What does it take to prove innocence?

Thomas Haynesworth hugs his mother.
Photo: P. Kevin Morley, Richmond Times-Dispatch

One Sunday morning in February 1984, Thomas Haynesworth’s mother sent him to the Trio supermarket to pick up some bread and sweet potatoes. He never got there. Instead, he was stopped and questioned in connection with a recent rape. That began a 27-year odyssey through false accusation, arrest, prison and pain.

So begins yet another Kafkaesque story set in the United States, whose criminal justice system seems to have gone totally berserk. When I was traveling abroad this summer, overseas colleagues expressed amazement about practices they've heard about in our country -- juveniles sent to prison for life, young men placed on lifelong sex offender registries for consensual relationships with teen girlfriends, criminal prosecution of young children. Last week's execution of Troy Davis despite mounting doubts about his guilt is the latest case that has international observers scratching their heads.

But the Haynesworth case is unusual in that prosecutors and even a state attorney general are going to bat for the wrongfully convicted man, yet that still isn't enough to get him an exoneration. 

To recap the facts:

When he was 18, Haynesworth was arrested for five rapes in his neighborhood. He had no criminal record, but that didn't matter. He was prosecuted for four rapes, convicted of three, and sentenced to 84 years in prison.

Two years ago, a broad review of old cases in Virginia turned up a DNA match to a serial rapist who was already in prison for a string of rapes that occurred in that same neighborhood after Haynesworth's arrest.

Haynesworth was released this March, on his 46th birthday, and everyone thought his exoneration would follow swiftly.

But, no. 

Instead of apologizing to Haynesworth for robbing him of most of his adult life, what is the court doing? It's asking for more proof of innocence.

Only, there's a slight catch: The state has disposed of the DNA evidence from the other rapes, evidence that could conclusively clear his name.

"It seems paradoxical to demand 'conclusive' evidence from Haynesworth when the commonwealth has deprived him of the opportunity to produce such evidence," said the attorney general of Virginia, a staunch conservative who has even given Haynesworth a job in his office.

Meanwhile, as his bid for exoneration languishes on, Haynesworth must remain on the sex offender registry, with all of the stigma and restrictions that carries. He cannot move without permission, and he must even get approval to visit his nieces.

The trial penalty

This is yet the latest in a string of similar cases focusing public attention on the reliability problems plaguing eyewitness identification and, more broadly, on racial inequities in the administration of justice here in the Land of the Free.

But things are likely to get worse before they get better. That's because across the United States, legal changes have concentrated more and more power in the hands of prosecutors, who can now coerce defendants into pleading guilty by threatening much harsher penalties for those who insist on a trial.

As Richard Oppel reports in an in-depth analysis in the New York Times, prosecutors now wield more discretionary power than judges, and are using that power to punish defendants for exercising their right to a trial:

Threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.

Even defendants with winnable cases are opting to plead guilty because the stakes are so high if they lose. The ratio of guilty pleas to trials has nearly doubled in the past two decades, according to Bureau of Justice Statistics reported by Oppel. And the number of acquittals in federal cases has dropped even more dramatically, from one out of every 22 cases 30 years ago to only one out of 212 last year.

So if a young Haynesworth came along today and had the audacity to insist that he was innocent and wanted a trial, he would likely be punished with multiple life prison terms, rather than a mere 84 years.

We may never know how many Haynesworths are being sentenced every year based on faulty eyewitness identification and/or racially biased prosecution. 

New York Times reporter John Schwartz's only-in-America report on the Haynesworth case is HERE.

Richard Oppel's excellent report, Sentencing Shift Gives New Leverage to Prosecutors, is HERE.

Hat tip: J and B

Fiji travelogue: A different approach to murder

Guest post by Jules Burstein*

Three weeks ago while on a vacation in Fiji, I was on the third-largest island, Taveuni, walking in a light rain up a not-so-steep hill, when I encountered the following sign in front of what looked like a series of dormitories:

Fiji Correction Services

Taveuni Prison

Giving a Second Chance

 

I walked inside and explained to a secretary at the front desk that I was a forensic psychologist and was interested in learning something about the criminal justice and prison system in Fiji. She invited me to speak to the Director (Warden) who was just outside the main building and was quite receptive to having an exchange with me.

I was more than a little astonished to learn from him that on an island with 18,000 people there were only a dozen men serving time for murder. But more compelling than that was the Director informing me that all men convicted of murder are sentenced to 10 years.

At that point they are evaluated to see whether they have sufficient remorse for their offense, and have made constructive changes in their character so as to warrant release. If that is the case they are discharged from custody. If not, there are periodic reviews every two years to determine whether inmates are then suitable for release. Thus, all inmates are strongly motivated to effect positive changes while in custody in order to earn the right to be reintegrated into society.

I found it impressive (and sad) to consider that this progressive approach exists in a country that just obtained its independence from Great Britain 40 years ago, while we in America have prisons filled with thousands of men convicted of murder either sentenced to death or to life sentences with little chance of parole.

*Jules Burstein is a clinical and forensic psychologist in Berkeley, California.

Forensic trainings on the Eastern Seaboard

Oct. 2: Fun-filled training in New York

Stephen Morse

The New York State Psychological Association's Forensic Division is holding a one-day conference that some are billing as the best single-day conference this year. Keynote speaker Stephen J. Morse JD, PhD will open the day with a talk on “Folk Psychology: The Key to Legally Relevant Forensic Communication.” The day will end with a 2-hour moot court and then a wine social. Sandwiched in between are presentations by:

• William Barr, PhD on “Evaluating Competency: A Neuropsychological Perspective”
• Michael Perlin, JD on “ There Must be Some Way Out of Here: Why The Convention on the Rights of Persons with Disabilities is Potentially the Best Weapon in the Fight Against Sanism in Forensic Facilities”
• Joseph Plaud, PhD on “Psychological Assessment of Sexual Offenders: Where We’ve Been and Where We’re Going”
• David Martindale, PhD on “A Reviewer’s Take on Custody Evaluations”

Michael Perlin

The conference is being held at the Faculty House at Columbia University in New York City, which I am told is a great venue. The full conference program is HERE. Registration is HERE. Get it while it's hot.

Oct. 14: Risk management in the community

Well-known forensic psychologist Kirk Heilbrun of Drexel University is the featured presenter at this Forensic Mental Health Symposium sponsored by the Institute of Law, Psychiatry, and Public Policy at the University of Virginia. The event will be held at the Crowne Plaza Richmond West in Richmond, Virginia. More information is available at the ILPPP website. To register, click HERE.

Nov. 4: Police custody and the interrogation of youth

Kirk Heilbrun

This Advanced Seminar in Juvenile Forensic Practice, also sponsored by the ILPPP, features several interesting speakers, including:

• Lawrence Fitch, Esq on The Rights of Juveniles in Delinquency Cases: Understanding the Principles of Miranda Waiver and the Admissibility of Confessions in Juvenile Court
• Dick Reppucci, PhD on Research on the Police Interrogation of Juveniles
• Gregg McCrary (FBI, Retired) on Controversial Juvenile Cases: Evidence, Testimony and Outcomes

The event will be held at the University of Virginia in Charlottesville. To register, click HERE.

Next semester, the ILPPP is planning an advanced workshop on evaluating sanity with Ira Packer, and a workshop on Motivational Interviewing with David Prescott. Check back with their website for updates on those, and more.

Texas capital case highlights racial bias in psychology

Is it fair to forecast future danger based on demographics?

Even as Troy Davis's execution tonight draws attention to Georgia's death penalty, Texas remains  the undisputed execution capital of the United States. And in Texas, psychologists are integral to the process because of the prerequisite of proving future danger.

Texas psychologist Walter Quijano

It is here that Texas psychologist Walter Quijano stepped in, testifying in more than 100 capital cases. And in case after case, called by both the prosecution and the defense, he testified that defendants on trial for their lives were especially dangerous if they happened to be African American or Latino.

Like Davis's execution, Quijano’s racially imbued risk assessments are also in the international spotlight, after the U.S. Supreme Court's grant of a 30-day reprieve from death for Duane E. Buck, a convicted double-murderer who had already eaten his last meal when he got the news.

To his credit, former Texas Attorney General John Cornyn agreed with defense attorneys that infusing race into criminal sentencing is unfair. When Quijano's testimony was called to his attention some time back, he red-flagged seven cases as meriting a new sentencing hearing. (The government now argues that Buck's case is different from the others for procedural reasons.)

Duane Buck

The "infusion of race as a factor for the jury to weigh in making its determination" violates a defendant's "constitutional right to be sentenced without regard to the color of his skin," the top prosecutor stated in reference to another of the seven cases. "Discrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice."

Quijano, a native of the Philippines, said in an interview with CNN correspondent Raju Chebium back in 2000 that his opinion about the dangerousness of Blacks and Latinos derives from the fact that they are overrepresented in prisons. "When you look at a problem, you have to consider all the factors that you identify and not ignore (selected ones) because of political reasons."

But using incarceration rates as evidence for violence risk is circular logic. It conveniently ignores other factors that contribute to the vastly disproportionate incarceration of non-white men. These include racial profiling, poverty, economic discrimination, and most of all the racial bias endemic within all stages of the criminal justice system.

Quijano's self-styled risk method is not the only instance in which psychologists use a demographic factor to elevate risk. But hopefully the Buck case will draw attention to the larger issues of fairness and social justice that the practice raises.

Free access to forensic articles

The Journal of Forensic Sciences, published by the American Academy of Forensic Sciences, is offering free access to select articles, including several of potential interest to this blog’s audience. Click on any of the below titles to read (and/or download) the full article.

The CSI Effect and the Canadian and the Australian Jury

By Janne A. Holmgren and Judith Fordham 

Abstract:  Television shows, such as CBS's CSI and its spin-offs CSI: Miami; CSI: Las Vegas; and CSI: New York, have sparked the imagination of thousands of viewers who want to become forensic scientists. The shows' fictional portrayals of crime scene investigations have prompted fears that jurors will demand DNA and other forensic evidence before they will convict, and have unrealistic expectations of that evidence. This has been dubbed the "CSI effect." This phenomenon was explored using results from a Canadian study based on 605 surveys of Canadian college students who would be considered jury-eligible and Australian quantitative and qualitative findings from a study that surveyed and interviewed real posttrial jurors. Information about the way jurors deal with forensic evidence in the context of other evidence and feedback about the way in which understanding such evidence could be increased were gained from both these studies. The comparison provides insights into the knowledge base of jurors, permitting adaptation of methods of presenting forensic information by lawyers and experts in court, based on evidence rather than folklore. While the Canadian juror data showed statistically significant findings that jurors are clearly influenced in their treatment of some forensic evidence by their television-viewing habits, reassuringly, no support was found in either study for the operation of a detrimental CSI effect as defined above. In the Australian study, in fact, support was found for the proposition that jurors assess forensic evidence in a balanced and thoughtful manner.

Understanding Juror Perceptions of Forensic Evidence: Investigating the Impact of Case Context on Perceptions of Forensic Evidence Strength

by Lisa L. Smith, Ray Bull and Robyn Holliday 

Abstract:  The most widely accepted model of juror decision making acknowledges the importance of both the case-specific information presented in the courtroom, as well as the prior general knowledge and beliefs held by each juror. The studies presented in this paper investigated whether mock jurors could differentiate between evidence of varying strengths in the absence of case information and then followed on to determine the influence that case context (and therefore the story model) has on judgments made about the strength of forensic DNA evidence. The results illustrated that mock jurors correctly identified various strengths of evidence when it was not presented with case information; however, the perceived strength of evidence was significantly inflated when presented in the context of a criminal case, particularly when the evidence was of a weak or ambiguous standard. These findings are discussed in relation to the story model, and the potential implications for real juries.

Forensic Identification Science Evidence Since Daubert: Part II—Judicial Reasoning in Decisions to Exclude Forensic Identification Evidence on Grounds of Reliability

by Mark Page, Jane Taylor and Matt Blenkin 

Abstract:  Many studies regarding the legal status of forensic science have relied on the U.S. Supreme Court's mandate in Daubert v. Merrell Dow Pharmaceuticals Inc., and its progeny in order to make subsequent recommendations or rebuttals. This paper focuses on a more pragmatic approach to analyzing forensic science’s immediate deficiencies by considering a qualitative analysis of actual judicial reasoning where forensic identification evidence has been excluded on reliability grounds since the Daubert precedent. Reliance on general acceptance is becoming insufficient as proof of the admissibility of forensic evidence. The citation of unfounded statistics, error rates and certainties, a failure to document the analytical process or follow standardized procedures, and the existence of observe bias represent some of the concerns that have lead to the exclusion or limitation of forensic identification evidence. Analysis of these reasons may serve to refocus forensic practitioners’ testimony, resources, and research toward rectifying shortfalls in these areas.

Additional free articles from the Journal of Forensic Sciences on a variety of forensic topics may be found HERE.

Violence risk in schizophrenics: Are forensic tools reliable predictors?

The high-profile cases of Jared Lee Loughner and Anders Behring Breivik have contributed to high public demand for accurate prediction of violence potential among the mentally ill. While the number of risk assessment tools designed for this purpose has exploded in the past two decades, no systematic review has been conducted to investigate how accurate these tools are for predicting risk in individuals with schizophrenia.

But never fear: Jay Singh of the University of Oxford and colleagues (whose recent meta-review questioned overbroad claims about the accuracy of actuarials in risk assessment) have stepped into the breach, this time examining whether existing tools have proven efficacy for this task.

Reporting in this month's special issue of Schizophrenia Bulletin on violence and schizophrenia, the authors state that despite the existence of at least 158 structured tools for predicting outpatient violence risk, only two studies have measured instruments' predictive validity in discharged patients diagnosed with schizophrenia.

Instead of reporting on instruments' accuracy for specific patient groups, most studies report predictive validity estimates for heterogeneous groups of psychiatric patients. This forces clinicians and the public to assume that these group-level data apply to any individual diagnostic group.This assumption turns out to be a problem, due in part to the large differences in base rates of violence in psychiatric patients. We know, for example, that individuals with substance abuse disorders are more prone to violence, in general, than those diagnosed with major depression.

Examining the psychometric and predictive features of 10 widely used tools for assessing risk in mentally disordered offenders and civil psychiatric patients, the authors found "little direct evidence to support the use of these risk assessment tools in schizophrenia, specifically."

Overall, schizophrenics have low base rates of violence, with an estimated prevalence of between 10 and 15 percent. As I've discussed here in the context of sex offenders, the rarer a behavior is, the harder it is to successfully predict, leading to erroneous predictions of high risk in people who are not truly dangerous. The authors quote another research finding that in order to prevent one stranger homicide by a schizophrenic, governments would need to detain a whopping 35,000 patients.

That sounds to me like a black swan problem.

As in their previous meta-meta-analysis, the authors critique the almost exclusive use of the area under the curve (AUC) statistic to validate risk assessment instruments. Proponents of the AUC like it because it measures predictive utility independent of the base rate of the behavior in question. But this is as much a weakness as a strength, leading to a false sense of confidence in our ability to accurately predict the risk of individuals in heterogeneous groups of patients:

"High" AUC values for heterogeneous groups of psychiatric patients may have led researchers, clinicians, and policymakers to believe that instruments perform well for all diagnostic groups. However, it is problematic to suggest that structured instruments would be able to identify high-risk individuals with the same accuracy in groups with higher and lower base rates of violence.

In another interesting finding, Singh and colleagues found that the item content of violence risk tools varies markedly, with many tools including unique factors not contained in other instruments. This is a problem, unless these items are truly correlated with risk.

The authors call for updated reviews of the risk and protective factors underlying violence in different psychiatric groups -- including, for example, executive dysfunction in schizophrenics -- before additional risk assessment tools are constructed.

The review is available by contacting Dr. Singh (click HERE), who shortly will be coming to America to accept a post with the Mental Health Law and Policy Department of the University of South Florida.

Related blog post: Violence risk meta-meta: Instrument choice does matter (June 19, 2011)