My favorite judge passes away

In the course of my work as a legal affairs journalist, I got to know many judges. But none came close to matching Alfred Delucchi in compassion, integrity, fairness, intelligence or humor. Delucchi rose from humble roots as the son of an Oakland, California garbage collector, and perhaps it was his working-class roots that made him so common-sensical and down to earth. He has been described as "a judge from the old guard," whose winning personality permeated the courtroom. Delucchi's biggest moment of fame came after his retirement, when he was appointed to preside over the circus-like Scott Peterson trial, but he will be remembered by many people who had the good fortune to encounter him in lesser-known cases as well. As one reporter who met him while covering the Peterson trial put it, "He was one of those people in life that you run into and you just never forget."

The full obituary is here. Here is an older profile of the remarkable jurist, again from the S.F. Chronicle. And here is an interview entitled "Lawyers who lead" from Santa Clara Law.

Video: Never-released Abu Ghraib photos

As an expert witness on behalf of a guard at the infamous Abu Ghraib prison in Iraq, psychologist Philip Zimbardo of Stanford prison experiment fame was privy to many photographs taken by the abusive guards. Today, Wired magazine published a short video by Zimbardo that includes previously unreleased photos. The video is explicit, gruesome and troubling, so "viewer discretion is advised." Wired has an accompanying article with additional resources. Also see Zimbardo's book, The Lucifer Effect (look for my online review on the book's Amazon.com page.)

Justices sound cautionary notes on "expert" witnesses

The scandal involving Canadian pathologist Charles Smith is continuing to send shock waves through forensic circles. This week, leading justices gave some cautionary advice in the ongoing judicial inquiry.

First, judges need to become more scientifically literate, so they can critically analyze expert witness testimony and spot junk science. That was the advice from Justice Marc Rosenberg of Ontario, who runs a program that provides such education to judges.

Second, expert witnesses who stray outside their area of expertise need to be reined in. Justice Patrick Lesage, former chief justice of the Ontario Superior Court, told the tribunal that such "roamers" need to be kept on a short leash.

Dr. Smith, the subject of the inquiry, violated both of these tenets. First, he was not trained as an expert in forensic pathology. Second, he often strayed outside his supposed field of expertise. His testimony was central to the convictions of at least a dozen parents and caregivers in the deaths of children.

Lesage said he hesitates to even use the term "expert" because it conveys too much authority. He prefers to call such witnesses "people who, because of their training and experience, were permitted to give an opinion."

The full article, from the Toronto Star, is here. My previous coverage of the Smith scandal is here, here and here.

Recovered memory therapist placed on probation

Before today's sexual predator hysteria came the satanic ritual abuse scare of the 1980s. Many of the day care providers prosecuted and imprisoned in that era have quietly won their freedom due to flaws in the cases against them. But what about the therapists who helped in their prosecutions?

This week, one of the key therapists involved in the satanic ritual scare agreed to be placed on professional probation for violating Utah codes of professional conduct.

Barbara Snow, a licensed clinical social worker, wrote one of the academic articles credited with fueling satanic hysteria. The article, "Ritualistic child abuse in a neighborhood setting" (Journal of Interpersonal Violence, Vol. 5 No. 4, pp. 474-487), described secret, organized rings of satanists preying upon suburban children - claims that have never been verified with any credible evidence.

The Utah therapist was involved in several of the 1980s prosecutions in Utah. Children she interviewed described satanic rituals, cross-dressing, and the consumption of human excrement. One man she testified against was later granted a new hearing after the Utah Supreme Court questioned Snow's credibility.

The current case involved allegations that Snow planted false memories in two of her relatives, convincing a female relative that she was the victim of satanic abuse and military testing, and convincing a male relative that his father had sexually abused him. When investigators looked into the matter, she allegedly provided them with doctored notes of those therapy sessions.

More information on the current case is available from the Salt Lake Tribune and the Deseret Morning News. Additional background on Snow is here, here, here, and here.

It's fascinating historical reading, but it unfortunately shows that people don't learn from history.

Do sex offenders have right to confidential therapy?

Normally, conversations between an individual and his or her therapist are confidential. But do convicted sex offenders lose that legal right to confidentiality?

That was the issue decided by a California appellate court this week.

Reynaldo Corona was mandated into sex offender treatment after being convicted of molesting his teenage stepdaughters. He complied with required group treatment through the Parole Outpatient Clinic (POC). But in addition, he voluntarily sought his own private therapy, for which he paid out of his own pocket.

When his parole agent found out, Corona was threatened with a return to prison unless he signed a waiver of privilege allowing his private therapist to communicate with parole officials.

On Wednesday, a Second District appellate court upheld the trial court's opinion that the parole requirement is unreasonable. As the court pointed out, such oppressive restrictions would discourage parolees from obtaining treatment that might reduce their risk to society.

Corona's decision to seek private therapy "would seem to be something for which he should be credited, rather than penalized," the court commented. "The People have not identified a nefarious reason for Corona's decision to engage in additional therapy."

The opinion is here. Hat tip to Adam Alban, who has further commentary at his Clinical Lawyer blog.

Mississippi: Forensic "science" train derailing

Last August, I blogged about forensic odontologist Michael West of Mississippi, whose testimony had sent dozens of people to prison, including at least five to death row. West has been the subject of exposes on 60 Minutes and in Newsweek and the National Law Journal. Last week, two of his victims were finally freed after serving a combined total of more than 30 years in prison.

In addition to both being African American, Kennedy Brewer and Levon Brooks had the misfortune to be in the wrong place at the wrong time. Each was dating a woman whose female toddler was kidnapped, raped, murdered, and dumped in the woods. In each case, Dr. West testified at the behest of District Attorney Forrest Allgood that he had found bite marks that other professionals missed, conclusively tying them to the crimes.

In each case, West was wrong. Two weeks ago, police arrested the true culprit, whose DNA matched that found at the crime scenes. Albert Johnson promptly confessed, leading to the release of Brewer and Brooks.

"The bite-marks men: Mississippi’s criminal forensics disaster" is the title of a report in yesterday’s Slate magazine about the cases and their implications:

These may turn out to be the first in a string of exonerations we'll see coming out of Mississippi. For the last 20 years, the state's criminal autopsy system has been in disrepair. Nearly every institution in the state has failed to do anything about it….

According to the National Association of Medical Examiners, a doctor should perform no more than 250 autopsies per year. Dr. [Steven] Hayne has testified that he performs 1,200 to 1,800 autopsies per year....

Hayne isn't board-certified in forensic pathology, though he often testifies that he is. The only accepted certifying organization for forensic pathology is the American Board of Pathology. Hayne took that group's exam in the 1980s and failed it. Hayne's pal Dr. West is even worse.... He once claimed he could definitively trace the bite marks in a half-eaten bologna sandwich left at the crime scene back to the defendant. He has compared his bite-mark virtuosity to Jesus Christ and Itzhak Perlman. And he claims to have invented a revolutionary system of identifying bite marks using yellow goggles and iridescent light that, conveniently, he says can't be photographed or duplicated.

Mississippi's system is set up in a way that increases the pressure on forensics experts to find what prosecutors want them to find. The state is one of several that elect county coroners to oversee death investigations. The office requires no medical training, only a high-school diploma, and it commonly goes to the owner of the local funeral home. If a coroner suspects a death may be due to criminal activity, he'll consult with the district attorney or sheriff, then send the body to a private-practice medical examiner for an autopsy. The problem here is that a medical examiner who returns unsatisfactory results to a prosecutor jeopardizes his chance of future referrals. Critics say Hayne has become the preferred medical examiner for Mississippi's coroners and district attorneys, because they can rely on him to deliver the diagnoses they're looking for.

The article continues here.