Blog featured at Court-o-rama

Court-o-rama, which bills itself as "the least dangerous blog," has honored "In the News" as the first in its new "Blog of the Week" series. Court-o-rama, in turn, is worth checking out, for its offbeat coverage of the weird and wacky world of law.

My apologies for the paucity of posts so far this week, loyal readers; just too much work and not enough time.

Judge may block hater from misusing courts

First Amendment and fair use doctrine at issue

How's this for audacity: Spew hateful venom against a minority group and then, when the group protests by calling for an advertising boycott, sue for copyright infringement because the group quoted your words.

As someone who did research into hate crimes a few years back, I've been following trends in hate-related violence. Ever since 9/11, we've seen increasing targeting of Arab Americans, Muslims, and people who are mistaken for Arabs or Muslims (such as Sikhs, Iranians and even Mexicans). That's partly because when a minority group is openly maligned, it sends a message to rageful and disempowered young men that it's OK to act out against that group.

A perfect exemplar of incendiary hate-mongering is extremist nut Michael Savage, whose syndicated radio show "Savage Nation" has about 8 million listeners on 400 stations. His anti-Muslim vitriol is blood-chilling (don’t take my word for it – listen here or here).

Rather than silently accepting Savage's abuse, the Council on American-Islamic Relations (CAIR) called on advertisers to stand up for human rights by withdrawing support from Savage. Several large corporations, including Wal-Mart, AT&T, and Sears, reportedly heeded the call, costing Savage $1 million or more by his estimate.

Savage responded by suing CAIR for copyright infringement. Even more preposterously, he accused the group of racketeering, claiming it poses as a civil rights organization but is actually a "mouthpiece of international terror" that helped to fund the 9/11 attacks.

This is not the first time the rabid Savage has tried to use the courts to stifle free speech. With the civil court system increasingly off limits to all but the wealthy, he and his Talk Radio Network have the money to hire lawyers and go after critics left and right; in 2003 they went after Take Back the Media, SavageStupidity.com and MichaelSavageSucks.com on similar grounds. (A pdf of that lawsuit is posted here.)

I can hardly imagine a better example than CAIR's of "fair use," a legal doctrine stemming from the First Amendment of the U.S. Constitution that allows portions of copyrighted material to be reprinted for purposes of (among other things) scholarly debate, criticism, or parody.

To her credit, a federal judge said on Friday that she agrees with much of the anti-defamation group's legal defense under the First Amendment and that she will likely dismiss the lawsuit. Unfortunately the judge said she may allow Savage to modify the lawsuit and file it again.

I sure hope the Honorable Susan Illuston follows through and bars this vicious hate-monger from misusing the civil process to stop legitimate - indeed crucial - criticism.

Today's San Francisco Chronicle has coverage. See more commentary at "Crooks and Liars."

Can expert witnesses change their minds?

Of course. But there's a right way and there's a wrong way.

That was at the heart of this week's appellate decision by the U.S. 10th Circuit Court of Appeals in the case of Pace v. Swerdlow.

The case involved an expert witness anaesthesiologist, Barry N. Swerdlow, who changed his mind on the eve of a trial, contributing to the dismissal of the Paces' wrongful death claim.

The case was brought by Thomas and Karol Pace of Utah, whose daughter died after undergoing breast augmentation surgery. According to the 10th Circuit opinion, anaesthesiologist Barry Swerdlow of California approached the Paces' attorney and offered his services as an expert witness. After being retained, Swerdlow wrote a report stating that in his expert opinion the surgical center and its anaesthesiologist, Dr. Stephen Shuput, were negligent in releasing the Paces' daughter from the hospital despite her complaints of chest pains and trouble breathing.

During subsequent deposition testimony, however, Swerdlow admitted that he had not read the attending anaesthesiologist's deposition before forming an opinion. He explained on the record that he was "a relative novice at this whole thing" and had no experience testifying in court as an expert witness. In questioning Swerdlow, the defense attorney implied that the self-appointed expert might be behaving unethically, in violation of his professional licensure.

It was after that deposition that Swerdlow changed his mind. After reading Shuput's deposition, he wrote an "addendum" stating that there had been no breach of the appropriate standard of care. Without giving any advance warning to the Paces or the attorney who had retained him, he sent the addendum to the opposing attorneys. Not surprisingly, the trial court dismissed the Paces' wrongful death claim, leading to their federal appeal.

The 10th Circuit held that a lower court was wrong to dismiss the Paces' lawsuit against Swerdlow for professional malpractice, fraud, and breach of contract. They remanded the case back to the lower court for further proceedings, including a decision on whether the expert is protected by any doctrine of expert witness immunity. Such statutes, the court noted, vary from state to state.

In an interesting partial dissent, Circuit Judge Gorsuch discussed the dangers of discouraging expert witnesses from changing their minds - so long as the change of opinion is based on honest and professional reasoning rather than pressure from the other side:

"Allowing this claim to march along sends the message to would-be expert witnesses: Be wary - very wary - of changing your mind, even when doing so might be consistent with, or compelled by, the standards of your profession…. In our legal system, demanding that experts 'deliver' a specified opinion, as opposed to their honest judgment, is supposed to be ethically out-of-bounds - not the basis for a cause of action.

"Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court … simply for changing their opinions - with no factual allegation to suggest anything other than an honest change in view based on a review of new information - we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve."

The moral for forensic psychologists: Be sure you have appropriate education, training, and experience before hanging out your shingle as an "expert."

The case is here. For more on the legal doctrine of expert witness immunity, see "Suing your own expert witness: Competing policies, uncertain law," by Charles Patrick Ewing, JD, Ph.D., Monitor on Psychology, January 2001, Vol. 32 No. 1.

Photo credit: Estherase (Creative Commons license). Hat tip to Steven Erickson, JD, Ph.D., for alerting me to this case.

POSTSCRIPT: Additional coverage of this case, in the online edition of the American Medical News dated April 14, 2008, is available here.

Incarcerex: One nation, behind bars

With none of the front-running presidential candidates challenging the United States' long-running incarceration mania, INCARCEREX (click on either that capitalized title or on the picture to the right) is an incredibly timely video.

Also timely is today's pull-no-punches editorial in the Detroit Free Press, "One Nation, Behind Bars," which goes like this right here:

The U.S. prison population, the world's largest, has grown nearly eightfold over the past 35 years and now costs taxpayers at least $60 billion a year. An eye-popping report released last week by the Pew Center on the States found that, for the first time, more than one in every 100 American adults is in jail or prison. And that figure doesn't count the hundreds of thousands of people who are on probation and parole.

What is the goal here? Is there a smarter way to get there? What are we as a society getting in return for all this money? What is this massive and growing penal system accomplishing?

Before the nation hits two in 100 behind bars, which seems inevitable, it's time for a national debate on corrections and criminal justice policies that will lead to a more rational, humane and cost-effective system. The nation has gotten far too little for its enormous investment in locking people up. Violent crime rates are higher than they were more than three decades ago, when tough-on-crime policies, including mandatory sentencing laws, created a prison-building boom.

States can no longer afford to divert so many resources from education, health care and other pressing needs. Michigan, for example, with one of the nation's highest incarceration rates, spends $2 billion a year on corrections, or 20% of its general fund. It is one of four states spending more on corrections than higher education. In today's economy, spending more on prisons than college is a recipe for failure.

Nor can the nation ignore the human costs of mass incarceration. Nearly half of the 2.3 million adults locked up are African Americans, who make up less than 13% of the U.S. population. A stunning one in nine black males between the ages of 20-34 is behind bars.

The large numbers of people incarcerated may well increase crime rates. Prison culture has become a norm in some urban neighborhoods, with more than 600,000 people a year returning home from prison and jails. They come back poorly educated, lacking job skills, and socially and legally disabled by felony records. One in 14 African-American children has a parent who is incarcerated, greatly increasing the chances that they, too, will grow up to go to prison.

The good news is that budget pressures are forcing states, including Michigan, to take steps to control their prison populations. On average, Michigan incarcerates at a 40% higher rate than surrounding Great Lakes states. But Michigan was also one of 14 states where prison population dropped over the past year. The state's prisoner re-entry program has reduced recidivism; in some cases, parole rates have gone up.

Michigan is also considering other initiatives, including sentencing reforms that divert more low-level offenders into community programs and releasing more severely sick or dying inmates who pose no risk.

All states must consider greater use of community supervision for low-risk offenders, as well as repealing harsh drug laws and mandatory sentencing policies, including three-strike laws, which result in unreasonably long prison stays.

Unacceptably high incarceration rates tear at the nation's social fabric and take public money from education, health care, transportation and other vital needs. Nor have they significantly reduced crime. It's time to re-examine the policies that have made us the incarceration nation.

Hat tip: Sentencing Law & Policy blog

New MMPI scale invalid as forensic lie detector, courts rule

Injured plaintiffs falsely branded malingerers?

Psychology's most widely used personality test, the MMPI, jumped into the national spotlight today in a fascinating David-and-Goliath controversy pitting corporate interests such as Halliburton against the proverbial little guy.

At issue is the "Fake Bad Scale" that was incorporated into the Minnesota Multiphasic Personality Inventory last year for use in personal injury litigation. A front-page critique in today's Wall Street Journal includes publication of the items on the contested scale, a test security breach that will no doubt have the publisher seeing red.

Although a majority of forensic neuropsychologists said in a recent survey that they use the scale, critics say it brands too many people - especially women - as liars. Research finding an unacceptably large false-positive rate includes a large-scale study by MMPI expert James Butcher, who found that the scale classified high percentages of bonafide psychiatric inpatients as fakers.

One possible reason for this is that the scale includes many items that people with true pain or trauma-induced disorders might endorse, such as "My sleep is fitful and disturbed" and "I have nightmares every few nights." Yet hearing the term "Fake Bad" will likely make a prejudicial impact on jurors even if they hear from opposing experts who say a plaintiff is not faking.

The controversy came to a head last year in two Florida courtrooms, where judges barred use of the scale after special hearings on its scientific validity. In a case being brought against a petroleum company, a judge ruled that there was "no hard medical science to support the use of this scale to predict truthfulness.” Other recent cases in which the scale has been contested include one against Halliburton brought by a former truck driver in Iraq.

The 43-item scale was developed by psychologist Paul Lees-Haley, who works mainly for defendants in personal injury cases and charges $600 an hour for his depositions and court appearances, according to the Journal article. In 1991, he paid to have an article supportive of the scale published in Psychological Reports, which the WSJ describes as "a small Montana-based medical journal."

The scale was not officially incorporated into the MMPI until last year, after a panel of experts convened by the University of Minnesota Press reported that it was supported by a "preponderance of the current literature." Critics maintain that the review process was biased: At least 10 of the 19 studies considered were done by Lees-Haley or other insurance defense psychologists, while 21 other studies – including Butcher's – were allegedly excluded from consideration.

Later last year, the American Psychological Association's committee on disabilities protested to the publisher that the scale had been added to the MMPI prematurely.

Lees-Haley, meanwhile, defends the scale as empirically validated and says criticism is being orchestrated by plaintiff's attorneys such as Dorothy Clay Sims, who has written guides on how to challenge the Fake Bad scale in court.

Even if the scale was valid before today, questions are certain to arise about the extent to which it will remain valid once litigants start studying for it by using today's publication of all 43 items along with the scoring key.

The lesson for forensic practitioners: Be aware of critical literature and controversy surrounding any test that you use in a forensic context, and be prepared to defend your use of the test in court.

The article, "Malingerer Test Roils Personal-Injury Law; 'Fake Bad Scale' Bars Real Victims, Its Critics Contend," which includes ample details on the controversy, is only available to Wall Street Journal subscribers, but you can try retrieving it with a Google news search using the term "MMPI Fake Bad." The University of Minnesota Press webpage on the contested scale is here, along with a list of research citations.

Here are citations to the major pro and con research articles:

"Meta-analysis of the MMPI-2 Fake Bad Scale: Utility in forensic practice," Nelson, Nathaniel W., Sweet, Jerry J., & Demakis, George J., Clinical Neuropsychologist, Vol 20(1), Feb 2006, pp. 39-58

"The construct validity of the Lees-Haley Fake Bad Scale: Does this measure somatic malingering and feigned emotional distress?: Butcher, James N., Arbisi, Paul A., & Atlis, Mera M., Archives of Clinical Neuropsychology, Vol 18(5), Jul 2003, pp. 473-485.

Postscript: Test distributor Pearson Assessments responded with alacrity - not to the heart of the controversy but to the Journal's reprinting of test items. The company, which makes a mint from selling and scoring the MMPI and other psychological tests,got the WSJ to remove the online link to the test items. In a "news flash," Pearson says it is "evaluating the impact of the article" and asks psychologists to report any other instances of "illegal" reproduction of the scale in publications, websites, chat rooms, or blogs.

NOTE: For more of my posts about the MMPI-2's Fake Bad Scale, search the blog using the term "MMPI" (the search box is in the upper left corner of the page).

New draft of forensic psychology ethics guidelines

At 17 years old, the ethics guidelines for forensic psychologists are ancient considering all of the changes in the field since 1991. A revision to these Specialty Guidelines for Forensic Psychologists has been in the works for several years now. The previous draft by the revisions committee of the American Psychology-Law Society (Division 41 of the American Psychological Association) came out two years ago, in January of 2006. Finally, the long-awaited third official draft has been released and is open for public comments. The latest changes to the guidelines will also be the topic of a presentation at the AL-LS annual convention in Jacksonville later this week. For those of you who are attending the convention (I won’t be there this year), the presentation is on Saturday at 4:45 p.m.

The Specialty Guidelines are "aspirational," meaning they recommend but don't mandate appropriate professional behavior and conduct for forensic psychologists. They are meant to be used in conjunction with applicable laws, rules and regulations, and ethics codes such as that of the American Psychological Association.

Public comments on the latest draft can be emailed to sgfpdraft@yahoo.com or mailed to Randy Otto, Ph.D., 13301 North 30th Street, Tampa, FL 33612. When submitting comments please identify the specific section you are referencing (e.g., 7.01, 8.03.03) and provide recommended alternative language when appropriate.

The third draft is available here. The previous (2006) draft is here; the original guidelines are here.