass shooting cases have the common motive of an attacker seeking immortality. Each of the attackers have different degrees of paranoia and resentment of the broader community. Some are so paranoid that they’re psychotic. Others are paranoid in a generally resentful way but have no significant psychiatric illness. But you have to hate everyone in order to kill anyone. The threshold that the mass shooter crosses is one in which he decides that his righteous indignation and entitlement to destroy is more important than the life of any random person that he might kill. This is why mass shooting are invariably, invariably carried out by people who have had high self esteem. They are people who had high expectations of themselves. It’s not at all surprising to hear about these crimes in people who either valued their own intelligence or their own career prospects at one time. They’re people who are unfailingly unable to form satisfying sexual attachments and their masculinity essentially gets replaced with their fascination for destruction.

Now, I don't always see eye to eye with Dr. Welner, author of the controversial "Depravity Scale." But the above perspective has the potential to contribute to informed discussion of the Aurora tragedy. It doesn't matter whether every single detail turns out to be a precise fit; the comments are general enough to enlighten without stepping over the line to claim an ability to see into Holmes's troubled soul.

One could even argue that we as professionals have an affirmative duty to help offset the inane speculation that pours in to fill any vacuum in the cutthroat world of daily journalism: Portrayals of Holmes as a "recluse" and a "loner" because he didn’t converse with his neighbors; assertions that he "didn’t seem like the type" to massacre a dozen people, because he appeared superficially "normal"; simplistic theories blaming the tragedy on violence in the media or the legality of gun ownership.

Our field is positioned to help the public separate the wheat from the chaff. We can discuss the complex admixture of entitlement, alienation and despair that contributes to these catastrophic explosions. Equally important, we can remind the public that such rampages are rare and unpredictable, and that knee-jerk, "memorial crime control" responses are unwarranted and potentially dangerous. We can urge restraint in jumping to conclusions absent the facts, lest we -- as journalist Dave Cullen, author of the book Columbine, warns in yesterday's New York Times -- contribute to harmful myth-making:  

Over the next several days, you will be hit with all sorts of evidence fragments suggesting one motive or another. Don’t believe any one detail. Mr. Holmes has already been described as a loner. Proceed with caution on that. Nearly every shooter gets tagged with that label, because the public is convinced that that’s the profile, and people barely acquainted with the gunman parrot it back to every journalist they encounter. The Secret Service report determined that it’s usually not true. Resist the temptation to extrapolate details prematurely into a whole…. The killer is rarely who he seems.

But we should also recognize the limitations of our discipline’s micro focus on the individual, and encourage the public to grapple with the larger issues raised by this cultural affliction of the late-20th and early 21st century. As I commented last year in regard to the media coverage of the Jared Loughner shooting rampage in Arizona, journalists need to train a macro lens on the cultural forces that lead disaffected middle-class men -- like canaries in a coal mine -- to periodically self-implode with rage. Disciplines such as sociology, anthropology and cultural studies have much to contribute to this much-needed analysis.

The irony of the Aurora case is hard to miss. An attack in a movie theater featuring The Dark Knight Rises, a movie in which a masked villain leads murderous rampages against unsuspecting citizens in public venues including a packed football stadium and the stock exchange.

As Salon film critic Andrew O'Hehir noted in an insightful essay entitled, "Does Batman Have Blood on his Hands?":

Whether or not Holmes had any particular interest in “The Dark Knight Rises,” he saw correctly that in our increasingly fragmented culture it was the biggest mass-culture story of the year and one of the biggest news stories of any kind. Shoot up a KenTaco Hut or a Dunkin’ Donuts, in standard suburban-nutjob fashion, and you get two or three days of news coverage, tops. Shoot up the premiere of a Batman movie, and you become a symbol and provoke a crisis of cultural soul-searching.

Bottom line: The larger error is not for informed professionals to respond -- cautiously, of course -- to media inquiries but, rather, for the public to settle for facile explanations, in which calling someone crazy or disturbed is mistaken for understanding what is going on. 

POSTSCRIPT: See media critic Gene Lyons's article, linking to this post, at the National Memo. 

Related blog posts: 

• Arizona rampage: Analyzing the analyzers
• Can school shootings be prevented? 

Land of the Free: The best investigative reporting on U.S. prisons

by Cora Currier, ProPublica*

The U.S. has the highest reported incarceration rate in the world. We've rounded up some of the best investigative journalism on U.S. prisons and the problems that plague them. These stories cover juvenile justice, private prisons, immigration detention and other aspects of America's vast incarceration system.

Louisiana Incarcerated: How we built the world's prison capital, The Times-Picayune, May 2012

Louisiana's incarceration rate tops the U.S.'s, Iran's and China's. This eight-part series explains how it got there: lobbying from private prison companies, cash-strapped municipalities, harsh sentencing, and limited rehabilitation for those who make it out.

Moose Lake sex offender facility, Minnesota

America's Expensive Sex Offenders, Salon, April 2012

Programs that keep some sex offenders detained indefinitely after their criminal sentences are up have grown drastically in recent years, and so has their cost—“civil commitment” is on average four times as expensive as prison. But releasing sex offenders has proven politically fraught. (For a few state-by-state investigations, see these muckreads on Washington, Virginia, and New York.)

Bail Burden Keeps U.S. Jails Stuffed With Inmates, NPR, January 2010

Thousands of inmates are stuck in jail for petty, nonviolent crimes simply because they can't make bail. This NPR series showed how the country's bail system "exists almost solely to protect the interests of a powerful bail bonding industry."

What the Jail Guard Saw, Village Voice, July 2007

Some guards at New York City's prison island, Rikers, weren't just turning a blind eye to violence--they were encouraging it. The Voice has been covering the fallout from Rikers' " Fight Club" ever since, and five years later, they obtained gruesome photos showing rampant violence persists, despite the Correction Department's efforts.

Pelican Bay (California) solitary confinement,
prisoner sketch

Hellhole, The New Yorker, March 2009

Atul Gawande looked at the U.S.'s widespread use of isolation, which has ballooned in the past 20 years. At least 25,000 prisoners are now held in isolation just in so-called super-max prisons. And their minds can quickly degrade. "The experience," Gawande writes, "typically leaves them unfit for social interaction."

Why Are Prisoners Committing Suicide in Pennsylvania? The Nation, April 2012

An investigation the effects of solitary confinement on mentally ill prisoners in Pennsylvania. Also see this account from the Arizona Republic: nineteen prisoners in Arizona have killed themselves in the last two years, many of them while in solitary confinement—a widespread practice in the state.

The Devil's Playground, Westword, February 2011

Earlier this year the Justice Department laid out new rules aimed at eliminating widespread sexual abuse in U.S. prisons. This article chronicles the ordeal of one inmate who tried to report rape in a Colorado prison.

Juvenile InJustice, Richard Ross

Uncompromising Photos Expose Juvenile Detention in America, Wired, April 2012

America locks up children at a quicker rate than all other developed countries, with about 60,000 juveniles imprisoned on any given day. Photographer Richard Ross spent five years photographing the little-seen conditions inside 350 correction centers across the U.S.

For teens guilty of murder, penalties can vary widely, New England Center for Investigative Reporting, December 2011, and Direct Fail: Colorado's policy of sending teens to adult court, 5280 Magazine, December 2011

In light of the Supreme Court's decision this week  to strike down mandatory life-without-parole sentences for juveniles, it's worth revisiting these exposes of juvenile justice in Colorado and Massachusetts, two states that often sentence teens as adults.

A Death in Texas: Profits, poverty and immigration converge, Boston Review, December 2009

Privately run immigration detention facilities have proliferated along the U.S.-Mexico border. But the small towns where they're located have rarely benefited. (Such tales aren't limited to the border, as this report from Georgia tells).

Private Prisons Profit From Immigration Crackdown, Federal And Local Law Enforcement Partnerships, Huffington Post, June 2012

The country's two largest private prison companies have spent tens of millions on lobbying in the past decade and doubled their campaign contributions, as the government launched tougher immigration rules. Since 2005, they've also more than doubled their revenues from immigration detention.

Clarification (6/29): We've clarified this story to note that the U.S. has the highest reported incarceration rate in the world. There are a few countries—notably North Korea—for which reliable prison statistics aren't available.

*Creative Commons license; reprinted with permission of ProPublica, "Journalism in the public interest."

Brazilian prisoners riding toward freedom

Brazilian prisons, criticized by human rights groups for their miserable conditions, are getting some good press this week over an innovative rehabilitation program that allows prisoners to pedal their way to freedom.

Prisoners in the small mountain town of Santa Rita do Sapucai, in southeastern Brazil, can shave one day off their sentences for every three days spent generating energy for the local township by pedaling stationary bikes.

Not only do the prisoners benefit, but so do local dog walkers, joggers, bicyclists, children and strolling couples: The generated power lights lamps along a riverside promenade that was heretofore abandoned after dark.

Lots of local citizens chipped in to create the program: A judge got the idea from reports of U.S. gyms using stationary bikes to generate energy, police contributed old bicycles, and engineers transformed them into stationary bikes and hooked them up to batteries donated by local businesses.

It's one of a series of new projects being implemented across Brazil to enable prisoners to improve their lives and health while working their way toward freedom, according to a story by Associated Press reporter Jenny Barchfield. With an estimated half a million people behind bars, the nation is also hoping to ease rampant prison overcrowding.

With one in 10 Brazilians over the age of 15 unable to read, literacy is a major focus of these rehabilitation efforts. A federal "Redemption through Reading" program allows prisoners in four federal penitentiaries to shave up to 48 days a year off of their sentences. In the labor-intensive program, a judge reads each prisoner's book report and decides on a sentence reduction of up to four days per book, for a maximum of 12 books per year. The prisons are offering similar time-reduction incentives for taking classes ranging from the elementary school to college level.

These types of educational programs are commonplace in Europe. Indeed, the European Prison Education Association sees prisoner education as a "moral right." They used to be widespread in U.S. prisons, too. But in 1994, with the elimination of federal funding for prisoner education, the number of higher-education programs in prison plummeted overnight from more than 350 -- serving about 40,000 prisoners -- to fewer than a dozen, despite their proven efficacy in reducing recidivism.

Let's hope that other countries struggling with overcrowded and dismal prisons will follow Brazil's lead and implement similar rehabilitation efforts that provide a sense of hope and some chance for prisoners to turn their lives around.

Sanity opinions show "poor" reliability, study finds

Independent evaluators agree only about half the time 

Did you hear the one about the JetBlue pilot who suddenly began rambling incoherently, bolted out of the cockit and ran through the aisles of the plane, screaming about Jesus and Al Quaeda? Not surprisingly, a judge this week found him not guilty by reason of insanity.

But insanity isn't always so obvious. In fact, the innovative team of Murrie, Boccaccini and Gowensmith -- which last year brought word of troublingly low reliability among forensic psychologists and psychiatrists assessing competency to stand trial -- has even worse tidings on the sanity front. 

Set once again in the Aloha State, the soon-to-be-published study examined 483 evaluation reports, addressing 165 criminal defendants, in which up to three forensic psychiatrists or psychologists offered independent opinions on a defendant's legal sanity.

Evaluators reached unanimous agreement regarding legal sanity in only 55 percent of the cases. The agreement rate was a bit higher, 61 percent, if one counted as agreement cases in which two evaluators shared the same opinion about sanity and the third declined to give an opinion (for example, because the defendant was incompetent to stand trial or did not want to consider an insanity plea). Either way, that's significantly lower than the rates of agreement that the team found in their previous study of competency evaluators in Hawaii. Among initial competency referrals, evaluators reach unanimous conclusions in 71 percent of cases.

The base rate of sanity to insanity opinions by the individual evaluators studied was about two-thirds sane to one-thirds insane.

Not surprisingly, evaluators agreed most often when a defendant had been psychiatrically hospitalized shortly before the offense, or when he or she had a psychotic disorder. They tended to disagree in cases in which alcohol and/or drugs played a role.

Opinions about sanity carry enormous consequences. If someone who was genuinely insane at the time of an offense is precluded from mounting an insanity defense, he or she may be unjustly convicted and sent to prison. On the other hand, a sane person who successfully fakes insanity can avoid criminal prosecution and be sent to a psychiatric hospital, where he or she may be disruptive, waste limited treatment resources, or have an unfair opportunity for early release back to the community.

At the same time, insanity is a slippery construct with many shades of grey. Reasonable experts may differ about whether a defendant meets the legal criteria for insanity at the time of an offense, for example by lacking the capacity to appreciate the criminality of his conduct or to conform his conduct to the law. It is unrealistic to expect perfect agreement among evaluators; the question is how much agreement or disagreement is acceptable to the courts. Collecting baseline data on reliability is a great first step toward more judicial and professional awareness of this issue.

Hawaii is an outlier that makes it an ideal site for naturalistic studies such as this: When the question of sanity is raised, the court solicits three concurrent and wholly independent evaluations, each with a written evaluation report.

Hawaii also provides better compensation than many mainland U.S. jurisdictions, perhaps making for a higher-quality end product. The researchers told me that an initial evaluation -- typically covering the issues of competency, sanity and dangerousness -- pays $1,000. That's not great, considering that an expert may need to invest 30 or 40 hours in a complex case. But by way of comparison, here in the San Francisco Bay Area where I am, most counties pay only $300 to $500 per evaluation. The essentially pro bono compensation encourages newbies and hacks, while discouraging highly trained, experienced and thorough forensic experts. Local judges don't seem concerned about reliability and error rates, often appointing only a single evaluator as if alienists are just interchangeable warm bodies with appropriate initials after their names.

As in their competency study, the team also examined how judges handle disagreements among evaluators. In nine out of ten cases, judges went with the majority opinion of the experts. But when judges broke with the majority, it was usually to find a defendant legally sane. "This pattern seemed generally consistent with the courts' conservative approach toward insanity cases, and the tendency for insanity pleas to fail," the authors note.

The researchers said that this is the first study to examine independent evaluations of legal sanity in routine U.S. practice. As such, the levels of agreement among forensic evaluators were "surprisingly poor," and far poorer than the field tends to assume.

[I]n light of our findings, courts should consider carefully the rationale underlying an evaluator's final opinion. Because sanity is a legal (rather than clinical) decision, courts must base their decisions on the data, observations, and clearly articulated inferences that an evaluator provides, rather than simply the evaluator's final opinion…. [T]olerating poor reliability among forensic evaluators is also costly, in that it might undermine goals of equitable justice, undermine confidence in the mental health field, and increase costs associated with inappropriate placements in hospitals, jails, or prisons.

The article, “How Reliable Are Forensic Evaluations of Legal Sanity?” is forthcoming from Law and Human Behavior. Correspondence may be addressed to W. Neil Gowensmith.

Groundbreaking research: One out of every 10 rape convictions wrong?

As a young man, Michael Jones pleaded guilty to back-to-back attempted molestations of two girl strangers. However, he adamantly maintained his innocence while in prison and on parole. He said his lawyer had coerced him into pleading guilty by threatening him with life in prison if he went to trial. Michael was one of a handful of Black people in a rural white community; both of the little girls were white. He was identified when police brought him to the station and showed him to the girls. There was no lineup procedure with foils; he was the only choice the girls were given. On the basis of his two convictions, government evaluators diagnosed Michael with pedophilia and recommended civil commitment.

As a teenager, Paul Smith tried to molest a younger boy. He was arrested at the scene and confessed. He disputed only one point in the victim’s statement: that he had threatened the younger boy with a gun. Police searched his home and found no gun. Pre-conviction polygraph testing indicated he was being truthful when he denied having a gun. Over the ensuing years, however, clinicians in sex offender treatment programs hammered at him to admit that he had used a gun. Government evaluators said Paul’s “denial” and “minimization” of his gun use influenced their recommendation for civil commitment.

In cases such as these, I am consistently struck by the naïveté of clinicians and forensic evaluators alike, who accept police reports and especially victim accounts as the gospel truth. From my former career as a criminal investigator, I can attest to the fact that even impartial observers with no conscious motivation to distort are never 100 percent accurate in describing events they have witnessed. As Daniel Schachter so clearly articulates in Seven Sins of Memory, distortion is the nature of the human animal. It is even more likely to occur in situations involving high levels of stress, fear and emotionality.

So I was happy to see that the issue of false convictions for sex offenses is getting some much-needed and long-overdue attention. Or, let me qualify that: Happy about the empirical research, but less than thrilled with a theoretical article on the psychological dynamics underlying false accusations. Let me take those up one at a time.

Dredging old cases for DNA matches

The most methodologically rigorous study to date, released in June, suggests that somewhere between 8 and 18 percent of men convicted of sexual assault may be innocent. The federally funded research project randomly sampled convictions in Virginia between 1973 and 1987, before DNA testing was widely available, and compared preserved physical evidence with the DNA profiles of convicted men.

After poring through more than half a million cases, researchers found 422 sexual assault cases in which DNA evidence was preserved. In 8 percent (33) of those cases, the DNA evidence was exculpatory and supported exoneration. Because many of the DNA comparisons were inconclusive, this amounted to 18 percent of the cases in which it was possible to make a definitive determination one way or the other based on DNA analysis. (The data and the analyses are complex and not without flaws, so I recommend reading the study itself before relying on these numbers.) Noted the researchers:

"Even our most conservative estimate suggests that 8 percent (or more) of sexual assault convictions in a 15-year period may have been wrongful. That means hundreds, if not more than a thousand, convicted offenders may have been wrongfully convicted. That also means hundreds (if not more) victims have not received the just result, as previously believed. Therefore, whether the true rate of potential wrongful conviction is 8 percent or 15 percent in sexual assaults in Virginia between 1973 and 1987 is not as important as the finding that these results require a strong and coordinated policy response."

Bennett Barbour. Photo credit: 

Joe Mahoney, Times-Dispatch

Unfortunately, the researchers ran out of money before they could do more exhaustive analyses of the cases in which innocence was suggested. In the project’s wake, the government is battling with false confession activists who want access to the data, reports the Richmond (Virginia) Times-Dispatch. Police and prosecutors want to restrict access; exoneration activists argue that people have a right to know when their DNA does not match that collected in the crime for which they were convicted.

The project has led to the exoneration of at least four men. Putting a face to them is Bennett S. Barbour, who served a prison sentence for a 1978 rape. He had moved and did not receive the 2010 letter notifying him that the DNA specimen cleared him and matched a convicted rapist instead. A volunteer lawyer finally tracked him down and broke the good news by phone 18 months later.

Research into wrongful convictions has pinpointed several leading causes. These include:

Top sources of wrongful convictions. The Innocence Project

• False witness testimony (including mistaken identification and lying codefendants) 
• Faulty forensic evidence (especially comparisons of hair and bite marks) 
• False confessions 
• Police being influenced by prior knowledge of a suspect 
• Brief jury deliberations 

These problems are compounded by racial bias both in the criminal justice system and in society more broadly. African American men make up far more than their share of those who were convicted and later exonerated based on DNA evidence.

False accusations: A role for psychology?

Flat-out false accusations of rape -- like that depicted in To Kill A Mockingbird -- are rarely the cause of exonerations. But they do occur. Now, a prominent forensic psychology professor and his student propose 11 pathways to false allegations, and suggest that psychology could play a role in helping to sort reliable from unreliable reports. Write Jessica Engle and William O'Donohue in the Journal of Forensic Psychology Practice:

"[W]e suggest that some psychological disorders may increase the likelihood of believing a sexual assault occurred when it did not. Additionally, some psychological disorders may be related to an increase in motivation to fabricate an allegation of sexual assault in an effort to achieve what may be believed are the positive consequences of a false report…. [P]sychological evaluations may inform forensic evaluators of psychological processes by which a person may either intentionally or unintentionally file a false allegation of sexual assault."

The motivational and information processing pathways they propose lean heavily on psychiatric disorders -- including antisocial personality disorder, borderline personality disorder, histrionic personality disorder, psychotic disorders and intellectual disability -- as causes of false allegations. For example, here’s how they suggest that a histrionic personality style could lead to a false allegation:

"[A] person who is histrionic may, after a co-worker complements her clothing and accidentally bumps into her during the day, construe these actions as intentional communications of sexual interest. This misperception can lead her to feel that if the individual had touched her chest while bumping into her, it was an intentional action of unwanted assault. Thus, a pathway to false allegations of sexual assault may be through individuals with a diagnosis of histrionic personality disorder who for reasons of attention and misinterpretation may knowingly or unknowingly make a false allegation of sexual assault."

Okay, I’m not saying that people don’t lie, or make mistakes. Other research suggests that anywhere from 2 to 10 percent of all sexual assault reports may be false. But some of the examples provided in this article stretch credulity, and reek of sexism. I don’t know too many women, histrionic or not, who don't know the difference between an innocent compliment and a sexual assault.

A classification system based largely on pathologizing women runs the risk of reifying the mythology of so-called “rape myths,” in which only “good,” virtuous women can be raped. It seems especially problematic to disbelieve women with psychiatric problems when -- as the authors acknowledge -- they are the ones most likely to be sexually victimized.

More broadly, it is improper for clinicians to wade into the waters of truth-telling or lie detection. We weren’t there, and we don’t know what happened. It's problematic enough when we use character traits to predict the future. Stating that people (read: women) with this or that disorder are more likely to be lying or distorting reality opens the door for yet more improper use of psychiatric diagnosis in court.

Rather, as suggested by the Virginia data, we need to be skeptical at all times, and to keep our minds open to competing hypotheses based not on psychiatric stereotyping, but on the individual case facts. Maybe an assault happened, maybe it didn’t. Maybe the witnesses have their facts straight, maybe they don’t. Maybe the person who was convicted is the real culprit, and maybe he isn’t.

It’s clear that false convictions and false allegations are two separate beasts. And if that’s not complicated enough, there are true cases that are falsely recanted! For example, in a recent Welsh case, “Sarah” was repeatedly raped and forced into prostitution by her husband. When she recanted her report, she was convicted for perverting justice.

So, did Michael Jones (top of post) try to molest the two little girls? Maybe. Maybe not. The point is that we will never know for sure, and we should embrace -- rather than avoid -- that uncertainty. Present the competing scenarios, and analyze the case both ways, so that the trier of fact has all of the information.

The complexities in understanding sexual assault patterns are mind-boggling, and can make your head spin. False convictions, false accusations, false retractions. And then there's the other end of the spectrum: A vast proportion of sexual assaults – probably somewhere between 85 and 95 percent – are still going unreported altogether. And when victims do come forward, prosecution is rare, and convictions even rarer.

It's one gigantic mess, all around.

The U.S. Department of justice Study is: Post-Conviction DNA Testing and Wrongful Conviction by John Roman, Kelly Walsh, Pamela Lachman and Jennifer Yahner.

Mute mystery man baffled jail psychologists

 Deemed incompetent to stand trial after month of silence

How do you provide treatment to someone who won't talk, when you know absolutely nothing about him -- not even his name? That was the problem facing clinical staff at the San Mateo County Jail this month.

"John Doe" was arrested May 30 for shoplifting two frozen pizzas and several candy bars from a local supermarket. But it was no ordinary theft: Store personnel described him as semi-catatonic, making no effort whatsoever to conceal what he was doing, private investigator Rich Fischer told me today. Perhaps because of his odd behavior, supermarket employees didn't even call the police until Mr. Doe's third attempt to make off with the food.

When police responded, the disheveled man placidly declined to communicate. And he has remained mute ever since, not speaking a single word to anyone for an entire month.

He had no identification, and his fingerprints didn't show up in any databases. No missing persons reports could be found.

He seemed to understand simple commands, both in English and Tagalog. (About one out of five residents of the local community of Daly City are Filipino.) But he wouldn't sustain eye contact or write. In the sole clinical breakthrough, when a nurse asked him if he was "happy or sad," he drew a picture of a happy face. Consistent with his sketch, he seemed perfectly content with his situation, according to an article in today’s San Francisco Chronicle about the mystery..

Knowing nothing about him, jail mental health personnel concentrated on ruling out medical causes for his muteness, such as a stroke or a brain hemorrhage. No medical causes were found, and no clinical interventions were successful.

He was not in any immediate danger, as he was able to understand enough to take care of his basic needs in jail. But he did not seem to be in a position to rationally assist his attorney with his criminal case, so he was found incompetent to stand trial and transferred to a local hospital for further treatment.

Meanwhile, the private defender's office (the local version of a public defender's office) retained investigator Rich Fischer to solve the mystery.

In addition to plastering the local community with fliers, Fischer contacted the news media, which ran an article with a photo. Finally, just today, he got a lucky break when someone who knew the mystery man alerted the family, who contacted Fischer and identified him from a photo. As it turns out, the family had filed a missing persons report in San Francisco, but it had fallen through the cracks.

Maguire Jail, Redwood City

Although Mr. Doe has now been identified, some mystery remains as to his clinical condition. The 44-year-old Filipino native, who holds advanced degrees in computer science and electric engineering, began withdrawing about a year ago, Fischer said. He continued to deteriorate until he finally disappeared from his San Francisco apartment about a month ago.

So, in the end, it was old-fashioned gumshoe work as opposed to psychological detection that cracked the case. In the absence of any collateral information there is only so far that psychology can go in cases of psychogenic muteness.

"I’ve got a reputation for being able to find people when I have a name," a satisfied Fischer told me. "But this was the opposite situation. It was a little unusual."

Now that Mr. Doe has been identified and his family can provide collateral information about his condition, it will be up to the court-appointed experts to decide whether he is competent to stand trial, or can be restored to competency.

Somehow, I doubt he will ever face trial. After all, a couple of frozen pizzas and a few candy bars is hardly the crime of the century. Especially when the alleged culprit isn't talking.

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