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.

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.

Incarcerex: One nation, behind bars

With none of the front-running presidential candidates challenging the United States' long-running incarceration mania, INCARCEREX (click on either that capitalized title or on the picture to the right) is an incredibly timely video.

Also timely is today's pull-no-punches editorial in the Detroit Free Press, "One Nation, Behind Bars," which goes like this right here:

The U.S. prison population, the world's largest, has grown nearly eightfold over the past 35 years and now costs taxpayers at least $60 billion a year. An eye-popping report released last week by the Pew Center on the States found that, for the first time, more than one in every 100 American adults is in jail or prison. And that figure doesn't count the hundreds of thousands of people who are on probation and parole.

What is the goal here? Is there a smarter way to get there? What are we as a society getting in return for all this money? What is this massive and growing penal system accomplishing?

Before the nation hits two in 100 behind bars, which seems inevitable, it's time for a national debate on corrections and criminal justice policies that will lead to a more rational, humane and cost-effective system. The nation has gotten far too little for its enormous investment in locking people up. Violent crime rates are higher than they were more than three decades ago, when tough-on-crime policies, including mandatory sentencing laws, created a prison-building boom.

States can no longer afford to divert so many resources from education, health care and other pressing needs. Michigan, for example, with one of the nation's highest incarceration rates, spends $2 billion a year on corrections, or 20% of its general fund. It is one of four states spending more on corrections than higher education. In today's economy, spending more on prisons than college is a recipe for failure.

Nor can the nation ignore the human costs of mass incarceration. Nearly half of the 2.3 million adults locked up are African Americans, who make up less than 13% of the U.S. population. A stunning one in nine black males between the ages of 20-34 is behind bars.

The large numbers of people incarcerated may well increase crime rates. Prison culture has become a norm in some urban neighborhoods, with more than 600,000 people a year returning home from prison and jails. They come back poorly educated, lacking job skills, and socially and legally disabled by felony records. One in 14 African-American children has a parent who is incarcerated, greatly increasing the chances that they, too, will grow up to go to prison.

The good news is that budget pressures are forcing states, including Michigan, to take steps to control their prison populations. On average, Michigan incarcerates at a 40% higher rate than surrounding Great Lakes states. But Michigan was also one of 14 states where prison population dropped over the past year. The state's prisoner re-entry program has reduced recidivism; in some cases, parole rates have gone up.

Michigan is also considering other initiatives, including sentencing reforms that divert more low-level offenders into community programs and releasing more severely sick or dying inmates who pose no risk.

All states must consider greater use of community supervision for low-risk offenders, as well as repealing harsh drug laws and mandatory sentencing policies, including three-strike laws, which result in unreasonably long prison stays.

Unacceptably high incarceration rates tear at the nation's social fabric and take public money from education, health care, transportation and other vital needs. Nor have they significantly reduced crime. It's time to re-examine the policies that have made us the incarceration nation.

Hat tip: Sentencing Law & Policy blog

New MMPI scale invalid as forensic lie detector, courts rule

Injured plaintiffs falsely branded malingerers?

Psychology's most widely used personality test, the MMPI, jumped into the national spotlight today in a fascinating David-and-Goliath controversy pitting corporate interests such as Halliburton against the proverbial little guy.

At issue is the "Fake Bad Scale" that was incorporated into the Minnesota Multiphasic Personality Inventory last year for use in personal injury litigation. A front-page critique in today's Wall Street Journal includes publication of the items on the contested scale, a test security breach that will no doubt have the publisher seeing red.

Although a majority of forensic neuropsychologists said in a recent survey that they use the scale, critics say it brands too many people - especially women - as liars. Research finding an unacceptably large false-positive rate includes a large-scale study by MMPI expert James Butcher, who found that the scale classified high percentages of bonafide psychiatric inpatients as fakers.

One possible reason for this is that the scale includes many items that people with true pain or trauma-induced disorders might endorse, such as "My sleep is fitful and disturbed" and "I have nightmares every few nights." Yet hearing the term "Fake Bad" will likely make a prejudicial impact on jurors even if they hear from opposing experts who say a plaintiff is not faking.

The controversy came to a head last year in two Florida courtrooms, where judges barred use of the scale after special hearings on its scientific validity. In a case being brought against a petroleum company, a judge ruled that there was "no hard medical science to support the use of this scale to predict truthfulness.” Other recent cases in which the scale has been contested include one against Halliburton brought by a former truck driver in Iraq.

The 43-item scale was developed by psychologist Paul Lees-Haley, who works mainly for defendants in personal injury cases and charges $600 an hour for his depositions and court appearances, according to the Journal article. In 1991, he paid to have an article supportive of the scale published in Psychological Reports, which the WSJ describes as "a small Montana-based medical journal."

The scale was not officially incorporated into the MMPI until last year, after a panel of experts convened by the University of Minnesota Press reported that it was supported by a "preponderance of the current literature." Critics maintain that the review process was biased: At least 10 of the 19 studies considered were done by Lees-Haley or other insurance defense psychologists, while 21 other studies – including Butcher's – were allegedly excluded from consideration.

Later last year, the American Psychological Association's committee on disabilities protested to the publisher that the scale had been added to the MMPI prematurely.

Lees-Haley, meanwhile, defends the scale as empirically validated and says criticism is being orchestrated by plaintiff's attorneys such as Dorothy Clay Sims, who has written guides on how to challenge the Fake Bad scale in court.

Even if the scale was valid before today, questions are certain to arise about the extent to which it will remain valid once litigants start studying for it by using today's publication of all 43 items along with the scoring key.

The lesson for forensic practitioners: Be aware of critical literature and controversy surrounding any test that you use in a forensic context, and be prepared to defend your use of the test in court.

The article, "Malingerer Test Roils Personal-Injury Law; 'Fake Bad Scale' Bars Real Victims, Its Critics Contend," which includes ample details on the controversy, is only available to Wall Street Journal subscribers, but you can try retrieving it with a Google news search using the term "MMPI Fake Bad." The University of Minnesota Press webpage on the contested scale is here, along with a list of research citations.

Here are citations to the major pro and con research articles:

"Meta-analysis of the MMPI-2 Fake Bad Scale: Utility in forensic practice," Nelson, Nathaniel W., Sweet, Jerry J., & Demakis, George J., Clinical Neuropsychologist, Vol 20(1), Feb 2006, pp. 39-58

"The construct validity of the Lees-Haley Fake Bad Scale: Does this measure somatic malingering and feigned emotional distress?: Butcher, James N., Arbisi, Paul A., & Atlis, Mera M., Archives of Clinical Neuropsychology, Vol 18(5), Jul 2003, pp. 473-485.

Postscript: Test distributor Pearson Assessments responded with alacrity - not to the heart of the controversy but to the Journal's reprinting of test items. The company, which makes a mint from selling and scoring the MMPI and other psychological tests,got the WSJ to remove the online link to the test items. In a "news flash," Pearson says it is "evaluating the impact of the article" and asks psychologists to report any other instances of "illegal" reproduction of the scale in publications, websites, chat rooms, or blogs.

NOTE: For more of my posts about the MMPI-2's Fake Bad Scale, search the blog using the term "MMPI" (the search box is in the upper left corner of the page).

New draft of forensic psychology ethics guidelines

At 17 years old, the ethics guidelines for forensic psychologists are ancient considering all of the changes in the field since 1991. A revision to these Specialty Guidelines for Forensic Psychologists has been in the works for several years now. The previous draft by the revisions committee of the American Psychology-Law Society (Division 41 of the American Psychological Association) came out two years ago, in January of 2006. Finally, the long-awaited third official draft has been released and is open for public comments. The latest changes to the guidelines will also be the topic of a presentation at the AL-LS annual convention in Jacksonville later this week. For those of you who are attending the convention (I won’t be there this year), the presentation is on Saturday at 4:45 p.m.

The Specialty Guidelines are "aspirational," meaning they recommend but don't mandate appropriate professional behavior and conduct for forensic psychologists. They are meant to be used in conjunction with applicable laws, rules and regulations, and ethics codes such as that of the American Psychological Association.

Public comments on the latest draft can be emailed to sgfpdraft@yahoo.com or mailed to Randy Otto, Ph.D., 13301 North 30th Street, Tampa, FL 33612. When submitting comments please identify the specific section you are referencing (e.g., 7.01, 8.03.03) and provide recommended alternative language when appropriate.

The third draft is available here. The previous (2006) draft is here; the original guidelines are here.

My favorite judge passes away

In the course of my work as a legal affairs journalist, I got to know many judges. But none came close to matching Alfred Delucchi in compassion, integrity, fairness, intelligence or humor. Delucchi rose from humble roots as the son of an Oakland, California garbage collector, and perhaps it was his working-class roots that made him so common-sensical and down to earth. He has been described as "a judge from the old guard," whose winning personality permeated the courtroom. Delucchi's biggest moment of fame came after his retirement, when he was appointed to preside over the circus-like Scott Peterson trial, but he will be remembered by many people who had the good fortune to encounter him in lesser-known cases as well. As one reporter who met him while covering the Peterson trial put it, "He was one of those people in life that you run into and you just never forget."

The full obituary is here. Here is an older profile of the remarkable jurist, again from the S.F. Chronicle. And here is an interview entitled "Lawyers who lead" from Santa Clara Law.

Video: Never-released Abu Ghraib photos

As an expert witness on behalf of a guard at the infamous Abu Ghraib prison in Iraq, psychologist Philip Zimbardo of Stanford prison experiment fame was privy to many photographs taken by the abusive guards. Today, Wired magazine published a short video by Zimbardo that includes previously unreleased photos. The video is explicit, gruesome and troubling, so "viewer discretion is advised." Wired has an accompanying article with additional resources. Also see Zimbardo's book, The Lucifer Effect (look for my online review on the book's Amazon.com page.)

Justices sound cautionary notes on "expert" witnesses

The scandal involving Canadian pathologist Charles Smith is continuing to send shock waves through forensic circles. This week, leading justices gave some cautionary advice in the ongoing judicial inquiry.

First, judges need to become more scientifically literate, so they can critically analyze expert witness testimony and spot junk science. That was the advice from Justice Marc Rosenberg of Ontario, who runs a program that provides such education to judges.

Second, expert witnesses who stray outside their area of expertise need to be reined in. Justice Patrick Lesage, former chief justice of the Ontario Superior Court, told the tribunal that such "roamers" need to be kept on a short leash.

Dr. Smith, the subject of the inquiry, violated both of these tenets. First, he was not trained as an expert in forensic pathology. Second, he often strayed outside his supposed field of expertise. His testimony was central to the convictions of at least a dozen parents and caregivers in the deaths of children.

Lesage said he hesitates to even use the term "expert" because it conveys too much authority. He prefers to call such witnesses "people who, because of their training and experience, were permitted to give an opinion."

The full article, from the Toronto Star, is here. My previous coverage of the Smith scandal is here, here and here.

Recovered memory therapist placed on probation

Before today's sexual predator hysteria came the satanic ritual abuse scare of the 1980s. Many of the day care providers prosecuted and imprisoned in that era have quietly won their freedom due to flaws in the cases against them. But what about the therapists who helped in their prosecutions?

This week, one of the key therapists involved in the satanic ritual scare agreed to be placed on professional probation for violating Utah codes of professional conduct.

Barbara Snow, a licensed clinical social worker, wrote one of the academic articles credited with fueling satanic hysteria. The article, "Ritualistic child abuse in a neighborhood setting" (Journal of Interpersonal Violence, Vol. 5 No. 4, pp. 474-487), described secret, organized rings of satanists preying upon suburban children - claims that have never been verified with any credible evidence.

The Utah therapist was involved in several of the 1980s prosecutions in Utah. Children she interviewed described satanic rituals, cross-dressing, and the consumption of human excrement. One man she testified against was later granted a new hearing after the Utah Supreme Court questioned Snow's credibility.

The current case involved allegations that Snow planted false memories in two of her relatives, convincing a female relative that she was the victim of satanic abuse and military testing, and convincing a male relative that his father had sexually abused him. When investigators looked into the matter, she allegedly provided them with doctored notes of those therapy sessions.

More information on the current case is available from the Salt Lake Tribune and the Deseret Morning News. Additional background on Snow is here, here, here, and here.

It's fascinating historical reading, but it unfortunately shows that people don't learn from history.

Do sex offenders have right to confidential therapy?

Normally, conversations between an individual and his or her therapist are confidential. But do convicted sex offenders lose that legal right to confidentiality?

That was the issue decided by a California appellate court this week.

Reynaldo Corona was mandated into sex offender treatment after being convicted of molesting his teenage stepdaughters. He complied with required group treatment through the Parole Outpatient Clinic (POC). But in addition, he voluntarily sought his own private therapy, for which he paid out of his own pocket.

When his parole agent found out, Corona was threatened with a return to prison unless he signed a waiver of privilege allowing his private therapist to communicate with parole officials.

On Wednesday, a Second District appellate court upheld the trial court's opinion that the parole requirement is unreasonable. As the court pointed out, such oppressive restrictions would discourage parolees from obtaining treatment that might reduce their risk to society.

Corona's decision to seek private therapy "would seem to be something for which he should be credited, rather than penalized," the court commented. "The People have not identified a nefarious reason for Corona's decision to engage in additional therapy."

The opinion is here. Hat tip to Adam Alban, who has further commentary at his Clinical Lawyer blog.

Mississippi: Forensic "science" train derailing

Last August, I blogged about forensic odontologist Michael West of Mississippi, whose testimony had sent dozens of people to prison, including at least five to death row. West has been the subject of exposes on 60 Minutes and in Newsweek and the National Law Journal. Last week, two of his victims were finally freed after serving a combined total of more than 30 years in prison.

In addition to both being African American, Kennedy Brewer and Levon Brooks had the misfortune to be in the wrong place at the wrong time. Each was dating a woman whose female toddler was kidnapped, raped, murdered, and dumped in the woods. In each case, Dr. West testified at the behest of District Attorney Forrest Allgood that he had found bite marks that other professionals missed, conclusively tying them to the crimes.

In each case, West was wrong. Two weeks ago, police arrested the true culprit, whose DNA matched that found at the crime scenes. Albert Johnson promptly confessed, leading to the release of Brewer and Brooks.

"The bite-marks men: Mississippi’s criminal forensics disaster" is the title of a report in yesterday’s Slate magazine about the cases and their implications:

These may turn out to be the first in a string of exonerations we'll see coming out of Mississippi. For the last 20 years, the state's criminal autopsy system has been in disrepair. Nearly every institution in the state has failed to do anything about it….

According to the National Association of Medical Examiners, a doctor should perform no more than 250 autopsies per year. Dr. [Steven] Hayne has testified that he performs 1,200 to 1,800 autopsies per year....

Hayne isn't board-certified in forensic pathology, though he often testifies that he is. The only accepted certifying organization for forensic pathology is the American Board of Pathology. Hayne took that group's exam in the 1980s and failed it. Hayne's pal Dr. West is even worse.... He once claimed he could definitively trace the bite marks in a half-eaten bologna sandwich left at the crime scene back to the defendant. He has compared his bite-mark virtuosity to Jesus Christ and Itzhak Perlman. And he claims to have invented a revolutionary system of identifying bite marks using yellow goggles and iridescent light that, conveniently, he says can't be photographed or duplicated.

Mississippi's system is set up in a way that increases the pressure on forensics experts to find what prosecutors want them to find. The state is one of several that elect county coroners to oversee death investigations. The office requires no medical training, only a high-school diploma, and it commonly goes to the owner of the local funeral home. If a coroner suspects a death may be due to criminal activity, he'll consult with the district attorney or sheriff, then send the body to a private-practice medical examiner for an autopsy. The problem here is that a medical examiner who returns unsatisfactory results to a prosecutor jeopardizes his chance of future referrals. Critics say Hayne has become the preferred medical examiner for Mississippi's coroners and district attorneys, because they can rely on him to deliver the diagnoses they're looking for.

The article continues here.

Ohio sex offender law not retroactive, justices rule

If there's one legal issue that may trump sex offender hysteria, it's the rights of property owners. So, what happens when those two issues collide head-on, as in the case of retroactive residency restrictions against property-owning sex offenders?

That's what the Ohio Supreme Court tackled today, in the case of Hyle v. Porter.

Appellant Gerry Porter Jr. and his wife bought their home in Cincinnati in 1991. Shortly thereafter, Porter was convicted of two sex offenses (sexual imposition and sexual battery). Some years later, in 2003, the state legislature passed its law forbidding convicted sex offenders from living within 1,000 feet of a school. The city attorney ordered Porter out of his home. A trial court approved the order, and an appellate court agreed.

With one justice dissenting, the state Supreme Court held today that the residency law is not retroactive because its text does not specifically say that it is. The justices thereby sidestepped the more sticky issue of whether such a law, if expressly made retroactive by the legislature, would violate the Ohio Constitution's prohibition against retroactive laws that infringe on an individual's substantive rights, such as property rights.

Commenting on today's decision, the law profs over at Sentencing Law & Policy note that the Court "essentially kicked this hot-potato issue over to the Ohio state legislature. It will be VERY interesting to see how the Ohio legislature responds, especially since the defendant here is asserting property rights that can often change the usual political dynamics that surround crime and punishment debates."

The full opinion is here; a summary is here. The Sex Crimes blog has additional commentary.

"I've always been crazy . . .

. . . but it's kept me from going insane"

Those Waylon Jennings lyrics echoed in my head upon seeing today's article in the New York Times differentiating craziness from legal insanity.

The article, "Actions Considered Insane Often Don't Meet the Standards of New York's Legal System," highlights the case of David Tarloff, a chronic schizophrenic awaiting trial in the slashing death of a Manhattan therapist. But it is relevant across the board to the insanity defense, which is widely misunderstood by the general public and even many in the mental health professions.

The defense, which varies by jurisdiction but generally requires that the defendant did not know the difference between right and wrong, is rarely employed and is even more rarely successful.

As Ronald Kuby, a criminal defense lawyer, put it in the article, "You can be extremely crazy without being legally insane. You can hear voices, you can operate under intermittent delusions, you can see rabbits in the road that aren't there and still be legally sane."

Another public misconception is that successful use of the insanity defense allows people to "get off" for the crime. In reality, most insanity acquittees are sent to locked state hospitals that look very much like prisons. They often spend more time locked up than if they had been convicted of their crime.

The New York Times article is temporarily available here. A previous blog post of mine on high-profile insanity cases is here. Wikipedia has more information on the insanity defense.

More research debunking Internet predator myth

American Psychologist, the flagship journal of the 150,000-strong American Psychological Association, is tackling the hysteria surrounding sexual predation on the Internet.

This week's issue highlights new research showing that the risk to children - especially young children - of surfing online is greatly exaggerated. Those adults who do interact sexually with minors online generally target adolescents who are confused about their sexuality and interested in sex. In general, the adults are frank with the teens about both their own age and their sexual intentions.

In other words, most adult-child sexual encounters initiated online are consensual interactions and are illegal solely due to the minor's age. Youths with histories of sexual abuse, concerns about their sexual orientation, and patterns of risk-taking are especially vulnerable.

The data come from national surveys of children ages 10 to 17 augmented by hundreds of interviews with Internet sex crimes investigators.

The latest findings echo research presented last year by a panel of leading experts to the Advisory Committee to the Congressional Internet Caucus. See my blog post of June 27, 2007; that research is also available online (here), as is a video of the panel's presentation.

"There's been some overreaction to the new technology, especially when it comes to the danger that strangers represent," said lead researcher Janis Wolak, a sociologist at the Crimes against Children Research Center at the University of New Hampshire.

The full article, "Online 'Predators' and Their Victims," is available here. An APA press release summarizing the research is here. More information on the research project is available at the Crimes against Children Research Center website.

Houston's embattled DA finally steps down

Allegations of racism in prosecutions

If Houston was a state, it would rank second only to the rest of Texas in the number of executions carried out in the past three decades. And behind this unprecedented juggernaut stands one man - Harris County District Attorney Chuck Rosenthal.

Rosenthal resigned from office Friday amid a high-profile scandal involving the release of dozens of pornographic, racist and political e-mails on his office computer.

Of potential interest to my readers, the scandal almost coincidentally brought out allegations of racism in the prosecution of crimes: Black potential jurors were allegedly struck because they were perceived as soft on crime; code names for blacks were bandied about in e-mails, and black leaders believed that prosecutors worked to punish blacks more harshly than whites.

The Houston Chronicle has the complete story, along with a timeline of events and links to other coverage. For more on capital punishment, including in Harris County, check out the amazing set of links at the prosecutor’s office of Clark County, Illinois.

Looking everywhere but straight ahead

The Kazmierczak school rampage and toxic culture

Pundits commenting on yesterday's Northern Illinois University shooting are doing the usual – feverishly searching everywhere but at the immediate environment for the causes. Was it a "copycat" crime or was Steven Kazmierczak mentally ill? Next, we'll likely hear about gun control, Hollywood movies, the Internet, and video games. (Perhaps it's the pundits who are the real copycats!)

It's hard to vilify Kazmierczak. He wasn't a neo-Nazi or a Trenchcoat Mafioso. As his photo hints at, he was a thoughtful, studious, respectful, and award-winning young man.

Coincidentally, I just today finishing reading expatriate journalist Mark Ames' masterful analyses of such rampages, "Going Postal." Rather than blaming all of the usual external and individual suspects, Ames points straight at the institutional environments in which these crimes occur. The killings are doomed rebellions by normal people stressed and bullied until they break, he argues.

Yesterday's case is unusual in that we have a more direct document we can examine – a scholarly article co-authored by the killer himself. Kazmierczak was, after all, a would-be scholar with interests in corrections, political violence, and peace and social justice.

The prophetic 2006 article, "Self-Injury in Correctional Settings: 'Pathology' of Prisons or of Prisoners," strikingly parallels Ames' thesis.

"When conditions of existence become overwhelming, people may either acquiesce or resist," wrote Kazmierczak and colleagues. "Rather than see SIB (self-injurious behavior) as only the acting-out of aggressive prisoners or simply as an attention-seeking activity, we should examine the debilitating conditions of prison existence and culture as contributing factors. In this view, SIB becomes symptomatic not only of individual mental health, but of the pathology of prisons as well."

Replace the word "prison" with "school" or "workplace" and, voila, you have the answer.

I recommend Ames' original and provocative analysis of the "toxic culture" that produces these doomed rebellions. My review is on the Amazon page for "Going Postal." See also my related post about the Virginia Tech shooting massacre. Kazmierczak's article was published in the February 2006 issue of Criminology & Public Policy; a subscription is required to view it.

Happy Valentine's Day

It's been a busy week, with little time for blogging. So, without further ado, I present a few highlights from the news media and blogosphere:

Of apes and jurors

You may have heard about this new study; researcher Jennifer Eberhardt and colleagues were shocked to find people subconsciously associated black faces with apes. (It's in the current issue of the Journal of Personality & Social Psychology.) Jury consultant Anne Reed (of the Deliberations blog) has some astute thoughts on how this unconscious bias factors into jury deliberations, and what can be done to combat it. She's also collected some additional resources on the topic; see also my earlier posts and resources on race and juries, here and here.

Trolls evicted

I wrote awhile back about the sex offenders in Florida who had set up an exile community under a freeway overpass because they weren't allowed to live anywhere else. Now, those men are being evicted from their open-air tents. Some men evicted from under another overpass have set up camp in the remote Everglades; maybe the latest evictees will join them.

Religion and child custody

Remember the circumcision battle I blogged about a few months ago, in which one parent characterized the Judaic practice as religious freedom and the other called it sexual abuse? In recent decades, child custody disputes pitting different faiths and religious practices are on the rise due to an increase in interfaith marriages and a broader rise in custody conflicts. Although family court judges try to avoid rulings that favor one faith over another, it doesn't always work. New York Times reporter Neela Banerjee chronicled the complex dilemma yesterday in "Religion Joins Custody Cases, to Judges' Unease."

Bounty hunting: A corrupt American institution

Speaking of religion, have you heard of "Dog the Bounty Hunter"? I happened to catch it on cable TV when I was channel-surfing at a hotel recently. The show glorifies born-again Christian bail bondsman Duane "Dog" Chapman, a foul-mouthed religious convert who brags of capturing 6,000 runaway felons.

But from another perspective, Adam Liptak of the New York Times has written an expose on the bail bonds industry which, as it turns out, is a corrupt and uniquely U.S. institution. "In England, Canada and other countries, agreeing to pay a defendant's bond in exchange for money is a crime akin to witness tampering or bribing a juror - a form of obstruction of justice. Courts in Australia, India and South Africa [have] disciplined lawyers for professional misconduct for setting up commercial bail arrangements," writes Liptak in "American Exception: Illegal Globally, Bail for Profit Remains in U.S."

As Liptak chronicles, bounty hunters have enormous extrajudicial power. In many states, they can legally break into people's homes without warrants, temporarily imprison them, and force them across state lines without an extradition process.

"Most of the legal establishment, including the American Bar Association and the National District Attorneys Association, hates the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system," writes Liptak.

The full story is here, along with a short video.

Yet another call for juvenile justice reform

Last but not least, An Illinois group has called for an end of life-without-parole sentences of juveniles, based on interviews with 100-plus prisoners who received such sentences when they were ages 14 to 17. The oldest of the men is now 47. The report, entitled "Categorically less culpable: Children sentenced to life without possibility of parole in Illinois," is here. A press release is here, and The Northwestern Law School website has more resources.

Competency hearing exposes clinical feud

Competency to stand trial: Flip of the coin?

Whether a defendant is found incompetent to stand trial is based mainly on "luck of the draw," that is, which psychologist or psychiatrist happens to be assigned by the court.

That's the controversial thesis of law professor Michael Perlin, who's written an excellent book on competency that's due out this spring. As evidence, Perlin cites a study in which forensic evaluators split almost evenly in their opinions about a hypothetical vignette. Perlin lambasts the current system as a "fraudulent" one in which the courts abrogate their decision-making responsibilities to "imperial experts" who decide competency based largely on idiosyncratic approaches and moral stances.

While many might argue with this rather extreme position, proponents could point to the unfolding murder trial of Thomas Shane O'Hagan as a perfect example.

O'Hagan allegedly stabbed his girlfriend to death while she was taking a shower and then put her body in a small plastic box.

In the 3 ½ years since then, the Pierce County (Washington) Superior Court has issued nine orders for competency evaluation and treatment. But the experts can't seem to agree on whether he is competent to stand trial.

"First doctors said he was competent to stand trial and could understand what was going on and help his attorneys defend him. Then they said they weren't sure. Then they said he wasn't competent anymore," according to news coverage a year ago.

The saga has grown to farcical proportions, with a dispute between opposing experts spilling into court and forcing the judge to remove herself from the case.

In an unusual twist, two opposing experts, one a psychologist and the other a psychiatrist, both work for the same state hospital that has repeatedly evaluated and treated O'Hagan.

Psychologist Barry Ward, who has evaluated O'Hagan at least three times, testified at a hearing last September that the defendant was not competent to stand trial. Psychiatrist William Ritchie took the opposite position.

Further muddying the issue, the judge invited a third doctor from Western State Hospital who was observing the proceedings, psychiatrist Margaret Dean, into her chambers to view some artwork. Ward, the psychologist who testified that O'Hagan was incompetent, emailed attorneys and told them that Dean was a member of O'Hagan's hospital treatment team, something the judge says she didn't realize when she issued her invitation. When Dean found out about Ward's email, she called the judge to complain.

Thrust into the middle of this feud among clinicians, Superior Court Judge Beverly Grant Ward was forced to remove herself from the case. The state hospital, meanwhile, is reportedly conducting an internal review.

Washington is among a decreasing number of states with a centralized competency evaluation system in which defendants are evaluated while hospitalized in state facilities. O'Hagan's attorneys are now arguing that their client cannot receive an unbiased evaluation at the hospital, and so should be evaluated at a "nonstate-run facility."

Of course, if Professor Perlin's controversial thesis is correct, a change of setting won't make any difference: Luck of the draw will still decide whether O'Hagan is found competent or incompetent to stand trial.

Sources:

Morris, G.H., Haroun, A.M., & Naimark, D. (2004). Health Law in the Criminal Justice System Symposium: Competency To Stand Trial on Trial. Houston Journal of Health Law and Policy, Vol. 4, p. 193

Perlin, M.L. (2004). Health Law in the Criminal Justice System Symposium: "Everything's a Little Upside Down, As a Matter of Fact the Wheels Have Stopped": The Fraudulence of the Incompetency Evaluation Process. Houston Journal of Health Law and Policy, Vol. 4, p. 239

Lynn, Adam, “Feud makes a mess of murder case," News Tribune (Tacoma, Washington), Feb. 10, 2008

Hucks, Karen, “Judge keeps suspect on drugs for disorder; Attorneys argue whether a man charged with killing his girlfriend must continue to take anti-psychotic drugs. A judge says yes,” News Tribune, May 27, 2006

Can insane killer inherit mother's estate?

Under most circumstances, killing your mother is a sure-fire way to lose out on the inheritance. But what if you were legally insane at the time of the killing?

That's the issue in a case that may set legal precedent in Washington.

Joshua Hoge, a 37-year-old man with schizophrenia, has been locked up on the forensic unit at Western State Hospital (where I happened to do my forensic postdoctoral fellowship) since being found not guilty by reason of insanity in the stabbing death of his mother and half-brother in 1999. Hoge was experiencing a so-called Capgras delusion at the time, believing identical-looking impostors had replaced his family members.

We're not talking chump change.

After the death of Hoge's mother, her family won $800,000 because two days before the killings a public health clinic had refused to give Hoge his antipsychotic medication. The family wants the money to go to the deceased woman's third son, who is also mentally ill and in need of lifelong care.

In some U.S. states, the question of whether someone found not guilty by reason of insanity can inherit from the estate of his or her victim has been decided by case law. Not so in Washington.

The legal issue here is whether the killings were "willful" and "unlawful," which would preclude Hoge from getting the money under Washington's "Slayer Statute." Hoge's attorney is arguing that the killings were not "unlawful" because Hoge was found not guilty. In a preliminary ruling, an appellate court held that while Hoge's mental illness absolved him of criminal responsibility, the killing was still unlawful. Whether the killing was "willful" remains to be decided.

The case has been remanded to the trial court in King County for a determination of "the degree to which Hoge's delusion prevented him from forming the intent to kill." A court date has not been set.

The opinion in Estate Of Pamela L. Kissinger v. Joshua Hoge is here. The Seattle Times has news coverage.

Hat tip: Andrew Scarpetta

"Police Interrogation and American Justice"

Richard A. Leo, a law professor at the University of San Francisco and one of the top scholars in his field, has just published what promises to be an excellent analysis of modern police interrogation techniques.

Here’s the book blurb:

"Read him his rights." We all recognize this line from cop dramas. But what happens afterward? In this book, Richard Leo sheds light on a little-known corner of our criminal justice system--the police interrogation.

Incriminating statements are necessary to solve crimes, but suspects almost never have reason to provide them. Therefore, as Leo shows, crime units have developed sophisticated interrogation methods that rely on persuasion, manipulation, and deception to move a subject from denial to admission, serving to shore up the case against him. Ostensibly aimed at uncovering truth, the structure of interrogation requires that officers act as an arm of the prosecution.

Skillful and fair interrogation allows authorities to capture criminals and deter future crime. But Leo draws on extensive research to argue that confessions are inherently suspect and that coercive interrogation has led to false confession and wrongful conviction. He looks at police evidence in the court, the nature and disappearance of the brutal "third degree," the reforms of the mid-twentieth century, and how police can persuade suspects to waive their Miranda rights.

An important study of the criminal justice system, Police Interrogation and American Justice raises unsettling questions. How should police be permitted to interrogate when society needs both crime control and due process? How can order be maintained yet justice served?

See more at the Harvard University Press website, where you can browse the table of contents or bibliography and read the introduction online before deciding whether to buy it.

First "Dr. Phil," now "Dr. Bob"

Psychology credentials at issue in Illinois murder trial

Two decades ago, imprisoned murderer Brian Dugan volunteered to participate in a study of sexual predators being conducted by a psychologist with the state of Illinois. That has come back to haunt him, as government attorneys try to introduce the old audio recordings in an effort to get him executed.

In a bizarre twist, Dugan's attorneys are claiming that the researcher was a "fraud" who was never properly licensed or credentialed despite years of practicing in the state of Illinois.

The allegations against Robert Thorud first came to light in 2004, when the Chicago Daily Herald conducted an investigation into his background.

At the time, "Dr. Bob" - as he was known - was the CEO of a group home for abused and neglected children that was under state investigation over allegedly dangerous and unsanitary conditions. According to an AP story at the time:

[D]ocuments told of slow responses to suicide attempts, physical restraint of children and a report fabricated to cover up one suicide attempt. In one case, the documents said, 12 girls were confined to a single room for 30 days without school because they wouldn't behave. Other reports told of children being restrained against floors and walls by staff and peers and of a broken window that wasn't cleaned, allowing children to sneak pieces of it into their beds. Most of the children who live at The MILL have been abandoned, beaten or neglected, and nearly all suffer from some form of mental illness.

The Daily Herald investigation revealed that Thorud "performed psychological work throughout Illinois government for 25 years, including work with the state police that included courtroom testimony," despite not being licensed as a clinical psychologist in Illinois or any other state.

At the time, Thorud told reporters that he had received a Ph.D. in family therapy and psychology from Columbia Pacific University. Columbia Pacific, labeled by the federal government as a "diploma mill," was a private, unaccredited institution that had been shut down by a California judge for, among other things, issuing diplomas via the mail and Internet without meeting the appropriate requirements, according to the Daily Herald expose.

Despite Thorud's lack of licensure, I found an appellate case in which his juvenile psychological evaluation was used as evidence against a man at a later sexually violent predator commitment proceeding. In that appellate opinion, Illinois v. William J. Stevens, Thorud is referred to by the title of “Doctor.”

All of this is irrelevant to the admissibility of the audiotaped statements, say prosecutors in Dugan's murder trial.

News coverage does not explain how the tapes got into the government's hands in the first place or whether their admission might be precluded by statutes protecting research confidentiality.

Sources:

" 'Dr. Bob' defends himself, credentials," by Dave Orrick, Chicago Daily Herald, August 12, 2004

"Head of youth home replaced," by Dave Orrick, Chicago Daily Herald, September 11, 2004

"Rockford youth center faces uncertain future amid DCFS probe," Associated Press, September 20, 2004

"Dugan defense attacks expert; Psychologist's troubles could defuse evidence," by Christy Gutowski, Daily Herald, February 5, 2008

Hat tip: Ken Pope

Prison rape: Chat with experts this Thursday

Harvard University and the National Institute of Justice are cosponsoring a free "online chat" with experts this Thursday, Feb. 7, about sexual victimization patterns in U.S. prisons and efforts to prevent and eventually eliminate this widespread problem.

A Bureau of Justice Statistics report released two months ago estimated that 60,500 prisoners reported sexual victimization within the past year alone. The research is mandated by the Prison Rape Elimination Act (PREA).

The chat features a panel of experts including criminology professor Barbara Owen, law professor Brenda Smith, and Bureau of Justice statistician Allen Beck.

Although the 2:00-4:00 p.m. (EST) event is free, advance registration is required.

My Dec. 18 "news roundup" has links to the Bureau of Justice Statistics research. Additional resources are here.

Hat tip: CrimePsych blog