Brave judge tosses sexual assault conviction

Jessica's Law: Cruel and unusual punishment?

Jurors in criminal cases are generally kept blind as to the punishment that will be imposed if they find someone guilty. For that reason, one juror was dismissed during deliberations in a trial in Sonoma County, California, when he learned the potential outcome. The juror said he could not sleep once he realized that his guilty vote on a sexual assault charge could send the young defendant to prison for life.

Apparently, the judge in the case was similarly troubled.

Instead of sentencing 24-year-old Jaime Hernandez Gonzalez to life in prison yesterday, Judge Gary Medvigy dismissed the jury's conviction of assault with the intent to commit a sex crime during a burglary. He replaced it with a lesser conviction, residential burglary, which carries a maximum of six years in prison.

But the judge -- a former prosecutor and an Army reserves brigadier general who was decorated for his service in Iraq -- didn't stop there. In tossing the conviction, he read a lengthy statement questioning prosecutors' commitment to justice in light of the facts of the case.

Sentencing a young man with no prior criminal record to spend the rest of his life in prison for a crime that involved no violence or completed assault is so "grossly disproportionate" that it constitutes cruel and unusual punishment, the judge ruled.

In the rather bizarre case, Gonzalez entered a home through an unlocked sliding door, stripped naked, and accosted two sleeping women, removing the pajama bottoms of one. When the women screamed and ran away, Gonzalez fled too. The women testified that Gonzales appeared "zombie-like" or "comatose" during the assault, even when they screamed at him.

The judge slammed the 2006 Jessica's Law expansion under which Gonzalez was convicted, which mandates life imprisonment for sexual assault during a burglary, as "poorly drafted." He said it may be so overly broad as to be unconstitutional, because it requires the same punishment for crimes "involving minimal misconduct" as those involving severe violence and danger.

The District Attorney’s Office expressed outrage and threatened an appeal.

Meanwhile, the legal community in sleepy Sonoma County was abuzz over the judge's highly unusual action, according to news reporter Lori Carter, who covered the trial for the Santa Rosa Press-Democrat. Carter quoted a veteran attorney as calling the decision "gutsy":

"A lot of judges wouldn't do that because of politics. They're worried about reelection," said defense attorney Walter Risse.

Medvigy's conscientious stance will definitely cost him. The public hysteria over sex offending is manifested in the online comments to the Press-Democrat coverage, with vitriolic attacks and calls for the judge's ouster far overshadowing the few attempts at rational discourse.

The Press-Democrat article and related background coverage is HERE.

Photo credit: Press-Democrat

Hat tip: Tim Derning

Salon on Army PTSD diagnosis scandal

Many of my forensic psychology students have signed up with the military after getting their graduate degrees. A main reason is to get the student loan monkey off their back; the military will forgive their massive debts. That is hard to resist. But at what price service?

Today's Salon features an audiotape of civilian psychologist Douglas McNinch explaining to a combat veteran the pressure the military puts on treatment providers not to diagnose Posttraumatic Stress Disorder:

"I will tell you something confidentially that I would have to deny if it were ever public. Not only myself, but all the clinicians up here are being pressured to not diagnose PTSD and diagnose anxiety disorder NOS [instead]."

The audiotape, secretly recorded by a patient labeled "Sgt. X," confirmed what "wounded soldiers and their advocates have long suspected -- that the military does not want Iraq veterans to be diagnosed with PTSD."

Why not? Because Posttraumatic Stress Disorder would require paying for expensive, intensive treatment, including possibly lifelong disability payments. Large numbers of vets suffering from severe trauma might also dampen public enthusiasm for war, and make recruitment even more difficult than ever.

After the tape surfaced, the Senate Armed Services Committee refused to investigate, and the Army conducted its own internal investigation that cleared itself of any wrongdoing. What a surprise.

Perhaps some of you have seen Michael Moore's award-winning documentary, Fahrenheit 9/11, which shows predatory recruiters prowling shopping malls in poor communities scouring for fresh meat. Or the harrowing movie Stop-Loss, about how hard it is for some to get out of the Army once they have served their time.

Many young people come home damaged or destroyed, with invisible but severe traumatic brain injuries (as I blogged about two years ago) or severe psychological trauma. After the military chews them up and spits them out, psychologists like my former students are supposed to put them back together again.

But, hey, it's really not that bad. It's only Anxiety Not Otherwise Specified. How hard can that be to treat?

"COMING HOME" is the title of the excellent Salon investigative series about U.S. Army troops who have returned from Iraq. Focusing on troops at Fort Carson, Colorado, Salon reporters reviewed more than two dozen incidents of suicide, suicide attempts, prescription drug overdoses and murder, much of which "could have been avoided if the Army did a better job of recognizing and treating the symptoms of post-traumatic stress disorder."

Those of you who are attending next week's Forensic Training Institute in Oakland, California, will get to hear more about diagnostic shenanigans and the controversy over forensic use of the PTSD diagnosis. (Hopefully it's not too late to sign up, if you haven't done so already.)

New book reviews

In the mood for some spring reading? My review of The Wrong Guys by Tom Wells and Richard Leo is now available online at the California Lawyer website. Here is how the review begins:

Innocent people do not confess. Especially to rape and murder.

That is the belief of most people, including jurors, judges, attorneys, and even the very police detectives who induce false confessions. It is supported by TV police dramas, in which the cops always nail the guilty, and the guilty then tell all.

The belief is strengthened by the emotional nature of confessions. Jurors find such declarations the most compelling of all evidence. And once a jury votes to convict someone who has confessed, reversal or exoneration is well-nigh impossible.

The Norfolk Four case is the perfect vehicle to challenge this misguided faith. A routine investigation into the murder of a young sailor's wife in 1997 turned into a runaway train, as detectives blindly pursued a gang-rape scenario that was inconsistent with physical evidence suggesting a lone assailant. Each time a suspect's DNA failed to match the sample found at the crime scene, the detectives added another suspect, essentially at random, until their list grew to at least eight.

The review continues HERE.

Or, for true crime, fiction, or other recent books, here are a few of my most recent reviews on Amazon. As always, please help boost my reviewer rank -- and let me know that you are reading my stuff -- by clicking on "yes" if you find a review helpful:

• Body Parts by Caitlin Rother

• Evaluation of Juveniles' Competence to Stand Trial by Ivan Kruh and Tom Grisso

• Mount Misery by Samuel Md Shem

• The Other Side of Desire: Four Journeys into the Far Realms of Lust and Longing by Daniel Bergner

Postpartum psychosis stirs Texas controversy

A proposal to carve out a reduced penalty for a very limited type of infanticide is causing quite a furor in Texas.

The law being proposed by two state legislators would make postpartum disorder a legal defense for women who kill their children in the first 12 months of life. The defense would not come into play until after a conviction. Then, at the sentencing phase, jurors could hear mitigating expert testimony about the mother's mental state that could reduce the sentence to a state jail term.

Similar laws are on the books in 29 nations -- including Britain, Australia, and Canada -- but this would be the first in a U.S. state.

Currently, postpartum psychosis cases are very disjointed under the law; some women are found insane and go to mental hospitals, while others with almost identical crimes are found guilty of murder and go to prison. Women may still attempt an insanity defense if this law is passed, but it is difficult to prevail under the narrow legal theory of insanity.

It will be interesting to see whether the modest law passes. If it does, that will be a sign that the Hang 'em High state is becoming a kinder, gentler place.

It won't come easy, though. Since the legislation was proposed last week, Texas talk radio and the internet have been abuzz with amateur pundits who fear a wave of mothers murdering their children if they know they can get away with it.

What a joke. Most women who kill their children while in a state of postpartum psychosis or severe depression are so overwhelmed with guilt when they regain their senses that they can barely go on. Many commit suicide the first chance they get.

Readers will recall that Texas was the site of probably the most high-profile case of filicide in recent years. Andrea Yates, who drowned her five children in the bathtub in 2001, was found not guilty by reason of insanity and remains psychiatrically hospitalized.

After that came Dee Schlosser, who in 2004 killed her daughter by cutting off her arms. Police found Schlosser soaked in blood and humming a hymn; she believed her deed was an offering to God. She too was found insane.

The Schlosser case may be making Texans especially prone to outrage at the moment. Just a few months ago, they learned Schlosser is being released from a state mental hospital, and some equate that to "getting away with murder." But as Lucy Puryear, MD, an expert witness at Yates' insanity trial, commented over at Women in Crime Ink:

Dee Schlosser will never live a carefree life. She must live with the knowledge and memory of killing her child. She will no longer be able to care for or have contact with her other children, and her marriage ended in divorce. What kind of life will she have? Can you imagine waking up every day to that horror?

She is no longer psychotic, she is on medication, she will be monitored by a psychiatrist to make sure that she remains well. So why should she remain in the hospital; just so our sensibilities are appeased? That's a waste of money. Her being in the hospital does not protect you or your children. Dee Schlosser has no intention of coming to your house to cut off the arms of your child.

Puryear makes a good point. And probably most people would agree, when they think about it, that women like Schlosser and Yates aren't much of a danger to society. The problem is that people don't think. A mother killing her child triggers such visceral rage that the only color people see is red.

Grits for Breakfast

For further information:

• Text of the proposed legislation (HB 3318)
• Grits for Breakfast: Should postpartum psychosis be a legal defense?
• Postpartum Progress blog: Will Texas Be First State With An Infanticide Law?
• Dallas Morning News: Proposed Texas House bill would recognize postpartum psychosis as a defense for moms who kill infants

Forensic Training Institute – April 16

Diagnostic Controversies In Forensic Practice

For those of you in or near California, it's not too late to register for this full-day training workshop coming up in just three weeks. It is presented by yours truly and Craig Lareau, JD, PhD, ABPP, who has just written an excellent chapter on the DSM-IV for the upcoming 6th edition of the classic Faust (Ziskin) reference work, Coping with Psychiatric and Psychological Testimony.

We are gearing this toward advanced-level forensic practitioners. Topics include:

• The DSM in court
• Antisocial Personality Disorder and Psychopathy
• Diagnosis in Sexually Violent Predator (SVP) proceedings
• Posttraumatic Stress Disorder

The all-day (9:00-4:00) training is a preconvention special hosted by the California Psychological Association in Oakland. It provides 6 units of CE credits, and costs $175 for CPA members and $225 for non-members.

Click HERE for more information and to register online.

Gender twist on "post-apocalpytic trolls"

I've written previously about troll colonies. They are the exiled sex offenders living under bridges, including most famously the Julia Tuttle Causeway in Florida. Now, for perhaps the first time, a woman has been forced to join their ranks. Here is what one columnist had to say about this sad, and senseless, development in a world gone mad:

Woman joins sex-offender group
Guest essay by Fred Grimm, Miami Herald*

It's as if Voncel Johnson has been thrust into a bizarre social experiment.

Forcing so many men to live like post-apocalyptic trolls beneath a bridge in the middle of Biscayne Bay wasn't quite mad enough. Now they've added a woman.

For two years, a colony of convicted sex offenders under the Julia Tuttle Causeway has lived in a public health travesty, without water or toilets or electrical service. They sleep in tents, shacks, the back seats of cars in the last realistic address in metropolitan Miami unaffected by city and county sex-offender residency laws.

The numbers have been growing steadily as more convicted sex offenders emerge from prison and are consigned to finish out their wretched lives under a bridge.

The population was up to 52 men Monday. And Voncel Johnson.

Gender equity

In a peculiar nod to gender equity, the Florida Department of Corrections informed her last week that she too had only one residency option in Miami-Dade County -- the Tuttle. ''They just give me a blanket and a pillow and sent me . . . here?'' she asked, talking over the incessant thump-thump-thump of the freeway traffic overhead. "I just broke down.''

A community backward enough to create a subterranean de-facto prison camp of male sex offenders thrusts a single woman into the mix -- just to see what happens.

It's an ironic setting for Voncel Johnson. The 43-year-old woman, who grew up in poverty and neglect in the Brownsville section of Miami, told me she was sexually molested at age 6 and gang-raped at 16. ''I have a hard time trusting men,'' she said.

In 2004, Johnson pleaded guilty to a charge of lewd and lascivious exhibition (without physical contact) with a minor. She claimed Monday the charge was unfounded but at the time a plea offer with one year probation and no prison time seemed prudent. Except she twice failed to meet sex-offender registration requirements. Her probation was revoked. She did 10 months at Broward Correctional Institute.

Common refrain

She repeated a common refrain -- sometimes delusional -- among the bridge outcasts. "I never would have done that plea deal if I'd known they'd send me here. I could've fought those charges.''

But offender laws leave the state Department of Corrections no options for a sex offender. Voncel Johnson's parole officer did find her a motel room for three days last week. And she was offered a slot in a residential offender program in another county. But Johnson refused to leave Miami. "All my family lives here. I've never been any place but Miami.''

It was probably a foolish decision, but Johnson harbors some vague notion about gutting it out beneath the Tuttle until her parole ends May 5. ''Then I can find some place to live.'' She seems unable to grasp that residency restrictions are forever.

Meanwhile, the men beneath the Tuttle gave her a battered old camper trailer. ''We watch out for her,'' insisted Juan Carlos Martin, who has been under the bridge so long that the address on his driver's license reads ''Julia Tuttle Causeway Bridge.'' He said it was as if city, county and state officials purposely cram more and more men into an unliveable, hopeless, crowded space, knowing that eventually something awful might happen. And now they add a woman.

Martin said, "They need to get her out of here.''

*From today's Miami Herald, posted with the written permission of columnist Fred Grimm. More columns by Fred Grimm are HERE.

Related blog posts:

• Trolls evicted (February 14, 2008)
• Exiles in the promised land (December 13, 2007)
• Sex offenders must live as trolls (April 16, 2007)
• A bridge as a last resort (May 1, 2008) – Guest essay by Seattle Times columnist Danny Westneat about a similar situation in Washington
• Exiles in their own land: Sex offenders and the history of banishment in Western culture (September 14, 2007)