More developments on the sex offender front

Study finds problems with real-world reliability of Static-99

Evaluators differ almost half of the time in their scoring of the most widely used risk assessment instrument for sex offenders, the Static-99, according to a report in the current issue of Criminal Justice and Behavior. Even a one-point difference on the instrument can have substantial practical implications, both for individual sex offenders and for public policy. In by far the largest and most ecologically valid study of interrater agreement in Static-99 scoring, the research examined paired risk ratings for about 700 offenders in Texas and New Jersey. The findings call into question the typical practice of reporting only a single raw score, without providing confidence intervals that would take into account measurement error. The study, the latest in a line of similar research by Marcus Boccaccini, Daniel Murrie and colleagues, can be requested HERE.

California reining in SVP cowboys

Psychiatrist Allen Frances has more news coverage of a memorable state-sponsored training at which Sexually Violent Predator (SVP) evaluators were cautioned to be more prudent in their diagnostic practices. Ronald Mihordin, MD, JD, acting clinical director of the Department of Mental Health program, warned evaluators against cavalierly diagnosing men who have molested teenagers with “hebephilia” and rapists with “paraphilias not otherwise specified-nonconsent,” unofficial diagnoses not found in the current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. California evaluators have come under fire in the past for billing upwards of $1 million per year conducting SVP evaluations of paroling prisoners. The PowerPoints of the 3-day training are now available online, at the DMH's website.

The neuroscience of sex offending

In preventive detention trials of sex offenders, forensic evaluators often testify about whether an offender lacks volitional control over his conduct. But how much do we really know about this? In the current issue of Aggression and Violent Behavior, forensic psychologist John Matthew Fabian explores the neuroscience literature on sex offending as it applies to civil commitment proceedings. The article can be viewed online, or requested from the author HERE.

Challenge to sex offender registry

Although the sex offender niche is by far the most partisan and contentious in forensic psychology, one thing that just about all informed professionals agree about is that sex offender registration laws do more harm than good. By permanently stigmatizing individuals, they hamper rehabilitation and reintegration; as Elizabeth Berenguer Megale of the Barry University School of Law explores in an essay in the Journal of Law and Social Deviance (full-text available HERE), they lead to a form of “social death.” Now, the California Coalition on Sexual Offending (CCOSO) and the Association for the Treatment of Sexual Abusers (ATSA) have filed a joint amicus brief in a challenge to California's "Jessica's Law," which bars registered sex offenders from living within 2,000 feet of any school or park. The amicus contends that the restriction is punishment without any rational purpose, in that it does not enhance public safely or deter future criminality. The challenge was brought by Steven Lloyd Mosley. After a jury found Mosley guilty of misdemeanor assault, a non-registerable offense, the sentencing judge ordered him to register anyway, ruling that the assault was sexually motivated. The 4th District Court of Appeal granted Mosley’s appeal, and the California Department of Corrections has appealed to the state's supreme court. We'll have to wait and see whether the high court will tackle the issue of registration laws directly, or will sidestep with a narrow, technical ruling.

Civil commitment petition against Butner, NC prisoner dismissed

 Federal judge discounts sex offender's confessions as fabricated

Sex offenses are upsetting, and their perpetrators creepy. Understandably, it's easy for jurors and even judges to brush aside legal technicalities and burdens of proof in the interest of keeping women and children safe.

But it is disturbing when forensic psychologists collude in this endeavor, disregarding the limits of science by overstating the accuracy of risk assessment instruments, inventing pretextual disorders to justify preventive detention, and even claiming omniscient truth-telling powers regarding ancient, unprosecuted allegations.

In an environment replete with such folie à plusieurs, it was refreshing to read the recent federal decision in the case of Markis Revland, a habitual criminal who faced civil detention after serving time for child pornography possession.

Senior U.S. District Judge Bernard A. Friedman systematically analyzed and rejected the evidence as failing to meet the government’s burden of proof. Not only did the government fail to show that Revland had a serious mental disorder that put him at high risk of molesting children if released, it even failed to prove that the convict had engaged in any hands-on child molestation in the past, the judge ruled.

Child abuse claims imaginary

In addition to his conviction for child pornography, Revland had two prior convictions for indecent exposure. But the most damning evidence against him was his own admissions, made during sex offender treatment at the federal prison in Butner, North Carolina, that he had committed 149 additional incidents of sexual abuse of children of various ages.

However, the keen-minded judge of the U.S. District Court for the Eastern District of North Carolina wasn’t buying those confessions:

The court finds that all of the 149 incidents reported by respondent … were the product of his imagination, not actual events.

He explained that Revland was desperate to enroll in Butner’s treatment program in order to escape the infamous federal prison in Leavenworth, Kansas, where he feared for his life after being beaten and raped at knifepoint by fellow prisoners. Once at Butner, he felt compelled to fabricate “a long list of sex offenses,” lest he be deemed uncooperative and returned to Leavenworth.

The offenses that he described in great detail were implausible, in that he was serving a prior, 10-year prison term for cocaine at around the same time that he claimed to be running around molesting children, the judge determined:

The reported incidents were not only too numerous to believe but also recounted – years afterwards – far too precisely, with respondent providing the age of the victim, the time of day … when each offense occurred, and the location where each incident allegedly occurred…. And yet the government offered no evidence to independently verify that any of these incidents occurred or that any of them – even one – ever resulted in investigation or prosecution.

As a group, Butner offenders – most of them incarcerated on child pornography charges -- have confessed to an unusually high number of undetected sex offenses, leading many observers to suspect that the widely publicized numbers are unreliable. Critics say treatment providers at the federal institution pressured prisoners to report as many offenses as possible, lest they be accused of not cooperating.

No bona fide sexual disorder

Likewise, Judge Friedman was unconvinced by the government's claim that Revland suffered from a mental disorder, pedophilia, that would justify civil commitment by making him likely to engage in future child molestation if released.

Friedman conceded that the convict met the criteria for antisocial personality disorder. But he found that such a diagnosis was irrelevant:

The essence of this disorder is that the patient “fail[s] to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest.” Dr. [Jeffrey] Singer testified that the vast majority of prison inmates have this disorder, as they are in prison for breaking the law and failing to conform to social norms. Dr. [Joseph] Plaud testified that there is no documented causal link, in this case or in general, between antisocial personality disorder and sexual dangerousness. The court credits these experts' opinions.

Finally, the judge rejected the claims of two government psychologists that two so-called actuarial instruments, the Static-99R and the MnSOST-R, showed Revland to be at high risk for recidivism.

Judge Friedman said the risk assessments by both Dr. Manuel Gutierrez, a Board of Prisons employee, and contract psychologist Jeffrey Davis were "particularly unreliable in the present case because they both assumed that [Revland] is a pedophile with numerous 'hands-on' victims, whereas the court has rejected both of these premises."

Increasingly, cutting-edge researchers are coming to the consensus that by and large, with a few exceptions at the extreme end of the continuum, sex offenders are not a distinct group worthy of the level of special attention they are getting these days. Rather, they are garden-variety criminals who violate social norms, take what they want, and eventually burn out as they enter middle age.  

The judge's bold language in cutting through the empty psychobabble about mental disorder and risk harkens back to the little boy in the Hans Christian Andersen tale, The Emperor's New Clothes, who was not afraid to declare out loud that the emperor was naked.

Happy New Year’s – and thanks for your support!

Thanks very much to those of you who responded to my request for help, generously donating money and books or signing up for a paid subscription. I really appreciate your kind assistance. For those of you who meant to chip in but didn’t get around to it yet (I know how busy we all get), click HERE to see a list of ways that you can still contribute. (Or, look in the right column of the blog's website.) Please join in today, to help keep this blog thriving in 2012 and beyond.

Happy New Year’s to all of you!

Updates of leading malingering and Miranda rights tests

As we ring in the new year, here are a couple of updates on tests some of you may be using in your forensic practices.

Miranda instruments revised

When it comes to assessing whether a criminal defendant had the capacity to waive his or her Miranda rights prior to giving a statement to police, there is only one game in town -- the Instruments for Assessing Understanding and Appreciation of Miranda Rights by eminent forensic psychologist Tom Grisso and colleagues. Now, that set of tests has been completely revised and given a new name: the Miranda Rights Comprehension Instruments (MRCI). One of the main problems with the old instruments was that their language was more complex than the actual language used by many police warnings, reducing their real-world validity. That problem has been rectified through simpler language in the new edition. Also, the test developers promise better psychometric properties and updated normative data. But it's kind of a tricky situation, because we are being instructed to use the new instruments when assessing juveniles, but to stick with the old ones for assessing adults until new adult norms are published some time in 2013. More on the new instruments is HERE.

Facelift for gold-standard malingering test

In contrast to Miranda rights, there is no shortage of instruments for assessing malingering. But for assessing malingered psychosis, one instrument is widely recognized as the "gold standard." That test is Richard Rogers and colleagues’ Structured Interview of Reported Symptoms (SIRS). It too was recently revised. The revision was in part due to the discovery that the original SIRS failed to adequately distinguish between some people diagnosed with dissociative identity disorder and people who were instructed to deliberately exaggerate symptoms. But critical reception for the revised tool, the SIRS-2, has been less than stellar. Over at the Open Access Journal of Forensic Psychology, forensic psychologist Greg DeClue warns that the SIRS-2 may be vulnerable to admissibility challenges in court. That is due to the publishers' refusal to be transparent by letting independent professionals such as DeClue analyze their data. DeClue challenges the test's developers to submit a comprehensive description of the SIRS-2 validation study for peer-reviewed publication, and to let independent professionals analyze the data without impediment. His interesting critique is HERE.

Join the blogger's circle of support

As the year draws to a close, I would like to publicly thank all my loyal readers and subscribers. It’s been gratifying to see subscriptions for this blog grow from a few dozen back in 2007 to today's many hundreds of forensic practitioners, lawyers, educators, criminologists, researchers, authors and policy advocates. It is great to see nearly all of the U.S. states and dozens of nations represented, from Saudi Arabia and Turkey to Scotland and Lithuania.

A snapshot of this morning's blog visitors from around the world

I am especially grateful to the many of you who have lent tangible support through monetary donations, books, and other forms of encouragement. Your generous support has been essential in defraying my costs. Letting me know that the time and energy I devote to blogging is useful in keeping you connected and abreast of developments in the field has also helped me stay motivated.

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Appellate court upholds exclusion of SPECT evidence

Yerba Buena Island, San Francisco Bay

On May 22, 2002, the body of Juliette Williamson was found washed up on Yerba Buena Island in the San Francisco Bay. Williamson and her long-time partner Bruce Brooks were well-known street performers known as the Chicago Brother and Sister Blues Band. For years, they had lived together in a purple school bus parked under a freeway.

Within days of Williamson's disappearance, Brooks gave three confessions to friends. He provided graphic details of how he bludgeoned her to death with a hammer after a drunken quarrel. He even took one friend to the location where he had tossed her body into the Bay; there, police later recovered blood samples that matched Williamson's DNA.

The couple’s 16-year relationship had always been tumultuous, but it was deteriorating in the weeks before the killing. Brooks had resumed smoking crack cocaine and had openly threatened to kill Williamson if she left him, according to trial testimony.

Bruce Brooks. Photo credit: M. Macer, S.F. Chronicle

By the time he went to trial six years later, Brooks's story had changed. He testified that Williamson attacked him and knocked him "silly." He saw a fluorescent number three in his mind; the next thing he knew he was dropping Williamson's body over the bridge to bury her at sea. He had no recollection of killing her, but figured he must have.

A defense-retained neuropsychologist, Myla Young, testified that Brooks had frontal lobe damage that might cause him to begin a repetitive act like hitting and not stop until worn out. The impairment also made him prone to amnesia, she said.

But the jury wasn't buying. After three days of deliberations, jurors convicted Brooks of second-degree murder. He was sentenced to 15 years to life.

Appeal: Unfair to exclude SPECT evidence

Brooks appealed, citing the trial judge's exclusion of Single Photon Emission Computed Tomography (SPECT) evidence. He had hoped to introduce the colorful brain scans to convince the jury he had organic brain damage that made it impossible for him to premeditate a murder, or even form a conscious intent to kill. Psychiatrist Daniel Amen was prepared to testify that Brooks' scan, which measures blood flow to certain regions of the brain, looked "very abnormal."

San Francisco trial judge Cindy Lee excluded the SPECT testimony based on concerns about both the method and the messenger.

Daniel Amen promotes his Amen Clinics

Under California's Kelly-Frye standard, for scientific evidence to be admissible in a criminal case, there must be proof that the technique is considered reliable in the scientific community and that the witness is a qualified expert who used correct scientific procedures. The party seeking to introduce the evidence has the burden of proving its admissibility by a preponderance of the evidence.

Regarding the method, the judge ruled that research has not established that SPECT scans can accurately determine cognitive impairment, much less impairment so severe as to preclude the requisite mental states for premeditated murder. While the scans were "pretty glitzy" and "high tech," their colors lacked meaning and had a high potential to confuse the jury, she said.

As to the messenger, the judge had "a 'considerable question' ... as to whether [Amen] is an independent and unbiased expert and truly represents a cross-section of the relevant scientific community," according to a just-issued appellate ruling.

The First District Court of Appeal upheld the trial judge's ruling, endorsing her concerns about both the method and the messenger.

The appellate justices were unable to find any published appellate decision on the issue of whether SPECT evidence is admissible in a criminal trial to support a theory that a defendant's ability to form a specific intent was impaired by organic brain damage. So they conducted their own independent review of the scientific status of SPECT evidence. They were ultimately under-impressed.

[W]e agree with the trial court that defendant failed to establish that SPECT was generally accepted by the scientific community as showing brain injuries that were relevant to the defense theory that he did not form the intent necessary to commit murder. Defendant did not establish a generally accepted correlation between blood flow to a particular part of the brain and any particular behavior…. [A]s the trial court correctly summarized the testimony, "[T]here’s a lack of any testimony that there’s any quantitative percentage of blood flow, specific cognitive functions or other factors that will be impaired or even affected."

Regarding the messenger, the appellate justices said it was within the trial judge's discretion to raise "serious questions about Amen’s qualifications to testify as an expert witness. The court doubted that he could be independent and unbiased in light of his long engagement in significant entrepreneurship activities regarding SPECT via the Amen Clinics and activities as a proponent of the utility of SPECT scan imaging."

Amen's methods questioned

Judge Lee and the appellate panel were not alone in viewing Amen's activities with suspicion.

Amen, a graduate of the now-defunct Oral Roberts University School of Medicine, has said he was "led by God to pursue this work." And the missionary zeal with which he promotes SPECT for everything from depression and anxiety to aggression and drug abuse has raised concerns among other medical professionals.

In 2005, Amen's unconventional treatments had caught the attention of Quackwatch, an international network dedicated to exposing medical "frauds, myths, fads, fallacies, and misconduct." Three years later, Salon ran a piece by neurologist Robert Burton, criticizing PBS for running Amen's "self-produced infomercial" touting his unproven intervention for Alzheimer's disease:

It’s hard to dismiss the religious undertones of Amen’s work…. And yet Amen’s sense of calling hasn't led him to undertake the high-quality clinical investigations that would lend scientific credence to his claims…. Amen states that he has read more than 40,000 SPECT scans and holds himself up as a world expert. But a brief quote from his TV special quickly reveals a very peculiar method of determining what constitutes a normal SPECT scan…. Using Amen’s figures from his TV program, only 3 percent of those he has studied have been interpreted by himself and his staff as being normal. Put another way, 97 percent of patients who attend Amen’s clinic can expect to be told that their SPECT brain scan is abnormal.

But the controversies surrounding neuroimaging in court go far beyond those swirling around Amen and his SPECT scans. Echoing the trial judge's concerns in the Brooks case, the UK Royal Society just this week warned that jurors may be far too impressed with brain images, not recognizing their limited applicability to real-world legal questions.

POSTSCRIPT: On Feb. 29, 2012, the California Supreme Court denied review of the case.