"Locked in Limbo"

Expose on Minnesota's civil commitment system

Minnesota is the heartland of America, and it could also be considered Ground Zero for the Sexually Violent Predator movement that has swept America in the past two decades. Minnesota brought us the MnSost-R, one of the first of the wave of controversial "actuarial" instruments used to measure sex offender recidivism risk. The state civilly commits a greater proportion of its sex offenders than any other state, and so far it's proven to be a life sentence for all.

This weekend is the start of an in-depth series in the Minneapolis Star-Tribune that explores the the history, the mounting costs, and some of the controversies surrounding the Minnesota Sex Offender Program (MSOP), where 554 men and one woman have been committed. To date, 24 "patients" have died in the program, while not a single person has been successfully treated and released. The series features an online slide show and profiles of several offenders.

Check it out here.

Hat tip: Kirk Witherspoon

Seattle mistrial highlights complexity of insanity law

On the one side, the defense: Naveed Haq was in a manic, psychotic state and was prompted to commit his rampage at the Jewish Federation of Greater Seattle on July 28, 2006 by hearing God tell him he was on a mission.

On the other side, the prosecution: Haq was a frustrated, chronically unemployed, and awkward man whose killing of one woman and wounding of five others was an attempt to commit "suicide by cop."

Faced with these dueling positions, jurors threw up their hands Wednesday after many days of grueling deliberations and declared that they could not decide whether Haq was insane. Haq will be retried.

During the nationally televised trial, James Missett, MD, Ph.D. testified for the defense that Haq thought he was on a mission from God and thought he could bring peace to the Middle East. Haq believed God approved of his mission because God was talking to him during the shooting and he felt like something was controlling his trigger finger, Missett testified. Missett is a prominent forensic psychiatrist from Menlo Park, California, who is affiliated with Stanford University's Center for Psychiatry and the Law.

However, Under the Washington case of State v. Potter (68 Wn. App. 134), just believing that he was acting on a mission from God would not be enough to establish legal insanity; he would still have to show that he was unaware that his act was legally and morally wrong.

Missett testified that Haq was unable to perceive the nature of what he was doing or tell right from was wrong. Under Washington law, Haq was insane if he was "unable to perceive the nature and quality of the act" or "unable to tell right from wrong" due to a mental disease or defect. The burden is on the defense to prove insanity by a preponderance of the evidence.

Countering Missett’s testimony was J. Robert Wheeler, Ph.D., a forensic psychologist in Washington who specializes in sex offender treatment and evaluation. He testified for the prosecution that Haq was depressed, angry, and suicidal - but not psychotic or manic - in the days leading up to the shooting.

He testified that Haq told him, "I was very lonely. My family was always on my case. I had monetary problems. I was enraged all the time. I had no friends. This whole Jewish Federation thing was kind of an escape, you know - it was a suicide attempt.' " On cross-examination, however, Wheeler acknowledged that Haq did tell him, "It was like something had taken hold of me, some other force, on my hand, on my body, on my brain."

As evidence of Haq's capacity to plan and premedite, Wheeler pointed out that Haq purchased three guns and test-fired them before the shooting.

The dueling experts did not differ significantly on Haq's diagnosis: Missett diagnosed him with bipolar disorder, while Wheeler diagnosed schizoaffective disorder, a psychotic disorder similar to schizophrenia but with mood swings.

The jury spent more than seven days struggling over the starkly competing versions of Haq's mental state at the time of the offense before finally announcing that they were hopelessly deadlocked.

"We deliberated with tears, and to the best of our ability," said one juror. "I have great compassion for the victims and their families, as well as everyone involved in the case. ... We were all very, very sad at the end."

The Seattle Times and the Seattle Post-Intelligencer have extensive coverage of the case. In April I also blogged (here) about some of its interesting evidentiary issues.

Case study on malingering diagnosis

I was excited when I picked up my mail today to find an advance copy of the latest issue of the Journal of Forensic Psychology Practice, with a long overdue article by me on malingering. As you can probably guess from the title, "Malingering as a Dichotomous Variable: Case Report on an Insanity Defendant," the article evolved out of a forensic case in which I was retained. I testified as an expert witness on the issue of insanity. The article critiques certain practices at an unnamed but easily identifiable state hospital.

Here is the abstract:

Malingering in forensic contexts has garnered increased attention in recent years. As a result, the past two decades have seen the development of more than a half dozen instruments to assess response styles. Although these instruments are gaining unprecedented popularity among forensic practitioners, there is little research on how closely practitioners adhere to the published guidelines for administration or interpretation. This article provides a case study of the use of one popular instrument, the Structured Inventory of Reported Symptoms, in an insanity case. Misinterpretation of the defendant’s scores contributed to the misclassification of malingering, which was used to bolster the government’s case at trial. This case suggests the need for better training and more caution when using instruments to assess response styles in forensic contexts.

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