Documentary targets family courts and custody evaluators

Stuck in the middle of nowhere on a case, I happened to catch the new documentary No Way Out But One, depicting injustices against abused women and children in U.S. family courts. Of potential interest to blog readers, the film critiques the role of child custody evaluators as usurping the authority of fact finders by substituting their own judgments for the facts.

No Way Out highlights the internationally known case of Holly Collins, who fled with her son Zachary and daughter Jennifer in 1994 after her husband was granted sole custody by a court in Minnesota. According to the film, the judge ignored evidence of domestic violence and child abuse, including a skull fracture to the boy. After a circuitous flight through Canada and Guatemala, Collins eventually won asylum in the Netherlands. By the time the FBI caught up with the family, the children were adults. In the film, they convincingly describe chronic abuse at the hands of their father. Holly's dynamic daughter, Jennifer, the inspiration for the film, is executive director of Courageous Kids, which empowers children to go public about family court abuse (her blog is HERE).

The Collins children, grown up

The Collins's long-running custody battle featured allegations of Parental Alienation Syndrome, a controversial syndrome in which one parent (most often the mother) is accused of alienating the children from the other parent. Collins was also labeled with another highly contentious diagnosis, Munchausen by Proxy, after she sought medical treatment for her children, whom she says were being injured by their father’s abuse and neglect.

Due in part to Collins's supposed attempts to alienate the children, the father was granted full custody in 1993, and Collins was initially denied even phone or mail contact. Eventually, she was granted supervised visitation, but neither she nor her children were allowed to talk about the father’s abuse. In the film, Collins describes how she and the children secretly exchanged notes by placing them in the refrigerator; in the notes, the children begged for help and she finally promised to rescue them.

Collins became the first American ever granted asylum by the Netherlands. She ultimately married a Dutch man and had four more children. After the FBI located her, she returned to the United States in an effort to vindicate herself. Ultimately, the kidnapping charge was dismissed; she pled guilty to one count of contempt of court in exchange for a sentence of 40 hours of community service.

According to the film, Collins is just one of thousands of mothers forced to go on the run in order to protect their children from abusive fathers who have been granted custody of their children.

Jennifer (L) and Holly Collins (R) with filmmakers Nolan and Waller

Ironically, the film's debut on the Documentary Channel coincides with the publication of a similar story by another woman who is also named Collins. Frances Collins's book, Seashell Prisoners, chronicles her flight from Texas to the Honduras to protect her 3-year-old granddaughter. Her eight-year odyssey ultimately ended in arrest and incarceration.

The film is stoking up antipathy between the battered women's and father's rights camps, with the latter expending significant effort in to debunk the claims of Collins and her children that they were subjected to family violence.

Award-winning filmmaker Garland Waller told a Huffington Post columnist that she chose the Holly Collins case "because I believed her story would break through the barricade set up by the mainstream press." The film expands on last year’s award-winning short, Small Justice, produced on a shoestring by Waller, a communications professor at Boston University, and her husband Barry Nolan, a TV writer and reporter.

In the Huffington Post interview, Waller went on to say that what most surprised her in her involvement with this project was the dumbfounded reaction of members of the general public:

"They just can't believe that … family courts would give custody -- time and time again -- to abusers. But I suppose I really shouldn't be surprised. In both the tragedy of the Catholic Church sex abuse scandal and the Jerry Sandusky thing, ‘good’ people turned a blind eye to the abuse of children. It's the same thing in family courts. It is just heart-breaking that so often when terrified children summon the courage to speak up and tell what is happening to them, even though the abuser has warned them of the terrible consequences if they ever talk... even though we teach children to speak up and to tell the truth...when they speak up against this one awful thing, we just don't listen."

I don’t see any more upcoming airings on the DocumentaryChannel, but the DVD will be going on sale soon, from Passion River Films.  

For people who are trying to stay positive and collaborative while going through a stressful divorce, a Florida law firm has put together a set of helpful tips from top relationship experts: "Coping with Divorce." 

Free access: British Journal of Forensic Practice

This week only, the British Journal of Forensic Practice is offering open access to all of its content. The journal covers a wide range of criminal justice topics, making it of potential interest for forensic practitioners, correctional professionals, academics, and those in allied fields. From my brief perusal, the journal appears to offer a refreshingly humanistic perspective, focusing on rehabilitation and critical analysis of current approaches. A few examples of recent articles and issues that caught my eye, all accessible this week (I've included links):

• Qualitative viewpoints in forensic practice – a special themed issue

• Treatment in forensic practice – a special themed issue, focused mainly on sex offenders

• Including the excluded: high security hospital user perspectives on stigma, discrimination, and recovery by Anna Williams, Estelle Moore, Gwen Adshead, Anthony McDowell, James Tapp

• Ganging up on gangs: why the gang intervention industry needs an intervention by James Densley

• How does the delivery of multisystemic therapy to adolescents and their families challenge practice in traditional services in the Criminal Justice System? by Zoë Ashmore, Simone Fox

• Is offender rehabilitation a form of punishment? by Tony Ward

• The alcohol treatment needs of violent and non-violent prisoners by Nicola Bowes, Adele Sutton, Serena Jenkins, Mary McMurran 

• Assessing the functions of self-harm behaviours for dangerous and severely personality disordered males in a high secure hospital by Jen Gallagher, Kerry Sheldon

• Reducing prisoner vulnerability and providing a means of empowerment: evaluating the impact of a Listener Scheme on the Listeners by Rani Dhaliwal, Julia Harrower

• Attitudes towards male and female sex offenders: a comparison of forensic staff, prison officers and the general public in Northern Ireland by Caitriona Higgins, Carol Ireland

• What we know about men who download child abuse images by Kerry Sheldon 

• Good Lives sexual offender treatment for mentally disordered offenders by Theresa A. Gannon, Tracy King, Helen Miles, Lona Lockerbie, Gwenda M. Willis

And that, folks, is just the tip of the iceberg. You'll need to browse the content yourself (HERE) to find the articles of special resonance with you.

APA rejects "hebephilia," last standing of three novel sexual disorders

To hear government experts on the witness stand in civil detention trials in recent months, the novel diagnosis of "hebephilia" was a fait accompli, just awaiting its formal acceptance into the upcoming fifth edition of the influential Diagnostic and Statistical Manual of Mental Disorders (DSM).

They were flat-out wrong.

In a stunning blow to psychology's burgeoning sex offender processing industry, the Board of Trustees of the American Psychiatric Association rejected the proposed diagnosis outright, not even relegating it to an appendix as meriting further study, its proponents' fall-back position.

The rejection follows the failure of two other sexual disorders proposed by the DSM-5's paraphilias subworkgroup. These were paraphilic coercive disorder (or a proclivity toward rape) and hypersexuality, an inherently hard-to-define construct that introduced the committee members' value judgments as to how much sex is within acceptable limits.

After abandoning those two disorders, the subworkgroup clung tenaciously to a whittled-down version of its proposed expansion of pedophilia to cover sexual attraction to early pubescent youngsters (generally in the age range of 11-14), ignoring widespread opposition from both within and outside of the APA.

The buzz is that senior psychiatrists in the APA were unhappy with the intransigence of psychologists in the subworkgroup who communicated the belief that if they just stuck to their guns, they could force the ill-considered proposal into the new manual, despite a lack of scientific support.

All three proposed sexual disorder expansions were widely critiqued by mental health professionals, especially those working in the forensic contexts in which they would be deployed. They led to a spate of critical peer-reviewed publications (including a historical overview of hebephilia by yours truly, published in Behavioral Sciences and the Law), and an open letter to APA leadership from more than 100 professionals, including prominent forensic psychologists and psychiatrists in the U.S. and internationally.

The unequivocal rejection sends a strong signal of the American Psychiatric Association's continuing reluctance to be drawn into the civil commitment quagmire, where pretextual diagnoses are being invoked as excuses to indefinitely confine sex offenders who have no genuine mental disorders. In marked contrast with the field of psychology, psychiatry leaders have expressed consistent concerns about the use of psychiatric labels to justify civil detention schemes.

Next time around, the APA might want to do a better job selecting committee members in the first place. The "paraphilias subworkgroup" was heavily biased in favor of hebephilia because of its domination by psychologists from the Canadian sex clinic that proposed the new disorder in the first place, and is the only entity doing research on it. But what a waste of time and energy to create a committee that comes up with wild and wacky proposals that are only going to end up getting shot down when the rubber meets the road.

Backpedaling on paradigm shift

As regular readers of this blog know, the DSM-5 developers' grand ambitions to bring forth a revolutionary "paradigm shift" produced alarm among mental health professionals and consumer advocacy groups both in the United States and internationally. The British Psychological Society, the UK's 50,000-member professional body, issued a strongly worded critique, and a coalition of psychological associations garnered more than 14,000 signatures on a petition opposing the wholesale lowering of diagnostic thresholds for disorder.

Yesterday's news release marked an about-face, with the APA now stressing that diagnostic changes in the DSM-5 were intended to be "very conservative."

"Our work has been aimed at more accurately defining mental disorders that have a real impact on people’s lives, not expanding the scope of psychiatry," said David J. Kupfer, MD, chair of the DSM-5 Task Force.

Consistent with this, several of the proposed changes that generated the most widespread alarm were rejected. The Board of Trustees rejected the highly controversial "attenuated psychosis syndrome" that could have created an epidemic of false positives, stigmatizing eccentric young people and lowering the threshold for prescribing potentially harmful antipsychotic drugs. It also backed away from an equally controversial, and complex, revamping of the personality disorders. These conditions, as well as a contentious Internet gaming disorder, will all be placed in "section 3" of the new manual as conditions meriting further study.

Allen Frances, the DSM-IV Task Force chair and a high-profile critic of the DSM-5 project, called the spin that the DSM-5 will have minimal impact on psychiatric diagnosis and treatment "misleading":

"This is an untenable claim that DSM 5 cannot possibly support because, for completely unfathomable reasons, it never took the simple and inexpensive step of actually studying the impact of DSM on rates in real world settings…. Except for autism, all the DSM 5 changes loosen diagnosis and threaten to turn our current diagnostic inflation into diagnostic hyperinflation. Painful experience with previous DSM's teaches that if anything in the diagnostic system can be misused and turned into a fad, it will be. Many millions of people with normal grief, gluttony, distractibility, worries, reactions to stress, the temper tantrums of childhood, the forgetting of old age, and 'behavioral addictions' will soon be mislabeled as psychiatrically sick and given inappropriate treatment."

Among the controversial diagnostic changes that will go forward in the DSM-5, due to be published in mid-2013:

• Asperger’s syndrome is being eliminated as a separate disorder (it will be folded into an autism spectrum disorder)
• Depression is being expanded to include some grief reactions
• A brand-new "disruptive mood dysregulation disorder" has critics fearing psychiatric labeling of children who have temper tantrums

Two other sets of changes have particular relevance to forensic practitioners. Substance abuse disorders have been reframed as "behavioral addictions," which Frances warns could be a "slippery slope" leading to "careless overdiagnosis of internet and sex addiction and the development of lucrative treatment programs to exploit these new markets."

Posttraumatic stress disorder (PTSD) will be included in a new chapter on trauma and stress-related disorders, with four distinct diagnostic clusters instead of the current three, and "more attention to the behavioral symptoms that accompany PTSD." Some worry that the reconfigured PTSD may lend itself to misuse of the hot-button diagnosis in forensic cases.

Yesterday’s APA news release outlining the changes can be found HERE. My hebephilia resource page is HERE.

Jury Expert: Timely focus on false confessions

"Why on earth would anyone, anywhere, ever confess to a serious crime they did not commit? Especially something like murder? Seriously? Mock jurors find this hard to believe." In the latest issue of the Jury Expert, two trial consultants present the research on why people falsely confess and the cascade of errors that follow a false confession.

The release of the documentary The Central Park Five makes Douglas Keene and Rita Handrich's overview, "Only the Guilty Would Confess to Crimes": Understanding the Mystery of False Confessions, especially timely. The consultants provide a concise summary of current research findings and references, making it an excellent resource for criminal attorneys, investigators, judges, law enforcement officials, students of law and public policy and, of course, forensic professionals. It is followed by commentaries from widely renowned false confession expert Saul Kassin and three others, including your blogger.

My essay, "Disputed confessions: The many hats of the expert witness," may be of special interest to this blog's readers, as it details the role of the expert witness in cases involving disputed confessions. I discuss the distinctions between "pure" academic research and clinical assessment, and the role of the forensic expert in evaluating both psychological vulnerabilities that might contribute to an unreliable confession and the separate issue of a suspect's comprehension of the mandatory Miranda rights waiver.

In an accompanying feature in the November/December issue, jury consultant Diane Wiley of the National Jury Project provides a supplemental jury questionnaire covering the issues attorneys need to address in a false confessions case.

And there's even more on the confessions topic in the new issue, hot off the press today: Rita Handrich reviews the 2010 volume, Police Interrogations and False Confessions: Current Research, Practice, and Policy Recommendations, edited by well-known scholars Daniel Lassiter and Christian Meissner.

The main feature (with accompanying essays) is HERE; my essay is HERE, and the entire current issue and back issues of the always-excellent Jury Expert can be accessed HERE. For you tweeters, the Jury Expert's Twitter feed is HERE.

Ayres case: Final act in long-running competency drama?

Notorious psychiatrist found fit for trial on molestation charges

The case has all of the elements of high drama: A once-respected child psychiatrist accused of molesting vulnerable boys sent to him by the courts. Allegations that prosecutors turned a blind eye. Pressure from victim’s rights lobbyists. And, of special interest to this blog’s readers, a bevy of mental health experts presenting contradictory evidence.

For forensic professionals, the case raises many questions that make it useful as a teaching tool:

• Is competency an all-or-none construct?
• Does symptom exaggeration equate to full-out malingering?
• How might dementia affect a defendant’s trial abilities?
• What weight should be given to the opinions of laypersons as opposed to trained psychologists and psychiatrists? 

William Ayres

The four-day competency hearing in San Mateo County, California (just south of San Francisco) was the latest in the long-running saga of William Ayres, one-time president of the American Academy of Child and Adolescent Psychiatry and host of a controversial 1960s public television sex education show for children, "Time of Your Life."

Ayres was arrested in 2007 on charges of molesting six boys, ages 9 to 13, between 1988 and 1996. He was suspected of molesting many more, but the statute of limitations barred prosecution. At his 2009 trial he claimed he was just conducting routine medical exams of his child patients. Although psychiatry focuses on the mind, he apparently felt the genital area was also necessary to probe. The jury deadlocked. After a subsequent jury trial on the issue of competency ended in another hung jury, the two sides stipulated that he was incompetent due to dementia. He spent about nine months at Napa State Hospital -- where defendants in Northern California are sent for competency restoration treatment -- before the hospital decided that he was faking dementia to avoid trial and sent him back.

The prosecution's star witness at the four-day hearing was a newly minted psychologist, licensed for less than one year, who bills himself as an expert on malingering. John McIlnay, who came to Napa after earning his PsyD degree in 2010 from the Christian evangelical school of Azusa Pacific, testified that the 80-year-old psychiatrist was cleverly malingering dementia in order to avoid retrial.

As an example, McIlnay recounted an episode in which Ayres talked with the head nurse about a perceived lack of safety on the unit. A day or so later, the nurse implemented some of his suggestions to address the problem. Ayres noticed, and sought her out to thank her. All of this indicated to McIlnay that Ayres could competently identify a problem, determine solutions, take effective steps to rectify the problem and, inconsistent with a dementia, track all of this in his memory.

Another example offered of spontaneous functioning inconsistent with dementia was his query of a nursing supervisor, when he returned to the hospital from a court hearing, as to whether he still had the same room; he reportedly walked straight to his old room without being directed.

Bolstering McIlnay’s testimony was that of a nurse on the intake unit who sounded the alarm that Ayres might be faking, in part because he was uncooperative with the treatment team. She testified that Ayres was able to correctly relate his medical history, supply the names of all of his medications, and even spell the word "Alzheimer’s" for her.

I didn't find that last example especially compelling. As I learned while doing a neuropsychology internship with the Alzheimer's Center of Northern California, overlearned information is often the last to go. A trained psychiatrist could easily retain the spelling of a word such as Alzheimer's even while suffering from that very condition himself.

Hospital staff divided

McIlnay's determination of malingering was countered by two members of Ayres's treatment team at the hospital, psychologist Thomas Knoblauch and psychiatrist Scott Sutherland. Additionally, Napa psychologist Erin Warnick, who conducted neuropsychological testing, testified that Ayres exaggerated his symptoms at times, but nonetheless had a dementing condition.

Warnick found a number of deficits that would interfere with Ayres's trial competency, including difficulty learning new information, inaccurate recall of some information, language deficits that interfered with retrieving and communicating relevant information in a coherent fashion, impairment in tracking thoughts and inhibiting irrelevant responses, mental perseveration, and emotional and cognitive disorganization when under stress, as might occur during a serious and extended trial.

In his brief decision finding Ayres competent to stand trial, Judge John Grandsaert discounted the testimony of all three clinicians as lacking objectivity.

The public split among hospital staff comes amid a new policy, intended to provide at least a veneer of greater objectivity, barring psychologists and psychiatrists on treatment units from writing forensic reports. While the judge faulted the treatment team as lacking objectivity, to my knowledge there was no discussion of potential bias among the staff members who labeled Ayres as malingering. In a peer-reviewed case study in the Journal of Forensic Psychology Practice, I wrote about my observation of a state hospital bias toward labeling criminal patients as malingerers. If nothing else, from a purely practical standpoint the diagnosis frees up scarce beds. In this case, hospital nurses and technicians might be biased against Ayres not just due to their institutional affiliation, but also because of the nature of the allegations.

The judge also discounted the opinion of UC San Francisco neuropsychologist Amanda Gregory, who testified for the defense, and that of Ayres's attorney, Jonathan McDougall, who in a relatively unusual move took to the witness stand to explain his client's difficulties in rationally assisting in his own defense.

In addition to McIlnay, the judge also afforded greater weight to two other experts called by the prosecution, both of whom opined that Ayres was competent. George Wilkinson, a forensic psychiatrist, concluded Ayres was malingering after the elderly colleague greeted him by name in their first meeting in more than a year. Wilkinson testified that Ayres did have a dementing condition, but was exaggerating his level of impairment. Similarly, forensic psychologist Paul Good -- who evaluated Ayres several times over a two-year period -- testified that Ayres had a dementia, but nonetheless was competent to stand trial "by the thinnest of margins."

Test data brushed aside

Complicating the clinical picture, Ayres passed several specialized tests for malingering administered by various professionals. These included tests of cognitive feigning (the Test of Memory Malingering and the Word Memory Test), tests of malingered incompetence, a test of malingered psychosis (the Miller Forensic Assessment of Symptoms Test), and measures of symptom distortion that were embedded in the longer neuropsychological test batteries.

The judge dismissed all of these data, concluding that Ayres's professional training and experience as a psychiatrist rendered him savvy enough to fake out the seasoned experts:

"The defendant's conduct and statements at Napa State Hospital viewed in the light of his extensive professional training and experience and his intellectual capabilities that were demonstrated from time to time in the evidence in this case showed the defendant to be competent and at the very least exaggerating his cognitive deficits." 

Obviously, a psychiatrist who understands the concept of malingering and knows about the existence of tests to detect it is better positioned to get away with faking than the average layperson. But we're talking about an elderly psychiatrist with no known training in the methodology of contemporary malingering tests. It might pose a challenge, for example, to differentiate neuropsychological tests that are measures of effort (which one would have to do well on to avoid being suspected of malingering) from those that measure cognitive decline (on which one would need to bomb in order to get a dementia diagnosis).

To be competent, the defendant must have a factual and rational understanding of his legal situation and have the rational capacity to assist in his defense. Here, the burden was on the defense to prove, by a preponderance of the evidence, that Ayres was not competent. Had he been found incompetent and permanently unrestorable to competency, he would have avoided trial, but might have faced a legal conservatorship.

The case has spawned its own victim advocacy website

The backdrop to all of the legal wrangling over malingering is a vocal victims' advocacy chorus chomping at the bit to see Ayres get justice. With the specter of Jerry Sandusky lurking in the background, the case has earned national publicity, and even has its own advocacy website: "William Ayres: Child Molester and Malingerer" featuring blow-by-blow coverage. Prosecutors initially dragged their feet on filing charges despite around three dozen alleged victims stepping forward; for a while the courts were still sending boys to Ayres even while he was under investigation. Now that they are on board, prosecutors are anxious to redeem themselves by moving forward against the increasingly feeble octogenarian before it is too late.

Malingering: All-or-nothing?

With such a confluence of interests embracing the image of Ayres as malingerer, any nuance is lost. Symptom exaggeration, so commonplace in our work, is equated as synonymous with all-out malingering, or the complete fabrication of a mental disorder for purposes of secondary gain. As I wrote about in my 2008 case study, individuals who are genuinely impaired may also exaggerate symptoms at times, for a variety of reasons, and it is sometimes quite difficult to disentangle the truth.

There is no doubt that a sly and intelligent defendant can fake out the experts. The best example I know of is that of Vincent "The Chin" Gigante, a Mafia don who feigned insanity for years. But outside of fiction and the movies, such sophisticated deception is rare.

Did it happen here? It's hard to know for sure. But one thing is certain: If Ayres truly does have a progressive dementia such as Alzheimer's, he will only get more impaired as the case drags on. So it would be premature to rule out the possibility of a renewed claim of incompetency as the March 11 trial date draws near.

Meanwhile, Ayres has been released on $900,000 bail, raising another issue that is ripe for reform. More than 70 percent of the 71,000 inmates in California's county jails are there because they are too poor to post bail. From the perspective of social justice, it seems odd for a man suspected of molesting dozens of boys to be walking the streets for year after year while petty miscreants lounge in jail awaiting trial on misdemeanor charges of vandalism or petty theft.

Further resources:

• A previous blog post, with links to my earlier blog posts on the case dating back to 2007, is HERE.
• A list of the witnesses who testified at the competency hearing is HERE.
• A timely analysis of California's bail system, “The Commercial Bail Industry: Profit or Public Safety?” by Amanda Gullings of the Center on Juvenile and Criminal Justice, is HERE.
• An informative Slate magazine article on the misdemeanor incarceration machine, "Why Misdemeanors Aren’t So Minor: Too often the criminal justice system is pronouncing people guilty without evidence, lawyers, or a chance to plead their case," by Alexandra Natapoff, is HERE.

Double murderer gets death in crude parody of justice

"Ha-ha."

That was the reaction of a double murderer to today's jury verdict sentencing him to death. Representing himself at trial, Nathaniel Burris had told jurors in Martinez, California to flip a coin, as he couldn't care less whether he received the death penalty or life without the possibility of parole.

"Send me on my way," he told the jury through a severe speech impediment. "I'm happy, I'm smiling and laughing. I have no remorse."*

According to blow-by-blow news accounts by local news reporter Malaika Fraley of the Contra Costa Times, Burris giggled and cursed his way through the entire trial. He repeatedly said he was justified in killing his estranged girlfriend and her male friend, whom he suspected of trysting with her, and testified he would "do it again." After the verdict was read, he cursed and gloated at his male victim's relatives, yelling: "I blew your brother's brains out, and there's nothing you can do about it."

Even more bizarre, after calling himself as the sole defense witness at the penalty phase of the trial, Burris made a surprise admission: He had committed three unsolved armed robberies of San Francisco pharmacies in the 1990s.

When the prosecutor tried to pin him down about these holdups, cross-examining him as to what kind of gun he had used, Burris grinned and refused to answer: "At this time, I'm not going to answer your questions. Motion denied."

A juror who talked to the news reporter after the verdict said jurors were appalled by Burris's courtroom antics, and had a tough time understanding his right to present no defense. They deliberated for a little over a day before leveling the ultimate penalty, in part out of fear that Burris would kill other prisoners -- as he had testified he would -- if given a life sentence and housed with other men.

Mental health overlooked? 

Searching through news archives on the high-profile case (Burris was dubbed "the toll plaza killer" because the killings happened at the entrance to the Richmond-San Rafael Bridge), I could find no reporting on whether Burris was ever evaluated to determine whether he was competent to stand trial. If he was evaluated, and the results not publicized, he must have been found competent.

That seems odd, given his bizarre behavior throughout the trial. In the 2008 case of Indiana v. Edwards, the U.S. Supreme Court set the competency bar higher for defendants who elect to act as their own attorneys at trial, ruling that there is no Constitutional right to self representation. Earlier this year, California's high court took that line of reasoning even further, ruling that a judge may bar a defendant from representing himself even if he has been found competent to stand trial.
But the Burris case was a throwback to the pre-Edwards days in which the Long Island railroad killer, Colin Ferguson, was able to railroad himself straight to prison. The spectacle was like handing the prosecutor a shotgun loaded with buckshot and seeing if he could hit the defendant at a range of five feet.

Not difficult. Not pretty. And certainly not dignified for the legal system.

Not a one-time case

This isn't the first time in recent memory that Contra Costa County (northeast of San Francisco) has hosted such a farcical spectacle. Three years ago, a man named Edward Wycoff was allowed to represent himself in the ambush killings of his sister and brother-in-law. Like Burris, he was unrepentant. He testified at trial that he should win an award for ridding the world of two evil people who were "too easy" on their children and had not invited him over for Christmas.

I’m sure you can guess the outcome.

The jury deliberated only 45 minutes before sentencing Wycoff to die. And that was even after the son of the dead couple -- who had opposed the death penalty -- testified that Wycoff was too emotionally impaired to get the ultimate penalty.

In Burris's case, the prosecutor insisted that the defendant's bizarre conduct was irrelevant.

Snapshot of Burris with murder victim Deborah Ross

"Don't misunderstand what we've seen here for some mental disorder or defect," said Chief Assistant District Attorney Harold Jewett. "He's just a psychopathic killer."

But we have only his word on this, because there is no publicly available information on whether Burris's psychological functioning was ever fully explored. In a typical capital case, psychiatric problems, brain damage, childhood trauma, and a host of similar factors are explored as potentially mitigating circumstances that may be presented at the penalty phase of the trial.

For a psychopathic killer, Burris seemed to have an awfully strong death wish. The case reminded me a bit of the landmark case of Richard Moran, who strode into the Red Pearl Saloon in Carson City, Nevada back in 1984 and shot the bartender and a customer dead before looting the cash register. Facing the death penalty, Moran waived his right to counsel, pleaded guilty, and was sentenced to death.

Here, the charade took a little longer to play out, but the outcome was just as foregone. 

Burris spent quite a bit of time scoffing at the prospect of the death penalty, saying that California's capital sentencing scheme is so dysfunctional that his execution will be held up by appeals for the next 30 to 40 years, while he lives out his life comfortably on Death Row. I have to agree with him there. Especially given his questionable competence, which will be ripe grounds for appeal, I predict that the death penalty will be abolished in California before Burris gets the needle. Public support for capital punishment has never been lower in California. The internationally watched Proposition 34, which would have eliminated executions in the state, was narrowly defeated (53 to 47 percent) even as Burris stood trial, and the issue is unlikely to go away.

In the meantime, Burris sees no problem at all.

"I'm walking the plank. It's my plank to walk. I don't want anyone pushing me, guiding me or holding my hand," he told the jury charged with deciding his fate. “My life has been really interesting. I love it, and I'm actually interested in what's going to happen down the road."

"I’m as cool as a cucumber." 

* * * * *

*All direct quotes in this post were gleaned from the detailed news accounts by Malaika Fraley of the Contra Costa Times. Thank you for the reporting, Ms. Fraley.

Related blog posts:

• Mentally ill: No constitutional right to self representation (June 19, 2008)
• How will Edwards affect competency evaluations? (June 20, 2008)
• California adopts Edwards: OK to deny self-representation to mentally ill (Feb. 1, 2012)

My page of competency case resources is HERE.

Iran hostage takes on California prison SHU's

"Free country" throwing thousands in hole for their beliefs

Shane Bauer spent 26 months in Iran's Evin Prison, four of them in solitary, after he and two fellow hikers were apprehended on the Iraqi border in 2009. Seven months after his release, he visited the segregated housing unit (SHU) at the infamous Pelican Bay Prison in his home state of California.

In Iran, his cell was twice as big as those at Pelican Bay. He slept on a mattress, rather than a thin piece of foam. And he wasn’t required to defecate at the front of his cell, in full view of guards. But, most of all, the investigative journalist noticed the lack of windows in the SHU cells:

"Without [the] windows, I wouldn't have had the sound of ravens, the rare breezes, or the drops of rain that I let wash over my face some nights. My world would have been utterly restricted to my concrete box, to watching the miniature ocean waves I made by sloshing water back and forth in a bottle; to marveling at ants; to calculating the mean, median, and mode of the tick marks on the wall; to talking to myself without realizing it. For hours, days, I fixated on the patch of sunlight cast against my wall through those barred and grated windows. When, after five weeks, my knees buckled and I fell to the ground utterly broken, sobbing and rocking to the beat of my heart, it was the patch of sunlight that brought me back. Its slow creeping against the wall reminded me that the world did in fact turn and that time was something other than the stagnant pool my life was draining into."

Bauer's investigative piece in Mother Jones is the most thoroughly documented report I have seen on the politics of long-term solitary confinement in California. The ex-hostage convincingly demonstrates that a tool supposedly created to staunch prison gang violence is being used to torture prisoners who engage in prison activism, hold Afro-centric worldviews, or simply read the wrong books.

As even prison administrators admit, only a small minority of those being held in long-term solitary confinement are classified as gang members; even fewer are gang leaders. Rather, most are so-called "gang associates." It's hard to see how a prisoner serving a lengthy term can avoid all associations with the ubiquitous prison gangs. But the evidence used to toss prisoners into long-term SHU isolation can be very thin, including possession of such written materials as:

• "Black literature" (including The Black People's Prison Survival Guide which, ironically, counsels prisoners to stay away from gang leaders)
• Publications by California Prison Focus, a prison reform group that advocates the abolition of the SHUs
• Bestsellers such as Sun Tzu's The Art of War and Machiavelli's The Prince

(A list of the types of items that can get prisoners thrown into solitary is HERE; a sample list of one prisoner's suspect materials is HERE.)


Most troubling is the lack of due process. Prisoners are not entitled to legal representation at the 20-minute hearings that decide their fate for decades. There is no judicial oversight to prevent trumped-up evidence from being introduced. Indeed, one judge ruled that it is not illegal for prison authorities to fabricate information in order to lock somebody away in solitary.

Click on image  to experience interactive SHU cell as narrated by Bauer

"Other than the inmate, there is only one person present -- the gang investigator -- and he serves as judge, jury, and prosecutor. Much of the evidence -- anything provided by informants -- is confidential and thus impossible to refute. That's what Judge Salavati [in Iran] told us after our prosecutor spun his yarn about our role in a vast American-Israeli conspiracy: There were heaps of evidence, but neither we nor our lawyer were allowed to see it."

In the wake of last year’s hunger strikes, California prison officials claim they are reforming the system. SHU prisoners are now allowed calendars, as well as handballs to use in the small concrete dog runs in which they can exercise, alone, for one hour each day. If they abstain from gang activity for a year, they can now get a deck of cards; three years earns them a chessboard.

But there's a major catch. The Department of Corrections is vastly expanding the list of serious rules violations. Mere possession of articles or pictures depicting "security threat groups" (the new name for gangs) will constitute "serious rule violations on par with stabbing somebody," Bauer reports. And the list of such groups has expanded to 1,500, including everything from Juggalos (followers of the popular hip hop group Insane Clown Posse) to "revolutionary groups” to "Black-Non Specific," a term that, as Bauer notes, suggests that "any group with the word 'black' in its name can be considered disruptive."

The rationale for this repression that has been repeatedly condemned by international and U.S. human rights groups is the need to reduce gang influence in prisons. However, Bauer explains,there is no evidence that such solitary confinement regimens reduce prison violence. To the conrary, prisons that have reduced or eliminated supermaxes have seen parallel reductions in prison violence.

I highly recommend reading the Mother Jones report, "Solitary in Iran Nearly Broke Me. Then I Went Inside America's Prisons."

My most recent blog post on the Pelican Bay SHU, focusing on an Amnesty report and a class-action lawsuit and containing links to prior related posts, is HERE.

Related: National Law Journal report, The graying of the penitentiary

My Amazon review of the new movie ARGO, about the 1979-1980 Iranian hostage crisis, is HERE; if you find it helpful, please click on "yes" at the bottom.

Forensic psychiatrists reject hebephilia - yet again!

Will American Psychiatric Association heed professional consensus?

Twenty years ago, Humbert Humbert went to prison for a series of sexual assaults on his 12-year-old stepdaughter, whom he famously nicknamed "Lolita." Now, as his lengthy prison term draws to a close, Wisconsin is petitioning to have the 60-year-old literature professor indefinitely detained as a Sexually Violent Predator.

The venue for last week's trial of Vladimir Nabokov's fictional protagonist was the annual convention of the American Association of Psychiatry and Law (AAPL) in Montreal. The central question, decided by audience vote, was whether the controversial diagnosis "hebephilia" qualified as a legitimate mental disorder justifying Mr. Humbert's indefinite civil detention.

The rousing theatrical performance featured an all-star cast of attorneys and psychologists, presided over by Toronto Judge Maureen D. Forestell. New Jersey Assistant Attorney General Mark Singer served as prosecutor. His expert witness was prominent psychiatrist Richard Krueger, a member of the paraphilias subworkgroup that has proposed adding "hebephilia" to the next edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). A hebephilic qualifier would extend pedophilia to men with sexual preferences for children who have entered puberty, such as the fictional Lolita.

Defending Mr. Humbert was preeminent Wisconsin attorney Robert LeBell. His expert was Washington psychologist Richard Wollert, who has published peer-reviewed articles on SVP-related topics and testifies for the defense in civil commitment proceedings. Appearing as the court's expert was prominent Canadian psychiatrist John Bradford, an advisor on paraphilia (or sexual deviance) to the DSM-IV, past president of the AAPL and clinical director of the Sexual Behaviors Clinic in Ottawa.

After a spirited and sometimes heated trial, the 131-member audience was given electronic clickers and voted overwhelmingly -- 82 percent -- against including hebephilia as a diagnosis in the DSM-5, due out in mid-2013. A majority also voted against even including the controversial diagnosis in a DSM-5 appendix as a condition meriting further study.

Third time's the charm?

This marks at least the third time in two years that respected professional bodies have voted against the idea of hebephilia as a new mental disorder. At a 2010 vote in Oslo, Norway, members of the International Association for the Treatment of Sexual Offenders (IATSO) were near-unanimously opposed to the newly proposed sexual paraphilia. U.S. forensic psychiatrists followed suit a month later at the 2010 AAPL conference, overwhelmingly voting against hebephilia as well as two other proposed paraphilias, "paraphilic coercive disorder" (aka rape) and hypersexuality, both since scrapped.

Earlier this year, more than 100 professionals, including prominent forensic psychologists and psychiatrists in the U.S. and internationally, sent an open letter to the DSM-5 revisers, urging them to nix hebephilia. Since then, at least two peer-reviewed articles have been published deconstructing its legitimacy, one in the respected Journal of Nervous and Mental Diseases ("Hebephilia and the Construction of a Fictitious Diagnosis" by forensic psychologists Paul Good and the late Jules Burstein) and the other a broad review ("Hebephilia as mental disorder?") by scholars Bruce Rind and Richard Yuill in the Archives of Sexual Behavior.

Rind and Yuill said they undertook their extensive review of the historical and cross-cultural evidence after hebephilia proponent Raymond Blanchard (a member of the DSM-5 paraphilias subworkgroup) and his colleagues at Toronto's Centre for Addiction and Mental Health brushed aside numerous published criticisms of the proposed disorder (see Table 1). Building on their earlier research, Rind and Yuill argue that hebephilia -- generally defined as sexual attraction to young pubescents in the age range of 11 to 14 -- is a biologically normal trait found to varying degrees in both human males and our closest mammalian relatives, such as higher apes. They blast hebephilia as a bold example of naked moral values masquerading as science:

"Blanchard et al. … did not invoke comparative evidence…. They did not invoke any evidence…. They declared it a disorder by fiat, bypassing scientific analysis in favor of a pre-given conclusion supportable only because it is, for the current time and place, culturally resonant. Had their pronouncement been the opposite (i.e., hebephilia is functional), their article would never have been accepted in a peer-reviewed journal without massive evidential backing. Strongly resonant opinion can facilely pass through without the kind of scrutiny demanded of non-resonant views."

Why hebephilia still clings to life, despite so much opposition and so little scientific support, is beyond me. It's like an unwanted house guest who just refuses to take the hint and pack his suitcase.

The evidence at trial 

In attacking the government's diagnosis of his client, defense attorney LeBell focused on the dearth of empirical studies on the condition, other than by researchers at a single Toronto clinic, and the likelihood of "false positive" diagnoses in legal cases.

The wording of the proposed new diagnosis has been changed again and again over the past couple of years. In its current iteration, pedophiles are defined as those who have "an equal or greater sexual arousal from prepubescent or early pubescent children than from physically mature persons, as manifested by fantasies, urges, or behaviors." (The requirements that the fantasies or urges be "recurrent" or "intense" have been removed, broadening the potential pool of sufferers.) Hebephiles are now defined as those with sexual attractions to "pubescent children" in Stages 2 to 3 of Tanner's pubertal stages (e.g., early development of pubic hair and breasts).

Defense expert Wollert testified that the problem of "false positives" -- people incorrectly identified as having a condition -- was extraordinarily high even in the controlled setting of the research laboratory. This problem would be much more acute in the forensic trenches where the hebephilia diagnosis is being deployed, he testified.

One insurmountable problem would be reliably identifying a sexual abuse victim's Tanner stage of pubertal development. Complicating this issue, testified the court's expert, John Bradford, Tanner Stages are highly variable. Because they reflect hormonal developments rather than specific ages, one could not assume a specific Tanner stage based on the age of a victim. About two years ago, alarming research indicated that girls are entering puberty far earlier than in previous generations; this month, a large study by the American Academy of Pediatrics identified a similar trend in boys.

Wisconsin psychiatrist Lynn Maskel, who organized and moderated the mock trial, labeled hebephilia a "weed diagnosis in the botanical garden of DSM."

"The question is not if sex with pubescent year old girls illegal, or if it is immoral," she told the audience of forensic psychiatrists. "The question to the psychiatric field is: Is it a disorder? And if it is, does this translate, for the expert witness, into a requisite mental disorder found in the specific SVP statute?"

Meanwhile, back in the real courtroom trenches …

In my seminal review, published in 2010 in Behavioral Sciences and the Law, I traced hebephilia's sudden emergence and rapid spread in legal discourse to the advent of Sexually Violent Predator laws, which require that the individual being considered for civil detention have a mental disorder that makes him qualitatively different from the garden-variety offender.

Since that article's publication, the introduction of hebephilia in U.S. courts has continued unabated, despite the lack of an official imprimatur by the American Psychiatric Association. In a string of SVP cases brought under the Adam Walsh Act, federal judges in North Carolina have ruled that the faux diagnosis is not a legitimate basis for civil detention.

However, other courts have been less circumspect. For example, just yesterday, in a narrow, 4-3 opinion, New York's high court upheld the civil commitment of a repeat sex offender named "Shannon S." based on the purported conditions of "paraphilia NOS" and "hebephilia." Mr. S. had engaged in a series of forcible rapes of adolescent girls, ages 13 through 16.

As the dissenters conceded, Shannon S. was a "very bad actor" and "the community may well be safer if he is kept behind bars."

"But, they added, "to put him there on the fiction that he has some sort of mental condition other than a tendency to commit the crimes for which he was convicted (and has served his time) is and should be constitutionally unacceptable."

Judge Robert Smith, writing for the minority, labeled as "absurd" the premise that attraction to adolescent girls is abnormal, as the government's two experts testified: "What is abnormal about appellant, and others who commit statutory rape by having sex with girls below the age of consent, is not that they find the girls attractive, but that they are willing to exploit them for their sexual pleasure -- in other words, they commit statutory rape."

Smith labeled hebephilia and the similarly disputed diagnosis of "paraphilia not otherwise specified" (rape) as "junk science devised for the purpose of locking up dangerous criminals." While such a practice might seem appealing from a public safety viewpoint, it creates "dangers of abuse," he eloquently warned:

"Many sex offenders are, or could reasonably be found to be, dangerous, and in common parlance they all have mental abnormalities: Mentally normal people do not commit sex crimes. Thus, unless 'mental abnormality' is defined with scientific rigor, such statutes could become a license to lock up indefinitely, without invoking the cumbersome procedures of the criminal law, every sex offender a judge or jury thinks likely to offend again.

"Some will intuitively respond: Not a bad idea. But it is a very bad idea, because not even a concern for public safety should be allowed to trump certain fundamental rules. Among them are that criminals can be confined only for crimes they have committed, after their guilt is proved beyond a reasonable doubt in a procedure in which they receive the many protections that our Constitution gives to those accused of crime, and that even when convicted they can be incarcerated for no more than the term of the maximum sentence provided by law. If the present sentences for sex offenders are too short, the Legislature should make them longer, but it should not, and constitutionally cannot, simply substitute civil for criminal proceedings as a means of keeping dangerous criminals off the streets."

As Judge Smith seems to recognize, it's a slippery slope. Bogus psychiatric diagnoses for sex offenders now, political dissidents (or others) tomorrow. That's the way they rolled in the former Soviet Union, after all.

Pretextual court rulings aside, the paraphilias subworkgroup has had more than two years to produce evidence for the reliability and validity of hebephilia, and it has not done so.

It is clear to most observers that hebephilia is not accepted by the relevant professional community. What remains unclear is whether the Board of Trustees of the American Psychiatric Association will get the message in time to prevent yet another in a veritable maelstrom of public-relations disasters and historical mistakes.

* * * * *

Additional resources: My resource page on hebephilia is HERE.

Of related interest: DSM-5  field trials discredit the American Psychiatric Association, by Allen Frances, Huffington Post, 10/31/2012

Happy Halloween!