The high court and "selective empathy"

In a previous blog post, I briefly referenced the U.S. Supreme Court's recent opinion in Porter v. McCullum. The high court unanimously reversed a death verdict because the defense attorney failed to present mitigating evidence at the penalty phase of the trial.

George Porter Jr. was convicted of shooting his former girlfriend and her new lover to death. The potentially mitigating evidence that the jury didn't get to hear included military heroism during the Korean War, post-war adjustment problems, childhood victimization, a brain abnormality, inadequate schooling, and limited literacy.

The decision was widely hailed by death penalty opponents and veterans' groups. But Linda Greenhouse, the Pulitzer Prize-winning journalist who covered the Supreme Court for the New York Times for 30 years and now teaches at Yale Law School, says the decision raises an important question about equity:

Is selective empathy better than no empathy at all?

Greenhouse was struck by "the sympathy that all nine justices displayed for a man who, in the fullness of his adulthood and after promising a friend that she would soon be reading about him in the newspaper, stole another friend’s gun and shot two people to death in cold blood."

She contrasted this with the court's unanimous opinion just last month in another case alleging inadequate representation and failure to adequately pursue mitigation themes in a death case. That case involved Robert Van Hook, also a military veteran, who robbed and murdered a man he picked up in a gay bar. In a decision that "sent chills down the spine of death-penalty opponents," the high court overturned an appellate reprieve, paving the way for Van Hook's execution.

Comments Greenhouse:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men's childhoods were -- indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don't make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won't be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

The full essay, well worth your perusal, is online HERE.

APA announces postponement of DSM-V

Today, shortly after the New Scientist article and editorial hit the Internet, the American Psychiatric Association issued a press release announcing that the publication of the DSM-V will be delayed by at least a year. The "anticipated release date" was moved back from mid-2012 to May 2013. The timing is rather prophetic on the part of reporter Peter Aldhous, who concluded his New Scientist article by predicting:

The final version of DSM-V is scheduled to be published in 2012, but given the level of controversy and the need to test whether psychiatrists can reliably use the proposed diagnoses, that date seems certain to slip.

The full release from the American Psychiatric Association is HERE.

New Scientist expose of psychiatry’s "civil war"

Proposed diagnoses of hebephilia and paraphilias NOS critiqued

On Saturday, the world's leading science and technology news weekly is publishing a scathing expose of the political and financial shenanigans underlying the DSM-V revision process. Accompanying the report in the New Scientist is an editorial calling for a halt to the print version of the American Psychiatric Association's money-making diagnostic bible:

The final wording of the new manual will have worldwide significance. DSM is considered the bible of psychiatry, and if the APA broadens the diagnostic criteria for conditions such as schizophrenia and depression, millions more people could be placed on powerful drugs, some of which have serious side effects. Similarly, newly defined mental illnesses that deem certain individuals a danger to society could be used to justify locking these people up for life.

Given such high stakes, we should all be worried by the controversy. Proponents of some of the changes are being accused of running ahead of the science, and there are warnings that the APA is risking "disastrous unintended consequences" if it goes ahead with plans to publish DSM-V, as the new manual will be known, in 2012.

"Psychiatry’s civil war" is the title of the hard-hitting expose by award-winning science writer Peter Aldhous, San Francisco bureau chief for New Scientist magazine.

As Aldhous reports, professional disputes over the form and content of the upcoming edition "are getting ugly." He notes that respected Duke University scholar Jane Costello has resigned from the work group on childhood and adolescence disorders, citing a lack of scientific rigor across the whole DSM revision. "I felt that there was not enough empirical work being achieved or planned," she says.

In a sidebar, Aldhous shines a spotlight on controversial proposals of pivotal importance to forensic psychology, including the pseudoscientific diagnosis of "hebephilia" that I have previously blogged about:

You may have never heard of "hebephilia", but this obscure diagnosis has huge significance in the courts. If it becomes accepted it could lead to hundreds of sex offenders who have served their jail time being locked up indefinitely - on grounds that some say are spurious.

The proposed diagnosis has been condemned by critics as dangerously blurring the boundary between paedophilia and normal male attraction to teenage girls -- which isn't necessarily acted upon. Karen Franklin, a forensic psychologist in El Cerrito, California, argues that the diagnosis makes a disease out of preferences that have been shaped through human evolution. "People didn't used to live so long and mating started earlier," she says.

The work group is also considering whether some men are specifically turned on by rape -- a proposed condition termed paraphilic coercive disorder. Again, the evidence is based largely on measurements of penile blood flow in response to sexual images and stories, and the validity of the condition is hotly contested.

The rows over hebephilia and paraphilic coercive disorder aren't academic, because 20 US states have passed laws that allow sex offenders who have served their sentences to be detained indefinitely in a secure hospital if they are deemed "sexual predators." This can only be done if the offenders have a psychiatric disorder that increases their risk of reoffending -- which few do, according to DSM-IV.

Franklin says that if hebephilia and paraphilic coercive disorder make it into DSM-V, they will be seized upon to consign men to a lifetime of incarceration.

In a call to put the brakes on this speeding train, the New Scientist's accompanying editorial points out that this would hurt the coffers of the American Psychiatric Association, which has earned more than $40 million since 2000 from DSM sales. But, the editorial concludes, "it's hard to see who else stands to gain from the current exercise -- and if the critics' dire predictions come to pass, patients will be the biggest losers."

Epic competency hearing continues

Vigorous cross-examination of prosecution psychiatrist

Since I'm receiving back-channel requests from colleagues to extend my coverage of the Brian David Mitchell case, and since it is after all one of the most historic competency hearings in recent memory, here is today's breaking news -- culled mainly from a report by Pat Reavy of the Deseret News.

Today, defense attorney Robert Steele vigorously cross-examined prosecution psychiatrist Michael Welner about why he did not put greater weight on the opinion of other experts, including Mitchell's treating psychiatrist at Utah State Hospital.

The attending physician, Dr. Paul Whitehead, believes that Mitchell is both psychotic and incompetent to stand trial. That opinion is shared by prominent forensic psychologists Jennifer Skeem and Stephen Golding, all three of whom are listed as defense witnesses. (See Judge Atherton’s 2005 ruling for a comprehensive analysis of the opinions of Skeem and Golding.)

"This is about Brian Mitchell. It's not about Dr. Whitehead, it's not about Dr. Skeem, it's not about Dr. Golding," Welner retorted on the witness stand today. He is defending his opinion, rendered under direct examination last week, that Mitchell is neither psychotic nor incompetent to stand trial for kidnapping and raping Elizabeth Smart back in 2002.

As you will recall from a previous post, Welner is a prominent New York psychiatrist who was paid about half a million dollars for his lengthy competency report. I don't know how much he is being paid for his court testimony, but I would sure love to know the total of federal tax dollars being expended on this massive competency trial.

Pat Reavy's full report in the Deseret News is available online.

"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