CA court: SVP defendant must be competent

Appellate court bucks national trend

In another important SVP decision, a California appellate court has ruled that it is Unconstitutional to civilly commit a sex offender who is incompetent to stand trial.

The courageous decision in the case of Ardell Moore tackles head-on the fiction that merely labeling something as "civil" takes away the due process protections that automatically confer to criminal defendants:

"Irrespective of the fact a commitment under the SVPA [Sexually Violent Predator Act] is labeled civil rather than criminal, the defendant’s liberty is severely curtailed," the Court pointed out.

Ardell Moore is diagnosed with paranoid schizophrenia. Mental health evaluators have described him as floridly psychotic and delusional.

In its well-articulated decision, the court detailed much the same rationale as has long been recognized for criminal defendants. When a defendant is put on trial while incompetent, he becomes "a mere spectator," not able to correct erroneous information, assist his attorney, or testify effectively on his own behalf. All of this substantially increases the probability of a sham proceeding and a resultant miscarriage of justice.

"An incompetent defendant will have no opportunity to discuss his prior behavior and motivating reasons for such behavior with the state's evaluator or with a defense expert, or be able to explain to a jury why the state expert’s rationale for the diagnosis and volitional impairment is not justified. A defendant who is incompetent is at a great disadvantage, as he cannot meaningfully testify in his own behalf, cannot cooperate with his own counsel, nor assist his defense experts in understanding the basis for his behavior or provide evidence to rebut an evaluator’s potentially erroneous conclusion."

The appearance of a kangaroo court has not bothered courts in four other states -- Massachusetts, Iowa, Missouri and Texas -- which have all approved trials of incompetent SVP defendants based on the legal fiction that the proceedings are "civil."

Those cases are:

• Massachusetts: Commonwealth. v. Nieves (2006) 846 N.E.2d 379
• Iowa: In re Detention of Cubbage (2003) 671 N.W.2d 442
• Missouri: State ex rel. Nixon v. Kinder (2003) 129 S.W.3d 5
• Texas: In re Commitment of Fisher (2005) 164 S.W.3d 637

The unanimous opinion by the Court of Appeal in the Second Appellate District (Los Angeles) was a case of first impression, meaning the issue had not previously been addressed by a California appellate court.

Leaning heavily on last year's opinion in People v. Allen, in which the California Supreme Court held that defendants in SVP proceedings have a Constitutional right to testify over the objection of their attorneys, the court reiterated that "in every case" an SVPA defendant has the constitutional right to testify and to present his side of the story, and "mental competence is a prerequisite to the exercise of that due process right. Absent mental competence, a defendant cannot testify or participate meaningfully in the SVPA proceeding."

Moore was convicted in 1987 of kidnapping, forcible rape and forcible rape in concert and was sentenced to 25 years in state prison. As his parole date neared, he was flagged by state evaluators as a possible Sexually Violent Predator.

Two state evaluators, licensed psychologists Beryl Davis and Gary Zinik, testified against him at his trial. Both testified that he suffered from paranoid schizophrenia and was off his medications and too incoherent to talk with them when they tried to evaluate him. Despite his inability to rationally engage with them, they opined that he would likely reoffend sexually if released.

Testified Davis, "When we talk about volition and somebody's ability to control their behavior, when you're florid psychotic, you lose that volitional control, and somebody with a sexually [sic] preoccupation and inability to control themselves sexually would be a significant high risk."

Not surprisingly, after waiving his right to a jury trial Moore lost his trial and was civilly committed. The trial judge ruled that his incompetency did not matter, because the proceeding was civil and not criminal. Quoting from the Massachusetts case of Nieves, the court held:

"We see no reason why the public interest in committing sexually dangerous persons to the care of the treatment center must be thwarted by the fact that one who is sexually dangerous also happens to be incompetent."

Since 2000, Moore has been housed off and on at Atascadero State Hospital, where he has remained floridly psychotic, according to subsequent evaluators.

In early 2007, psychologist Vianne Castellano, Ph.D. evaluated Moore and opined that he was incompetent to stand trial: "He is neither able to understand the nature and the purpose of these proceedings nor is he able to cooperate in a rational manner with his counsel or the psychological evaluators."

The appellate ruling means his case will be remanded to the trial court for a new determination of whether he is competent to stand trial. If he is found incompetent, he will be entitled to competency restoration treatment at a state hospital.

As the appellate justices pointed out in their unanimous opinion, there is no real down side. In the event that an SVP defendant is found incompetent to stand trial, neither public safety nor state finances are affected. The defendant remains in custody in a state hospital, as he would have been had he been civilly committed, and "the fiscal burden to the state remains essentially the same."

The ruling is HERE. A previous appellate opinion in the case is HERE.

Voodoo science update

Remember my post back in March on the critique of "voodoo" brain science? That article has generated a tremendous amount of buzz, both academically and in the popular press. For those of you who want more info, a neuroscientist blogging at Neuroskeptic (motto: "More brains than a zombie's stomach") has an excellent analysis of the article and the resultant controversies, replete with lots of links. The most extensive discussion and collection of links I have found is over at the Amazing World of Psychiatry blog. Happy reading!

Hebephilia struck by third blow

Down but not out?

It may be too soon to call it the death knell, but this week's ruling by a federal judge in Massachusetts certainly dealt a reeling blow to the highly contested pseudo-diagnosis of hebephilia and its ever-more-marginalized adherents.

In the third of three back-to-back decisions in federal court, U.S. District Judge Joseph Tauro said hebephilia just doesn't pass muster as a basis for civilly committing someone as a "sexually dangerous offender."

Hebephilia -- sexual attraction to adolescents -- certainly exists in nature, but the Government failed to meet is burden of establishing by clear and convincing evidence that it amounted to "a serious mental illness, abnormality, or disorder" as required for civil commitment, wrote the judge. Simply put, "hebephilia is not generally recognized as a serious mental illness by the psychological and psychiatric communities."

The case involved Todd Carta, who was due to be released from federal prison after serving time for computer-based child pornography. Carta has a lengthy history of sex with underage males, ages 13 on up, and has acknowledged an attraction to adolescent boys.

The Government's expert, psychologist Amy Phenix, diagnosed Carta with "Paraphilia Not Otherwise Specified: Hebephilia," which she defined as a sexual preference for "young teens . . . 'till about age seventeen."

Phenix's position was countered by psychologist Leonard Bard, who testified that Carta had no diagnosable mental disorder. Bard identified numerous problems with the diagnosis of hebephilia, including its absence from the Diagnostic and Statistical Manual of Mental Disorders (DSM) and the prevalence of sexual attraction to adolescents among normal men.

The judge got it. In a thorough and well reasoned decision, he deconstructed the legal use of this nebulous diagnosis brick by brick. Perhaps most impressive was his clearly articulated understanding of the importance of adequate empirical research to support a diagnosis:

"Most importantly, the Government has failed to demonstrate that a diagnosis of hebephilia or paraphilia NOS: hebephilia is supported by research in the field of psychology…. Most of the articles put forward by the Government were published by coauthors Dr. Blanchard and Dr. Cantor. Dr. Bard criticized the work of Dr. Blanchard and Dr. Cantor, testifying that they are both on the editorial board of the journal that publishes their findings, which has at least the potential to damage the integrity of the peer-review process. Dr. Bard also criticized the research underlying their conclusions for failing to include a control group and for eliminating a large portion of the samples, among other problems. The five replies criticizing Dr. Blanchard's recent article proposing inclusion of hebephilia in the DSM-V suggest that Dr. Blanchard's work is not widely accepted. Dr. Bard testified that 'it’s the same group that is published over and over again trying to justify [a diagnosis of hebephilia], and they have failed.' "

The judge acknowledged that by ordering Carta's release he was not suggesting the convicted sex offender is a model citizen, but just drawing a line in the sand between criminality and mental disorder: Absent a widely recognized mental disorder it is Unconstitutional to "order indefinite commitment on the basis of the offensiveness of Respondent's conduct alone."

This is the third federal ruling in a row against hebephilia. The only other federal courts to address its use both rejected it as a basis for civil commitment. Those cases were U.S. v. Shields and U.S. v. Abregana, both decided last year.

Normally, this might be a "Three Strikes and You're Out" situation. Put the tired old construct to bed.

But fans are frantically trying to rehabilitate and rejuvenate hebephilia by getting it added to the next edition of the DSM (DSM-V). This would get around at least one of the many concerns expressed by Judge Tauro and others, over "the lack of any clear criteria" for making the diagnosis. Spearheading the DSM-V effort is Raymond Blanchard of the Centre for Addiction and Mental Health in Canada, who not only sits on the editorial board of the journal that published his research (as Judge Tauro pointed out in his opinion), but also serves on the DSM-V Sexual and Gender Identity Disorders Work Group. From that influential position, he is lobbying for the addition of hebephilia or a newly minted term – pedohebephilic disorder (what a mouthful!) to the diagnostic bible.

With the DSM-V work groups stacked (see my related posts HERE), we may just have to wait and see. But in the meantime, All Hail to Massachusetts, for landing a solid blow against pseudoscience in the forensic arena.

Judge Tauro's decision is HERE. A list of articles on "Hebephilia and the DSM-V Controversy" is HERE; for more on hebephilia see my essay, "Invasion of the hebephile hunters: Or, the story of how an archaic word got a new lease on life."

Photo credit: Noel Kerns' "Closed," Creative Commons license (entrance to the defunct Mission Four Outdoor Theatre in San Antonio, Texas)

New entry in porn-rape debate

With the controversy raging over whether pornography encourages sexual aggression, an important article has gone to press. Based on a review of the existing evidence, the authors say it is time to discard the hypothesis that pornography leads to sexual violence. Despite the theory's inherent appeal, the evidence to back it up just isn't there.

That's according to Christopher Ferguson of the Criminal Justice Department at Texas A&M and Richard D. Hartley of the University of Texas in San Antonio. As they summarize it in their Abstract:

The effects of pornography, whether violent or non-violent, on sexual aggression have been debated for decades. The current review examines evidence about the influence of pornography on sexual aggression in correlational and experimental studies and in real world violent crime data. Evidence for a causal relationship between exposure to pornography and sexual aggression is slim and may, at certain times, have been exaggerated by politicians, pressure groups and some social scientists. Some of the debate has focused on violent pornography, but evidence of any negative effects is inconsistent, and violent pornography is comparatively rare in the real world. Victimization rates for rape in the United States demonstrate an inverse relationship between pornography consumption and rape rates. Data from other nations have suggested similar relationships. Although these data cannot be used to determine that pornography has a cathartic effect on rape behavior, combined with the weak evidence in support of negative causal hypotheses from the scientific literature, it is concluded that it is time to discard the hypothesis that pornography contributes to increased sexual assault behavior.

The article, forthcoming in Aggression and Violent Behavior, is available online pending print publication, but it requires a subscription.

Experts must be effective teachers

In my years as a legal affairs reporter, I developed a lasting respect for jurors and their decision-making process. People who take the time and energy to perform their civic duty are earnest in wanting to do the right thing. Increasingly, they are sophisticated and educated consumers who are innately curious about the topics at hand. Frequently, however, they are turned off by expert witnesses, who may resemble one of the following:

1. Ivory Tower: arrogant and condescending
2. Swordsman: combative, defensive, hostile, nitpicky
3. Waffler: uncertain and inconsistent
4. Automaton: stiff, robotic, confusing, unintelligible
5. Salesman: slick and overzealous

"Under all of these negative terms," advises trial consultant Richard Gabriel, "lies one fundamental problem: the lawyer and the witness did not have the intention of truly communicating with today’s jury."

The solution? Understand jurors’ innate skepticism and boredom, and become an effective teacher, "the translator for the jury in their journey into a foreign land." Writing in the current issue of The Jury Expert, Gabriel says the expert witness must be both understandable and relevant. How?

• Good teachers break down complex topics into understandable language, without being condescending.

• Good teachers anticipate questions. They "make sure they answer those questions, no matter how basic or obvious they seem."

• Good teachers understand that students have different learning styles, and they use "a mixture of tools to convey their information."

• Good teachers display passion. "Aside from a purely professional or academic interest, experts who resonate with jurors seem to have a personal connection that drives them to a particular level of excellence in their chosen field."

• Good teachers narrate stories. They "know that even the driest subjects can be made interesting by highlighting the conflict, the characters, the action, or the environment within the story."

The full article, "Redefining Credibility: Turning Expert Witnesses into Teachers," which includes a lot of practical tips, is online HERE. Author Richard Gabriel is president of Decision Analysis trial consulting firm and co-author of Jury Selection: Strategy and Science.

Photo credit: Xin Le 88's portrait of her tutor (Creative Commons license)

Essential reading on sex offender civil commitment

Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State
by Eric S. Janus, William Mitchell College of Law

I just got around to reading this insightful book, and I wanted to recommend it to all of my blog readers. Law professor Eric Janus cogently explains why sexual predator legislation, despite its allure of zero tolerance for sexual violence, makes for very bad public policy.

Predator laws will never work, he argues, because they target only a tiny fraction of sexual violence. An empty "cleansing ritual," they require no fundamental societal change. But they are far from harmless. They siphon vast sums of money away from other programs that could do more good for more people. And they reinforce a distorted notion of sexual assailants as mainly stranger rapists with abnormal psychological makeups.

On a potentially more dangerous level, they provide a template for the resurrection of preventive laws on a massive scale. Janus reminds us of the historical struggle that went into dismantling earlier preventive detention laws that locked up outsiders for what they might (or might not) do. These included slave laws, the internment of Japanese-Americans during World War II, and eugenic programs to forcibly sterilize and incapacitate "mental defectives." Sexual predator civil commitment laws are especially dangerous because we can all unite around hating the archetypal sexual bogeyman, and the "science" of risk prediction has a scientific and naturalized veneer that makes preventive detention seem more palatable.

One of Janus' most interesting arguments is that -- perhaps accidentally-- the sexual predator laws have become a powerful force for the politically conservative agenda of dismantling hard-fought feminist rape reforms. The "tabloid model of gender violence" epitomized in these laws favors biological and psychological explanations over sociocultural ones, and supports the patriarchal rape myth that rapists "lack control" over their sexual impulses.

My review continues HERE. (As always, I appreciate "Yes" votes at Amazon, as they help with my ratings and the placement of my book reviews.)

Excerpts from the book are online HERE.