"Legal pointillism": New approach to competency

First-hand account by witness against Brian David Mitchell

Competency to stand trial focuses on a different time frame than insanity and many other psycholegal constructs. We want to know the defendant’s present state of mind, not what he was thinking or doing in the past. Is he capable of understanding the legal proceedings at this point in time (and in the near future), and assisting his attorney on his own behalf?

But at the competency trial of Elizabeth Smart kidnap suspect Brian David Mitchell, the prosecutor is expanding the traditional scope of competency to encompass the defendant’s entire life, in a technique being labeled "legal pointillism." As he reportedly told an assembly of his witnesses this week:

Each of you has a dot to contribute. (Mitchell) wants us to be close, to just see the dots. We're standing back and viewing the big picture.

This strategy means bringing in a whopping 29 witnesses, including people from Mitchell's distant past who have no direct knowledge of his current mental state. Among these is Alysa Landry, a news reporter for the Daily Times of Farmington, New Mexico. She knew Mitchell for about five months in 1997, when the kidnap suspect lived at a home that prosecution expert Michael Welner labeled as "an al-Qaeda training ground for fundamentalist Mormons."

In a rare first-person account of such an experience, Landry says she underwent about 10 hours of questioning by attorneys, psychologists, and detectives in preparation for this week's testimony.

Finally, the moment of her testimony arrived:

I told of the mind games, power struggles and escalating violence in the house. I also told of Mitchell's self-important and demeaning attitudes and his mission to reinstate the laws of polygamy and consecration, both of which were abandoned during the church's early history.

I waited 12 years for someone to listen to my story, but I was not prepared for the vulnerability or isolation I felt after testifying…. Immediately after stepping from the witness box Tuesday, FBI agent Eric Lerohl asked me again if I was OK. I wasn't. My breath was quick and my fingers were beginning to spasm from lack of oxygen....

The pointillism strategy seems to go as follows: Mitchell is evil. Ergo, he is malingering psychosis. Ergo, he must be competent. We'll have to see if it flies. If so, expect to see it again soon, in a courtroom near you.

Landry's full account, "From cult to witness chair," is HERE. Background on the case is HERE.

Kiddie porn: Risky to ignore

Let's say you are a defense attorney assigned a criminal case that has nothing to do with sex. A garden-variety case of robbery and murder. No rape, no pedophilia, nothing sexual at all.

You might want to think about sex, anyway.

In a case out of Missouri, the high court ruled that it was reversible error for the defense attorney not to have checked out the child pornography on the murder victim's computer.

What relevance does that have to murder, you might ask?

Not much. The defendant, Mark Gill, and a buddy kidnapped Ralph Lape from his home in 2002, bound him with plastic ties and duct tape, and murdered him in a corn field. The motive was financial gain: Gill had learned that Lape had a large amount of money in his bank account.

But when Gill was arrested, he had Lape's computer with him, and investigators found images of underage girls and bestiality. So, when the prosecution presented evidence that the victim was an upstanding fellow, the defense attorney should have brought in those images as rebuttal evidence of bad moral character. Perhaps the jury would not have been so quick to impose the death penalty if it had not heard family members give a series of glowing and unrebutted reviews of Lape's generous character, the court reasoned.

Under the landmark case of Strickland v. Washington, the defense attorney's failure to pursue this angle was ineffective assistance of counsel, meriting reversal of Gill's death sentence and a new penalty trial, the court ruled.

The smutty material was also an issue in the trial of the co-defendant, Justin Brown. The prosecutor won a motion excluding the computer's sexual content as irrelevant unless the penalty phase witnesses opened the door by portraying the victim as someone who "walks on water" or as a "saint," in the trial judge's words. Accordingly, family witnesses were careful at Brown's trial not to overstate the victim's virtuous character. Brown was spared the death penalty, receiving a sentence of life without parole.

Mitigation usually focuses on defendant, not victim

Typically, it is defense attorneys' failure to present evidence of a defendant's good character that is grounds for reversible error under Strickland. In fact, just this week the U.S. Supreme Court in Porter v. McCullum unanimously reversed a death verdict because the defense attorney failed to present evidence of military heroism during the Korean War, as well as other potentially mitigating facts such as post-war adjustment problems, childhood victimization, a brain abnormality, inadequate schooling, and limited literacy.

Pornography ubiquitous

At Gill's penalty phase retrial, one likely issue for the prosecution will be others with access to the computer. Ironically, it wasn't only the victim who downloaded pornography onto the computer. The murderer, Gill, also downloaded pornography, according to the prosecutor, even using the victim's credit cards to pay for it!

That isn't surprising. As it turns out, just about every male over the age of nine has looked at online pornography, according to new research out of Montreal. The researcher, Simon Louis Lajeunesse of the Universite de Montreal, said when he set out to find men in their 20s who had not consumed pornography, he could not find any. He found that most boys seek out pornographic material by the age of 10, when they are most sexually curious.

The researcher said his preliminary findings, funded by the Interdisciplinary Research Center on Family Violence and Violence Against Women, refute the "demonization" of pornography. Contrary to popular beliefs, he said, pornography does not produce negative attitudes toward women or aggressive behavior for men:

"Pornography hasn't changed [men's] perception of women or their relationship which they all want as harmonious and fulfilling as possible. Those who could not live out their fantasy in real life with their partner simply set aside the fantasy. The fantasy is broken in the real world and men don't want their partner to look like a porn star."

As online pornography becomes more ubiquitous, it will undoubtedly play a more prominent role in court cases. It will be interesting to see whether jurors care. Unless the pornography is particularly extreme or offensive, some male jurors may feel sympathy for the victim. They may see the issue as a distraction or even turn against defense attorneys who try to sully a victim's reputation.

Lape, after all, was letting Gill stay in a trailer on his property at the time he was killed. And just because he may have had some ugly sexual interests, that does not mean he was not a financially generous man as his family members testified.

The Missouri Supreme Court opinion in Gill v. Missouri is online here. The Southeast Missourian has news coverage. Additional case background is online here.

Hat tip: Sentencing Law & Policy

Record-breaking fee for competency report?

Forensic psychologists: If someone ever complains about your bill, you might want to share this little factoid:

A psychiatrist's competency report in the Brian David Mitchell case (Elizabeth Smart kidnapping in Utah) cost a whopping half million dollars.

And that was just for the report. It doesn't include the cost of expert testimony at Mitchell's competency hearing, currently in progress. And, believe it or not, that was the discounted rate.

Granted, Michael Welner's report was 206 pages long, and took 1,000 hours to produce. That makes the hourly fee $500, not inordinately high for a prominent forensic psychiatrist. But 1,000 hours is an awful lot of time to devote to any one case.

In testimony today, the prosecution's expert testified that in addition to evaluating Mitchell, he also did research on polygamy, the Mormon church, and related issues of revelation, prophets and Joseph Smith.

His bottom-line conclusion: Mitchell was motivated more by lust than religion or psychosis.

If anyone knows of a higher fee for a forensic report, or even a fee that comes close to this one, please let me know and I'll post your response.

Desert News coverage is HERE. An interesting commentary on Welner's controversial role -- and his fee -- in Andrea Yates' sanity trial is HERE. For more background on both Welner (author of the "Depravity Scale") and the Mitchell competency hearing, see my Sept. 1 post.

Bank account: A simple solution to crime?

Ever thought about how hard it would be to take care of basic business without a bank account or credit cards?

In the UK, an experimental project to open bank accounts for paroling prisoners has led to a remarkable finding: The ex-cons who got bank accounts were only half as likely as other parolees to reoffend.

And here's another remarkable finding: Four out of five of these guys had never had a bank account before.

What's the magic of banking?

The magic lies in being treated like a human being, says prison correspondent Eric Allison (himself an ex-prisoner) in today's Guardian of UK:

Some things are so blindingly obvious, their very dazzle prevents us from seeing them; of course having a bank account will go a long towards preventing reoffending; try getting a job, or accommodation, without one…. Prison service and the public take note, the more you do to integrate prisoners back into society, the less likely they are to reoffend. Treat those leaving our jails as normal human beings and you may be pleasantly surprised by the results.

Allison quotes a couple of prisoners saying pretty much that:

• "Having an account gave me a sense of self-respect, made me feel part of society."

• "It [the account] opened many doors and gave me a sense of identity."

Of course, science-minded readers will recognize that correlation does not equal causation. Perhaps there was some type of selection bias. Maybe prisoners motivated to "go straight" were more interested in bank accounts.

Nonetheless, just like restoring prisoners' right to vote, it is a pretty low-cost measure considering the potential benefits.

More information on the study is available from the Research Unit for Financial Inclusion at Liverpool John Moores University. Other interested articles on prison issues in the UK by Eric Allison are here.

Hat tip: Robert Forde

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Can we tell which juveniles will sexually reoffend?

Juvenile recidivism is a hot topic in the sex offender field these days. It would be great if we could figure out which young sex offenders are at high risk to offend again. After all, the federal SORNA law mandates that certain juvenile sex offenders be listed on public registries and report to law enforcement every 90 days for a full quarter-century.

But predicting which adolescents are at risk to sexually reoffend as adults is no easy task. Perhaps the biggest impediment is the low base rate: The large majority of underage males who commit a sex crime will not be charged for another sex crime as an adult. So, any prediction that a juvenile will sexually reoffend is likely to be wrong -- what we in the field call a "false positive."

Although several new instruments have popped up with the express goal of increasing the accuracy of juvenile sex offender risk prediction, none has the established reliability or validity to be ready for prime time, according to a new article in Behavioral Sciences and the Law.

"At this time, research does not support the use of any of the specialized risk assessment instruments for the task of predicting sexual recidivism in adolescents…. Unfortunately, legislatures enacting laws regarding civil detainment and registration of adolescent sexual offenders have not been dissuaded by studies demonstrating an inability to accurately predict which adolescents are most at risk for subsequent sex offenses."

Scientifically proven instruments or not, we will still be called upon to conduct such evaluations. And if we refuse, the article's authors point out, courts will just rely upon flawed data or the recommendations of prosecutors.

With that in mind, Michael Vitacco, associate director of research at the Mendota Mental Health Institute in Wisconsin, and his colleagues provide a set of recommendations for forensic psychologists who conduct risk assessments of juvenile sex offenders. These include:

• First and foremost, remember the low base rates and the consequently high risk of false positives, with devastatingly dire consequences to young people's futures.

• Understand adolescent sexual development, including hormonal issues and the brain's structural maturation. Adolescent sexual behavior is fluid, and any risk prediction should be very short-term.

• Be familiar with the literature on treatment efficacy with youth (such as that conducted by Michael Caldwell, Elizabeth Cauffman, and others). Much more so than adults, even the most serious adolescent offenders are amenable to high quality, empirically validated treatments.

• Give proper weight to a youth's social context, including peers, family, community, and school factors. These are enormously influential in youth behavior.

The entire issue of Behavioral Sciences & the Law is focused on adolescent sex offending. The abstract of the article, Assessing risk in adolescent sex offenders: Recommendations for clinical practice, by Vitacco, M.J., Caldwell, M., Ryba, N.L., Malesky, A., & Kurus, S.J. (2009), is online. 

Readers may also be interested in an appellate ruling of first impression on the retroactivity of the Sex Offender Registration and Notification Act (SORNA) as applied to former juvenile offenders. In the aptly titled case of US v. Juvenile Male, No. 07-30290, the 9th Circuit ruled that the new federal law is unconstitutional as applied to juveniles who committed their crimes before the law was enacted.