Insanity: Murder, Madness, and the Law

From the internationally known forensic psychologist/attorney who co-authored the excellent case-study book "Minds on Trial" comes a scintillating new case-study book, described by one reviewer as "a mesmerizing compilation of the most notorious cases in which mental illness has been claimed to trump personal responsibility."

Here's the front flap of Charles Patrick Ewing's Insanity: Murder, Madness, and the Law:

The insanity defense is one of the oldest fixtures of the Anglo-American legal tradition. Though it is available to people charged with virtually any crime, and is often employed without controversy, homicide defendants who raise the insanity defense are often viewed by the public and even the legal system as trying to get away with murder. Often it seems that the legal result of an insanity defense is unpredictable, and is determined not by the defendant’s mental state, but by their lawyer’s and psychologist’s influence.

From the thousands of murder cases in which defendants have claimed insanity, Dr. Ewing has chosen ten of the most influential and widely varied. Some were successful in their insanity plea, while others were rejected. Some of the defendants remain household names years after the fact, like Jack Ruby, while others were never nationally publicized. Regardless of the circumstances, each case considered here was extremely controversial, hotly contested, and relied heavily on lengthy testimony by expert psychologists and psychiatrists. Several of them played a major role in shaping the criminal justice system as we know it today.

In this book, Ewing skillfully conveys the psychological and legal drama of each case, while providing important and fresh professional insights. For the legal or psychological professional, as well as the interested reader, Insanity will take you into the minds of some of the most incomprehensible murderers of our age.

The cases:

• Jacob Rubenstein (aka Jack Ruby) of JFK fame
• David “Son of Sam”Berkowitz
• Andrea Yates, the Texas mom who drowned her five kids in the bathtub
• Scott Panetti, the Texan whose competency-to-be-executed case I've blogged about (here and here)
• John Wayne Gacy, serial killer of 30 or more boys and young men
• Andrew Goldstein, who shoved a stranger in front of a New York City subway
• Robert Torsney, a New York City police officer who shot and killed an unarmed teenager
• Eric Michael Clark, a teenager who shot and killed a police officer during a traffic stop
• Arthur Shawcross, who raped and strangled at least 11 women in upstate New York
• Eric Smith, a 13-year-old who fatally beat a 4-year-old boy

In the mood for a little light bedtime reading?

Showdown looming over controversial theory

Parental Alienation Syndrome is by far the most controversial theory in high-conflict child custody litigation. And the battle lines are drawn primarily by gender: PAS is apt to be the first line of defense when a husband is accused in a custody battle of sexually abusing his children. That is, provided he has the money to hire a high-powered attorney.

Under the theory, one parent - almost always the mother - is accused of turning the children against the other, and brainwashing them to believe they have been abused even when they have not been.

The purported syndrome stubbornly refuses to die despite the facts that:

• it has not been empirically verified

• it has been excluded from many courtrooms as not meeting minimal standards of evidence admissibility
  

• its creator and chief proponent is long gone (having allegedly stabbed himself to death with a butcher knife)

But historic legislation in California is aimed at squelching PAS by setting guidelines for child custody evaluations that could reduce or eliminate its introduction in court.

The original version of the legislation, AB 612, specifically referenced Parental Alienation Syndrome. The new version, AB 2587, is watered down, speaking only to the need for evaluators to conform to "generally accepted" standards without specifically mentioning PAS.

Although the American Psychological Association has raised concern about use of the theory in court, child custody evaluators remain divided in their beliefs about its validity. But psychologists are not nearly as rancorous in their division as are activists in the so-called "father’s rights" or women's rights movements. A quick web search reveals dozens of sites dedicated to proselytizing pro or con.

In a balanced report this week, the San Bernardino Sun quotes Dr. Philip Stahl, a California evaluator and member of the state's Association of Family & Conciliation Courts, as saying that judges also bring their own preconceptions into the fray.

"Courts are ruling in favor of people unfairly accused of alienation, and they are ruling against people who have been alienated," Stahl is quoted as saying. "Problems described by advocates on both sides on the issue are happening."

Central to the problem is the lack of a magic truth detector that can distinguish true from false allegations of child abuse. After a while, even the children themselves may become confused about what really did, or did not, happen.

The syndrome was invented by Dr. Richard Gardner, who self-published his work and made a career out of testifying for fathers in child custody cases.

Despite the fact that judges are supposed to play a gatekeeper function and not allow in evidence without sufficient scientific support, in practice courts vary tremendously in how rigorously they scrutinize scientific evidence. According to one attorney, courts that have held special hearings on whether PAS meets the Frye evidentiary standard of being generally accepted in the scientific community have found that it does not. (For more on the issue of the legal admissibility of the PAS, see this scholarly article and this website.)

The mental health and medical fields are littered with dozens if not hundreds of "syndromes" with widely varying levels of empirical support, some invoked to make something sound more medical or scientific than it is. Many of these - including False Memory Syndrome, Child Abuse Accommodation Syndrome, Munchausen's Syndrome by Proxy, Adopted Child Syndrome, Chronic Fatigue Syndrome, Premenstrual Syndrome, Battered Women's Syndrome, and even Post-Abduction Syndrome - are typically frowned on within the scientific community.

Particularly problematic in child custody litigation is the unequal playing field in court, with the husband often possessing greater financial resources that allow him to hire better attorneys and more convincing experts than his wife. Given the strong resistance of the father's rights movement, it's highly unlikely that this watered-down proposal will even become law, much less that it will significantly change the tenor of high-conflict child custody litigation.

The San Bernardino Sun article is here. More information, pro and con, can be found here, here, here, and here - and a web search will garner much more where that came from.

Photo credit: worldwidewebdomination (Creative Commons license)

Action Alert: Help save Minority Fellowship Program

Despite a glut of mental health practitioners in some communities, ethnic minority communities in the United States continue to face extreme shortages. People in poor and minority communities have a harder time finding help and, when they do get treatment, it is typically of poorer quality, according to studies.

This problem will drastically increase if President Bush gets his way: The proposed budget for 2009 will eliminate the long-running Minority Fellowship Program, thereby reducing training opportunities for minority professionals who are more willing to work in critically underserved communities.

Clicking either here or on the "Contact Congress Now" box below will take you to an American Psychological Association-sponsored website where you can email your Congress member and urge him or her to save this 33-year-old fellowship program. It takes less than three minutes.

Blog featured at Court-o-rama

Court-o-rama, which bills itself as "the least dangerous blog," has honored "In the News" as the first in its new "Blog of the Week" series. Court-o-rama, in turn, is worth checking out, for its offbeat coverage of the weird and wacky world of law.

My apologies for the paucity of posts so far this week, loyal readers; just too much work and not enough time.

Judge may block hater from misusing courts

First Amendment and fair use doctrine at issue

How's this for audacity: Spew hateful venom against a minority group and then, when the group protests by calling for an advertising boycott, sue for copyright infringement because the group quoted your words.

As someone who did research into hate crimes a few years back, I've been following trends in hate-related violence. Ever since 9/11, we've seen increasing targeting of Arab Americans, Muslims, and people who are mistaken for Arabs or Muslims (such as Sikhs, Iranians and even Mexicans). That's partly because when a minority group is openly maligned, it sends a message to rageful and disempowered young men that it's OK to act out against that group.

A perfect exemplar of incendiary hate-mongering is extremist nut Michael Savage, whose syndicated radio show "Savage Nation" has about 8 million listeners on 400 stations. His anti-Muslim vitriol is blood-chilling (don’t take my word for it – listen here or here).

Rather than silently accepting Savage's abuse, the Council on American-Islamic Relations (CAIR) called on advertisers to stand up for human rights by withdrawing support from Savage. Several large corporations, including Wal-Mart, AT&T, and Sears, reportedly heeded the call, costing Savage $1 million or more by his estimate.

Savage responded by suing CAIR for copyright infringement. Even more preposterously, he accused the group of racketeering, claiming it poses as a civil rights organization but is actually a "mouthpiece of international terror" that helped to fund the 9/11 attacks.

This is not the first time the rabid Savage has tried to use the courts to stifle free speech. With the civil court system increasingly off limits to all but the wealthy, he and his Talk Radio Network have the money to hire lawyers and go after critics left and right; in 2003 they went after Take Back the Media, SavageStupidity.com and MichaelSavageSucks.com on similar grounds. (A pdf of that lawsuit is posted here.)

I can hardly imagine a better example than CAIR's of "fair use," a legal doctrine stemming from the First Amendment of the U.S. Constitution that allows portions of copyrighted material to be reprinted for purposes of (among other things) scholarly debate, criticism, or parody.

To her credit, a federal judge said on Friday that she agrees with much of the anti-defamation group's legal defense under the First Amendment and that she will likely dismiss the lawsuit. Unfortunately the judge said she may allow Savage to modify the lawsuit and file it again.

I sure hope the Honorable Susan Illuston follows through and bars this vicious hate-monger from misusing the civil process to stop legitimate - indeed crucial - criticism.

Today's San Francisco Chronicle has coverage. See more commentary at "Crooks and Liars."

Can expert witnesses change their minds?

Of course. But there's a right way and there's a wrong way.

That was at the heart of this week's appellate decision by the U.S. 10th Circuit Court of Appeals in the case of Pace v. Swerdlow.

The case involved an expert witness anaesthesiologist, Barry N. Swerdlow, who changed his mind on the eve of a trial, contributing to the dismissal of the Paces' wrongful death claim.

The case was brought by Thomas and Karol Pace of Utah, whose daughter died after undergoing breast augmentation surgery. According to the 10th Circuit opinion, anaesthesiologist Barry Swerdlow of California approached the Paces' attorney and offered his services as an expert witness. After being retained, Swerdlow wrote a report stating that in his expert opinion the surgical center and its anaesthesiologist, Dr. Stephen Shuput, were negligent in releasing the Paces' daughter from the hospital despite her complaints of chest pains and trouble breathing.

During subsequent deposition testimony, however, Swerdlow admitted that he had not read the attending anaesthesiologist's deposition before forming an opinion. He explained on the record that he was "a relative novice at this whole thing" and had no experience testifying in court as an expert witness. In questioning Swerdlow, the defense attorney implied that the self-appointed expert might be behaving unethically, in violation of his professional licensure.

It was after that deposition that Swerdlow changed his mind. After reading Shuput's deposition, he wrote an "addendum" stating that there had been no breach of the appropriate standard of care. Without giving any advance warning to the Paces or the attorney who had retained him, he sent the addendum to the opposing attorneys. Not surprisingly, the trial court dismissed the Paces' wrongful death claim, leading to their federal appeal.

The 10th Circuit held that a lower court was wrong to dismiss the Paces' lawsuit against Swerdlow for professional malpractice, fraud, and breach of contract. They remanded the case back to the lower court for further proceedings, including a decision on whether the expert is protected by any doctrine of expert witness immunity. Such statutes, the court noted, vary from state to state.

In an interesting partial dissent, Circuit Judge Gorsuch discussed the dangers of discouraging expert witnesses from changing their minds - so long as the change of opinion is based on honest and professional reasoning rather than pressure from the other side:

"Allowing this claim to march along sends the message to would-be expert witnesses: Be wary - very wary - of changing your mind, even when doing so might be consistent with, or compelled by, the standards of your profession…. In our legal system, demanding that experts 'deliver' a specified opinion, as opposed to their honest judgment, is supposed to be ethically out-of-bounds - not the basis for a cause of action.

"Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court … simply for changing their opinions - with no factual allegation to suggest anything other than an honest change in view based on a review of new information - we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve."

The moral for forensic psychologists: Be sure you have appropriate education, training, and experience before hanging out your shingle as an "expert."

The case is here. For more on the legal doctrine of expert witness immunity, see "Suing your own expert witness: Competing policies, uncertain law," by Charles Patrick Ewing, JD, Ph.D., Monitor on Psychology, January 2001, Vol. 32 No. 1.

Photo credit: Estherase (Creative Commons license). Hat tip to Steven Erickson, JD, Ph.D., for alerting me to this case.

POSTSCRIPT: Additional coverage of this case, in the online edition of the American Medical News dated April 14, 2008, is available here.