Jury deadlocks in gay panic trial

After a closely watched trial, a jury ultimately failed to agree on whether teenager Brandon McInerney should be punished for murder in the killing of classmate Larry King. The final vote was five for murder, and seven for the lesser crime of voluntary manslaughter.

The defense had played on gay panic, blaming 15-year-old King for being too provocative. Forensic psychologist Donald Hoagland, who spent 17 hours interviewing and testing McInerney, testified that when the cross-dressing victim said, “What’s up baby” to McInerney the day before the killing, it threw the 14-year-old into a fit of homicidal rage.

Hoagland further testified that when King said he was changing his name to Leticia, that triggered a dissociative state, causing McInerney not to realize what he was doing at the time of the shooting, according to the Ventura County Star.

The fatal flaw with that theory is that McInerney made advance plans to kill King. He acquired and loaded the gun, and announced his plan to several people the day beforehand, according to testimony during the eight-week trial. He shot King twice in the back of the head during a first-period class.

The only juror to speak to the media said that what really swayed the jury was not the gay panic defense, but the fact that the defendant was only 14 years old at the time of the 2008 crime. Prosecutors repeatedly rejected widespread pleas from the public -- including from a coalition of gay and lesbian groups -- to try the boy as a juvenile. He faced 51 years to life in prison if convicted in adult court.

Enough is enough, say the editors of the Star, which has provided excellent blow-by-blow coverage of the case since the outset; the prosecution needs to be reasonable:

That division among the jurors reflects the deep divide that also exists in the community at large regarding the appropriate way to punish a boy who committed an act of horrific violence that demands severe punishment, yet who had turned 14 just two weeks before the shooting, whose home life failed to provide the support and guidance that a child needs, and who was in a turbulent situation at school where there was equally little support evident.

The District Attorney's Office could refile murder charges against Brandon, but The Star believes the wisest course of action now is to take a sufficient amount of time for a good, hard look at the case that the prosecution presented and carefully consider what the jury's reactions revealed.

For starters, this trial showed it will be hard if not impossible to convince a jury that a sentence of 50 years to life in prison — which is mandatory for a first-degree murder conviction — represents justice in this criminal case, in which the defendant was prosecuted as an adult rather than in Juvenile Court.

Related blog posts:

Gay panic defense: Slain boy accused of provocation (August 10, 2011)

Don't ban gay panic defense (August 51, 2009)

What caused middle school tragedy? (June 10, 2008)

More on the McInerney antigay murder case (June 11, 2008)

Dangerous People: An international discourse

Dangerous People marks an important moment in risk discourse. Leading scholars from around the Western world join together to discuss the problematic science, ethics and morality underlying contemporary approaches to populations deemed high risk. These include not only sex offenders (the focus of this week's New York Times op-ed) but also suspected terrorists, illegal immigrants, violent youth, and the mentally ill.

Not surprisingly, contradictions over risk prediction play out even within the pages of this international and interdisciplinary work. Consider these offerings:

• Forensic psychologist David Cooke and statistician Christine Michie of Scotland issue their strongest warning yet about the fraud being perpetrated by proponents of “actuarial” risk prediction, whose illusion of scientific certainty camouflages predictions that are highly inaccurate and misleading:

At the heart of the matter is the fact that simple linear models cannot explain complex behavior…. Individuals are violent for different reasons: any one individual may be violent for different reasons on different occasions. This inherent complexity dooms simple-minded statistical prediction.... The only way to deal with this complexity is to think psychologically, not statistically.

• Lorraine Johnstone, another Scot, warns that the actuarials' inaccuracies are dangerously magnified with juvenile offenders, who present a "moving target" because they are still in the process of developing.

• Yet, on the other side of the fence, law professor Christopher Slobogin of the USA continues in his vociferous campaign for preventive detention of a litany of groups -- including the mentally ill, enemy combatants, violent juveniles and persons who spread communicable diseases -- based on these very same faulty statistical methods.

Meanwhile, legal scholars Eric Janus and John La Fond continue to shine a spotlight on the United States' costly experiment with civil detention of sex offenders.

Janus's intriguing theory is that the Sexually Violent Predator (SVP) laws are a tool of conservative ideologues to roll back feminist gains in the struggle against sexual violence and gender inequality. He advocates for a return to an empirically guided, public-health approach as the sanest way to combat sexual violence while also safeguarding tax dollars from waste.

"Predictably," agrees La Fond, "the American SVP experiment has been an abysmal and costly failure. Other countries should learn from our terrible mistakes."

Overviews of practices in other Western nations -- including Australia, England and Canada -- suggest that despite this warning, various U.S.-style detention schemes based on remote future risks are gaining traction internationally.

Several chapters in the volume, however, focus on a somewhat different model out of Scotland, the Order for Lifelong Restriction (OLR). This order, rendered at the time of initial sentencing, involves the imposition of an indeterminate sentence to be followed by lifelong supervision. To maximize consistency, risk assessors are accredited by a special Risk Management Authority. Although Scotland abides by the European Convention on Human Rights, which contains a guarantee against arbitrary detention, concerns have been raised about lengthy detention and lifelong sentences for juveniles. Additionally, as the volume editors point out, "it is too early to say whether the Scottish system has been successful in reducing violent and sexual recidivism."

On a somewhat different note, Jennifer Skeem, Jillian Peterson and Eric Silver challenge the widespread assumption that mental illness is a direct cause of criminality in mentally ill offenders. Rather, they say, many mentally ill people may engage in criminal behavior because they are poor, and therefore exposed to contextual risk factors for crime. We should stop regarding mental illness as a master status, they argue, in favor of a more nuanced approach to mentally ill offenders.

Many of the chapters in this timely collection -- edited by Australian legal scholars Bernadette McSherry and Patrick Keyzer -- will no doubt prove prophetic. The current state of fear-based hysteria, like all social movements, will wane in time. Politicians and the public will realize how costly and ineffective are many of the currently cherished practices and will reverse course. As the editors conclude:

What is clear from many of the chapters in this book is that schemes for imprisoning or detaining people for what they might do are costly, likely to contravene international human rights obligations, and have not proven to be effective in reducing crime, particularly sex offences. Detaining more and more people gives rise to the risk that detention regimes will collapse under the weight of numbers.

Yet in the short term, those who most need to hear this collective discourse -- including politicians, judges, prison officials, and even our very own misguided forensic practitioners -- are not listening. Isolated within a like-minded community, they are too busy searching for the magic potion that will make the world safe and appease a frightened public.

My Amazon review is HERE. If you appreciate this review, please go to Amazon and click "Yes" (this review was helpful). 

Trailblazing change in eyewitness ID rules

NJ ruling may reduce wrongful convictions; 

other jurisdictions likely to follow suit
x

As today's New York Times reports:

The New Jersey Supreme Court, acknowledging a “"troubling lack of reliability in eyewitness identifications," issued sweeping new rules on Wednesday making it easier for defendants to challenge such evidence in criminal cases.

The court said that whenever a defendant presents evidence that a witness's identification of a suspect was influenced, by the police, for instance, a judge must hold a hearing to consider a broad range of issues. These could include police behavior, but also factors like lighting, the time that had elapsed since the crime or whether the victim felt stress at the time of the identification. 

When such disputed evidence is admitted, the court said, the judge must give detailed explanations to jurors, even in the middle of a trial, on influences that could heighten the risk of misidentification. In the past, judges held hearings on such matters, but they were far more limited. 

The decision applies only in New Jersey, but is likely to have considerable impact nationally. The state's highest court has long been considered a trailblazer in criminal law, and New Jersey has already been a leader in establishing guidelines on how judges should handle such testimony.

Stuart J. Rabner, the court’s chief justice, wrote in a unanimous 134-page decision that the test for reliability of eyewitness testimony, as set out by the United States Supreme Court 34 years ago, should be revised.

The new rules come at a time of increased scrutiny of the eyewitness identification issue among lawyers, law enforcement officers and the scientific community. The opinion noted that task forces have been formed to recommend or put into effect new procedures to improve reliability. 

The State Supreme Court's ruling was seen as significant because it was based in part on an exhaustive study of the scientific research on eyewitness identification, led by a special master, a retired judge, who held hearings and led a review of the literature on the issue. The special master, Geoffrey Gaulkin, estimated that more than 2,000 studies related to the subject had been published since the Supreme Court’s original 1977 decision, the court noted. 

"Study after study revealed a troubling lack of reliability in eyewitness identifications," Chief Justice Rabner wrote. "From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. 

"Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country."

The decision listed more than a dozen factors that judges should consider in evaluating the reliability of a witness’s identification, including whether a weapon was visible during a crime of short duration, the amount of time the witness had to observe the event, how close the witness was to the suspect, whether the witness was under the influence of alcohol or drugs, whether the witness was identifying someone of a different race and the length of time that had elapsed between the crime and the identification.

The Times report continues HERE.

Hat tip: Jane

Steffan's Alerts #7: Neuromaging, juveniles, and perceptions of injustice

Click on a title to read the article abstract; click on a highlighted author's name to request the full article.

Perceptions of wrongful convictions by criminal justice personnel

In a new issue of Crime and Delinquency, Brad Smith and colleagues surveyed attitudes of criminal justice participants in Michigan. According to their findings, defense attorneys perceived that wrongful convictions occur more frequently than did police, prosecutors, and judges. Of the professionals surveyed, only defense attorneys viewed this concern as warranting reforms in the justice system.

How important are graduated sanctions in reducing recidivism?

In another article in Crime and Delinquency, Kristin Johnson and coauthors indicate that incorporating graduated sanctions into predictions of recidivism diminishes the predictive utility of waiver to adult court. Their results draw attention to the role of graduated sanctions and treatment programming for juvenile offenders.

What do mock jurors make of neuroimaging evidence?

N.J. Schweitzer and colleagues presented neuroscience-based testimony and neuroimagery to jury-eligible participants in mock court experiments. As reported in a new issue of Psychology, Public Policy, and the Law, participants rendered opinions on criminal culpability and sentencing. Neuroimagery, the authors reported, affected jurors' judgments no more than verbal testimony based on neuroscience.

Is the Adam Walsh Act working with juvenile offenders?

Also in Psychology, Public Policy, and the Law, Ashley Batastini and colleagues report that the Act’s classification system failed to predict sexual or nonsexual reoffending among a small sample of juveniles who were followed over a two-year period. In addition to their exploratory study, they discuss key concerns in the application of the Act to juveniles.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist based in Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

New York Times op-ed: "The last pariahs"

The chorus of dissent has been getting louder for a while now, but an anthropologist's cogent op-ed in the New York Times may increase mainstream attention to the problem of overly broad sex offender laws. The op-ed by Roger Lancaster is getting a lot of play on professional listservs. In case you missed it here's the conclusion:

Digital scarlet letters, electronic tethering and practices of banishment have relegated a growing number of people to the logic of "social death," a term introduced by the sociologist Orlando Patterson, in the context of slavery, to describe permanent dishonor and exclusion from the wider moral community. The creation of a pariah class of unemployable, uprooted criminal outcasts has drawn attention from human rights activists; even The Economist has decried our sex offender laws as harsh and ineffective.

This should worry us, in part because the techniques used for marking, shaming and controlling sex offenders have come to serve as models for laws and practices in other domains. Several states currently publish online listings of methamphetamine offenders, and other states are considering public registries for assorted crimes. Mimicking Megan’s Law, Florida maintains a Web site that gives the personal details (including photo, name, age, address, offenses and periods of incarceration) of all prisoners released from custody. Some other states post similar public listings of paroled or recently released ex-convicts. It goes without saying that such procedures cut against rehabilitation and reintegration.

Our sex offender laws are expansive, costly and ineffective -- guided by panic, not reason. It is time to change the conversation: to promote child welfare based on sound data rather than statistically anomalous horror stories, and in some cases to revisit outdated laws that do little to protect children. Little will have been gained if we trade a bloated prison system for sprawling forms of electronic surveillance that offload the costs of imprisonment onto offenders, their families and their communities.

The author, Roger N. Lancaster, is a professor of anthropology and director of the cultural studies program at George Mason University. He is the author of a new book from UC Press, Sex Panic and the Punitive State.

The full article is online HERE.

Collateral consequences of juvenile conviction

By the age of 17, Terence Hallinan had had several scrapes with the law, including a conviction for helping beat up three Coast Guardsmen in order to steal a case of beer. Yet he was able to put delinquency behind him, and become a successful attorney who served two terms as district attorney of San Francisco.

Such redemption stories were not so unusual back in his day. But today's world is much less forgiving of youthful indiscretions. A kid who gets into any type of legal trouble has a much harder time overcoming the stigma and going on to lead a productive life.

An astonishing two million juveniles are arrested each year in the United States. For many, their first priority is getting out of custody. They may be willing to plead guilty to a seemingly trivial crime, in order to accomplish this short-term goal. Little do they realize that pleading guilty to a crime may have long-lasting collateral consequences far worse than the initial punishment itself.

In an excellent overview of the juvenile justice system in the current issue of The Champion (published by the National Association of Criminal Defense Lawyers), Dr. Ashley Nellis, research analyst of The Sentencing Project, outlines some of these drastic consequences:

Zero Tolerance and Other School Push-out Policies

There is a public perception that African American and Latino students are quitting school in droves. But as explained on an episode of NPR’s Talk of the Nation last week, many of these students are actually the victims of  PUSH-OUT policies disproportionately targeting students of color. Zero Tolerance policies spearheaded by the federal government are forcing some youngsters out of school even if an arrest does not lead to a conviction.

Employment Barriers

Contrary to what many people believe, children processed through the juvenile  justice system do not automatically have their records destroyed (expunged) when they turn 18. Neither do juveniles transferred to the adult system. Having a criminal record creates sometimes insurmountable barriers to leading a successful life, by limiting options for housing, education and employment.

Eviction and Homelessness

Due to a law passed in 1996, under the Clinton administration, a juvenile conviction can lead to the eviction of an entire family from low-income housing. Youth re-entering their communities from out-of-home placement also struggle to achieve housing stability. This destabilization, naturally, increases risk for reoffending -- and the cycle continues.

Placement on a Sex Offender Registry

Despite their demonstrated lack of efficacy, and even their harmful effects, juvenile sex offender registries are gaining in popularity. In some states, children as young as nine are being placed on registries for childish misconduct or even consensual relations with other children. Ironically, children are the very people the laws were intended to protect, yet they are being disproportionately harmed by placement on registries.

After individuals have been added to the registry, they face strict limitations on where they can live, attend school, and work. Anytime registrants change residency they must notify the authorities and update their registration; failure to do so promptly can and frequently does result in incarceration…. Despite the law’s intent to make children and the community safer, it does the opposite. Young people face social stigma, branding as predators, housing bans, and exclusion from schools as a result of placement on the registry.

Dr. Nellis concludes with a series of recommendations to reduce the negative impact of collateral sanctions for juveniles, including:

• Reverse counterproductive school-based policies such as "zero tolerance" that disengage youth from school.
• Ensure expungement for juvenile records.
• Prohibit inclusion of juvenile records on national and state offender registries.
• Restrict non-relevant conviction questions from employment applications.
• Revise and expand reentry services and supports for youth. 

The full article, Addressing Collateral Consequences of Convictions for Young Offenders, can be downloaded HERE.

Hat tip: Bruce