Not this time,* high court rules

In his speech on race, Barack Obama referenced the OJ Simpson case as an example of race being used as "spectacle."

A good example of the rhetorical power of OJ references came in a Louisiana courtroom, when a prosecutor told an all-white jury that since OJ "got away with it," the jury should impose death on an African American murder defendant. In a parish where a local Ku Klux Klan wizard was a popular figure, the jury obliged.

The U.S. Supreme Court overturned that sentence this week. But the high court's opinion in Snyder v. Louisiana was not based on the OJ reference. Indeed, the court's opinion does not even mention the prosecutor’s inflammatory statement during closing arguments. Rather, the case was overturned because the prosecutor selectively removed all African Americans from the jury.

Under the 1986 Batson rule and subsequent case law, prosecutors must not strike jurors for the purpose of race discrimination. If challenged, they must be able to offer a race-neutral reason for having removed jurors from a certain race.

This leads to some very strained excuses, including the one given by the prosecutor in the Snyder case. He said he exercised a peremptory challenge against black college student Jeffrey Brooks because Brooks looked nervous and was worried about missing classes. The court found that excuse "implausible," in light of more severe hardship claims by white jurors who were not dismissed.

"People can offer compelling explanations for their behavior even when unaware of the factors - such as race - that are actually influential," wrote researchers Samuel Sommers and Michael Norton in a recent article on this phenomenon. "Even if attorneys consciously and strategically consider race during jury selection, they would be unlikely to admit it."

In the case of Snyder, who was convicted of stabbing to death his estranged wife's date, the prosecutor had managed to get rid of all nine blacks in the jury pool of 85.

Not surprisingly, Justices Thomas and Scalia dissented from the majority, saying the trial court's opinion that race was not a factor should not be second-guessed.

The ScotusBlog, Sentencing Law & Policy, and Deliberations blogged about the case and its implications. The case itself can be found here. Related posts of mine are here and here. Photo credit: Tilaneseven

*"Not this time" is a quote from Barack Obama's recent speech, in which he stated: "We have a choice in this country. We can accept a politics that breeds division, and conflict, and cynicism. We can tackle race only as spectacle – as we did in the OJ trial – or in the wake of tragedy, as we did in the aftermath of Katrina - or as fodder for the nightly news.... Or, at this moment, in this election, we can come together and say, 'Not this time.' This time we want to talk about the crumbling schools that are stealing the future of black children and white children and Asian children and Hispanic children and Native American children.... This time we want to talk about how the lines in the Emergency Room are filled with whites and blacks and Hispanics who do not have health care; who don’t have the power on their own to overcome the special interests in Washington, but who can take them on if we do it together. This time we want to talk about the shuttered mills that once provided a decent life for men and women of every race, and the homes for sale that once belonged to Americans from every religion, every region, every walk of life. This time we want to talk about the fact that the real problem is not that someone who doesn't look like you might take your job; it's that the corporation you work for will ship it overseas for nothing more than a profit."

Neuropsychology in the courtroom

The books are flying off the presses so fast I can't keep up! Here's a new one by Robert Heilbronner that's being recommended in neuropsychology circles.

This is the publisher's blurb on Neuropsychology in the courtroom: Expert analysis of reports and testimony:

This volume brings together leading neuropsychologists to shed light on the nuts and bolts of forensic practice. An array of adult and child cases are presented, involving such conditions as traumatic brain injury, multiple chemical sensitivity, cerebral anoxia, and electrical injury. Contributors show how they go about reviewing reports and depositions in a particular case, providing fine-grained analysis of the opinions and conclusions of the examiner. Issues addressed in detail include the selection of tests, appropriate use of normative samples, and errors in scoring and interpretation. Unique in providing multiple perspectives on each case, the book identifies common clinical and professional pitfalls and how to avoid them.

You can peruse the chapters and get more information here.

I won't post more today, because I'd rather all of you spend your spare surfing time checking out Obama's brilliant and moving speech on race (the text version is online here; a complete video is here).

Miranda waiver must be clear, court rules

"I'm good for tonight" doesn't cut it

A caricatured staple on TV police procedurals, the Miranda warning has been gradually stripped of its original intentions of protecting naïve suspects and turned into yet another tool of law enforcement.

A ruling by the 9th Circuit Court of Appeals last week went against that dominant trend. The government has a "heavy burden" to show that a suspect made a clear and unambiguous waiver of his Miranda rights prior to police questioning, the court held in United States v. Jose Rodriguez.

"I'm good for tonight" is too ambiguous of a statement to count as a waiver.

The importance of this case is discussed in detail by Steven Kalar at the 9th Circuit Blog. For more in-depth discussions of Miranda in contemporary police practice, see Richard Leo's Police Interrogation and American Justice and Charles Weisselberg's Mourning Miranda.

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.