Mental health expert witnesses slammed in court

A pint-sized hired gun

Are accusations of bias on the rise?

Hired gun.
Charlatan.
Quack.
Hack.

It's every expert witness's worst nightmare. Vitriolic accusations of bias hurled at us on the witness stand, just because the cross-examining attorney doesn't like our opinion, or we have the audacity to charge for our services. (Have you heard of auto mechanics, plumbers or attorneys being called "whores" because they don't work for free?)

Unfortunately, it goes with the territory.

Now, a group of psychologists has tried to figure out just how big a part of the legal landscape accusations of bias against mental health expert witnesses are. The researchers scoured the LexisNexis legal database for insinuations of bias, with an eye to quantifying and categorizing the name-calling. In an article just published online in the journal Psychological Services, prominent forensic psychologists John Edens and John Petrila and four colleagues divided accusations of bias into five major categories:

Starting with a list of 46 different ways of calling an expert biased, the authors searched and found 160 legal cases in which attorneys and judges made disparaging comments about forensic mental health experts. In these cases, 185 individual case participants made a total of 245 separable statements asserting a lack of objectivity and impartiality among mental health experts and/or the fields of psychology and psychiatry more generally.

• FOR SALE: In the largest category, 28 percent of the total, experts were disparaged as financially biased (e.g., "hired guns" or "prostitutes").

• PARTISANSHIP: Following close behind, with 27 percent  of cases, were accusations of advocacy, or having an "axe to grind."

• PSEUDOSCIENCE: About 14 percent of cases involved accusations of non-scientific testimony (e.g., "charlatans" or "junk science").

• MYSTICISM: Psychologists and psychiatrists were accused of babbling nonsense (e.g., "witch doctor," "voodoo" or "hocus pocus") in 6 percent  of the cases.

• NONSPECIFIC BIAS: About one fourth, or 24 percent, of cases involved nonspecific accusations or other types of allegations of bias. 

Interestingly, in more than a fourth of the cases, the disparaging comments were a basis for an appeal, typically by the defense calling foul over prosecutorial slurs against mental health experts. Such appeals were relatively unsuccessful, with only 18 percent of cases being reversed in part due to on-the-record accusations of expert bias. All of the successful appeals were in criminal trials, eight involving sanity or diminished capacity. 

Uptick in nasty name-calling?

Similar to a 1999 study by Doug Mossman, which was the only other known study to look at this issue, the researchers noticed a steady upward trend in disparaging comments in more recent years.

It might be tempting to get depressed by this study, which at first blush seems to validate what we all know and fear. However, if we think about it, the results could be seen as mildly encouraging.

First of all, if a thorough search of the massive LexisNexis database could locate only 160 cases, then blatant accusations of bias may be rarer than we think.

Secondly, there are a heck of a lot more expert witnesses in court these days than ever before. Courts and attorneys increasingly rely on forensic psychologists and psychiatrists to assist in a wide range of psycholegal areas, from child custody to tort damages to criminal sentencing and civil commitment. As well, we are increasingly called upon to explain broader social science research, such as the accuracy of eyewitness identification, to judges and juries. So, as the authors acknowledge, any increase in accusations of bias could just be an artifact of our growing presence in court.

Third, and perhaps most importantly, there really are hacks and quacks, charlatans and hired guns among are ranks. The methodology of the current study did not enable analysis of whether the accusations of partiality or bias were legitimate. In other words, attorneys may not have been just engaging in legal gamesmanship in some of these cases; they might have been righteously upset over actual bias or pseudoscientific methodology on the part of forensic psychologists or psychiatrists.

Hopefully, that's a study someone else will take up on another day.

For now, we're left with a couple of take-home messages:

First, this is not a field for the thin-skinned. We must steel themselves to have our objectivity challenged, sometimes very rudely and without basis.

More fundamentally, assuming that these accusations are tapping into popular perceptions and prejudices, forensic professionals need to work harder to reduce both actual bias and the perception of bias in our work.

The articles are:

" 'Hired Guns,' 'Charlatans,' and Their 'Voodoo Psychobabble': Case Law References to Various Forms of Perceived Bias Among Mental Health Expert Witnesses" by John F. Edens, Shannon Toney Smith, Melissa S. Magyar, Kacy Mullen, Amy Pitta and John Petrila, Psychological Services, 2012. 

" 'Hired Guns,' 'whores,' and 'prostitutes': Case law references to clinicians of ill repute" by Doug Mossman, Journal of the American Academy of Psychiatry and the Law, 1999. 

Psychiatrist accused of faking dementia to thwart retrial

Ayres found competent to stand trial in long-running molest case

William Ayres

In a dramatic twist to a case that's already had as many twists and turns as a roller coaster, allegations surfaced this week that psychiatrist William Ayres faked severe dementia in order to avoid a retrial on multiple charges of child molestation.

Ayres used his knowledge of psychiatry to circumvent psychological testing in an elaborate, two-year hoax, according to a report by state hospital psychologist John McIlnay. Around-the-clock observation at Napa State Hospital uncovered discrepancies between the dementia diagnosis and the day-to-day conduct of the former president of the American Academy of Child and Adolescent Psychiatry, the psychologist reportedly wrote in a report filed under seal with the San Mateo County, California court.

Ayres, 80, was arrested in 2007 on suspicion of sexually abusing six boys, some of them sent to him by the juvenile courts, between 1988 and 1996. As I reported at the time, his 2009 criminal trial ended with a hung jury.

After that trial, a new lawyer took over the case and raised the issue of competency to stand trial. A jury trial on competency last year ended with another hung jury. The defense and the prosecution eventually stipulated that Ayres was incompetent and should be sent to Napa State Hospital. He was there for about nine months.

Vincent "The Chin" Gigante

Faking dementia is not commonplace or easy, but it can be done. The most famous case of a defendant faking dementia in order to avoid criminal trial was that of Vincent "The Chin" Gigante, a Mafia don who for years wandered the streets of New York City in a bathrobe. He fooled a bevy of eminent forensic psychologists for psychiatrists into believing he was both insane and demented.

Due to his medical training, a psychiatrist would have an advantage in faking a dementia and in avoiding obvious mistakes. But never letting down one's guard would be difficult in an environment of 24/7 observation. According to news reports, line staff such as nurses and janitors were among those who noticed discrepancies between Ayres's day-to-day functioning and his purported dementia. This was also what eventually tripped up Vincente Gigante; forensic evaluators who interviewed line staff in that case learned that "The Chin" had dropped his guard in jail, when outside the presence of evaluating psychologists and psychiatrists.

On the other hand, state hospital clinicians are rather notorious in local circles for being quick to label defendants as malingering, a topic on which I published a peer-reviewed case study a few years ago. The diagnosis helps open up space in the overcrowded competency restoration wards, which are under pressure from California judges to become more efficient and reduce long waiting periods for beds, and can rid staff of nettlesome criminal patients.

Also, as regular blog readers know, reasonable clinicians often differ as to whether someone is incompetent. In this case, the competency trial featured a 2-2 split of experts. The two original court-appointed psychologists, Paul Good and Jatinder Singh, both initially opined that Ayres was competent to stand trial. However, Singh later changed his mind, which prompted the appointment of a third, "tie-breaker" evaluator, psychiatrist George L Wilkenson, who also thought Ayres was competent. Joining those three as witnesses at last year's competency trial was a defense-retained neuropsychologist, Amanda Gregory, who opined that Ayres was incompetent.

The new hospital report will prompt yet another court hearing on competency. This time, a judge rather than a jury will make the decision on competency, with the defense having the burden of proving that the defendant is unfit for trial on nine felony child molestation charges. The October hearing will include a string of lay and expert witnesses and is anticipated to last about seven days.

My prior posts  (it's been a while) on the case: 

• Lesson to abusers: Target socially disempowered (April 23, 2007)  
• Professionals behaving badly: Mistrial in psychiatrist molestation case (July 27, 2009) 
• Ayres exposer wins award (Aug. 19, 2009)

Violence risk instruments overpredicting danger

Tools better at screening for low risk than pinpointing high risk 

The team of Seena Fazel and Jay Singh are at it again, bringing us yet another gigantic review of studies on the accuracy of the most widely used instruments for assessing risk of violence and sexual recidivism.

This time, the prolific researchers -- joined by UK statistician Helen Doll and Swedish professor Martin Grann -- report on a total of 73 research samples comprising 24,847 people from 13 countries. Cumulatively, the samples had a high base rate of reoffense, with almost one in four reoffending over an average of about four years.

Bottom line: Risk assessment instruments are fairly good at identifying low risk individuals, but their high rates of false positives -- people falsely flagged as recidivists -- make them inappropriate “as sole determinants of detention, sentencing, and release.”

In all, about four out of ten of those individuals judged to be at moderate to high risk of future violence went on to violently offend. Prediction of sexual reoffense was even poorer, with less than one out of four of those judged to be at moderate to high risk going on to sexually offend. In samples with lower base rates, the researchers pointed out, predictive accuracy will be even poorer.

What that means, in practical terms, is that to stop one person who will go on to become violent again in the future, society must lock up at minimum one person who will NOT; for sex offenders, at least three non-recidivists must be detained for every recidivist. This, of course, is problematic from a human rights standpoint. 

Another key finding that goes against conventional wisdom was that actuarial instruments that focus on historical risk factors perform no better than tools based on clinical judgment, a finding contrary to some previous review.

The researchers included the nine most commonly used risk assessment tools, out of the many dozens that have now been developed around the world:

• Level of Service Inventory-Revised (LSI-R) 
• Psychopathy Checklist-Revised (PCL-R) 
• Sex Offender Risk Appraisal Guide (SORAG) 
• Static-99 
• Violence Risk Appraisal Guide (VRAG) 
• Historical, Clinical, Risk management-20 (HCR-20) 
• Sexual Violence Risk-20 (SVR-20) 
• Spousal Assault Risk Assessment (SARA) 
• Structured Assessment of Violence Risk in Youth (SAVRY) 

Team leader Fazel, of Oxford University, and colleagues stressed several key implications of their findings:

One implication of these findings is that, even after 30 years of development, the view that violence, sexual, or criminal risk can be predicted in most cases is not evidence based. This message is important for the general public, media, and some administrations who may have unrealistic expectations of risk prediction for clinicians. 

A second and related implication is that these tools are not sufficient on their own for the purposes of risk assessment. In some criminal justice systems, expert testimony commonly uses scores from these instruments in a simplistic way to estimate an individual’s risk of serious repeat offending. However, our review suggests that risk assessment tools in their current form can only be used to roughly classify individuals at the group level, and not to safely determine criminal prognosis in an individual case. 

Finally, our review suggests that these instruments should be used differently. Since they had higher negative predictive values, one potential approach would be to use them to screen out low risk individuals. Researchers and policy makers could use the number safely discharged to determine the potential screening use of any particular tool, although its use could be limited for clinicians depending on the immediate and service consequences of false positives. 

A further caveat is that specificities were not high -- therefore, although the decision maker can be confident that a person is truly low risk if screened out, when someone fails to be screened out as low risk, doctors cannot be certain that this person is not low risk. In other words, many individuals assessed as being at moderate or high risk could be, in fact, low risk. 

The study, Use of risk assessment instruments to predict violence and antisocial behaviour in 73 samples involving 24,827 people: systematic review and meta-analysis, is published in the British Medical Journal and is freely available online (HERE).

My blog post on these researchers' previous meta-analytic study, Violence risk meta-meta: Instrument choice does matter, is HERE.

Blogger featured on BBC talk show on Aurora massacre

For those of you who are still tuned in to the Aurora massacre story, I was the featured expert on a BBC radio talk show today, on whether tragedies like this can be prevented. (The short answer, from my perspective, is “No”). Alongside me were the mother of a young man who was at the theater, another man from the local community of Aurora, and a survivor of the recent massacre in Oslo, Norway. We four were on similar wavelengths, but things got a bit heated when a psychologist from California called in to say that more could and should have been done to prevent the killings by the Man Who Has No Name.

To listen to the BBC's World Have Your Way segment, click HERE.

(Don’t let the 55-minute length scare you; it’s only the first half of the hour-long show.)

Aurora massacre: To speak or not to speak?

The blood on the movie theater floor was still tacky when mental health professionals began pontificating on the psychology of the mass murderer. Among the brashest self-promoters was a forensic psychologist who shamelessly asserted his preternatural ability to "look inside the mind" of the Aurora, Colorado massacre suspect.

Much of the psycho-punditry reads like it was pulled from a psychoanalytic fortune cookie:

• James Holmes is a "deeply disturbed" individual. 
• He may, or may not, be psychotic and delusional. 
• He harbors a lot of rage.

Such "armchair psychology" is a natural byproduct of the news media's frenetic competition for online traffic. To object is as pointless as it would have been to stand in the killer's way and shout "stop!" as he opened fire during the Batman movie.

But some are nonetheless voicing criticism, saying it is both misleading and irresponsible to speculate at this early stage about the accused's state of mind. Curtis Brainard of the venerated Columbia Journalism Review goes so far as to call it unethical, a violation of the so-called "Goldwater Rule" of 1973. That principle cautions psychiatrists not to offer a professional opinion without having conducted a psychiatric examination and "been granted proper authorization for such a statement."

While that ethics rule applies only to psychiatrists, the American Psychological Association has a very similar one. Section 9.01 cautions psychologists to "provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements or conclusions."

But it is in the gray area of interpreting these ethics rules that reasonable minds differ. Indisputably, we should not attempt to clinically diagnose Mr. Holmes absent a formal evaluation. But must professionals with expertise in the general patterns underlying mass killings stand silently on the sidelines, refraining from offering any collective wisdom to the public?

As a blogger who frequently comments on breaking news stories pertinent to forensic psychology, I have often grappled with this conundrum. When the UK Guardian asked me to write a commentary on Phillip Garrido, the kidnapper and rapist of Jaycee Dugard, I ultimately decided that providing general information about the forensic implications of the case was an appropriate public service that did not violate any ethics rules.

Consider this commentary by high-profile forensic psychiatrist Michael Welner on a Washington Post blog:

Mass shooting cases have the common motive of an attacker seeking immortality. Each of the attackers have different degrees of paranoia and resentment of the broader community. Some are so paranoid that they’re psychotic. Others are paranoid in a generally resentful way but have no significant psychiatric illness. But you have to hate everyone in order to kill anyone. The threshold that the mass shooter crosses is one in which he decides that his righteous indignation and entitlement to destroy is more important than the life of any random person that he might kill. This is why mass shooting are invariably, invariably carried out by people who have had high self esteem. They are people who had high expectations of themselves. It’s not at all surprising to hear about these crimes in people who either valued their own intelligence or their own career prospects at one time. They’re people who are unfailingly unable to form satisfying sexual attachments and their masculinity essentially gets replaced with their fascination for destruction.

Now, I don't always see eye to eye with Dr. Welner, author of the controversial "Depravity Scale." But the above perspective has the potential to contribute to informed discussion of the Aurora tragedy. It doesn't matter whether every single detail turns out to be a precise fit; the comments are general enough to enlighten without stepping over the line to claim an ability to see into Holmes's troubled soul.

One could even argue that we as professionals have an affirmative duty to help offset the inane speculation that pours in to fill any vacuum in the cutthroat world of daily journalism: Portrayals of Holmes as a "recluse" and a "loner" because he didn’t converse with his neighbors; assertions that he "didn’t seem like the type" to massacre a dozen people, because he appeared superficially "normal"; simplistic theories blaming the tragedy on violence in the media or the legality of gun ownership.

Our field is positioned to help the public separate the wheat from the chaff. We can discuss the complex admixture of entitlement, alienation and despair that contributes to these catastrophic explosions. Equally important, we can remind the public that such rampages are rare and unpredictable, and that knee-jerk, "memorial crime control" responses are unwarranted and potentially dangerous. We can urge restraint in jumping to conclusions absent the facts, lest we -- as journalist Dave Cullen, author of the book Columbine, warns in yesterday's New York Times -- contribute to harmful myth-making:  

Over the next several days, you will be hit with all sorts of evidence fragments suggesting one motive or another. Don’t believe any one detail. Mr. Holmes has already been described as a loner. Proceed with caution on that. Nearly every shooter gets tagged with that label, because the public is convinced that that’s the profile, and people barely acquainted with the gunman parrot it back to every journalist they encounter. The Secret Service report determined that it’s usually not true. Resist the temptation to extrapolate details prematurely into a whole…. The killer is rarely who he seems.

But we should also recognize the limitations of our discipline’s micro focus on the individual, and encourage the public to grapple with the larger issues raised by this cultural affliction of the late-20th and early 21st century. As I commented last year in regard to the media coverage of the Jared Loughner shooting rampage in Arizona, journalists need to train a macro lens on the cultural forces that lead disaffected middle-class men -- like canaries in a coal mine -- to periodically self-implode with rage. Disciplines such as sociology, anthropology and cultural studies have much to contribute to this much-needed analysis.

The irony of the Aurora case is hard to miss. An attack in a movie theater featuring The Dark Knight Rises, a movie in which a masked villain leads murderous rampages against unsuspecting citizens in public venues including a packed football stadium and the stock exchange.

As Salon film critic Andrew O'Hehir noted in an insightful essay entitled, "Does Batman Have Blood on his Hands?":

Whether or not Holmes had any particular interest in “The Dark Knight Rises,” he saw correctly that in our increasingly fragmented culture it was the biggest mass-culture story of the year and one of the biggest news stories of any kind. Shoot up a KenTaco Hut or a Dunkin’ Donuts, in standard suburban-nutjob fashion, and you get two or three days of news coverage, tops. Shoot up the premiere of a Batman movie, and you become a symbol and provoke a crisis of cultural soul-searching.

Bottom line: The larger error is not for informed professionals to respond -- cautiously, of course -- to media inquiries but, rather, for the public to settle for facile explanations, in which calling someone crazy or disturbed is mistaken for understanding what is going on. 

POSTSCRIPT: See media critic Gene Lyons's article, linking to this post, at the National Memo. 

Related blog posts: 

• Arizona rampage: Analyzing the analyzers
• Can school shootings be prevented? 

Land of the Free: The best investigative reporting on U.S. prisons

by Cora Currier, ProPublica*

The U.S. has the highest reported incarceration rate in the world. We've rounded up some of the best investigative journalism on U.S. prisons and the problems that plague them. These stories cover juvenile justice, private prisons, immigration detention and other aspects of America's vast incarceration system.

Louisiana Incarcerated: How we built the world's prison capital, The Times-Picayune, May 2012

Louisiana's incarceration rate tops the U.S.'s, Iran's and China's. This eight-part series explains how it got there: lobbying from private prison companies, cash-strapped municipalities, harsh sentencing, and limited rehabilitation for those who make it out.

Moose Lake sex offender facility, Minnesota

America's Expensive Sex Offenders, Salon, April 2012

Programs that keep some sex offenders detained indefinitely after their criminal sentences are up have grown drastically in recent years, and so has their cost—“civil commitment” is on average four times as expensive as prison. But releasing sex offenders has proven politically fraught. (For a few state-by-state investigations, see these muckreads on Washington, Virginia, and New York.)

Bail Burden Keeps U.S. Jails Stuffed With Inmates, NPR, January 2010

Thousands of inmates are stuck in jail for petty, nonviolent crimes simply because they can't make bail. This NPR series showed how the country's bail system "exists almost solely to protect the interests of a powerful bail bonding industry."

What the Jail Guard Saw, Village Voice, July 2007

Some guards at New York City's prison island, Rikers, weren't just turning a blind eye to violence--they were encouraging it. The Voice has been covering the fallout from Rikers' " Fight Club" ever since, and five years later, they obtained gruesome photos showing rampant violence persists, despite the Correction Department's efforts.

Pelican Bay (California) solitary confinement,
prisoner sketch

Hellhole, The New Yorker, March 2009

Atul Gawande looked at the U.S.'s widespread use of isolation, which has ballooned in the past 20 years. At least 25,000 prisoners are now held in isolation just in so-called super-max prisons. And their minds can quickly degrade. "The experience," Gawande writes, "typically leaves them unfit for social interaction."

Why Are Prisoners Committing Suicide in Pennsylvania? The Nation, April 2012

An investigation the effects of solitary confinement on mentally ill prisoners in Pennsylvania. Also see this account from the Arizona Republic: nineteen prisoners in Arizona have killed themselves in the last two years, many of them while in solitary confinement—a widespread practice in the state.

The Devil's Playground, Westword, February 2011

Earlier this year the Justice Department laid out new rules aimed at eliminating widespread sexual abuse in U.S. prisons. This article chronicles the ordeal of one inmate who tried to report rape in a Colorado prison.

Juvenile InJustice, Richard Ross

Uncompromising Photos Expose Juvenile Detention in America, Wired, April 2012

America locks up children at a quicker rate than all other developed countries, with about 60,000 juveniles imprisoned on any given day. Photographer Richard Ross spent five years photographing the little-seen conditions inside 350 correction centers across the U.S.

For teens guilty of murder, penalties can vary widely, New England Center for Investigative Reporting, December 2011, and Direct Fail: Colorado's policy of sending teens to adult court, 5280 Magazine, December 2011

In light of the Supreme Court's decision this week  to strike down mandatory life-without-parole sentences for juveniles, it's worth revisiting these exposes of juvenile justice in Colorado and Massachusetts, two states that often sentence teens as adults.

A Death in Texas: Profits, poverty and immigration converge, Boston Review, December 2009

Privately run immigration detention facilities have proliferated along the U.S.-Mexico border. But the small towns where they're located have rarely benefited. (Such tales aren't limited to the border, as this report from Georgia tells).

Immigration prisoners, Arizona

Private Prisons Profit From Immigration Crackdown, Federal And Local Law Enforcement Partnerships, Huffington Post, June 2012

The country's two largest private prison companies have spent tens of millions on lobbying in the past decade and doubled their campaign contributions, as the government launched tougher immigration rules. Since 2005, they've also more than doubled their revenues from immigration detention.

Clarification (6/29): We've clarified this story to note that the U.S. has the highest reported incarceration rate in the world. There are a few countries—notably North Korea—for which reliable prison statistics aren't available.

*Creative Commons license; reprinted with permission of ProPublica, "Journalism in the public interest."