Competency hearing exposes clinical feud

Competency to stand trial: Flip of the coin?

Whether a defendant is found incompetent to stand trial is based mainly on "luck of the draw," that is, which psychologist or psychiatrist happens to be assigned by the court.

That's the controversial thesis of law professor Michael Perlin, who's written an excellent book on competency that's due out this spring. As evidence, Perlin cites a study in which forensic evaluators split almost evenly in their opinions about a hypothetical vignette. Perlin lambasts the current system as a "fraudulent" one in which the courts abrogate their decision-making responsibilities to "imperial experts" who decide competency based largely on idiosyncratic approaches and moral stances.

While many might argue with this rather extreme position, proponents could point to the unfolding murder trial of Thomas Shane O'Hagan as a perfect example.

O'Hagan allegedly stabbed his girlfriend to death while she was taking a shower and then put her body in a small plastic box.

In the 3 ½ years since then, the Pierce County (Washington) Superior Court has issued nine orders for competency evaluation and treatment. But the experts can't seem to agree on whether he is competent to stand trial.

"First doctors said he was competent to stand trial and could understand what was going on and help his attorneys defend him. Then they said they weren't sure. Then they said he wasn't competent anymore," according to news coverage a year ago.

The saga has grown to farcical proportions, with a dispute between opposing experts spilling into court and forcing the judge to remove herself from the case.

In an unusual twist, two opposing experts, one a psychologist and the other a psychiatrist, both work for the same state hospital that has repeatedly evaluated and treated O'Hagan.

Psychologist Barry Ward, who has evaluated O'Hagan at least three times, testified at a hearing last September that the defendant was not competent to stand trial. Psychiatrist William Ritchie took the opposite position.

Further muddying the issue, the judge invited a third doctor from Western State Hospital who was observing the proceedings, psychiatrist Margaret Dean, into her chambers to view some artwork. Ward, the psychologist who testified that O'Hagan was incompetent, emailed attorneys and told them that Dean was a member of O'Hagan's hospital treatment team, something the judge says she didn't realize when she issued her invitation. When Dean found out about Ward's email, she called the judge to complain.

Thrust into the middle of this feud among clinicians, Superior Court Judge Beverly Grant Ward was forced to remove herself from the case. The state hospital, meanwhile, is reportedly conducting an internal review.

Washington is among a decreasing number of states with a centralized competency evaluation system in which defendants are evaluated while hospitalized in state facilities. O'Hagan's attorneys are now arguing that their client cannot receive an unbiased evaluation at the hospital, and so should be evaluated at a "nonstate-run facility."

Of course, if Professor Perlin's controversial thesis is correct, a change of setting won't make any difference: Luck of the draw will still decide whether O'Hagan is found competent or incompetent to stand trial.

Sources:

Morris, G.H., Haroun, A.M., & Naimark, D. (2004). Health Law in the Criminal Justice System Symposium: Competency To Stand Trial on Trial. Houston Journal of Health Law and Policy, Vol. 4, p. 193

Perlin, M.L. (2004). Health Law in the Criminal Justice System Symposium: "Everything's a Little Upside Down, As a Matter of Fact the Wheels Have Stopped": The Fraudulence of the Incompetency Evaluation Process. Houston Journal of Health Law and Policy, Vol. 4, p. 239

Lynn, Adam, “Feud makes a mess of murder case," News Tribune (Tacoma, Washington), Feb. 10, 2008

Hucks, Karen, “Judge keeps suspect on drugs for disorder; Attorneys argue whether a man charged with killing his girlfriend must continue to take anti-psychotic drugs. A judge says yes,” News Tribune, May 27, 2006

Can insane killer inherit mother's estate?

Under most circumstances, killing your mother is a sure-fire way to lose out on the inheritance. But what if you were legally insane at the time of the killing?

That's the issue in a case that may set legal precedent in Washington.

Joshua Hoge, a 37-year-old man with schizophrenia, has been locked up on the forensic unit at Western State Hospital (where I happened to do my forensic postdoctoral fellowship) since being found not guilty by reason of insanity in the stabbing death of his mother and half-brother in 1999. Hoge was experiencing a so-called Capgras delusion at the time, believing identical-looking impostors had replaced his family members.

We're not talking chump change.

After the death of Hoge's mother, her family won $800,000 because two days before the killings a public health clinic had refused to give Hoge his antipsychotic medication. The family wants the money to go to the deceased woman's third son, who is also mentally ill and in need of lifelong care.

In some U.S. states, the question of whether someone found not guilty by reason of insanity can inherit from the estate of his or her victim has been decided by case law. Not so in Washington.

The legal issue here is whether the killings were "willful" and "unlawful," which would preclude Hoge from getting the money under Washington's "Slayer Statute." Hoge's attorney is arguing that the killings were not "unlawful" because Hoge was found not guilty. In a preliminary ruling, an appellate court held that while Hoge's mental illness absolved him of criminal responsibility, the killing was still unlawful. Whether the killing was "willful" remains to be decided.

The case has been remanded to the trial court in King County for a determination of "the degree to which Hoge's delusion prevented him from forming the intent to kill." A court date has not been set.

The opinion in Estate Of Pamela L. Kissinger v. Joshua Hoge is here. The Seattle Times has news coverage.

Hat tip: Andrew Scarpetta

"Police Interrogation and American Justice"

Richard A. Leo, a law professor at the University of San Francisco and one of the top scholars in his field, has just published what promises to be an excellent analysis of modern police interrogation techniques.

Here’s the book blurb:

"Read him his rights." We all recognize this line from cop dramas. But what happens afterward? In this book, Richard Leo sheds light on a little-known corner of our criminal justice system--the police interrogation.

Incriminating statements are necessary to solve crimes, but suspects almost never have reason to provide them. Therefore, as Leo shows, crime units have developed sophisticated interrogation methods that rely on persuasion, manipulation, and deception to move a subject from denial to admission, serving to shore up the case against him. Ostensibly aimed at uncovering truth, the structure of interrogation requires that officers act as an arm of the prosecution.

Skillful and fair interrogation allows authorities to capture criminals and deter future crime. But Leo draws on extensive research to argue that confessions are inherently suspect and that coercive interrogation has led to false confession and wrongful conviction. He looks at police evidence in the court, the nature and disappearance of the brutal "third degree," the reforms of the mid-twentieth century, and how police can persuade suspects to waive their Miranda rights.

An important study of the criminal justice system, Police Interrogation and American Justice raises unsettling questions. How should police be permitted to interrogate when society needs both crime control and due process? How can order be maintained yet justice served?

See more at the Harvard University Press website, where you can browse the table of contents or bibliography and read the introduction online before deciding whether to buy it.

First "Dr. Phil," now "Dr. Bob"

Psychology credentials at issue in Illinois murder trial

Two decades ago, imprisoned murderer Brian Dugan volunteered to participate in a study of sexual predators being conducted by a psychologist with the state of Illinois. That has come back to haunt him, as government attorneys try to introduce the old audio recordings in an effort to get him executed.

In a bizarre twist, Dugan's attorneys are claiming that the researcher was a "fraud" who was never properly licensed or credentialed despite years of practicing in the state of Illinois.

The allegations against Robert Thorud first came to light in 2004, when the Chicago Daily Herald conducted an investigation into his background.

At the time, "Dr. Bob" - as he was known - was the CEO of a group home for abused and neglected children that was under state investigation over allegedly dangerous and unsanitary conditions. According to an AP story at the time:

[D]ocuments told of slow responses to suicide attempts, physical restraint of children and a report fabricated to cover up one suicide attempt. In one case, the documents said, 12 girls were confined to a single room for 30 days without school because they wouldn't behave. Other reports told of children being restrained against floors and walls by staff and peers and of a broken window that wasn't cleaned, allowing children to sneak pieces of it into their beds. Most of the children who live at The MILL have been abandoned, beaten or neglected, and nearly all suffer from some form of mental illness.

The Daily Herald investigation revealed that Thorud "performed psychological work throughout Illinois government for 25 years, including work with the state police that included courtroom testimony," despite not being licensed as a clinical psychologist in Illinois or any other state.

At the time, Thorud told reporters that he had received a Ph.D. in family therapy and psychology from Columbia Pacific University. Columbia Pacific, labeled by the federal government as a "diploma mill," was a private, unaccredited institution that had been shut down by a California judge for, among other things, issuing diplomas via the mail and Internet without meeting the appropriate requirements, according to the Daily Herald expose.

Despite Thorud's lack of licensure, I found an appellate case in which his juvenile psychological evaluation was used as evidence against a man at a later sexually violent predator commitment proceeding. In that appellate opinion, Illinois v. William J. Stevens, Thorud is referred to by the title of “Doctor.”

All of this is irrelevant to the admissibility of the audiotaped statements, say prosecutors in Dugan's murder trial.

News coverage does not explain how the tapes got into the government's hands in the first place or whether their admission might be precluded by statutes protecting research confidentiality.

Sources:

" 'Dr. Bob' defends himself, credentials," by Dave Orrick, Chicago Daily Herald, August 12, 2004

"Head of youth home replaced," by Dave Orrick, Chicago Daily Herald, September 11, 2004

"Rockford youth center faces uncertain future amid DCFS probe," Associated Press, September 20, 2004

"Dugan defense attacks expert; Psychologist's troubles could defuse evidence," by Christy Gutowski, Daily Herald, February 5, 2008

Hat tip: Ken Pope

Prison rape: Chat with experts this Thursday

Harvard University and the National Institute of Justice are cosponsoring a free "online chat" with experts this Thursday, Feb. 7, about sexual victimization patterns in U.S. prisons and efforts to prevent and eventually eliminate this widespread problem.

A Bureau of Justice Statistics report released two months ago estimated that 60,500 prisoners reported sexual victimization within the past year alone. The research is mandated by the Prison Rape Elimination Act (PREA).

The chat features a panel of experts including criminology professor Barbara Owen, law professor Brenda Smith, and Bureau of Justice statistician Allen Beck.

Although the 2:00-4:00 p.m. (EST) event is free, advance registration is required.

My Dec. 18 "news roundup" has links to the Bureau of Justice Statistics research. Additional resources are here.

Hat tip: CrimePsych blog

"The Tim Masters Case: Chasing Reid Meloy"

That's the title of a hard-hitting article focusing on forensic psychologist Reid Meloy's troubling role in the Tim Masters case in Colorado that many of my forensic psychologist readers have been following closely. This continues to be quite the cautionary tale for the rest of us.

"Meloy's reports and opinions about Masters' artwork have been the source of controversy from the beginning, but never so much as during recent courtroom testimony in which reams of material was introduced for the first time that bring into question not only Meloy's objectivity but whether or not he even came to his conclusions independently," writes journalist Greg Campbell of Fort Collins (Colorado) Now.

Campbell hunted down Meloy at a 4-day youth violence risk assessment training course in San Diego, where Meloy was giving a talk entitled "Adolescent and Young Adult Mass Murder: Assessment and Management of a Catastrophic Risk." He describes Meloy as a "rock star" in the crowd of law enforcement officials, psychologists and education professionals:

" ... taking second billing in the world's small population of celebrity forensic investigators to Roy Hazelwood, Gregg McCreary and John Douglas if only because he never worked for the FBI as they did, and because he's not technically a 'criminal profiler,' a career that has proved so popular in recent American pop culture. His resume more than compensates for being just a step below these movie- and TV-show-inspiring pioneers, however. He is a professor at two San Diego universities, a faculty member of the San Diego Psychoanalytic Institute and former chief of the San Diego County Forensic Mental Health Division. He's written more than 170 papers published in peer-reviewed journals and has written or edited 10 books. Currently, he operates a private forensic practice, consults with the FBI on counterterrorism measures and works to analyze threats to British politicians and the Royal Family. He is a diplomate in forensic psychology of the American Board of Professional Psychology.

"Meloy made no reference to Masters in his presentation, which was focused on the characteristics of mass murderers like Columbine killers Eric Harris and Dylan Klebold, Omaha mall shooter Robert Hawkins, and Virginia Tech killer Seung-Hui Cho. In general terms, Meloy outlined traits of these killers that were similar to traits he attributed to Masters. They tend to be loners. They use fantasy to compensate for shortcomings in their lives. They have poor family relationships. They have a fascination with weapons and war."

Campbell repeatedly emphasizes Meloy's refusal to publicly comment on the case or his role in it. He quotes Meloy as telling him: "I don't want to say anything extrajudicially. It's just too sensitive. ... There will be a time and a place."

"The forensic psychologist has never been shy about his opinion that Tim Masters' doodles made him a killer ... but now that charges are dropped, Reid Meloy has only one thing to say: 'No comment.' "

"Although he now doesn’t want to say anything extrajudicially, Meloy was interviewed for a 2000 documentary about the case that appeared on the A&E Network's 'Cold Case Files.' The show is an uncritical ode to how Meloy, Broderick, Gilmore and Blair [the police detectives] joined forces to crack the case using something akin to mentalism.

" 'After spending six months on the case, I felt I understood the motivations for this homicide and that I had become convinced that Timothy Masters was the individual that had committed this homicide,' Meloy said on the show.

"For Meloy, Masters' drawings represented a 'fantasy rehearsal' for the crime, especially a doodle on Masters' math homework of a knife-wielding hand cutting a diamond shape that Meloy interpreted as a vagina, 'which may have been a rehearsal of the genital mutilation,' as he wrote in his first report to Broderick.

"Equally damning in Meloy's interpretation was a picture Masters drew [that] depicted one figure dragging another, which was apparently wounded or dead, from behind. The wounded figure was riddled with arrows and blood seemed to flow from its back. The figure's heels dug furrows in the ground similar to furrows found where Hettrick’s body was dumped.

"Entirely discounting the presence of the arrows - which had nothing whatsoever to do with the murder - Meloy wrote in his report that this picture represented the crime as it actually happened."

Campbell describes Meloy's role as pivotal to Masters' conviction, providing the only "evidence" of guilt:

"Meloy was the cornerstone of that prosecution - without him, it's unlikely that Masters would have been arrested in the first place. To date, he has provided the only 'evidence' in the nearly 21 years since the murder that implicated Masters in any way: an analysis of Masters' boyhood doodles, crude sketches and violent short stories that - even in the complete vacuum of physical evidence connecting Masters to the crime - convinced Meloy he was guilty.

"Meloy drew his conclusion based on a review of certain evidence provided to him by [Detective] Broderick, including Broderick's own categorization and interpretation of Masters' fictional productions, police videotapes and suspect interrogation transcripts, among many more items.

"Meloy did not, however, speak to or interview Masters himself.

"It apparently wasn't necessary.

"In his first report to Broderick he plainly states in several places that Masters committed the crime - referring to him not as a 'suspect,' but a 'perpetrator' - and he was apparently so convinced that he sent a pretrial letter to then-Larimer County DA Stuart Van Meveren in which he hoped for a 'successful prosecution.'

"And thanks to Meloy's testimony, they got it.

"In court, the jury was bombarded with Masters' scary pictures that were shown on a large video monitor while Meloy pointed out features of them that he testified showed pairing of sex and violence; evidence of 'picquerism,' the sadistic pleasure derived from stabbing; degradation of women; and fascination with weapons and death.

"In his first report to Broderick, Meloy wrote that Masters killed Hettrick because he felt abandoned by his mother, who died unexpectedly almost exactly four years to the day before the murder. He opined that her death, an 'emotionally distant' relationship with his father who spent a lot of time away from home while on active duty in the Navy, the departure of his sister from their home to join the U.S. Army, and his retreat into a fantasy world combined to create a boiling kettle of latent violence just waiting to erupt.

" 'A retreat into such a compensatory narcissistic fantasy world, replete with sexuality and violence, works for awhile, but at a great cost,' Meloy wrote. 'The unexpressed rage continues, depression may ensue, and anger toward women as sources of both pain (abandonment) and erotic stimulation builds.'

" 'Sexual homicide represents the solution, particularly in the form it took in this case: If I kill a woman, she cannot abandon me; if I desexualize her (genital mutilation) she cannot stimulate me,' he wrote. 'These are not conscious thoughts for Tim Masters, but likely represent the unconscious beliefs that drove his behavior the night of Feb. 11, 1987, when he killed and sexually mutilated Peggy Hettrick, a victim of choice and opportunity. Ms. Hettrick represented all Women (sic) to Tim Masters.' "

The full article is online here. Also at that website are copies of some of Masters' so-called "scary doodles."