Let's turn now from the Masters to a case of expert witness malfeasance that's been sending shockwaves through the criminal justice system up in Canada. Back in November, I blogged a couple of times about forensic pathologist Charles Smith, whose decades of expert testimony for the government compounded the misery of grieving parents by sending many to prison for the accidental deaths of their children.
This week, Dr. Smith took the stand in the ongoing judicial inquiry and made a couple of shocking revelations:
1. Biased for prosecution
Most shockingly, he admitted that, far from being the neutral scientist he portrayed himself to be, he actually was biased in favor of the prosecutors who hired him.
"I honestly believed it was my role to support the Crown attorney. I was there to make a case look good," he admitted in his first day of testimony before an ongoing judicial inquiry into what went wrong in the cases.
2. "Ignorant"
Second, he admitted that he was "profoundly ignorant" of the criminal justice system. In stating this, he apologized for the "mistakes" he made during some two decades of performing child autopsies in cases of suspicious death.
3. Trained others experts
Despite now admitting to bias and ignorance, back in the day Dr. Smith lectured other doctors on how to be an expert witness in court. In court today, he was shown a speech he delivered entitled, "See You in Court: The Invitation You Can't Refuse," in which he cautioned doctors never to be an advocate for one side or the other. How's that for hypocrisy.
Among those whose lives were torn apart by Smith’s "mistakes" are several mothers who spent years in jail until the cases against them fell apart, and a man who was finally exonerated after spending more than a decade in prison for the death of his niece.
One commonality among many of the cases was the socioeconomic status of the accused, who included racial minorities, aboriginals, and single mothers. Although the adversarial system is premised on an equal fight between the accused and the government, economically disadvantages defendants do not have the wherewithal to obtain their own experts to challenge the government's experts. This is especially dangerous when the expert – as in Smith’s case - appears neutral, well qualified, and scientific.
These multiple emerging scandals - which include the Colorado case of Tim Masters, the British case of Sir Roy Meadows (who falsely accusing dozens of mothers of so-called "Munchausen's Syndrome by Proxy") and the Mississippi case of forensic odontologist Michael West - are driving home the fact that experts are not infallible and should not be accepted without skepticism.
More on the Smith hearings, including video coverage, is at the Toronto Star and the Charles Smith Blog. My prior posts on the case are here and here. My blog post on forensic odontologist Michael West (a bite-mark expert) is here.
January 29, 2008
Masters scandal highlights need for oversight of prosecutors
Revelations of official malfeasance such as occurred in the Tim Masters case cause a massive erosion of public confidence in the judicial system. The potential upside is reforms to safeguard other citizens from being similarly railroaded.
For example, "Masters is free, but justice not yet served" is the headline of a hard-hitting editorial in the Coloradoan, calling for just such reforms.
But reforms will not come easy. As a new book explains, prosecutors in the United States wield ever-growing power under new laws granting them unfettered "prosecutorial discretion" in charging and sentencing decisions.
Arbitrary Justice: The Power of the American Prosecutor is the book, authored by public defender Angela J. Davis (no, she's not the same Angela Davis you're probably thinking of).
Arbitrary Justice does two things:
For example, "Masters is free, but justice not yet served" is the headline of a hard-hitting editorial in the Coloradoan, calling for just such reforms.
But reforms will not come easy. As a new book explains, prosecutors in the United States wield ever-growing power under new laws granting them unfettered "prosecutorial discretion" in charging and sentencing decisions.
Arbitrary Justice: The Power of the American Prosecutor is the book, authored by public defender Angela J. Davis (no, she's not the same Angela Davis you're probably thinking of).Arbitrary Justice does two things:
- It exposes the "dangerous shift in power from judges to prosecutors" (in the words of law prof Barry Schenk of Innocence Project fame) happening in the courthouse trenches.
- It provides a detailed agenda for reforms aimed at safeguarding defendants, victims, and the public at large.
January 25, 2008
Japanese may record police interrogations
A series of highly publicized wrongful conviction cases in the Western world has led to vigorous debate over coercive police tactics and whether all interrogations should be recorded. Now, with its own recent revelations of coerced confessions, the Japanese criminal justice system is confronting the same issues.
The debate in Japan centers around next year's introduction of a lay-judge system, in which citizens will begin serving in juror-like capacities for the first time. The new system will require police to present to these non-professionals what suspects said during police questioning.
The Supreme Court, the Japan Federation of Bar Associations, the Justice Ministry and the Supreme Public Prosecutors Office have set up a panel to discuss filming interrogations, with the bar federation demanding the introduction of cameras.
The full story is in today’s Daily Yomiuri online.
The debate in Japan centers around next year's introduction of a lay-judge system, in which citizens will begin serving in juror-like capacities for the first time. The new system will require police to present to these non-professionals what suspects said during police questioning.
The Supreme Court, the Japan Federation of Bar Associations, the Justice Ministry and the Supreme Public Prosecutors Office have set up a panel to discuss filming interrogations, with the bar federation demanding the introduction of cameras.
The full story is in today’s Daily Yomiuri online.
Teen male violence linked to aggressive sports
The sports culture surrounding football and wrestling may be fueling violence among teen male players and also among their male friends, according to a Penn State study released this week.
"Sports such as football, basketball, and baseball provide players with a certain status in society," said Derek Kreager, assistant professor of sociology in the Crime, Law, and Justice program. "But football and wrestling are associated with violent behavior because both sports involve some physical domination of the opponent, which is rewarded by the fans, coaches and other players."
Analyzing data from about 7,000 male students at 120 schools, the researchers found that football players and wrestlers were especially likely to get into serious fights. Perhaps more startingly, just having football-playing friends predicted violence among boys who were not athletes.
The Penn State press release is here.
Hat tip: Kirk Witherspoon
"Sports such as football, basketball, and baseball provide players with a certain status in society," said Derek Kreager, assistant professor of sociology in the Crime, Law, and Justice program. "But football and wrestling are associated with violent behavior because both sports involve some physical domination of the opponent, which is rewarded by the fans, coaches and other players."
Analyzing data from about 7,000 male students at 120 schools, the researchers found that football players and wrestlers were especially likely to get into serious fights. Perhaps more startingly, just having football-playing friends predicted violence among boys who were not athletes.
The Penn State press release is here.
Hat tip: Kirk Witherspoon
Killing time: Dead men waiting on Oregon's death row
Today's Willamette Week of Portland, Oregon has a hard-hitting expose of capital punishment in that northwestern mecca, complete with an interactive display of the 35 men on death row. Here are excerpts; the complete story is here.
. . . Whether you’re for or against capital punishment, you should be outraged by what's happening. To please the tough-on-crime crowd, we keep the death penalty. But to appease progressives, or to assuage our own conscience, nobody actually gets killed. . . .Hat tip: Sentencing Law & Policy
Yet for the most part, this shameful situation stays hidden. Death row is tucked away on the third floor of a building deep inside the Oregon State Penitentiary. The rarely used execution chamber is behind locked doors in the same prison. And no executions means no front-page headlines.
"A lot of people aren’t even aware that we have a death penalty here," says Rachel Hardesty, a Portland State University criminal justice professor who has spent a decade studying capital punishment in Oregon. . . .
Nationwide, experts say capital cases are 20 times more expensive to prosecute because of the length of appeals. Oregon officials don't make guesses about how much it will cost here, because after 24 years of letting juries sentence killers to death, not a single case has yet gone all the way through the appeals system.
But Bill Long, a Willamette University law professor and death penalty opponent who wrote the only book on capital punishment in Oregon, has estimated Oregon's oldest cases could end up costing more than $10 million per defendant (the national average for capital cases is around $3 million). . . . Added up for all 35 capital-punishment cases, that totals $35.7 million in public-safety money. . . .
Meanwhile, there are about 50 more defendants currently charged with death penalty crimes in Oregon, which will suck more than $50 million more out of the state budget if the defendants are sentenced to death. Despite the expense, they may never see execution. Nationwide, only 12 percent of people who are sentenced to death are actually executed.
That leaves even death penalty proponents questioning whether the cost is worth it.
January 23, 2008
Appellate courts grapple with controversial sex offender risk assessment tools
Rulings on Abel and Static 99
Without scientific-sounding risk assessment tools, forensic psychologists in the sex offender civil commitment industry would have a hard time earning a living. Increasingly, instruments designed specifically for this burgeoning industry are being scrutinized by the courts. Here are two new appellate cases in point:
Louisiana appellate court approves profiling with Abel
In a troubling ruling out of Louisiana, an appellate court OK'd expert witness testimony that a man was 81 percent likely to have molested a child based on his psychological test results.
Interpreting the defendant's scores on the Abel Assessment for Sexual Interest, clinical psychologist Maureen Brennan had testified that "there is an 81 percent chance that anyone with that pattern has at some point in their life been sexually inappropriate with a child" and that the defendant would falsely deny that fact.
After hearing that powerful testimony back in 2006, a jury deliberated only one hour before convicting schoolteacher Timothy Brannon of Beauregard Parish of all 12 counts against him.
Over defense objections, the trial judge had qualified Dr. Brennan as an expert in the "characteristics and diagnosis of child sexual abuse and perpetrators."
The Third Circuit Court of Appeals found no problem with Dr. Brennan's testimony, including her use of the Rorschach inkblot testing to help predict Brannon's conduct. Among other reasons for not finding error, the appellate court pointed out that substantial other evidence implicated the schoolteacher.
Both the Abel instrument and the Rorschach are highly controversial in court. Abel has responded to criticisms by clarifying that the instrument is not intended to assist triers of fact to reach decisions about an individual's guilt or innocence. The Abel uses visual reaction times to sexual imagery to deduce individuals' relative sexual interests in different types of people.
Even more importantly, even when reliable and valid psychological tests are administered, the science is never strong enough to assign a mathematical probability of guilt.
I have placed the opinion online here.
7th Circuit questions reliability of Static 99
The EvidenceProf blog has more on that case; the case itself can be found here.
Hat tip: Wendy Murphy
Without scientific-sounding risk assessment tools, forensic psychologists in the sex offender civil commitment industry would have a hard time earning a living. Increasingly, instruments designed specifically for this burgeoning industry are being scrutinized by the courts. Here are two new appellate cases in point:
Louisiana appellate court approves profiling with Abel
In a troubling ruling out of Louisiana, an appellate court OK'd expert witness testimony that a man was 81 percent likely to have molested a child based on his psychological test results.
Interpreting the defendant's scores on the Abel Assessment for Sexual Interest, clinical psychologist Maureen Brennan had testified that "there is an 81 percent chance that anyone with that pattern has at some point in their life been sexually inappropriate with a child" and that the defendant would falsely deny that fact.
After hearing that powerful testimony back in 2006, a jury deliberated only one hour before convicting schoolteacher Timothy Brannon of Beauregard Parish of all 12 counts against him.
Over defense objections, the trial judge had qualified Dr. Brennan as an expert in the "characteristics and diagnosis of child sexual abuse and perpetrators."
The Third Circuit Court of Appeals found no problem with Dr. Brennan's testimony, including her use of the Rorschach inkblot testing to help predict Brannon's conduct. Among other reasons for not finding error, the appellate court pointed out that substantial other evidence implicated the schoolteacher.
Both the Abel instrument and the Rorschach are highly controversial in court. Abel has responded to criticisms by clarifying that the instrument is not intended to assist triers of fact to reach decisions about an individual's guilt or innocence. The Abel uses visual reaction times to sexual imagery to deduce individuals' relative sexual interests in different types of people.
Even more importantly, even when reliable and valid psychological tests are administered, the science is never strong enough to assign a mathematical probability of guilt.
I have placed the opinion online here.
7th Circuit questions reliability of Static 99
In this case, 31-year-old Christopher McIlrath was appealing his 4-year sentence in an internet sting conviction. He argued that the trial judge improperly dismissed the testimony of forensic psychologist Eric Ostrov, who had administered the Static 99 actuarial risk assessment tool and testified that McIlrath matched the characteristics of offenders with a 9 to 13 percent chance of recidivism.
The appellate court rejected McIlrath’s argument that he should have been sentenced just to home confinement based on the Static 99 data. While not directly ruling on the admissibility of the instrument (the rules of evidence don’t apply at sentencing hearings), the court expressed skepticism about the Static 99’s reliability in predicting recidivism risk.The EvidenceProf blog has more on that case; the case itself can be found here.
Hat tip: Wendy Murphy
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