No right to competence at SVP trial, court holds

You all know what a "Catch-22" is, right?

In the novel by the same name, that was the military catch that kept any airman from avoiding a combat mission. More broadly, it is a double bind in which a government bureaucracy achieves its goals through circular logic that in reality is both illogical and even immoral at times.

For a perfect, modern-day example, read last week's appellate opinion in the Wisconsin case of Ronald D. Luttrell (available here).

Luttrell is (or at least was) a pretty bad man. Back when he was 29 years old, he raped and killed an 83-year-old woman after breaking into her home. He is now 53 and because his prison term has ended, the state wants to lock him in a hospital so he cannot commit any future crimes.

What the appellate opinion boils down to is this: Luttrell does not have the right to be found competent before being tried as a Sexually Violent Predator. But the opinion is a great example of a Catch-22 because of its circular reasoning, geared not toward justice but toward achieving the state's utilitarian goal of incapacitation.

In the first catch, the court says that Luttrell is not being punished: He is facing civil commitment only to protect the public. Because he is not being punished, criminal protections do not apply. That is despite the fact that SVP "patients" face far more dire consequences than most criminal defendants. Here in California, for example, with one prior "qualifying offense" and an easily demonstrated risk to the public, you can get what amounts to a life sentence at a state hospital.

Second, the court argues, Luttrell must by definition be mentally ill or he could not be civilly committed. That is because, in order to be legal under U.S. Supreme Court holdings, a civil commitment must be based upon a diagnosed "mental abnormality" that makes the person "likely" to commit future sexually violent acts.

This is another great Catch-22. The mental illnesses that most frequently cause incompetence to stand trial are the big ones, like Schizophrenia and Mental Retardation. In SVP cases, people are assigned controversial diagnoses like Pedophilia, "Paraphilia NOS," and Antisocial Personality Disorder (see my previous posts, here and here). These conditions do not scramble the brain such that a person would be legally incompetent.

Competency is not some quirky technicality, by the way. It is a fundamental right in the criminal justice system in most countries. The idea, descended from British common law, is that it is patently unfair to put someone on trial when he is too crazy to defend himself. Not only that, but it makes the government look bad. The requirements for competency are also pretty basic. You need only a rudimentary understanding of your legal situation, and a minimal ability to assist your attorney in preparing a defense.

Contrary to what many people - including some defendants - think, being found incompetent in a criminal case does not necessarily get you off. You go to a state hospital, where you may spend more time incarcerated than if you had pleaded guilty and gone to jail.

However, there are limits. Back in the 1960s, a "feeble-minded" deaf-mute named Theon Jackson was found incompetent and received what amounted to a life sentence for two petty thefts totaling $9. His case triggered reforms that cap how much time a person can be hospitalized for competency restoration treatment. In Wisconsin, for example, a criminal defendant who is not likely to "become competent" within one year must be released from confinement unless he is eligible for the regular kind of civil commitment due to grave disability or dangerousness.

And that is precisely the worry of the Wisconsin court as to Sexually Violent Predators. Although they are dangerous under SVP definitions, most would not meet the criteria for dangerousness under the regular civil commitment laws, which require evidence of a recent act or threat to do serious bodily harm. Luttrell, for example, would not qualify because he committed his crime almost a quarter of a century ago.

But, hey, compared to the innocent children victimized in Operation Wagon Train or the Yearning for Zion raid, it's hard to muster a whole lot of sympathy for a guy who raped and murdered an 83-year-old woman in her own home. Even if it was a long time ago.

Hat tip: Luis Rosell. Photo credit: "Gilbert" (Creative Commons license).

Major ruling on forensic neuropsychology

Flexible wins epic
Battle of the Batteries

The Democrats have Obama versus Clinton. American Idol has the battle of the two Davids. But whoever heard of the battle between the fixed and the flexible batteries?

The New Hampshire Supreme Court, for one. And in that more obscure battle in the field of neuropsychology, the court this week handed a resounding victory to the flexible battery. Although I haven't seen anyone dancing in the streets, it's a victory that forensic psychologists and neuropsychologists should be celebrating.

A bit of background: The "fixed" battery approach involves rigid administration of a fixed set of tests. The most popular such batteries are the Halstead-Reitan and the Luria. The flexible or "Boston Process" approach, in contrast, involves administering a core set of tests, supplemented by extra tests chosen on the basis of specific case factors and hypotheses.

When I was a neuropsychology intern, I was trained in the Boston Process Approach. As it turns out, the overwhelming majority of neuropsychologists in a recent survey - 94% - said they use some type of flexible battery approach. As the New Hampshire Supreme Court pointed out, that makes it the standard of practice in the field.

The case involves the alleged lead poisoning of Shelby Baxter, now 13, when she was a toddler. The civil case against Ms. Baxter's landlord, whom the Baxters claim knew the apartment was contaminated, was dismissed after the trial judge excluded neuropsychological evidence using the Boston Process approach as not scientific. The case will now go forward.

The plaintiffs' neuropsychologist, Barbara Bruno-Golden, Ed.D, had substantial experience with lead-exposed children, and each individual test in her battery was published, tested, and peer reviewed, as befitting reliable science under the legal standard of Daubert and New Hampshire statutory law.

At a 6-day Daubert evidentiary hearing, the defense called controversial neuropsychologist David Faust, Ph.D., who testified that although Dr. Bruno-Golden's approach was generally accepted in clinical practice, it was not so in a forensic setting. The plaintiff's experts, as well as the American Academy of Clinical Neuropsychology in an amicus brief, correctly countered that there is no separate standard for forensic practice.

In its exhaustive and thoroughly reasoned opinion, the Supreme Court soundly rejected Faust's reasoning, issuing a monumental blow to the minority of forensic neuropsychologists who staunchly cling to the fixed battery approach.

"Under the defendants' position, no psychologist who uses a flexible battery would qualify as an expert, even though the flexible battery approach is the prevalent and well-accepted methodology for neuropsychology," the court pointed out. "Therefore, the implication … is that no neuropsychologist, or even psychiatrist or psychologist since, in their view, all combinations of tests need to be validated and reliable, could ever assist a trier of fact in a legal case."

The court held that any weaknesses in Bruno-Golden’s methodology - if indeed such existed - were properly handled through cross-examination and counterbalancing evidence in the adversarial trial process.

The case, Baxter v. Temple, is online here. A news article is here. A blog commentary at Traumatic Brain Injury is here.

Photo credit: 02ma (Creative Commons license)

"Fake Bad Scale": Lawyers advocate exposing in court

When a controversial test is being used against their client, attorneys may weigh the following questions:

• Should I seek an evidentiary hearing (under Frye or Daubert) and try to exclude the test?

• Or, should I let the test come in as evidence, and educate the jury about weaknesses in the underlying science?

This question regularly comes up at Sexually Violent Predator trials, regarding the controversial Static-99 risk assessment tool. Now, it is coming up in civil personal injury trials, regarding the MMPI-2's "Fake Bad Scale" (which I blogged about here back in March).

Increasingly, attorneys are choosing the second option when the science underlying a test is weak. They are openly critiquing the test and its findings, and allowing jurors to form their own conclusions. Yesterday's Lawyers USA features an article on how plaintiffs' attorneys are "turning the tables" on the Fake Bad Scale:

Although plaintiffs' attorneys are unanimous in despising the Fake Bad Scale, there is a mini-debate about whether it is more effective to exclude the test before trial or allow it in and discredit it while cross-examining the defense expert.

"It's a tough call, frankly," said Dorothy Clay Sims, a founding partner of Sims, McCarty, Amat & Stakenborg in Ocala, Fla., who has won three hearings over excluding the test.

"Frye and Daubert hearings are tough, but courts don't seem to like this test, so it's difficult to give up a hearing that you have a good chance of winning," she said. "On the other hand, once the Fake Bad Scale is demystified for the jury, and you pierce through it, they look at the defense doctor and say 'Oh, come on.' "

The article features the case of Sarah Jenkins, a medical receptionist who suffered tissue injuries and cognitive problems after her pick-up truck was hit by a delivery truck. She scored in the faking range on the Fake Bad Scale.

Rather than fighting to exclude the test, experienced trial attorney Dean Heiling made it a centerpiece. He cross-examined the defense expert at length about the test, and through his own expert exposed the controversy in the field about the test's validity.

Most interestingly, he put his client on the stand in rebuttal, and had her go through each test item and her answer with the jury.

Jurors deliberated only three hours before awarding a verdict of $225,749.

The lesson to forensic psychologists: Know your tests, and know their weaknesses.

The full story, by Sylvia Hsieh, is here, although it is only available to subscribers. For more on the controversy over the scale, see my previous post here.

Hat tip: Ken Pope

Scarface idolatry: Evidence of violence?

I was driving past an abandoned gas station where vendors usually sell fresh strawberries and oranges from the back of a pickup truck. This day, the vendors were selling Scarface posters instead. Framed ones, all different poses of the cultural icon.

The sight harkened me back to a young drug trafficker I evaluated. Although he had no known history of violence, federal agents found a Scarface poster along with a loaded handgun in his home. The poster, argued federal prosecutors, showed a propensity for violence.

I don't know how many young drug traffickers hang Scarface posters on their walls, but after last month's appellate decision in U.S. v. Marin I can say that it is not a good idea. Antonio Marin of Massachusetts was caught under very similar circumstances to the young man I evaluated. Charged with possessing a firearm in furtherance of drug trafficking, he said no, he simply had a "casual," innocent interest in guns. At trial, the government rebutted that defense by presenting a Scarface shadow box found in Marin's apartment. The display case contained (among other items) a picture of Al Pacino aiming a machine gun, a replica gun, and a cigar.

An appellate court upheld the use of the Scarface memorabilia against Marin, saying its probative value outweighed its potentially prejudicial impact.

That's where expert testimony might have proven helpful. As I wrote in my report in the similar case, research has established certain factors as correlated with violence. Scarface idolatry, no matter its intuitive appeal, is not one of them. If it was, the crime rate would be much higher: Scarface is one of the most popular DVD's on Amazon, and the Internet has dozens of Scarface-related sites and hundreds of spin-off products, including music tapes, posters, and T-shirts.

Researchers have studied the effects of violent media on aggression for decades, generating hundreds of studies on this topic. Although the debate continues to rage, there is general consensus that no direct link exists between violent cinematic imagery and real-life violence. Watching large amounts of violent movies or TV shows might encourage violence in those already so inclined, but fantasy violence is neither necessary nor sufficient to trigger real-life violence.

Interestingly, the potentially unfair prejudice of Scarface memorabilia was acknowledged in a second case last month, this time when the defense tried to introduce it at a trial.

High school students Jean Pierre Orlewicz and Alexander Letkemann of Michigan were on trial for a gruesome beheading-murder of a 26-year-old man named Daniel Sorensen. To bolster their claim of self defense, the teenagers sought to introduce images from Sorensen's MySpace page of - you guessed it - Scarface.

No can do, the judge ruled. The photos "would tend to move the jury to decide the matter on an improper basis such as inflamed passions and emotions."

Sorensen is not the only murder victim whose MySpace site was scoured for the low-down on his personality and proclivities. Indeed, that is one of the first places police (as well as people like me) will look for uncensored (if sometimes exaggerated) self portrayals when someone gets caught up in a crime. That potential reality is far from the minds of young people as they immerse themselves in the semi-public world of social networking.


Take the case of University of California Berkeley fraternity member Christopher Wootton. He was killed this month in a drunken, late-night brawl. His loyal friends and family insist he was a peaceable guy who must have been trying to defuse the combatants. On his MySpace site just a week earlier, however, he had bragged about grinding another man's face into the pavement during an unrelated drunken fight.

Will this admission be allowed in court, to bolster the 20-year-old murder defendant's contention that he acted in self defense? Only time will tell.

One thing is certain: If either of these young men had a Scarface poster on their wall, we will hear about it on the local news. And then those street-corner vendors might have to go back to selling fruit. So far, no one has tried to link strawberries to violence.

Hat tip: Colin Miller at EvidenceProf

Who will write the next DSM?

Would you believe: Pfizer, Eli Lilly, Wyeth, Merck, AstraZeneca and Bristol-Myers Squibb?

Or, at least, those are some of the BigPharma corporations with whom members of the task force charged with creating the 5th Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders have contracts.

It shouldn't come as a surprise. But it ought to alarm the public, given BigPharma's enormous and growing influence in so many spheres of public life all around the world.

More than half of the experts involved in the previous edition of the psychiatric bible also had monetary relationships with drug makers, according to a Tufts University study. The percentage was up to 100 percent for experts working on certain severe mental illnesses, such as schizophrenia. (The New York Times story on that 2006 research is here.)

A just-published book, The Medicalization of Society: On the Transformation of Human Conditions into Treatable Disorders, has more on this construction of difference as illness. Trends that author Peter Conrad notes include the medicalization of "male" problems such as baldness and sexual impotence, and the pathologizing of children's behavior and appearance (short kids now have idiopathic short stature which requires synthetic human growth hormone).

Another new book, The Rise of Viagra, further documents the pathologizing of sexual variation, including an effort by BigPharma's spin doctors to create public hysteria and a new market for medicines to treat Female Sexual Dysfunction."

Meanwhile, as I've blogged about elsewhere, the sex offender industry is lobbying for new diagnoses to medicalize illegal sexual conduct, including "hebephilia" for men who are sexually attracted to teens, and "Paraphilia Not Otherwise Specified-Nonconsent" for men who rape.

Look for all these, and more, as possible candidates for the new and expanded DSM-V. Each edition of the DSM contains more diagnoses than its predecessor, and each diagnosis is supposedly treatable with meds. DSM-I (1952) listed 106 mental disorders, DSM-II (1968) had 185, DSM-III (1980) had 265, and DSM-IV (1994) has 357. That's an average of about 84 new diagnoses per edition, so the DSM-V should have 440 or more diagnoses.

Hopefully, this week's blog post by New York Times health writer Tara Parker-Pope about the conflict of interest signals that the public will be kept informed.

The consumer watchdog group Integrity in Science, a project of the Center for Science in the Public Interest, is also following the scent of money. See my Amazon book list, Critical Perspectives on Psychiatry, for other books on the DSM and the construction of illness.

Forensic psychology angles in the Josef Fritzl case

The whole world seems glued this week to the bizarre case of Josef Fritzl. As you know, Fritzl is the Austrian man who kept his daughter and three of their children together locked in an elaborate basement dungeon for 24 years. As the dust settles, I'm trying to set aside my moral and emotional reactions to parse out the intriguing forensic psychology angles. Among them:

Insanity defense

At the top of the list is the defense's announcement that it will pursue an insanity defense.

"I believe that the trigger was a mental disorder, because I can't imagine that someone has sex with his own daughter without having a mental disorder," said his lawyer, prominent Viennese attorney Rudolf Mayer.

If the attorney is thinking about the archaic concept of moral insanity, he has a point. From a lay perspective, Fritzl has got to be deranged. How else could he engage in such an elaborate, long-running scheme against his own flesh and blood? Indeed, "mentally deranged" was how he was described by a barman at a brothel he frequented, based on his sadistic and deviant sexual behavior with the prostitutes there. (Prostitution is legal in Austria.)

Pundits don't seem to know much about Austria's legal standard of insanity, and I couldn't find it online. But in most countries, including in Western Europe, the insanity defense is rarely invoked and is even more rarely successful.

As one criminal defense lawyer recently put it, "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."

I could be wrong, but it's hard for me to see how a retired engineer and real estate developer who could maintain such an elaborate subterfuge for a quarter of a century would meet the legal standard of insanity in terms of not knowing the difference between right and wrong.

However, even were Fritzl to pursue the defense, it would not mean that he would "get off," a common misperception regarding the insanity plea. Rather, he would likely be locked in a psychiatric hospital for the remainder of his natural life.

You can listen to a half-hour conversation among experts on NPR's Talk of the Nation. Featured are law professors Christopher Slobogin and Alan Dershowitz and Slate magazine legal correspondent Dahlia Lithwick. (Click on the NPR logo to the right.)

It will be interesting as case facts emerge to learn what complex algorithm may have produced Fritzl's twisted psyche. According to a sister-in-law, he grew up without a father, and his mother beat him on a near-daily basis. Certainly, that is one type of home environment that can produce a sexual sadist.

Competency to stand trial

Much public confusion exists about the distinction between legal insanity and incompetence to stand trial, and this confusion may be occurring in the Fritzl case as well.

Fritzl's attorney is quoted as saying that his client is "mentally incompetent" and that he will challenge any other decision reached by the psychiatrist who has been appointed by the court. Austrian law allows him to obtain an expert opinion from a psychiatrist of his choice.

While the legal construct of insanity pertains to an accused person's past state of mind, including whether he knew the difference between right and wrong at the time of his crime, competency pertains to the accused's present ability to understand the legal proceedings and assist one's attorney at trial.

As such, incompetency is not a permanent barrier to prosecution. If a person is found incompetent to stand trial, he is treated until he becomes competent, at which time he stands trial. (In the NPR program I link to, above, Dershowitz claims competency is often a permanent barrier to prosecution, but I believe he is wrong about that except in unusual cases in which a defendant cannot be restored to competency due to such things as severe retardation or dementia.)

Sex offending

Austria, like the rest of Western Europe, has not jumped on the imprisonment bandwagon in recent years. Its incarceration rate is 108 per 100,000, more than seven times lower than the United States'. Criminal code reforms in 1974 emphasized the importance of diversion as an alternative to incarceration. And Austrians are so opposed to capital punishment that they stripped California Gov. Arnold Schwarzenegger's name from a soccer stadium in his hometown because he refused to pardon a condemned man.

But as we here in the United States certainly know, extreme cases fuel extreme laws, and the heinousness of Fritzl's deeds may fuel a drive for harsher punishment in Austria, especially of sex offenders.

Indeed, Austria's justice minister is already vowing to spearhead a sweeping review of all sentencing laws and to propose legislation doubling prison sentences for "especially dangerous" predators.

Fueling outrage around the world is the fact that Fritzl had a prior sex offense conviction. Way back in 1967, when he was in his early 30s, he served time for rape. He also had a second conviction for attempted rape and an arrest for indecent exposure, according to reports.

Prosecutors are still deciding how to charge Fritzl so that he faces the maximum possible punishment. The maximum sentence for rape is 15 years, and unlike in the United States time is not added consecutively for multiple charges. He could get a few additional years if convicted of "murder through failure to act" for the death of an infant whom he admits incinerating. But since he is 73 years old, the difference in his sentence is probably moot except on a symbolic level.

Trauma psychology

Perhaps most interesting, and most unsettling, is the psychological effects of their ordeal on Fritzl's victims. These include Elizabeth, the daughter imprisoned for a quarter of a century, the children, and even Fritzl's wife Rosemarie, who claims to have had no inkling of her husband's deeds.

Elisabeth was initially kept tethered on a cable that allowed only limited movement. For about nine years, she and her older two children, 19-year-old Kerstin and 18-year-old Stefan, were kept in a tiny room together, meaning the children would have witnessed their grandfather’s sexual abuse of their mother.

Nineteen-year-old Kerstin remains quite physically ill, so we do not know much about her mental state. Stefan, however, shows signs of severely impoverished physical and psychological development, including trouble talking and moving around in the open after spending his entire life in a small, windowless basement. Younger son Felix, 5, probably has the best chance of recovery. The children reportedly communicate through a combination of speech and animal sounds, including growling and cooing, and become exhausted with the effort of trying to make themselves intelligible to outsiders.

As child psychologist Bruce Perry explains in his new book, The Boy Who Was Raised as a Dog, trauma and neglect at any age can cause gaps in neurological development that are difficult to reverse. Dr. Perry’s treatment is "neurosequential," meaning he sequentially targets brain regions left undeveloped by trauma. When children's brains are affected in infancy, for example, therapy may start with healing touch or rhythm before moving on to higher brain functions.

Elizabeth's psychological state is difficult to even fathom. Her father reportedly began raping her when she was 11 and continued to do so for a number of years. She bore seven of his children, one of whom died and three of whom were taken away from her to live upstairs. Imprisoned in the tiny cellar from the age of 18, she reportedly looks far older than 42.

"Why didn’t she try to escape?" some people have asked. We, of course, don't know that she did not try. But if she didn't, based on the limited available facts it seems reasonable to guess that it was due to a combination of fear, learned helplessness, and Fritzl’s diabolical control and terrorization. The initial door to the prison cell was a half-ton of reinforced concrete on steel rails. Fritzl apparently convinced Elisabeth and the children that the concrete door was wired to explode, and that poisonous gas canisters would explode if they tried to escape.

One can only hope that with high-quality treatment and support the family will have some chance of recovery. And that can only begin to happen after the legal case is resolved.

The Scotsman of May 9 has details of Fritzl's in-depth interview on his motives. Wikipedia has additional information and links to background sources.