What caused middle school tragedy?

14-year-old Brandon McInerney to be arraigned Thursday

The facts are deceptively simple:

• Lawrence "Larry" King was a 15-year-old who loved art, chess, and entomology. Since moving to a home for abused children, he was becoming more open about his sexuality and had taken to sporting high heels and makeup.

• Larry was relentlessly teased at his Southern California middle school. His response was to dish it back at his tormentors, who included among them the popular and hypermasculine Brandon "Bear" McInerney.

• An escalating conflict between the two boys ended on Feb. 12, when Brandon marched into E.O. Green Middle School and shot Larry in the head. Brandon will be arraigned later this week in Ventura County on a charge of murder with a hate crime enhancement.

But beyond these superficial case facts, questions swirl:

• What provoked Brandon to the point that he committed murder? And should he be prosecuted as an adult?

• Does the school bear any responsibility? Should administrators have realized the danger and intervened before lethal violence exploded?

• What can and should be done to improve the safety of gender-nonconforming youth in the schools?

Prosecution as an adult

On the front burner is the question of whether Brandon will be tried as an adult. In California, the minimum age at which a juvenile can be transferred to adult court is 14. Brandon had turned 14 just a few weeks before the offense.

In an ironic twist, a coalition of 27 sexual minority groups has urged the District Attorney not to try Brandon in adult court, where he would face a punishment of 50 years to life in prison. "We call on prosecutors not to compound this tragedy with another wrong,” wrote the coalition. "We support the principles underlying our juvenile justice system that treat children differently than adults and provide greater hope and opportunity for rehabilitation." The letter cites research by the Centers for Disease Control and Prevention finding that children tried as adults are more likely to commit another crime than those tried as juveniles.

The prosecutor's office is likely to ignore the coalition's eloquent plea. After all, Brandon showed premeditation by bringing a gun to school a day after a lunchtime argument with Larry.

School's responsibility debated

In the wake of the tragedy, many fingers are pointing at the school - but from different sides.

On one side is Brandon's public defender, William Quest. He blames the school for being too gay-positive, and letting Larry come to school wearing feminine accessories. Administrators should have intervened when Larry openly flirted with Brandon, he says.

On the other side are lesbian and gay activists, who point out that despite significant progress the schools remain a dangerous place for gender-deviant youth. Four out of five sexual minority youth report being harassed at school, according to a recent national survey.

The oxymoronic "No Child Left Behind" movement, with its myopic focus on standardized testing, has also decimated many anti-bullying programs. "A lot of educators are frustrated because they understand the importance of addressing some of these larger [social] efforts, but when they try to they're told, 'You've just got to get the math scores up,' " said educator Kevin Jennings.

Still, there are dramatic signs of change. Many young people are coming out at earlier ages, are finding acceptance among peers, and are feeling good about themselves. This year, more than 7,500 schools nationwide participated in a student-led Day of Silence dedicated to Larry King.

The annual Day of Silence is sponsored by the Gay Straight Alliance (GSA) movement. School-based GSA clubs are one of the most promising methods of improving school safety, and they are increasingly common at the high school level. Larry's middle school did not have one.

Gay Panic Defense?

The accusations leveled by Brandon's public defender raise the possibility of a Gay Panic Defense, in which the defense might claim that Brandon had no choice but to defend himself and his masculinity from Larry's aggressive sexuality.

In my own research with antigay hate crime perpetrators, I found that many young men believe they have a right to physically assault gay men whom they perceive as flirting with them.

In my research, I conceptualized antigay violence as existing on a continuum. At one end are verbal taunts that are ubiquitous and which, sadly, remain socially acceptable among many adolescents. At the other end are severe acts of violence. These tend to be committed not necessarily by those with the most hostile attitudes toward gay people but, rather, by those with the most severe histories of violence or abuse.

Brandon's case fits this model. Brandon was just one among many of the students at E.O. Green who routinely teased and taunted Larry, according to an account in the Ventura County Star:

"A lot of people picked on him," said Madison Norton, 12. "Some people would walk up to him, and he'd say something back. It would be random, like at lunch - 'What's with the makeup' - weird stuff like that."

Hailey Day, 13, said she regularly heard Brandon calling Larry derogatory names the week before the shooting. She would tell him to stop, and Brandon would walk away.

But Brandon, as the product of a volatile home environment, had the potential for more extreme violence. Court records reveal a childhood dominated by family violence and drug addiction, according to a report in the Ventura County Star newspaper. Indeed, right around the time of his conception his father shot his mother in the elbow. Thus, throughout his life Brandon had seen violence modeled as a method of solving problems.

If students had an open channel of communication to school administrators, and if administrators could effectively respond, this tragedy might have been averted. Just the day before the killing, at a lunchtime confrontation between Brandon and Larry, another boy reportedly shouted at Larry: "You better watch your back."

Did anyone take the threat seriously? Perhaps only Larry.

The day of the shooting, Larry looked upset, friends told the Star. "He came to school looking different. Gone were the boots and makeup. He wore regular tennis shoes and had his hair gelled and carefully combed to the side."

"I said, 'Dude, what's wrong?' " his friend Matthew Hernandez recalled. "He said, 'Nothing.' "

Yesterday, NPR's All Things Considered ran a 5-minute segment on the case, including chilling audio from a 911 call. (Listen here.) More background is online at Wikipedia, the Advocate, and the Los Angeles Times.

Hat tip: Greg Herek

"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)