In the news by Karen Franklin PhD

Civil capacity assessment comes of age

2012-05-20T07:00:00.059-07:00

What do these three situations have in common?

A young adult with chronic schizophrenia refuses medication because she believes she is being poisoned

A middle-aged adult struggles to pay his bills after a traumatic brain injury from a motorcycle accident

An older adult with dementia revises a will to favor one stepchild over another

All are situations in which a forensic practitioner may be called upon to render an opinion on the individual's capacity, whether to make medical decisions, handle finances, or execute a will. As the population ages and family structures become increasingly complex, the demand for such civil capacity assessments is growing exponentially.

So it is only fitting that the inaugural text in the National Academy of Neuropsychology’s new series on evidence-based practice focuses on civil capacities. The book brings together theoretical developments, research findings and practice recommendations in this complex and expanding area.

Volume editor George Demakis, a psychology professor at the University of North Carolina with considerable clinical experience conducting civil capacity evaluations, has brought together an impressive array of experts. Together, they discuss the research and practice in a range of civil capacities, including financial, healthcare decision-making, testamentary (executing a will), driving, personal care and guardianship.

The field's evolution is clearly visible in this book's chapters. Only 26 years ago, Tom Grisso issued his paradigm-shifting call for the assessment of "functional capacities." Here, rather than focusing on diagnostic labels or one-size-fits-all checklists of ability, chapter authors urge practitioners to carefully explore the individual's real-life functioning, including through collateral reports and even direct evidence of performance (for example, by observing a subject's driving).

A central goal of the book is to provide practical guidance. Each chapter contains an illustrative case example and discusses the range of capacity instruments available in that particular niche. Later chapters focus on the nuts and bolts of data collection, report writing, and testifying. There's even a chapter from the perspective of "the legal consumer," in which two North Carolina court officers tell us what they would like to see in a civil capacity assessment report. Although it's rather elementary stuff for the seasoned forensic practitioner, the chapter makes for a useful teaching tool for students and other novitiates.

In a glowing review for PsyCritiques, Jennifer Moye calls the text "a must read" that is "certain to advance the field." Her one substantive critique is that it gave short shrift to how values and individual differences (including multicultural and educational influences) play into expert judgments of capacity. This is an important issue, considering the liberties that can be lost when people are declared incompetent to make their own medical decisions or to live independently in the community.

For a more thorough discussion of the issue of social status and capacity assessment, from the perspective of medical treatment, I recommend an essay by Susan Stefan in a special 1996 issue of Psychology, Public Policy and Law on the MacArthur Treatment Competence Research.

I was also a bit disappointed to see that last year's book by colleagues Adam Alban and Eric Mart on testamentary capacity didn't get even a nod. The book, The Practical Assessment of Testamentary Capacity and Undue Influence in the Elderly, is an excellent practitioner guide, which even includes a CD-ROM of assessment tools in this area.

These minor quibbles aside, Civil Capacities is a major advance that is sure to become an essential text for those working in this area, including neuropsychologists, forensic psychologists, attorneys and judges.

My Amazon review of Civil Capacities in Clinical Neuropsychology: Research Findings and Practical Applications is HERE. If you find it useful, please click on "YES," this review was helpful.

Jail confidentiality, Part II: Open season on insanity consultants

2012-05-16T14:15:00.000-07:00

Do insanity consultations fall under the attorney-client privilege?
Not in DeKalb County, Georgia

In civil court, expert consultants may be kept secret under attorney-client confidentiality rules. Even with testifying experts, an amendment to the Federal Rules of Evidence allows civil attorneys to avoid handing over the experts' reports until they are in their final form.

Is the situation similar in criminal court? Criminal attorneys often assert that the work product of an expert who is retained only as a consultant -- not as an expert witness -- can be kept confidential under the attorney-client privilege doctrine. But consider this scenario:

An attorney wants to know whether insanity might be a viable defense in a murder case. He decides to retain a psychologist as a consultant. The psychologist agrees to meet with the defendant and give the attorney an initial assessment.

Being an ethical practitioner, the psychologist obtains informed consent from the defendant. He explains that since he is just a consultant and won’t be testifying as an expert in the case, the information that he collects will only be shared with the attorney.

But he is wrong. The next thing he knows, he has been slapped with a subpoena ordering him to bring his notes and test data to court and be prepared to be questioned by the district attorney about his findings. If he refused to cooperate, the prosecutor threatens to search his office and seize the records; a search warrant is already in hand.

Peter Thomas. Photo credit: Chris
North, Reporter Newspapers

This was the rude introduction to forensic psychology that greeted Peter Thomas of Georgia, a novice to criminal work and court proceedings. He was yanked into the middle of the headline-grabbing case of Hemy Neuman, a high-level General Electric manager who had ambushed and shot to death a subordinate's husband, entrepreneur Russell "Rusty" Sneiderman, outside a preschool in a wealthy suburb of Atlanta, Georgia.

The prosecutor in the Neuman case learned of Thomas's involvement through an old trick -- underhanded but effective -- of monitoring the jail's visitor logs.

Neuman's attorneys vigorously objected to the subpoena and the legality of the pretrial discovery hearing. Allowing prosecutors to interview Thomas would have a "chilling effect" on defense attorneys' ability to use experts, lest they do their clients "more harm than good," attorney Robert Rubin argued to the court.

"Mr. Neuman was told, at the beginning of his meeting with Peter Thomas, that his disclosures during the course of that interview would be disclosed only to his legal team," Rubin and co-counsel Douglas Peters wrote in a legal motion objecting to the disclosure. "Mr. Neuman was NOT given the standard warnings usually given during a court ordered evaluation that by cooperating in the evaluation he was waiving his Fifth Amendment privilege. Mr. Neuman did not knowingly waive any privilege, including Fifth Amendment or attorney-client."

But DeKalb Superior Court Judge Gregory Adams was unmoved. He ordered Thomas and, later, a second psychologist, to hand over their evaluation notes forthwith. He said he would first view the materials to protect any information that might fall under the protection of the attorney-client privilege.

Case law murky

The U.S. Supreme Court has never clarified whether the prosecution can discover and use evidence generated by non-witness defense psychiatric experts when criminal defendants raise the insanity defense, leaving lower courts divided on the issue, according to an overview in the Fordham Law Review.

The Third Circuit is an example of an appellate court that has ruled that attorney-client privilege applies in this situation. In its 1975 ruling in U.S. v. Alvarez, it held that "effective assistance of counsel with respect to the preparation of an insanity defense demands recognition that a defendant be as free to communicate with a psychiatric expert as with the attorney he is assisting." In that case, a psychiatric consultant rendered an unfavorable opinion regarding the viability of an insanity defense for a defendant facing trial for kidnapping. The defense went ahead with an insanity defense anyway, without calling the expert to testify. Knowing of the initial expert's opinion, the government subpoenaed him and, over defense objection, the trial court compelled him to testify. The Third Circuit overturned the conviction.

Other courts, however, "have held that merely by asserting the insanity defense, criminal defendants waive all claims of privilege with respect to any prior psychiatric evaluations," reports Elizabeth Maringer in the law review. A prime example was the 1976 case of Edney v. Smith, involving a man facing trial for kidnapping and murdering his ex-girlfriend's 8-year-old daughter. Edney pleaded insanity and called a psychiatrist who testified in support of this plea. The court then allowed the prosecution to call, in rebuttal, the original psychiatrist who had examined Edney for trial preparation purposes and who did not believe that Edney was mentally ill. The New York Court of Appeals upheld Edney’s conviction, ruling that pursuing an insanity defense automatically waives the attorney-client privilege.

The threat of prosecutorial discovery puts defense attorneys in a Catch-22 situation as they weigh options in cases in which mental illness is a potential issue. On the one hand, as Maringer notes, counsel “risk creating witnesses for the prosecution” when they investigate a mental health defense, especially if they use court-appointed experts. On the other hand, they risk violating their client's rights if they do not thoroughly investigate this line of defense.

"The obvious chilling effect upon defense attorneys' willingness to investigate and pursue the insanity defense for their clients conflicts with the policies underlying the Sixth Amendment," Maringer states. "In addition, risk of disclosure diminishes defendants' willingness to cooperate with counsel and psychiatric experts."

'Celebrity angels and demons made me do it'

Hemy Neuman

Neuman's insanity defense was ridiculed in the press. The love-struck defendant claimed that he had heard the voice of a demon who sounded like Barry White and seen an angel who looked like Olivia Newton-John, who ordered him to kill the husband of his love interest.

The defense called at least three mental health experts. Psychologist Adriana Flores testified that in her expert opinion Neuman was suffering from erotomanic delusions and was insane at the time of the killing. Neuman told her he had been visited by a "she-demon" who told him the Sneidermans' children were his.

"He believed he was the father of the children, they were his children and were in danger," Flores testified. "It was his duty to rescue them, to protect them by killing Rusty [Sneiderman], then he could be with his children.

Another defense expert, psychiatrist Julie Rand Dorney, testified that Neuman showed signs of "paranoia, depression, social isolation, confusion and magical thinking, which could mean psychosis."

The prosecution, meanwhile, painted Neuman as a calculating killer who planned Sneiderman's shooting for months, going to gun shows, taking a gun safety course, going to target practice, renting a car for the shooting and wearing a disguise, according to ABC News coverage.

Psychiatrist Pamela Crawford, called by the government, said she believed Neuman was faking his symptoms. "His discussion of [the demons] was inconsistent," she testified. "At one point he says, 'I know they are not real,' then later says, 'I just want the demons to go away.' He's not even consistent in the same interview."

"The defendant is serving up an insanity sandwich and he's been serving it up since 2010 and he wants you to eat it," District Attorney Robert James told the jury.

Not too surprisingly, the jury rejected Neuman's insanity bid. Neuman was found guilty but mentally ill and sentenced to life in prison without parole.

Appeal may clarify law - at least in Georgia

The judge's decision to turn over Thomas's assessment data to the prosecution will likely figure prominently in Neuman's appeal.

Neuman’s attorney, Robert Rubin, said the prosecution's pretrial subpoena ploy forced the defense to change strategies, and to call Thomas as a witness in order to prevent him from becoming a prosecution witness. Thomas, who had never before testified in court, conceded under cross-examination that he did not test for malingering, and that Neuman may have been faking insanity.

The case should serve as a cautionary one for pretrial consultants. Unless and until this murky area of the law gets cleared up, it is prudent when conducting an insanity evaluation -- even if you are just a consultant and not expected to testify -- to let the defendant know that the information you are collecting may ultimately be discoverable.

After all, you never know who is looking over your shoulder when you sign your name on the jail log. It could be a prosecutor with a subpoena in one hand and a search warrant in the other.

The law review article, available online, is: "Witness for the prosecution: Prosecutorial discovery of information generated by non- testifying defense psychiatric experts" by Elizabeth F. Maringer, Fordham Law Review 62 (3), 1993.

Confidentiality and jail forensic evaluations (Part I of II)

2012-05-13T21:33:00.001-07:00

Prosecutor secretly records forensic psychology evaluation


Alameda County Courthouse, Oakland

The other day, I was evaluating an inmate at the county jail, when we both heard a series of faint clicking sounds. He immediately jumped to the conclusion that "they" were eavesdropping on us.

Nonsense, I thought.They were probably just opening the door of an adjacent visiting room.

But in the nearby county of Alameda (Oakland, California), the legal community is abuzz over an incident in which jail deputies actually did eavesdrop on at least one confidential interview between a forensic psychologist and a criminal defendant.

What's most astonishing is that the prosecutor who requested the surveillance, an experienced trial attorney, did not seem to realize she was doing anything wrong. Several days after ordering the tape-recording, Deputy District Attorney Danielle London presented it to the defendant's attorney, apparently planning to use it as leverage in the case.

The expert who was illegally recorded was conducting an evaluation aimed at determining whether "intimate partner syndrome" (synonymous with battered women’s syndrome) was relevant to explaining why defendant Marissa Manning stabbed her husband to death during a fight.

Santa Rita Jail deputies routinely eavesdrop on conversations between inmates and their friends and families, and audiotapes of such conversations can be used as evidence against defendants. But attorney-client conversations are supposed to be off limits. The district attorney's nonchalance about such a basic violation of attorney-client privilege has observers wondering whether this is a one-off situation or part of a larger pattern.

"This incident has placed the Public Defender's Office on red alert," Diane Bellas, the county's chief public defender, told a newspaper reporter. "It is a felony to record the conversation between an inmate and her attorney or others who are presumed to maintain confidentiality on the inmate's behalf.”

"A prosecutor's intrusion into a defense preparation in this way severely undermines the right to counsel and the ability of a defendant to investigate a case" agreed Charles Weisselberg, a professor of law at the nearby Boalt Law School of the University of California in Berkeley. "It's pretty egregious and striking."

London has been suspended pending an internal investigation.

Coming up in Part II: Confidentiality and jail sign-in logs

Research: Romney's anti-gay assault fits typical pattern

2012-05-11T10:18:00.000-07:00

Romney then

Outed for physical and verbal abuse of gay classmates during high school, U.S. presidential candidate Mitt Romney is trivializing the incidents as "pranks" and "dumb things," and claiming not to know the boy he assaulted was gay.

To me, his response came as no surprise. This is precisely what most gay-bashers think and say, according to my groundbreaking research on the motivations of perpetrators.

In the first empirical research into prevalence rates of and motivations for antigay harassment and violence by noncriminal young adults, I found antigay behaviors like Romney's to be alarmingly commonplace. One in 10 young adults in the politically liberal San Francisco Bay Area admitted to physical violence or threats against presumed homosexuals, and another 24 percent acknowledged name-calling. The percentages were even higher among young men. The frequency of self-acknowledged antigay behaviors among a general population sample was consistent with victim studies in which large proportions of lesbians and gay men report sexuality-related victimization.

Like Mitt Romney, most gay-bashers with whom I conducted followup interviews insisted that they were not motivated by hatred of homosexuals. This despite the fact that many of their assaults fell within legal definitions of a hate crime. Many, like Romney, were instead acting as self-appointed enforcers of gender norms for male and female behavior.

Washington Post reporter Jason Horowitz was able to track down five former classmates of Romney’s who gave similar accounts of how Romney led a "vicious" assault against a closeted gay classmate at his prestigious boarding school in Michigan. The victim, John Lauber, was "perpetually teased for his nonconformity and presumed homosexuality." Romney reportedly became incensed about Lauber’s bleached-blond hair that draped over one eye:

"He can’t look like that. That’s wrong. Just look at him!" an incensed Romney told Matthew Friedemann, his close friend in the Stevens Hall dorm, according to Friedemann's recollection. Mitt, the teenage son of Michigan Gov. George Romney, kept complaining about Lauber's look, Friedemann recalled.

A few days later, Friedemann entered Stevens Hall off the school's collegiate quad to find Romney marching out of his own room ahead of a prep school posse shouting about their plan to cut Lauber's hair. Friedemann followed them to a nearby room where they came upon Lauber, tackled him and pinned him to the ground. As Lauber, his eyes filling with tears, screamed for help, Romney repeatedly clipped his hair with a pair of scissors.

"It happened very quickly, and to this day it troubles me," said [Thomas] Buford, the school's wrestling champion, who said he joined Romney in restraining Lauber. Buford subsequently apologized to Lauber, who was "terrified," he said. (Buford later became a prosecutor. )

Soon after the incident, Lauber disappeared, expelled for smoking a cigarette. He died of liver cancer in 2004.

In defending himself, Romney told Fox News that he "had no idea what that individual's sexual orientation might be."

But that misses the point.

Romney now

In my in-depth interviews with antigay assailants, all insisted that their assaults were not driven by animus toward homosexuals. Rather than punishment of homosexuality per se, their assaults on presumed homosexuals were aimed at punishing those who violated mandatory sex role norms. Boys who do not conform to expected gender norms are labeled very early on as "sissies" or "fags" and subjected to merciless bullying. This peer policing is a very effective way of enforcing hierarchical gender relations.

By wearing his hair in a feminine manner, Lauber had violated the antifemininity norm that is part of the bedrock of traditional masculinity, which apparently dominated at the elite Cranbrook School.

Romney's verbal denigration of another former classmate, also a closeted homosexual, fits this same pattern. When Gary Hummel tried to speak up in English class, Romney shouted “atta girl!” at him, Hummel told the Post.

So, Romney's assaultive and bullying conduct was not so much to punish Lauber and Hummel for being gay as for being different, for having the audacity not to conform to his chest-thumping notions of manliness. This contempt for insufficiently masculine men is a core feature of our culture, helping to explain Romney's self-righteousness and his facile dismissal of his harmful conduct as innocent hijinks.

Hebephilia update: DSM-5 workgroup stubbornly clinging to pet diagnosis

2012-05-04T08:02:00.002-07:00

Salvador Dali*: The Average Bureaucrat

A few weeks ago, I reported on an open letter to the American Psychiatric Association, calling for it to reject three controversial expansions of sexual paraphilia diagnoses that are being promoted by government evaluators in civil commitment cases.

A lot has happened since then. The only one of the three controversial diagnoses still in the running for official status has been altered for the umpteenth time. An esteemed journal is issuing a scathing critique. And the open letter is generating buzz in the blogosphere.

The open letter has garnered more than 100 signatures, many from prominent forensic psychologists and psychiatrists in the U.S. and internationally. If you intend to sign on but haven’t yet, act now because I understand it will be submitted very soon. (Click HERE to review the text; click HERE to email your name and professional title to co-author Richard Wollert.)

Hebephilia gets yet another makeover

This week, the Sexual Disorders Workgroup for the upcoming fifth edition of the APA's diagnostic manual toned down its proposal to turn sexual attraction to young teens into a mental disorder. As psychiatrist Allen Frances explains at his DSM5 in Distress blog, hebephilia is still there -- you just have to read the small print to see it:

Dali: Enchanted Beach with Three Fluid Graces
Confronted by universal opposition from the rest of the field, the DSM 5 group has been forced progressively to whittle down their pet, but they so far have refused to just drop it altogether. 'Hebephilia' first lost its free-standing independence and was cloaked as Pedohebephilia. When this didn't fly, the term was dropped altogether in the title but the concept was slipped into the definition of Pedophilia -- which was expanded out of recognition by having a victim age cut-off of 14 years. No one accepted this outlandish suggestion and now finally the work group comes back with ‘early pubescent children' and tries to keep 'hebephilia' as a term in the subtype. The instability of the criteria sets associated with this concept is additional evidence that the fervor for its adoption stems from emotional loyalty rather than reasoned review of its weak conceptual and research base. How can the group vouch for the reliability of the diagnosis when the concept and criteria are changing every month? This is no way to develop a diagnostic system.

The staunch insistence on this transparent attempt to turn statutory rape into a mental disorder owes in large part to the makeup of the sexual disorders workgroup. As Frances notes, "the most wayward of all the DSM 5 work groups" is "lopsidedly dominated" by psychologists from a sex clinic up in Toronto, whose ambition is "to find a place in DSM 5 for their pet diagnosis."
Although the group's other outlandish proposals, Paraphilic Coercive Disorder and Hypersexuality, have been shelved for the time being, Frances worries that putting them in the appendix "for further study" is still risky:

Recognizing that the jig is up on the grand design, members of the DSM 5 sexual disorders work group have been heard saying they may have to settle for an Appendix placement for their three hothouse creations. This would create forensic dangers. We have learned from the abuse of "Paraphilia Not Otherwise Specified" in Sexually Violent Predator cases that any (even remote) legitimization by DSM 5 is certain to be misconstrued and misused in the courtroom.

Come on guys. This is absolutely absurd just on the face of it…. So back to the drawing board, DSM 5 sexual disorders work group. The grand dream is lost -- now at least make sure you don't mess up on the fine print.

On the professional listservs today, some conspiracy theorists were speculating that the new wording signifies a plot to enhance the standing of physiological testing in sex offender assessment. The latest proposed criteria for "pedophilia, hebephilic type" require "equal or greater sexual arousal from prepubescent or early pubescent children than from physically mature persons." How to determine that fuzzy standard? Enter the penile plethysmographer, a new niche career track, penis cuff at the ready to measure who is aroused by what.

"There is withering criticism already that the DSM is being expanded to sell more drugs," wrote one colleague. "Now it appears that psychiatry and psychology are conspiring to use the DSM to spur PPG tests -- tests which risk leaving patients with traumatic and indelible memory traces. Do most psychiatrists really want to open this door?!"

Orwellian thought police?

The mere idea of allowing the American Psychiatric Association to dictate "normal" sexuality frightens English Professor Christopher Lane. Lane, whose book Shyness: How Normal Behavior Became a Sickness exposed the unscientific inner workings of the DSM-III committee, expressed shock over the first listed criterion for the shelved disorder of hypersexuality: "Excessive time is consumed by sexual fantasies and urges, and by planning for and engaging in sexual behavior." On his Side Effects blog, Lane mused:

Dali: Femme a Tete de Roses
"Excessive time"? What exactly does that mean, and according to whose standards? That's not a small or trivial matter to settle when the APA is talking in vague generalities about the nation’s libido -- how much sex it wants and how much sex the APA thinks it should think about wanting. The APA is talking about how much time Americans can devote to sexual fantasy before it suggests that we’re mentally ill if our preoccupations are stronger than those set by the relevant task force.

Does that initiative seem to overreach a bit, even to the point of sounding almost Orwellian? It does so to me. If we're to have criteria, are quotas next, including for fantasy? It’s as if the East Coast offices of the APA had morphed into those of the Thought Police in Orwell's 1984, warning citizens that they’d overstepped their "sexual thought quota" for the week and must be rationed -- or punished accordingly.

Lane analyzed hebephilia through his characteristic historical lens:

It's an archaism, a throwback literally to 19th-century psychiatry, but refers to practices that were as central to the Classical age -- and thus to Western democracy -- as were Socrates, Plato, and especially Plato’s Symposium, one of the foundational books in the West on eros and love.

The APA is already trying to determine how long normal grief should last before it’s thought pathological. Its brisk, jaw-dropping answer: two weeks. Do we really want the same organization dictating how often we can think about sex? These kinds of proposals can only end badly.

Leading journal tackles the controversy

The good news this week, which should have all of us jumping up and down with joy, is that the APA has caved in under massive public pressure and dropped its plan for a new psychosis risk disorder. This disorder would have put thousands if not millions of youngsters at risk of being dosed up with dangerous antipsychotic drugs based on a suspicion that they might go crazy in the future. Mixed Anxiety Depression has also bit the dust.

Dali: Daddy Longlegs of the Evening Hope

But, as featured in a special issue of the esteemed Journal of Nervous and Mental Diseases due out in June on the raging diagnostic controversies, there are still many battles ahead as the bloated DSM-5 enters the final stretch. The special issue will tackle diagnostic inflation, pharmacological conflicts of interest, controversies with the newly revamped personality disorders, and problems with diagnostic reliability in the recent field trials. Hebephilia, often neglected amidst controversies with wider impact such as psychosis risk syndrome and the pathologization of normal grief, merited an article in this special issue.

In "Hebephilia and the Construction of a Fictitious Diagnosis," forensic psychologists Paul Good and the late Jules Burstein make a strong case for abandoning this faux disorder, which will only make the APA more of a laughingstock in the future.

Good and Burstein catalog an assortment of empirical problems. These range from the difficulty of reliably measuring "recurrent and intense" sexual arousal to problems determining the pubertal status of a young teenage victim. They also challenge the very idea that sexual attraction to pubescent minors is a mental illness, rather than merely illegal.

Although the Sexual Disorders Workgroup hides behind a fictive notion of a pure and ethereal "science," Good and Burstein clearly believe that hebephilia, if added to the DSM-5, will be mainly invoked in a partisan manner in forensic proceedings, in order to justify harsher punishment and involuntary civil detention. Because of its power to do harm, they say, its scientific grounding should be especially strong. If it does manage to worm its way into the DSM, they say, it should still be challenged in court:

We believe the admissibility of the proposed revision to DSM-5 that would include Hebephilia as a type of Pedophilia could be challenged in a court of law based on current legal standards. For example, since there is no professional consensus or general acceptance in the scientific community to support the notion of Hebephilia as a mental disorder, it would have difficulty passing the Frye test for admissibility. Similarly, without a widely established body of peer-reviewed, validation research and repeated studies showing inter-rater reliability in the laboratory and among clinicians in the field, Hebephilia would also have difficulty meeting the criteria specified in the Daubert standard.

Indeed, this is just what has been happening to hebephilia in federal court, where at least three civil detention petitions in a row have been thrown out due to the level of controversy in the field over this purported condition.

With all of this tumult, it seems that the DSM-5 excesses are producing a backlash against the American Psychiatric Association and, indeed, fueling disenchantment with the whole enterprise of psychiatric diagnosis.

As Frances writes, the turnaround on psychosis risk syndrome came about due to a combination of:

extensive criticism from experts in the field
public outrage
uniformly negative press coverage
abysmal results in DSM-5 field testing

For the first time in its history, DSM 5 has shown some flexibility and capacity to correct itself. Hopefully, this is just the beginning of what will turn out to be a number of other necessary DSM 5 retreats. Today's revisions should be just the first step in a systematic program of reform.… This is certainly no time for complacency. Much of the rest of DSM 5 is still a mess. The reliabilities achieved for many of the other disorders are apparently unbelievably low and the writing of the criteria sets is still unacceptably imprecise.

Who needs reliability?

Frances calls for slowing down the process to allow for additional field testing and, more importantly, an independent scientific review of all the remaining controversial DSM-5 changes. But the DSM-5 folks are taking a different tack. Faced with field trial results showing very poor reliability -- not much better than chance -- for many of their proposed diagnoses, they want to change the definition of what counts as minimally adequate.

Dali: Autumn Cannibalism

It’s pretty ironic: The DSM-III went down in history for elevating the importance of reliability at the expense of validity. Remember, diagnostic reliability just means that similarly trained raters see a certain symptom presentation and call it by the same label. It says nothing about external validity, or whether the label is meaningful in explaining a real-world phenomenon. But reliability is basic. If a diagnostic label cannot be reliably applied, you can't even start talking about its validity. And now, the same psychiatric organization that reified the kappa reliability statistic as the be-all, end-all of science is trying to tell us that traditional kappa levels are unrealistically high for psychiatric research.

Historically, psychiatric reliability studies have adopted the Fleiss standard, in which kappas below 0.4 have been considered poor. In the January issue of the American Journal of Psychiatry, Helena Kraemer and colleagues complained that this standard is unrealistically high, and lobbied for kappas as low as 0.2 -- traditionally considered poor -- to be deemed "acceptable."

Former DSM-III guru Robert Spitzer and colleagues object to this proposal in a letter in the latest issue of the Journal. "Calling for psychiatry to accept kappa values that are characterized as unreliable in other fields of medicine is taking a step backward," they state. "One hopes that the DSM-5 reliability results are at least as good as the DSM-III results, if not better."

Alas, just wishing won't make it so. Despite its grandly stated ambitions, the DSM-5 will likely go down in history as a major gaffe by American psychiatry in its continuing struggle for world dominance.

Remember to check out the open letter

and send in your name, if you are in agreement with it.

Further reading:

American Sex and American Psychiatry: The APA is trying to determine how much sex we can fantasize about by Chris Lane at Side Effects
DSM 5 Rejects 'Hebephilia' Except for the Fine Print: Now the devil is in the details by Allen Frances at DSM5 in Distress
Wonderful News: DSM 5 Finally Begins Its Belated and Necessary Retreat: Perhaps this will be the beginning of real reform by Allen Frances at DSM5 in Distress

*Salvador Dali: "One day it will have to be officially admitted that what we have christened reality is an even greater illusion than the world of dreams."

The homicidal triad: Predictor of violence or urban myth?

2012-05-02T08:28:00.001-07:00

For at least half a century, legend has told of a "triad" of ominous childhood behaviors -- cruelty to animals, firesetting, and enuresis – said to predict future violence.

The so-called "Macdonald triad" (also known as the homicidal triad or the Hellman and Blackman triad) is taught in criminology and psychology courses, used by forensic practitioners in assessing risk, and has even made its way into Law and Order: Special Victims Unit. Especially, it’s become a staple among aficionados of the trendy serial killer.

But is the syndrome valid?

Providing the most definitive exploration to date is Kori Ryan, a former criminology student at the California State University, Fresno who delved into the "evolutionary history" of this tantalizing construct for her as-yet unpublished master's thesis. Her ultimate conclusion:

Even though the literature on violent behavior contains many references to the Macdonald triad (and its aliases), collectively these studies do not provide sufficient evidence of its ability to predict violence, nor, in fact, of its existence as a bona fide phenomenon.

Instead, childhood enuresis, firesetting and animal cruelty more likely represent three among many indicators of severe childhood abuse. In other words, the presence of one or more of these elements in the histories of some violent offenders can be explained by the fact that violent offenders are often the products of child abuse. More importantly, relying upon these behaviors as predictors of future violence would lead to many false positives, punishing children who might not be violent in the future.


One of many misleading websites

Roots of the legend

Gulliver's Travels

Forensic psychiatrist John Macdonald is generally credited with "discovering" the triad. In a 1963 article in the American Journal of Psychiatry, entitled "The Threat to Kill," he gave his clinical impression that "a history of great parental brutality, extreme maternal seduction, or the triad of childhood firesetting, cruelty to animals and enuresis" can signal those who will eventually threaten homicide. His article was based on his work with 100 patients at the Colorado Psychopathic Hospital in Denver, Colorado who had threatened -- but not necessarily committed -- violence.

Over the next few decades, the idea "attracted a dedicated following" and gradually expanded to encompass various forensic groups, including sexual sadists, recidivist firesetters and -- most salacious -- serial killers.

Ryan traces the history of cultural interest in these behaviors all the way back to Greek mythology and early Western fiction, such as Jonathan Swift's 1726 Gulliver's Travels, in which Gulliver puts out a fire with his own urine, much to the chagrin of the Imperial Majesty, thereby linking urination with fire and revenge.

Early psychoanalytic thinkers also placed heavy emphasis on these behaviors, seeing them as products of arrested psychosexual development and sublimated sexual and sadistic urges. Psychoanalyst Melanie Klein, for example, saw bedwetting as a daughter’s sadistic revenge against her mother.

Empirical research: Triad goes bust

Two psychiatrists were the first to empirically evaluate the Macdonald triad, according to Ryan. Studying 84 incarcerated offenders in 1966, Hellman and Blackman reported a positive association between the triad and future violence. Accordingly, some took to labeling the phenomenon as the “"Hellman and Blackman triad."

But subsequent attempts to replicate Hellman and Blackman's findings were unsuccessful. Even John Macdonald himself voiced later doubt about the triad's validity. After trying to test his own clinical theory, Macdonald reported in his 1968 book, Homicidal Threats, that he could find no statistically significant association between homicide perpetrators and early problems with firesetting, cruelty to animals, or enuresis.

Likewise, in an examination of 206 sex offenders at the Massachusetts Treatment Center for Sexual Dangerous Persons, Prentky and Carter (1984) found "no compelling evidence" for the idea that the triad predicted adult criminality. They did, however, note that the individual components of the triad were common among people raised in highly abusive home environments.

Some years later, this was also the conclusion of Jonathan Pincus, in his 2001 book on convicted murderers. Pincus described "a forensic assessment protocol in which bed-wetting, firesetting, and cruelty to animals (among other behaviors) are considered 'hallmarks' of childhood abuse," notes Ryan.

Indeed, it seems far more likely that one of Macdonald’s five original indicators that didn’t go on to fame has more explanatory power as a cause of later violence: parental brutality.

Dangerous ramifications

"The frequency with which discussions of violent offenders (of various types) include mention of the Macdonald triad suggests its general acceptance as a predictor of violent behavior," notes Ryan.

This continuing prominence owes in large part to the triad's promotion by prominent FBI profilers in the 1988 book, Sexual Homicide: Patterns and Motives. Like Macdonald’s, the FBI study was anecdotal, small-scale and lacking in any statistical analyses or control groups. Studying 36 sex killers, Douglas, Burgess and Ressler found that many manifested one or more elements of the triad. Unfortunately, notes Ryan, the authors did not report which factors were present in which subjects, or how many of these killers evidenced all three components of the triad.

Ryan warns that promotion of the triad has real-world ramifications, in that children who exhibit one or more of these behaviors "might be falsely labeled as potentially dangerous."

For example, police officers exposed to the triad in undergraduate criminology courses may target young offenders who have lit a fire or harmed an animal -- both fairly common behaviors among troubled youth -- as future sex fiends or serial killers. (Enuresis, with less face validity as an indicator of sadism, has tended to drop from more contemporary renditions of the triad.)

Ignoring the miniscule base rate of serial killers, even veterinarians are encouraged to identify those who hurt pet animals as potentially lethal: "Many known serial killers began their careers by hurting pet animals," warn the authors of a 2004 article in one veterinary journal. "It is well known in the criminology field that people who perpetrate acts of cruelty on animals, frequently escalate to torturing humans, usually the young and helpless."

Rather than throwing the baby out with the bathwater, Ryan says researchers could do more research to understand these behaviors in context. For example, might arson be a coping mechanism in children who have experienced severe emotional abuse, rather than a marker for future aggression? Are some elements of the triad indicators for future violence when they co-occur? More fundamentally, is there any set of behaviors that can legitimately be considered a behavioral syndrome predictive of later violence?

The study is: The Macdonald triad: Predictor of violence or urban myth? The abstract is HERE. Those with access to the Proquest database can access it online. The author, Kori Ryan, can be contacted HERE.

Composites illustrate problems with eyewitness recall

2012-04-27T09:09:00.000-07:00

Take a minute to examine this display of composites. Notice the wide variations in features -- eyes, apparent age, bone structure, etc.

DNA evidence links 11 rapes in East Los Angeles over the past 16 years to this so-called "Teardrop Rapist." Based on the similarities in modus operandi and description, police believe he is responsible for at least 17 other rapes, for a total of 28 or more.

But, as these sketches show, the victims have strikingly different recall. They give his height as between a pint-sized 5 foot 2 inches and 6 feet. His weight fluctuates between 130 and 200 pounds. His age varies between 27 and 40.

Even the teardrop(s), an especially distinctive feature, are recalled differently. Some victims saw one teardrop; some reported up to three -- or none at all (police say he may have had them removed). The teardrop(s) were usually spotted on his left cheek, but occasionally they were seen on his right.

About the only constants are his eyes (brown), his ethnicity (Hispanic), and the fact that he wears a head covering.

In 1999, police arrested a 21-year-old man for the attacks. Given the problems with eyewitness accuracy so amply illustrated here, the existence of DNA evidence proved a lucky break for him: He was exonerated.

Blogger wins scientific achievement award

2012-04-23T13:06:00.000-07:00

Accepting the award. Photo credit: Michael Donner

I am pleased to report that I have been awarded the 2012 Distinguished Scientific Contribution in Psychology award. It struck like a thunderbolt in a clear blue sky; I had no idea I had even been nominated for an award until I got a phone call notifying me I had won.

It was especially meaningful to come from the California Psychology Association. The only voice for California’s 18,000 licensed psychologists, the CPA tirelessly advocates for the profession as well as for the mental health needs of the general public in California.

For those of you who only know me as a blogger and/or a forensic psychology practitioner, I conducted pioneering research in the late 1990s into the motivations of hate crime perpetrators. I later extended that work to group rape, likening both forms of violence to cultural theater in which the actors publicly demonstrate masculinity, with their victims as dramatic props. (I'm excited about a forthcoming chapter in a cutting-edge text on multiple-perpetrator rape, due out next year.) I have also conducted historical research and published on the ethics of forensic diagnosis, and especially the contested sexual paraphilia of "hebephilia." More information on my research is available on my website and on Wikipedia.

The location of the awards ceremony could not have been more idyllic -- the gorgeous Monterey coast on a balmy weekend. The 270-degree view of the Monterey Bay and the surrounding hills from the 10th floor of the Marriott Hotel was breathtaking; unfortunately, a photo just can't capture it.

CPA President Craig Lareau presents award.
Photo credit: Patricia VanWoerkom

The quality of this year's convention trainings was impressive. Perhaps because the current president, Craig Lareau, is a forensic psychologist and attorney, there was a good deal of forensic programming. Alan Goldstein presented the latest on Miranda waiver evaluations (including the new instrument), Professor Gail Goodman gave an overview of the research on child witness accuracy, and there were workshops on forensic neuropsychology.

I especially enjoyed a presentation by Keely Kolmes of San Francisco and Heather Wittenberg of Maui designed to help psychologists step up their online presence. For anyone interested, Dr. Kolmes has some nice resources (HERE) for psychologists on the ethics of social media and on managing one's online reputation.

By the way, if you practice in California and don't belong to the CPA, I encourage you to join. The reconfigured CPA has a forward-looking leadership team headed by the dynamic Jo Linder-Crow and is doing essential advocacy work on behalf of psychologists and the public. It appears to have defeated (at least for the time being) an effort to axe our regulatory agency, the Board of Psychology, which would have left psychologists at the mercy of other professions. It's working hard to promote parity for mental health consumers. And it's tangibly supporting legislators who will lobby for progressive causes, for example prisoner rehabilitation instead of endless warehousing. So do your share, whether it's just paying dues or volunteering, so that all of the heavy lifting does not fall on just a few shoulders.

Sea Otter, Monterey Bay

Whether or not you belong to the CPA, if you are in California you might also consider donating to its Political Action Committee, which funds progressive politicians and reforms. The unfortunate reality is, politics is money-driven.

And now, sadly, it's back to the grindstone.

Related news: Your blogger profiled in the 2012 edition of advanced high school textbook, Forensic Science: Advanced Investigations.

Ranking forensic journals through content analysis

2012-04-22T09:14:00.000-07:00

Illustration credit: Jock Alexander, The Australian

You have no doubt heard of journal "rankings." A journal's rank conveys information about the impact and quality of a journal. This can be useful information for both authors and consumers. An author might want to consider a journal's prestige, and the difficulty getting published in it. For consumers -- including expert witnesses who might be relying on a particular article in court -- ranking can serve as a proxy for the accuracy and reliability of a journal's content. How much should the trier of fact trust the information in this journal?

But there are lots of methods for ranking journals -- the Impact Factor, the Eigenfactor, the h-index, just to name a few. And with the proliferation of journals in forensic psychology, it gets hard to keep track. Which journals have the best reputations? Which are the most cited? Which provide the broadest coverage of forensic psychology topics?

One popular way to rank-order journals is based on reference counts. How many times a journal is cited is an indicator of its reputation. In forensic psychology, according to an unpublished study by S. Black, the top-referenced journals are (in rank order):

Law and Human Behavior
Behavioral Sciences and the Law
British Journal of Psychiatry
Journal of Forensic Psychiatry and Psychology
American Journal of Psychiatry
Criminal Justice and Behavior

Now, a researcher with training in both psychology and library science has taken a somewhat different approach, devising a clever content-analysis procedure to rank-order journals in our field.

Chris Piotrowski started by screening several texts in the field and choosing terms that are popular both in research and practice. The 16 terms were: eyewitness testimony, competency to stand trial, alcoholic blackouts, infanticide, sentencing, forensic evaluations, polygraph, malingering, jury selection, homicide, diminished capacity, insanity defense, child abuse, Daubert standard, child custody and expert witness.

Next he used PsycNET, "the recognized major bibliographic resource in the social and behavioral sciences that indexes scholarly and professional journals," to run keyword searches on his 16 terms. For each search term, he rank-ordered journals based on the frequency of hits; a journal's total ranking was obtained by summing across all 16 terms.

The winners were (in rank order):

Journal of the American Academy of Psychiatry and Law
PsycCRITIQUES (formerly, Contemporary Psychology)
Law and Human Behavior
Behavioral Sciences and the Law
American Journal of Forensic Psychology
Journal of Psychiatry and Law
Bulletin of the American Academy of Psychiatry and Law
Mental & Physical Disability Law Reporter
American Journal of Psychiatry
American Psychologist
Journal of Forensic Psychology Practice
International Journal of Psychiatry and Law
Journal of Criminal Justice
Professional Psychology: Research and Practice
Journal of Applied Psychology
Archives of Clinical Neuropsychology
Psychological Reports
British Journal of Psychology
Psychology, Public Policy, and Law

I would be a little cautious about relying on this method, because the choice of keywords -- which is open to manipulation -- might influence the rankings. But as you can see, there is overlap between this method and the more traditional citation-count method used by Black. For instance, Law and Human Behavior and Behavioral Sciences and the Law made it into the top four, no matter which method was used. There are some noticeable differences as well, with several journals that were highly cited in Black's study not ranking high using this content analysis method.

For more information on the method and the exact scores for each journal, feel free to contact Dr. Piotrowski (HERE); I'm sure he will be happy to share a copy of the article, which is published in the current issue of the American Journal of Forensic Psychology.

Oh, in case you were wondering, that journal is number five on his list.

The article is: Top cited journals in forensic psychology: An analysis of the psychological literature (2012), American Journal of Forensic Psychology 30 (2), 29-38.

SCOTUS to tackle capital habeas competency right

2012-04-15T22:07:00.006-07:00

At a criminal trial, a defendant who lacks rational understanding cannot be forced to proceed. Likewise, a person who is sentenced to death cannot be executed unless he is sane enough to grasp why he is being punished.(1)

But what happens if a prisoner loses his mind between the bookends of trial and execution, as he languishes on Death Row while his appeals wind slowly through the appellate courts? Does a prisoner have a right to be competent during the course of habeas proceedings, or can his appeals proceed without him?

After officials in 17 states urged the U.S. Supreme Court to clarify this issue, the Court signaled it would do so by agreeing to review two cases, one from Arizona and the other from Ohio.

Lawyers will be battling over various legal precedents, from English Common Law to a Ninth Circuit Court of Appeals ruling from 2003 to an obscure Supreme Court ruling from 1966.

In the case of Ernest Valencia Gonzales, Arizona attorneys contend that the Ninth Circuit “created a competency right out of thin air,” and that prisoners do not have a right to competency during federal appeals.

Gonzales

Gonzales was convicted of first-degree murder and sentenced to death in 1991. His appeal was stayed 15 years later, after his attorneys said he had lost the ability to rationally communicate and to assist them, due to a progressive deterioration in his mental health.

In halting Gonzales’s case, the Ninth Circuit Court of Appeals, which handles federal appeals in the nine western states, relied upon its earlier ruling in the case of Rohan ex rel. Gates v. Woodford (334 F.3d 803). In that 2003 decision, the court ruled that a capital habeas petitioner has a right to competency if he is pursuing “claims that could potentially benefit from his ability to communicate rationally.” That case effectively halted the execution of Oscar Gates of California, who was condemned to die for a 1979 murder.

The lawyers for the state of Arizona say the Rohan ruling plays into the hands of convicted prisoners, who “have an incentive to adopt delaying tactics to avoid execution,” thus circumventing states’ interests in carrying out their death sentences.

Gonzales's attorneys call this claim "hysterical," stating that the right to competency under Rohan is narrow in scope and has only been granted in a handful of cases. They say the right to be competent from the time of arrest all the way through to execution is well established:

An incompetent condemned prisoner’s inability to assist counsel was recognized under English Common Law…. If the condemned prisoner became of unsound mind at any point before execution, the proceedings were to be stayed. The rationale behind this rule was that the condemned prisoner’s mental disorder might prevent him from sharing with his lawyer a fact, known only to him, that could result in his life being spared. This rationale is just as relevant today.

The level of competence required during federal habeas proceedings falls "somewhere between the right to be competent to stand trial and the right to be competent to be executed," they said in their reply brief.

The U.S. Supreme Court declined a request to review the Rohan ruling, and up until now -- with one small exception -- has studiously avoided stepping in to clarify the competency rights of prisoners during federal appeals.

Carter

That exception, an obscure case back in 1966, is at the heart of the state of Ohio’s appeal in the case of Sean Carter, who is awaiting execution for the 1997 rape and murder of his adoptive grandmother.

The case, Rees v. Peyton, involved Melvin Davis Rees, Jr., a Virginia jazz musician convicted in the 1959 massacre of a family of four. When he announced that he wanted to stop all further appeals, his lawyers said they doubted his mental competency to make that decision. A psychiatrist retained by Rees's attorneys opined that Rees was mentally incompetent, while psychiatrists selected by the state expressed doubts. In a short ruling, the Supreme Court directed the federal district court to, as a first step, "make a judicial determination as to Rees' mental competence and render a report on the matter to us." The question, the high court said, was "whether [Rees] has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises."

Rees

Accordingly, the lower court held a hearing and determined that Rees was indeed incompetent to abandon his appeals. In a one-line order the following year, the Supreme Court put the matter on hold, and never returned to it. Rees died in prison three decades later, in 1995.

"To this day, the Rees case is shrouded in mystery," says the government’s brief in the Carter case, with different circuit courts hold starkly different views of its breadth. To the Sixth Circuit, it stands for the proposition that prisoners have a right to be competent during their appeals. Other circuits, according to the brief, have interpreted it more narrowly, to guarantee a competency right only to prisoners who have decided to abandon further appeals.

Lawyers for the state of Ohio raise similar concerns to those in Arizona, saying the stay of Carter's case, if upheld, "will improperly bring Ohio’s capital litigation to a halt. Under the Sixth Circuit's extraordinarily loose standards, any prisoner can make a minimal showing of incompetence, demand a hearing, and secure an indefinite stay of his habeas proceedings." The Sixth Circuit handles appeals from Ohio, Kentucky, Michigan and Tennessee.

The cases are Ryan v. Gonzales and Tibbals v. Carter. All of the briefs are available online, by clicking on these case links.The Supreme Court will hear arguments in the two cases during the term that begins in October, with a decision likely early next year. So far, I haven't heard much speculation on which way the wind is blowing.

Footnote 1: This is the minimalist "Ford standard" set out by the U.S. Supreme Court's 1986 opinion in Ford v. Wainwright.

Open letter opposing DSM-5 paraphilias expansion

2012-04-10T20:08:00.001-07:00

Photo credit: Dr. Joanne Cacciatore

As readers of this blog are aware, proposals to expand the sexual disorders in the American Psychiatric Association's upcoming DSM-5 have generated significant controversy among forensic psychologists and psychiatrists. Now, forensic psychologists are banding together to urge APA President John Oldham to reject the proposed diagnoses of pedohebephilia, paraphilic coercive disorder and hypersexual disorder. The text of an open letter drafted by Richard Wollert, an Oregon psychologist with extensive experience in sex offender treatment and evaluation, follows. If, after reading it, you would like to become a signator, just click on the indicated link, and provide Dr. Wollert with your name and professional credentials. Don't delay, as I understand that this important letter is being submitted very soon.

CLICK HERE TO ADD YOUR NAME TO THE LETTER

Dear Dr. Oldham:

As a mental health professional and/or sex educator I am writing to you to encourage the American Psychiatric Association to leave invalid sexual disorders out of DSM-5.

In 1999, the Dangerous Sex Offender Task Force of the American Psychiatric Association issued a strongly worded statement about psychiatry's failed efforts to meaningfully define and classify sexual deviance. In contrast to the cautious approach advised by the Task Force, a Paraphilias Subworkgroup of the DSM-5 is vigorously lobbying for the adoption of three highly controversial expansions of sexual disorders (Hebephilia, Paraphilic Coercive Disorder, and Hypersexual Disorder). The expansions would be a major mistake, due to poor reliability, unproven validity and -- most of all -- the potential for vast and harmful unintended consequences.

The Subworkgroup is now proposing to add a "Hebephilic" type to Pedophilia, extending the diagnosis of Pedophilia from covering those with sexual attractions to prepubescent children to those with sexual attractions to pubescent children under age 15. It also proposes to add new diagnoses of "Paraphilic Coercive Disorder" and "Hypersexual Disorder" to the Appendix as "Criteria Sets for Further Study." I am dismayed by each of these recommendations for the following reasons.

Hebephilia lacks conceptual coherence. Most men are attracted to sexually maturing 14-year-olds, as reflected in the large number of industrialized countries where the age of sexual consent is 14 (Green, 2010). Normative attractions may be criminal when acted upon, but they should not be labeled as mental disorders. "Hebephilia" is an archaic term that languished in psychiatric obscurity until the passage of modern civil commitment laws in the United States (Franklin, 2010). Since then, some evaluators who confuse statutory rape with mental disorder have invoked Hebephilia as a condition that justifies civil commitment (Ewing, 2011). Such usages do not provide a cogent explanation for behavior that is illegal in the United States but legal in other countries being classified as a mental disorder. Finally, Hebephilia lacks adequate diagnostic reliability (Wollert and Cramer, 2011). Most of the research has been conducted by a single Canadian research team that is overly represented on the Paraphilias Subworkgroup. Although the DSM-5 Task Force has indicated that final decisions about proposed revisions will be made on the basis of field trial data, a November 2011 change in the proposed criteria for the diagnosis rules out the application of even this meager safeguard.

Paraphilic Coercive Disorder (PCD) was initially proposed for inclusion in DSM-5 as a diagnosis that would be limited to men who preferred rape over consensual sex. Because only a very small percentage of rapists prefer rape over consensual intercourse (American Psychiatric Association, 1999), clinicians are unable to reliably apply this label (Wollert, 2011). This is one reason for the American Psychiatric Association's consistent rejection of rape-based paraphilias in three previous editions of the DSM (Zander, 2008). In the face of overwhelming opposition, the Subworkgroup has taken the fallback position of recommending PCD only for inclusion in the Appendix as a condition meriting "further study." However, this would confer an undeserved back-door legitimacy to the invalid construct. Rather than a mental disorder, rape is a crime for which the proper placement is prison.

The proposed criteria for Hypersexual Disorder (HD) are the product of a recent ad hoc literature review by Martin Kafka, a member of the Subworkgroup. His review indicated their validity has not been empirically confirmed. Given the inherent difficulty in determining at what point a normal human drive becomes abnormal, it is not surprising that the proposed diagnosis is marred by conceptual confusion and vague verbal anchors (Moser, 2011). Its poor reliability and validity will translate to a high rate of false positives in both civil commitment trials and outpatient clinics that serve the community in general. With the proposal becoming a magnet for ridicule both by academic scholars and the popular press, it too has been relegated to the Appendix. However, the Appendix was not intended as a storage site for criteria sets that, like Hypersexuality Disorder, have never been tested.

These three proposals all lack adequate empirical support. They will increase false positive diagnoses by labeling behaviors that are normative, developmental, or criminal as mental disorders. Promoting the misclassification of juveniles and other vulnerable populations as dangerous sex offenders, they will undermine the reputation of forensic practitioners and those who study sexual behavior. Collectively, professions that endorse the use of unreliable diagnoses run the risk of losing their credibility.

The British Psychological Society, the American Counseling Association, and the Society for Humanistic Psychology and many other divisions of the American Psychological Association have all submitted petitions or letters of concern to the American Psychiatric Association regarding revisions proposed for the DSM-5. These documents express concerns about the lack of empirical support for many DSM-5 proposals, the likelihood of “false-positive epidemics” flowing from decreased diagnostic thresholds, and the negative effects of "over-medicalizing" human behavior. They also point out that the prevention of false-positive epidemics should take precedence over "nomenclatural exploration" and that the temptation to adopt new diagnoses should be tempered by the recognition that diagnostic labels tend to be confounded with normative social expectations.

I share these concerns as they apply to sexual disorders. I further support the adoption of sexual disorder criteria sets only after they have been established to have high true positive rates and acceptable false positive rates. Therefore, I urge the DSM Task Force to remove the Hebephilia qualifier from the proposed diagnosis of Pedophilia, and to eliminate Paraphilic Coercive Disorder and Hypersexual Disorder from any inclusion in the DSM-5.

Sincerely,

CLICK HERE TO ADD YOUR NAME TO THE LETTER

(email your name and professional credentials to Dr. Wollert)

References

American Psychiatric Association (1999). Dangerous sex offenders: A task forcereport of the American Psychiatric Association. Washington D. C.: American Psychiatric Association.

Ewing, C. P. (2011). Justice perverted: Sex offense law, psychology, and public policy. New York: Oxford University Press.

Franklin, K. (2010). Hebephilia: Quintessence of diagnostic pretextuality. BehavioralSciences and the Law, 28, 751-768.

Green, R. (2010). Sexual preference for 14-year-olds as a mental disorder: You can’t be serious!! [letter to the editor]. Archives of Sexual Behavior, 39, 585-586.

Moser, C. (2011). Hypersexual Disorder: Just more muddled thinking [letter to theeditor]. Archives of Sexual Behavior, 40, 227-229.

Wollert, R. (2011). Paraphilic Coercive Disorder does not belong in DSM-5 forstatistical, historical, conceptual, and practical reasons [letter to the editor]. Archives of Sexual Behavior, 40, 1097-1098.

Wollert, R. & Cramer, E. (2011). Sampling extreme groups invalidates research on the Paraphilias. Behavioral Sciences and the Law, 29, 554-565.

Zander, T. (2008). Commentary: Inventing diagnosis for civil commitment of rapists. The Journal of the American Academy of Psychiatry and the Law, 36, 459-469.

Hebephilia bites the dust -- again

2012-04-07T09:14:00.011-07:00

Federal judge rules that faux diagnosis cannot be basis for civil detention

In yet another blow to those seeking to expand mental illness in order to civilly detain U.S. citizens for possible future crimes, a judge has again held that the faux diagnosis of "hebephilia" is not valid for this purpose.The Good Friday ruling was one in a string of defeats for the federal government in its efforts to civilly detain ex-convicts under the Adam Walsh Act.

Judge Terrence Boyle rejected the testimony of two government psychologists who had diagnosed George Hamelin with hebephilia based on his sexual misconduct with one 13-year-old boy and another boy under the age of 13 (whose precise age was not specified).

Calvin Klein billboard: Fashion industry banking on hebephilia

As opposed to pedophilia, hebephilia involves sexual attraction to youths who have reached puberty. The controversial diagnosis was first proposed by a team of psychologists at a sex clinic up in Toronto. Two members of the Canadian team also belong to the sexual disorders work group for the DSM-5, the upcoming revision of the American Psychiatric Association’s influential diagnostic manual. With sexually violent predator statutes enacted by the federal government and 20 U.S. states requiring a mental disorder as a prerequisite for civil commitment, government evaluators have taken to invoking the label against sex offenders who are neither pedophiles nor rapists.

Wrote the judge in rejecting the label as a basis for civil commitment:

Hebephilia is not listed as an accepted mental disorder in the DSM-IV-TR. Although hebephilia has been proposed to be included as a mental disorder in the revision of the DSM, it has been rejected as a proper mental disorder by numerous psychologists…. [N]oted mental health professionals have opined that sexual arousal to pubescent and post-pubescent minors is not an inherently deviant sexual interest, albeit one that, in this country, if acted on might violate the law.

The Court finds persuasive the testimony of Dr. [Joseph] Plaud on this issue, who states in his report that "a possible diagnosis of a deviant sexual interest in pubescent/post-pubescent males, termed by some psychologists as 'paraphilia NOS hebephilia/ephebophilia,' ... is an invalid diagnosis."

Given that the characterization of hebephilia is a contested issue in the mental health community, the Court finds that it would be inappropriate to predicate civil commitment on a diagnosis that a large number of clinical psychologists believe is not a diagnosis at all, at least for forensic purposes.

I hope the American Psychiatric Association is listening. If they let the proposed diagnosis of pedohebephilia sneak into the DSM-5, it will only contribute to the already massive outpouring of criticism being leveled against them for expanding the range of mental illnesses. A grassroots petition protesting the diagnostic expansions has garnered almost 13,000 signatures to date.

My report on Judge Boyle's January ruling rejecting hebephilia in the case of Jeffrey Neuhauser (Federal judge tosses hebephilia as basis for civil detention) is HERE. My online resource page on hebephilia is HERE. Wikipedia has further background and links on the controversial diagnosis. A USA Today probe of the beleaguered federal SVP program is HERE.

New competency resources

2012-04-04T07:00:00.004-07:00

Case report added to resources page

Thanks to colleague Denis Zavodny, who found this report on the web, I have added another competency case to the rogue's gallery. For those of you who don't know, this is a collection of publicly accessible resources on legal competencies that I put together some time back. For training purposes, I have found that it's hard to beat real-life reports and videos, especially from high-profile or otherwise fascinating cases.

The newest report is on Thomas A. Shay (bottom right photo, above), arrested in 1991 for a bomb blast that killed one Boston police officer and maimed another. A Bridgeport State Hospital psychologist found nothing wrong with him other than a bad case of immaturity and self-centeredness.

CLICK HERE TO GO TO THE COMPETENCY RESOURCES PAGE

New review of competency assessment tests

Marvin Acklin

The Journal of Personality Assessment has just published a handy overview of three competency assessment instruments. The report, by Hawaii forensic psychologist (and forensic psychology blogger!) Marvin Acklin, focuses on the psychometric properties of two tests that are fast becoming standards, as well as a newer test of response style that’s still on shakier ground.

Acklin describes the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA) and the Evaluation of Competency to Stand Trial–Revised (ECST-R) as indispensable to the forensic clinician's toolbox, a statement with which we would all likely agree.

He especially lauds the MacCAT-CA, "the queen of CST instruments," because its vignette method enables us to drill down into the defendant's core reasoning skills, essential to decisional competency. The ECST-R, meanwhile, is most useful when the issue is psychosis and malingered psychosis. On the negative side, he points out, neither instrument provides sufficient sampling of basic legal knowledge, which must be ascertained through a detailed interview.

Acklin is less sanguine about the new Inventory of Legal Knowledge (ILK), developed to assess for malingered incompetency. Echoing Steve Rubenzer's astute critique in the Open Access Journal of Forensic Psychology, he notes concern about the its potentially high rate of false positives, or people falsely labeled as malingerers. This has been a concern of mine, too; the recommended cut score of 47 lends itself to overdiagnosis of malingering in adversarial settings.

The article, The Forensic Clinician's Toolbox I: A Review of Competency to Stand Trial (CST) Instruments, may be requested directly from the author (HERE).

"Mental Competency: Best Practices Model"

And since we're on the topic of competency resources, don't forget to check out the National Judicial College's newly launched website. It's got a lot to offer. My previous blog post on the site, with links to it, is HERE.

180-year sentence overturned over lack of mental health testimony

2012-04-01T07:30:00.001-07:00

Lawyer erred by not calling psychologist, appellate court holds

A trial counsel’s failure to call a psychologist to testify at the sentencing hearing of a Missouri man with borderline intelligence constitutes reversible error, an appellate court has ruled.

The court upheld a trial court decision that the attorney's performance was deficient, and that the failure to present psychological evidence may have prejudiced the defendant.

A jury deliberated for just a little over an hour at the sentencing hearing of 24-year-old Skylor Radmer before recommending a prison sentence of 180 years. Earlier, the jury had convicted him of two counts of statutory sodomy for molesting his 5-year-old niece.

In upholding the lower-court ruling reversing the sentence, the Court of Appeals for the Western District of Missouri said that psychological testimony about Radmer's borderline intelligence might have resulted in a different outcome.

Radmer's attorney, Bert Godding, knew about Radmer's intellectual handicap because he had represented him in a prior case in which his comprehension of a police Miranda warning was at issue. In that case, he retained psychologist Bill Geis, who testified at an evidentiary hearing that Radmer was functioning at the borderline intellectual level, with an IQ score of 75.

At a hearing on the ineffective assistance claim, Dr. Geis testified that Radmer's low intelligence might have been relevant to explaining his sex offending as a product of poor judgment rather than pedophilia.

The trial attorney also testified at the hearing, admitting that he had no strategic reason for not calling a mental health expert to testify at the sentencing phase of the trial: "I don't believe that I necessarily had a reason not to or to do that," he testified. "I don't know why I didn't call someone like that."

The appellate court rejected the prosecution’s argument that the jury would have found Dr. Geis biased because he had worked for the public defender in the past. Geis is a research professor at the University of Missouri-Kansas City.

The defense lawyer's "failure to call Dr. Geis or a similar expert during the sentencing phase fell below an objective standard of reasonableness," the appellate court unanimously held.

Hat tip: Ken Pope

Damning reconstruction of notorious false confession case

2012-03-29T07:45:00.004-07:00

Here's one from the annals of outrageous true crime cases:

On April 17, 1989, a woman was practicing tai chi in New York's Central Park, when a man sexually assaulted her. The rape was interrupted by a passerby who heard her yelling, but not before the woman was severely beaten to the point of requiring hospitalization. The woman gave police a detailed description of her attacker, including the fact that he had fresh stitches on his chin. Checking local hospitals, a detective found a match to an 18-year-old Puerto Rican man who worked nearby.

Mysteriously, the man was never questioned. The victim left town, the detective was transferred out of the sex crimes unit, and the case was closed as unsolved.

But as it turned out, this wasn't just one more rape in the Big Apple.

The East Side Slasher

The man escalated his attacks, terrorizing women in New York City. Dubbed the "East Side Slasher," he raped at least five other women and murdered one. His pattern was to beat or stab the women around the eyes, so they would not be able to identify him.

He was finally caught, when a woman broke free from him and alerted her doorman and a neighbor, who subdued him. Within hours, he had confessed on videotape to four rapes and the murder. With eyewitness identification and DNA evidence conclusively tying him to the crimes, he took a deal of 33 years to life.

Have you recognized this case yet?

While police knew that Matias Reyes was slashing and raping women around Manhattan's East Side during 1988 and 1989, there was one case they didn't think to link him to. That was the assault on Trisha Meili on April 19, 1989, as she was jogging in Central Park -- an assault that would quickly rivet the world.

Trisha Meili

In hindsight, it seems incomprehensible that Reyes was not a suspect. The crime fit his modus operandi, in that Meili was beaten most heavily around her eyes. The assault occurred just two days after the one on the tai chi practitioner, also in Central Park. And, most amazingly, a police officer who knew Reyes chatted with him as he strolled out of the park just minutes after Meili was raped and left for dead.

On his head, Reyes was wearing the victim’s distinctive headphones.

Reyes left his DNA behind. But police never thought to compare it to him. Not until more than a decade later, after he voluntarily confessed.

As we now know, police failed to consider Reyes as a possible suspect in the infamous Central Park Jogger case because they already had their suspects: A group of African American and Latino boys who were causing trouble in the park that night.

Sarah Burns

Through legal documents and myriad interviews (including with Matias Reyes), author Sarah Burns reconstructs this landmark miscarriage of justice, focusing on the role of racism in generating a collective hysteria that overwhelmed all reason: "Race not only inspired the extreme reactions to the crime; it also made it easier for so many to believe that these five teenaged boys had committed the crime in the first place, and no one was suggesting that they might, in fact, be innocent."

(Actually, a couple of intrepid columnists from New York Newsday, Jim Dwyer and Carol Agus, were expressing public doubts during the trial about the strength of the evidence connecting the youths to the crime, but their voices were not enough to turn the tide of public opinion. "We are waiting to see if there is any believable evidence that will connect these kids to the crime. So far, we haven't heard any," wrote Agus. And when referring to one of the youths' statement to police, both columnists placed quotation marks around the word confession, expressing skpeticism that it was authentic, Burns notes. Wrote columnist Dwyer, "nothing close to the words in this statement ... ever sat on the lips of a 14 and a half year old.")

Burns provides fascinating insights into the investigatory myopia that is so often present in false confession cases. Based on her access to the entire trial transcripts, she also critiques the weak defenses the boys received, which made their convictions all the more guaranteed. And she corrects much of the misleading mythology built up around the case. For instance, these boys were not the serious delinquents that the media portrayed them as, nor did most of them come from broken homes.

The first trial

Perhaps most amazing about this case is the vitriolic manner in which certain media outlets and high-profile people continue to insist that the boys are guilty, despite all evidence to the contrary. I hope this excellent historical reconstruction may help to set the record straight. I'm also looking forward to the documentary, which Burns is now working on with her father, filmmaker Ken Burns.

My Amazon review of The Central Park Five: A Chronicle of a City Wilding, is HERE. (If you like it, please click "yes," this review was helpful.)

'Case of the missing militant' resolved

2012-03-26T08:20:00.002-07:00


Attorney Paul Harris reads from To Kill A Mockingbird.* Photo credit: San Jose Mercury

A quick update on the case of Ronald Bridgeforth, the man I blogged about who turned himself in on shooting charges after 42 years underground: A judge in San Mateo County imposed a very reasonable sentence of one year in county jail. The judge also ordered Bridgeforth to work with at-risk youth in Alameda County (Oakland), California upon his release. That should be no problem for the 67-year-old former militant, who has dedicated his life to public service.

My original post, Predicting behavior: The case of the missing militant, is HERE.The San Mateo Times and The Daily Mail (UK) have more on the sentencing. A San Jose Mercury slide show is HERE.

*I don't know what passage from To Kill A Mockingbird the defense attorney was reading from at the sentencing hearing, but I am curious.

USA Today probe: Federal SVP program crumbling

2012-03-25T08:00:00.013-07:00

Constitutionality of lengthy sex offender detentions questioned

In the six years since the U.S. government authorized civil detention for dangerous sex offenders, it has sought to commit 136 men. Out of those, it has won civil commitments of only 15, or 11 percent.

In contrast, it has either lost, or been forced to dismiss, 61 cases, or 45 percent. (Actually, make that 62.*)

The remaining 59 men (43 percent) are languishing in prison, locked in legal limbo while their cases await resolution. (A 136th man has died.)

An investigative report by USA Today paints a picture of federal prosecutors and their prison "experts" as flailing in their efforts to establish that they qualify as "sexually dangerous persons." The legal criteria for this designation include a history of sexually violent conduct or child molestation and a mental illness that would cause the person difficulty in refraining from such behavior if released.

I put the word "expert" in quotes because many of the prison psychologists drafted to conduct these evaluations and testify in court had no prior experience and little or no training when the law went into effect. As the former psychologist in charge told USA Today, "It was rushed, and initially, I believe, quality probably suffered."

The government's cases "have crumbled because of weak evidence, faulty psychological evaluations and an inability to convince judges the detainees have mental conditions so serious they will find it difficult to not re-offend," the USA Today reports. Due to the low levels of recidivism among convicted sex offenders, "even when the government can prove someone committed sex crimes, it has struggled to show he remains dangerous."

Brad Heath and Amanda Muscavage reviewed thousands of pages of legal filings and interviewed dozens of attorneys, psychologists and former detainees for their report. Their interactive website includes links to 290 documents that they have made available online.

USA Today reporter Brad Heath

In one amazing quote, the psychologist who formerly ran the civil commitment program at Butner, the prison in North Carolina where the detainees are being held, all but admits that clinicians certified men as sexually dangerous even knowing that they did not meet the legal criteria.

"If we thought someone was really dangerous but there wasn't a strong legal case, we might very well still push it for the public interest," Anthony Jimenez said. "Hopefully justice is served in the end."

This is the "consequentialist" approach advocated by some in the sex offender industry, who claim that sexually violent predator cases represent an exception to general forensic practice, in which the end (protecting the public) justifies the means. If anything, however, the high stakes involved when people are threatened with a loss of liberty for something that they might do in the future would seem to demand the opposite approach, of even greater caution and transparency in diagnosis and risk assessment.

As Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital, told the reporters: "We need to be very, very careful in a free society about a system in which a group of people can make statements that result in someone being deprived of their liberty for a future crime. If it's going to be done, it has to be done in a just and fair manner."

One reason for the government’s quagmire is that the federal cases are decided by a judge, rather than a jury. The seasoned judges hearing these cases are less likely to let their emotional reactions to past crimes, some of them pretty upsetting, distract them from the government's legal burden of proof.

For example, in the recent trial of Markis Revland (which I blogged about HERE), the offender had admitted to 149 child molestations. However, the judge found that the government had failed to prove that any of these incidents actually happened, or that Revland had a genuine mental illness.

Similarly, at the trial of Jeffrey Neuhauser (which I blogged about HERE), the judge rejected the controversial label of "hebephilia" as a legitimate mental illness qualifying someone for involuntary detention.

Unfortunately, because they only had access to records that have been made public, the USA Today team didn't have the 411 on some of the most egregious attempts to civilly detain low-risk prisoners. In one case I am familiar with, the government spent four years pursuing civil commitment against a man who was quite clearly not mentally ill, not a rapist, not a pedophile, and not dangerous, only to dismiss the case on the eve of trial.

This case points to an aspect that I wished the USA Today team had delved into: The unusual nature of the federal sex offender population. Although those eligible for civil commitment are supposed to be the worst of the worst, in reality Butner's population is heavily weighted toward an unlikely admixture of:

Men convicted of possessing or distributing online child pornography, criminalized in 2003, and

Native Americans.

The second group was the surprise to me. Unlike routine sex offenses that are prosecuted in state courts, crimes committed on Indian reservations are federal offenses.

Up until now, neither the U.S. Justice Department nor any watchdog agency has expressed public concern with whether the the federal civil commitment scheme, with its haphazard and capricious implementation, passes Constitutional muster.

Hopefully, this USA Today report will bring some much-needed attention to just what is going on down there in North Carolina.

Prior blog posts about the federal civil commitment prosecutions:

Civil commitment petition against Butner, NC prisoner dismissed (Jan. 5, 2012)
Federal judge tosses hebephilia as basis for civil detention (Jan. 20, 2012)

*The situation remains fluid. Right after the publication of the USA Today report five days ago, I have learned that the government lost yet another trial. This despite a 200-page report from a government expert assigning Steven Wiseman a panoply of mental disorders, including pedophilia, hebephilia and antisocial personality disorder.

Report: 2,500 serving life for crimes committed as children

2012-03-11T08:00:00.002-07:00

United States far out of step with global community

Photo credit: Richard Ross, Juvenile in Justice

"Life without possibility of parole for a 13-year-old?!" a European colleague exclaimed, clearly disbelieving my story.

With the Land of the Free far out of step with the rest of the world, wonderment over our criminal justice policies is not uncommon internationally, but nowhere moreso than regarding our treatment of juveniles. We are the only country in the world who condemns juveniles to spend their entire life behind bars for crimes committed as children.

(We're also way out of step in our overall incarceration rates and in our penchant for solitary confinement, too, but that's another story -- see today's New York Times for more on that.)

Now, the first-ever national survey documents numbers far higher than even I imagined: Not just a handful, but more than 2,500 Americans are serving life without parole for crimes committed before the age of 18.

The oldest prisoner in the survey, now 67, has served half a century in prison so far. Just stop for a moment and ponder the implications of that.

The Sentencing Project's report, The Lives of Juvenile Lifers, comes just weeks before the U.S. Supreme Court hears oral arguments in the cases of two 14-year olds, Miller v. Alabama and Jackson v. Hobbs, which will address questions about the constitutionality of sentencing teens to life without the possibility of parole.

The national survey draws a portrait of severe disadvantage experienced by those serving life sentences without parole: Juvenile lifers were exposed to high levels of violence in their homes and their communities. Among the 45 girls serving life, three-fourths experienced sexual abuse before their crimes.

"Most juveniles serving life without parole sentences experienced trauma and neglect long before they engaged in their crimes," stated Ashley Nellis, research analyst of The Sentencing Project and author of the report. "The findings from this survey do not excuse the crimes committed but they help explain them. With time, rehabilitation and maturity, some of these youth could one day safely re-enter society and contribute positively to their families and their communities."

It will come as no surprise to most of you that race has much to do with who gets this draconian sentence. African Americans, who make up only 12 percent of the U.S. population, represented 60 percent of these children -- five times their proportion of the population, They are especially likely to be serving life without parole if they killed a white person.

From a fiscal standpoint alone, the report notes, the costs to states of incarcerating someone from their teens into their twilight years, when health costs rise steeply, is at least $2 million per prisoner.

The report advocates spending more money on prevention programs, instead of warehousing:

Instead of spending scarce resources on warehousing lives that could be transformed, we could be spending money more wisely, helping victims, and improving public safety. The nonpartisan American Law Institute recommends a “second look” after 10 years of imprisonment for life-sentenced youth. Notwithstanding the probability that most prisoners would not be granted release after only 10 years, if even one eligible inmate was determined to be ready for release upon this “second look,” this could save a typical state $1.8 million in needless incarceration. The money saved could instead be directed at prevention and intervention programs that have a strong evidence-base in lowering crime: preschool programs, parenting skills development, multi-systemic therapy, vocational training, substance abuse treatment, and a host of other effective interventions that would reduce crime and repair families and communities from damage associated with violence.

The full report, which I highly recommend, can be read or downloaded HERE.

Of related interest:

Another Bite at the Graham Cracker: The Supreme Court's Surprise Revisiting of Juvenile Life Without Parole in Miller v. Alabama and Jackson v. Hobbs, by by Scott Hechinger, Georgetown Law Journal

Life, with dementia (New York Times article about the growing problem of dementia behind bars)

Hat tip: BRUCE

Internet stings: Does the fantasy defense hold water?

2012-03-05T06:24:00.006-08:00

Scott Ritter, the former U.N. weapons inspector, was among the most vocal in insisting that the Bush administration fabricated its claims of “weapons of mass destruction” in order to justify the U.S. invasion of Iraq.

Ritter didn’t receive much public gratitude for his efforts to avert a costly and destructive war. Instead, he lost his career and his life gradually unraveled. Sinking deeper into depression, he fled into chat rooms, where he arranged rendezvous with adult women willing to watch him masturbate. At first, the meetings took place in cars or out-of-the-way places. Later, he switched to using a webcam, according to a profile by Matt Bai in the New York Times Magazine.

Then came that fateful day in February 2009 on which, in a Yahoo chat room for adults, he conversed with “Emily.” Although she told him she was 15, Emily was actually a small-town police officer, trolling for sexual predators online.

After doing his usual thing of masturbating in front of the webcam, Ritter announced he was signing off to take a shower.

Not so fast, retorted the officer:

"U know ur in a lot of trouble, don’t you? I’m a undercover police officer. U need to call me ASAP."

"Nah," Ritter typed back. "Your not 15. Yahoo is for 18 and over. It’s all fantasy. No crime."

"I have your phone number and I will be getting your IP address from Yahoo and your carrier," the officer responded. "We can do this 2 ways call me and you can turn yourself in at a latter date or I’ll get a warrant for you and come pick you up."

Ritter turned himself in. At his trial, he testified that he never for a moment believed he was talking to a minor; he assumed he was chatting with a bored housewife pretending to be 15.

Unfortunately for Ritter, jurors were told of his two prior arrests in similar cases, for which he was never prosecuted. In both cases, undercover police had lured him into meetings with fictional teenage girls. His claim that he knew that he was actually talking to undercover police in both cases likely strained the credulity of jurors, who convicted him in the case of “Emily.”

After hearing testimony from a government evaluator who called Ritter a sexually violent predator, the judge sentenced him late last year to a prison term of 18 months to five and a half years.

Fantasy defense succeeds in Queensland

Had it not been for his two earlier cases, Ritter’s defense might not have been all that far-fetched. After all, it worked for Darryl Plumridge of Queensland, Australia back in 2007.

Just like Ritter, Plumridge engaged in online chat with an undercover police officer posing as a teenage girl, in this case a 13-year-old with the screen name of “Erin Princess Baby.”

His defense was simple, according to a forthcoming article in Psychiatry, Psychology and Law: “He claimed that he knew the person with whom he was communicating was an older male and he was simply role playing.”

At trial, he testified that the covert police operative inadvertently supplied various content cues as to his true age and gender. For example, he signed off by saying "see ya later alligator," something no self-respecting 21st-century girl would say. Even more tellingly, he accidentally said he ("she") was at the office when "she" was supposed to be home from school, a glaring error that "she" immediately corrected.

Plumridge was acquitted.

Study: Can people see through online deception?

Criminologist Robyn Lincoln of Bond University and forensic psychologist Ian R. Coyle, a Gold Coast practitioner and associate professor of law who testified in the case, decided to conduct a study to test the plausibility of Plumridge’s defense. Given the flat nature of internet communication, lacking in physical or tonal cues, can people actually deduce the true age and gender of someone who is pretending to be someone else?

Bottom line? Yes, they often can.

Lincoln and Coyle randomly assigned 46 students as either "deceivers" or "receivers." Each volunteer participant was met off-site and individually led to one of several private study locations, to preclude chance encounters with other participants. Deceivers were instructed to play the role of a 13-year-old girl. Receivers, in contrast, were misled to believe that they might be talking with individuals ranging in age from young children to the elderly. The pairs then chatted with each other for 30 minutes.

Despite the deceivers' best efforts, the majority of receivers were able to correctly identify the age and gender of the person with whom they were chatting, within a five-year bandwidth. None of the receivers believed they were talking to someone under the age of 16.

Thus, the claims of Plumridge and Ritter, that they knew they were chatting with adults but ignored that reality for purposes of fantasy role-playing, appear to have some scientific basis.

As law enforcement officers increasingly partake in trolling the internet for sexual predators in their spare time, it is probably only a matter of time before the Bond University study is introduced into court as evidence.

The study, "No one Knows you’re a Dog on the Internet: Implications for Proactive Police Investigation of Sexual Offenders," has been accepted for publication in Psychiatry, Psychology and Law. Correspondence may be directed to the first author, Robyn Lincoln.

On providing invited testimony in a legislative hearing

2012-03-03T08:53:00.003-08:00

Reflections of a forensic psychologist

Floyd L. Jennings, JD, PhD, a clinical psychologist and attorney with a long-time clinical practice, currently works in county government to address the problems of the chronically mentally ill in the criminal justice system. In this capacity, he testified this week before a state legislative committee. Here, he reflects on that experience:

As special resource counsel to the Mental Health Division of the Harris County Public Defender (Houston, Texas), I was asked to provide testimony to the Texas House Subcommittee on Criminal Jurisprudence -- and did so on 29 February 2012.

For those having a history of legislative contact, serving as a witness in a hearing may be not at all discomforting. But to one for whom it was a new experience it was quite different.

First, the charge of the committee was to address whether alternative sentencing for mentally ill persons would be desirable. I argued simply that no changes in sentencing were needed -- because it would be difficult to craft, impossible to implement as it would trade on definitions of applicability, and moreover, courts already have the option of considering a defendant's state of mind as either mitigating or exculpating.

On the other hand, diversion strategies for the lower-level misdemeanor offender could have enormous cost benefits and not compromise public safety. As well, pre-trial jail psychiatric services could be provided at modest direct cost through the use of physician extenders, and provide just that opportunity for stabilization necessary to enable rapid disposition of the matter, shortening any period of confinement. Finally, I argued that opportunities for post-disposition placement tiered to the acuity of the person would dramatically reduce recidivism.

Second, the affective dimensions of proffering testimony are profound -- the setting is elegant and the committee is seated above the witness much like justices in a supreme court. Witnesses are presented with questions for which there are often no easy answers, but to which some response must be made. My case was no exception.

Third, I learned that the lucidity of the argument may have little consequence. I was upbraided for failing to provide the legislature with specific means of cost savings through transfer of mental health services to the "private sector", although there is no private sector entity with the duty to provide mental health services to the chronically mentally ill on a statewide basis. And even if existing, no private sector entity has the resources to provide such. The tone of questions made it plain that legislators would prefer to have government provide all the goods and services that governments rightly provide, but at no cost, or with private sector funding.

Fourth, the venue of a public hearing is no occasion for stirring rhetoric or confrontation. I felt I should have reminded the committee that the present moment is not the occasion for abandonment of those functions which are uniquely governmental -- the care of the weakest members of society who are ill equipped to care for themselves. But in retrospect, and having viewed the videotape of the proceeding, it was far the better to have remained on task, and narrowly focused upon the committee's charge.

Finally, the message for psychologists, and mental health providers in general, is multifold: Involvement in the legislative process is to venture into unfamiliar and discomforting territory. However, social change is rarely achieved in a sterile environment, or one involving only warm and supportive exchanges. Moreover, to call upon governmental entities to fulfill their statutory duty as well as higher moral purpose, it to expose oneself to a certain amount of discord. In short, it goes with the territory.

Would I do it again?

I hope so, because in the course of the day I realized there were many I knew personally who were also participating in the process and there is also something rewarding about believing that perhaps you touched even one person having decision-making power to effectuate change.

The video of Dr. Jennings’ testimony is online HERE (beginning at 1:44:50).

Australians: Proposed paraphilia diagnoses 'dangerously circular'

2012-02-29T08:37:00.005-08:00

Proposed expansions of the sexual disorders in the DSM are getting negative attention Down Under, with critics worried about the blurring of lines between bad behavior and mental illness, according to an article in today's Sydney Morning Herald.

The article in Australia's fourth-largest newspaper focuses on the expansion of pedophilia to include a hebephelic subtype and the placement of a "so-called paraphilic coercive disorder" (rape-proneness) in the upcoming manual's appendix as a proposed condition meriting further study.

Most mental health professionals in Australia use the American Psychiatric Association's diagnostic nomenclature, enshrined in the Diagnostic and Statistical Manual of Mental Disorders (DSM), rather than the International Classification of Diseases (IMD), the international standard promulgated by the World Health Organization.

Australian psychiatrists and psychologists worry that the sexual disorder expansions will pave the way for more civil detention, in violation of the United Nations' International Covenant on Civil and Political Rights or, conversely, may be used by sex offenders to minimize or avoid legal punishment.

Indeed, in a case currently in the news in Melbourne, a well-known chef who sexually exploited vulnerable 13- and 14-year-old girls has introduced expert testimony on hebephilia as a mitigating factor. At a presentencing hearing, a defense-retained psychiatrist testified that Simon Humble suffered from hebephilia and would find prison difficult.

In addition to quoting clinicians and scholars in Australia, reporter Amy Corderoy reached across the Pacific to discuss the issue with your faithful blogger, a recent guest in Queensland; her article links back to this blog.

Forensic psychologist blackballed over competency opinions

2012-02-28T21:42:00.003-08:00

Imagine that every time you evaluated a criminal defendant, a partisan advocate was standing by your shoulder, ready to accuse you of bias if you thought the defendant was incompetent to stand trial. To make matters worse, imagine you were assigned those defendants most likely to be impaired, due to developmental disabilities that interfere with their ability to understand their cases or work with their attorneys.

That's the pressure being applied to Ray Hendrickson, a respected forensic psychologist in the state of Washington. Accusing him of bias, local prosecutors have succeeded in getting him barred from examining criminal defendants in one Washington county.

"We have made it very clear that we don't approve of Dr. Hendrickson,"' a representative of the Pierce County (Tacoma) prosecutor's office told the local newspaper.

Prosecutors accuse Hendrickson of endangering public safety by finding too many defendants incompetent to stand trial. Hendrickson is a lead psychologist and training director at the Center for Forensic Services at Western State Hospital, one of two state hospitals where criminal defendants undergo competency and sanity evaluations and treatment under Washington’s centralized system.

The beleaguered psychologist is one of the only in-house experts qualified to evaluate defendants who have developmental disabilities as well as mental illness. As a hospital spokesperson pointed out, such defendants often are found incompetent to stand trial because they are too impaired to understand their cases or assist their attorneys in their defense.

The hospital said it acceded to prosecutors' demands under duress, because state law entitles the prosecuting attorney to approve one of the two experts appointed to conduct a competency or sanity evaluation.

To challenge Hendrickson, prosecutors pored over felony cases in which defendants were found incompetent to stand trial. Hendrickson was involved in almost half of 30 such cases over a 3-year period, they claim. One case highlighted in the news involved a developmentally disabled man accused of stabbing his girlfriend. After being found unrestorable to competency, the man was ultimately released from the hospital.

(The local news article incorrectly states that defendants found incompetent to stand trial on violent felony charges typically have their cases dismissed. In actuality, most stand trial after undergoing competency restoration treatment; only a small percentage are found unrestorable after one year of treatment, making them eligible for civil commitment if they remain dangerous.)

Defense attorneys are livid, calling the attack on Hendrickson a naked power play intended to strip criminal defendants of their right to an impartial evaluation. This is at least the second time in recent memory that Pierce County authorities have successfully objected to a respected and skilled evaluator with whom they did not see eye to eye.

Such partisan interference will only increase the pressure faced by many evaluators in state hospital settings, where beds are increasingly scarce, to find defendants competent in order to help the criminal justice process speed things along.

Having done my forensic postdoctoral fellowship in the forensic unit at Western State Hospital in the 1990s, I find this news especially sad. Back when I was there, the unit was a top-notch training site, where evaluators were given the resources, training and support to perform neutral, high-quality forensic evaluations.

Although even back then the state evaluators had a reputation of prosecutorial bias, in reality we had the independence to let the chips fall where they may. As prosecutors were fond of eliciting from us under direct examination, we didn't have to worry about earning referrals, and we got paid the same no matter which side won or lost a case.

But if prosecutors blackball experts with whom they disagree, it will be hard for them to honestly claim that their hand-picked psychologists are truly independent.

Even more ominous is a bill being considered by the state’s legislature that would require only one expert -- approved by the state -- in competency cases. The defense could request a second expert under the proposed law, but such a request would not be automatically granted.

Such a move might seem to make fiscal sense. But, given the poor rates of agreement among competency evaluators, it may be penny-wise but pound-foolish. According to a new study out of Hawaii, for example, competency evaluators disagree in about two or three cases out of every ten. That's in part because competency is nuanced. Evaluators tend to concur in obvious cases involving florid psychosis, but may arrive at different opinions in gray cases in the middle of the competency continuum.

Since judges tend to rubber-stamp experts' opinions, having only one evaluator will substantially increase rates of error. Some cases will be unnecessarily delayed while defendants undergo needless (and costly) treatment; at the other end of the spectrum, some defendants will be unfairly convicted, undergoing trials without understanding the proceedings or being able to assist their attorneys.

Winnowing the process down to one potentially idiosyncratic opinion, or forcing out well qualified evaluators based upon their rates of incompetency findings, will make the process more unreliable and, in the end, hinder justice.

Related blog post:

How competent are the competency evaluators? Largest real-world study finds modest agreement among independent alienists (Jan. 21, 2011)

Hat tip: Ken Pope

Blogger urges new paradigm for sex offenders

2012-02-23T20:15:00.002-08:00

Clarence Opheim, sentenced to 4 years
in prison back in 1988

Among sex offenders in Minnesota, Clarence Opheim is a very important man. After 20 years of treatment, the 64-year-old pedophile will be the second person ever released from civil detention in the North Star State, which holds the dubious distinction of having the highest per capita civil commitment rate.

The other 639 detainees are pinning all their hopes on next month's provisional release. If Opheim can make it, maybe they can too. The only other guy who came out except in a body bag violated his release conditions and in 2003 was returned to detention, where he died at age 45 of a heart attack. [See comments section for more on him.]

The program has been under pressure to release someone; otherwise, it might be found Unconstitutional: The legal premise behind civilly detaining people for crimes that are only remote future possibilities is not that they will be locked up forever, but that they will be treated and then released.

Although some are cheering this as a major turning point in the civil commitment industry, one prominent Minnesota clinician says the celebration is premature: What we really need is a bold paradigm shift in which industry leaders reject civil commitment altogether.

Comparing the civil commitment of sex offenders to the interment of Japanese during World War II, Jon Brandt asks, “If hindsight is 20/20, when we look back at sex offender civil commitment many years in the future, will we be proud of the roles that we had today?"

Brandt, a social worker, directs a residential treatment program for adolescent boys. He is also an expert witness in juvenile proceedings and a frequent professional trainer and media commentator who has addressed the Minnesota legislature on child welfare issues.

In his guest post on the blog of the influential Association for the Treatment of Sexual Abusers (ATSA), Brandt says the industry may have painted itself into a corner through its timidity about releasing sex offenders back into the community:

The Moose Lake detention site
It is not just in everyone's interest that Mr. Opheim succeeds; it is imperative. Consider the alternative: If the second of only two discharges in MSOP [the Minnesota Sex Offender Program] history fails, for any reason, both failures will be seen as a malfunction of both MSOP and SOCC [sex offender civil commitment]. A second unsuccessful discharge is not only likely to have far-reaching consequences for sexual offender management in Minnesota; a seismic "thud" may well be heard at ATSA listening posts across the country. In addition, it would be hard for the courts to ignore.

SOCC in Minnesota may now be painted into a corner. In the interest of public safety we may have compromised Constitutional protections beyond integrity. Perhaps Ben Franklin's quote is apt, that "those who would give up essential liberty to purchase a little safety deserve neither liberty nor safety."

Brandt urges ATSA to take the lead in challenging civil commitment, based on the low rates of sex offender recidivism established through empirical research including a new survey in Connecticut that found that only 3.6 percent of parolees who had served a prison term for a sex crime were arrested and charged with a new sex crime:

We have very solid empirical evidence to challenge current misguided public policies. We need to get good research to the right folks. We need to infuse policy makers with the necessary information for bureaucracies to champion productive recommendations into meaningful change…. If we use our knowledge and expertise to educate the public, inform our colleagues, and persuade policymakers that best practices should emanate from good science, we might not have to settle for incremental changes. We can help create new paradigms….

If professionals who work with sexual offenders do not challenge the politics, misinformation, and misguided management of sex offender civil commitment, where is a more credible voice going to come from? In an area of public policy where reason is often eclipsed by emotion, ATSA members may be in the best position to know the research, understand competing principles, and advocate for sound rationales. If forensic psychology with sexual offenders is being dominated more by forensics than psychology, I would suggest that the tail might be wagging the dog.

I recommend reading the entire post, available HERE.

Treatment and risk among the most dangerous sex offenders

2012-02-21T22:34:00.004-08:00

Study questions need for lengthy treatment of detainees

McNeil Island with prison ferry in foreground

McNeil Island is a lonesome place these days. In a cost-saving moving, the state of Washington has shuttered the prison. The McNeil Island Correctional Center was the last of its kind, the twin sister of the more infamous Alcatraz Penitentiary in the San Francisco Bay.

Back when I briefly worked there in the late 1990s, it was a rustic place, its forests and overgrown orchards teeming with deer and other wildlife. Now, it is dominated by a modern civil detention site housing about 284 sex offenders. Built at a cost of $60 million, the Special Commitment Center costs another $133 million* per year to run, at a time of massive cuts to essential public services.

Special Commitment Center (photo credit: Seattle Times)

Although Washington holds the distinction of housing civil detainees on a remote island that can only be reached by air or water, the state's larger quandary is not unique. Swept along by public panics and political posturing, 20 U.S. states have approved civil detention programs that are becoming costly albatrosses.

The 30 other U.S. states, as well as other countries around the world, are in a position to ridicule the obscenely high costs of indefinitely quarantining such small handfuls of offenders.

Our neighbors to the north are far more sensible, as it turns out. At the Regional Treatment Centre (RTC) in Kingston, Ontario, Canada, civil commitment is nonexistent, and the highest-risk sex offenders may be released after an average of just seven months of treatment.

And how many of those bad actors go on to sexually reoffend after their brief but intensive treatment?

Fewer than 6 percent, according to a new study. Although the study's 2.5-year follow-up period is relatively short, the findings echo those of a previous study by co-author Jeffrey Abracen and colleagues, finding that even after nine years, only about 10 percent of offenders released from the RTC had reoffended.

Comparing high-risk Canadian sex offenders with similarly dangerous offenders civilly committed in the U.S. state of Florida, the researchers found the two populations to be virtually identical. Of the 31 sex offenders released in Florida, only one (or 3 percent) sexually reoffended. Because so few sex offenders are being released from civil detention sites in the United States, it is difficult to accurately estimate how many of them might reoffend in the community; this study could help to fill this gap, by providing a proxy group.

The low recidivism rates in Canada after only brief treatment suggests that the interminable treatment regimens at U.S. civil commitment sites, which typically last for years and years, are "more cultural than practical," reflecting the U.S. propensity for severe punishment, according to the study's authors, Robin Wilson and Donald Pake Jr. of Florida and Jan Looman and Jeffrey Abracen of Canada. One downside of such interminable treatment is that offenders may become institutionalized, with negative affects on their personalities, the authors suggest.

The researchers highlighted the fact that despite being among the highest-risk sex offenders from their respective prison systems, both the Canadian and U.S. offenders reoffended at rates far below those predicted by the Static-99 and Static-99R, the most widely used actuarial instruments for predicting recidivism.

These researchers are not the only ones coming to the conclusion that the actuarial instruments drastically overpredict recidivism. In the state of Virginia, lawmakers are questioning the use of the Static-99 after noting that civil commitment recommendations shot up when the state began mandating use of the Static-99 in 2006, jumping from about 7 percent to 25 percent of all sex offenders being released from prison.

"When the test was designated in law in 2006, it was believed that a score of 5 meant that the offender was 32 percent likely to commit another sex crime," according to a news report. "Updates have brought that risk down to about 11 percent. Researchers say that even may be too high."

Echoing what many of us have been saying for several years now, a study by Virginia's Joint Legislative Audit and Review Commission, the investigative arm of that state's General Assembly, concluded that the Static-99 is not all that accurate for assessing the risk of specific individuals, as opposed to groups.

Rather than scrapping the civil commitment program altogether, and saving themselves a cool $23 million per year, the first state to mandate the Static-99 almost did a 180 to become the first state to scrap its use altogether. Proposed legislation would have entirely "eliminate[d] the use of the Static-99 assessment instrument" for civil commitment purposes. For some reason, though, that language was removed from the most current version of House Bill 1271.

Stay tuned. As more solid research begins to overtake the hype, these and other political skirmishes are likely to become more common in financially desperate states. Eventually, I predict the entire civil commitment enterprise will hit the scrap pile as did the old sexual psychopath laws of the 1950s, but not before 20 U.S. states and the federal government squander many, many more millions of public dollars.

The study is: Comparing Sexual Offenders at the Regional Treatment Centre (Ontario) and the Florida Civil Commitment Center by Robin Wilson, Jan Looman, Jeffrey Abracen and Donald Pake Jr., forthcoming from the International Journal of Offender Therapy and Comparative Criminology. To request a copy of this article, you may email co-author Jan Looman (CLICK HERE). Thank you, Dr. Looman.

*See comment by Becky, below, who found the exact cost in the current state budget.

Who wants us to wear wizard suits, and why?

2012-02-12T11:15:00.000-08:00

A blog subscriber from Spain, Professor Antonio Andres Pueyo of the Universidad de Barcelona, asked me to play Snopes detective on some blogosphere buzz: Was legislation really introduced in New Mexico stating that psychologists and psychiatrists must wear wizard outfits when testifying as experts?

The story turns out to be true. Here’s the actual text:

When a psychologist or psychiatrist testifies during a defendant's competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts. Additionally, the psychologist or psychiatrist shall be required to don a white beard that is not less than eighteen inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding the defendant's competency, the bailiff shall dim the courtroom lights and administer two strikes to a Chinese gong.

The amendment was tacked onto a 1995 bill addressing licensing guidelines for psychiatrists and psychologists in the Land of Enchantment. Approved by a voice vote in the state senate, it fizzled out in the house of representatives.(1)

Although it was never enacted, its author likely owes his 15 minutes of fame to that single little dead-end amendment. It continues to be widely cited in articles and books; now, 17 years later, it has suddenly gained notice in the blogosphere, ping-ponging from Magraken’s BC Injury Law blog to Overlawyered to Mind Hacks, and many more.(2)

But Professor Pueyo's query about the veracity of the fated legislation sparked my curiosity. Why was it written? And why its lasting allure?

Is that all there is?

Yes, it's catchy and colorful. But what accounts for its remarkable staying power and ability to bounce back from the dead? (Can you tell I’ve been reading zombie novels? I just finished Colson Whitehead's Zone One, which I recommend to any of you zombie fans out there.)

The amendment's author, ex-state senator Duncan Scott, wrote it not just as a harmless prank. Satire is a powerful weapon, and the goal of the hard-core Republican, as he told Harper's Magazine at the time, was to highlight his disapproval of the use of insanity pleas in criminal trials. (Ironically, his language confuses insanity with incompetency, which as we all know is a different matter altogether.)

Just as panic over bogeyman sex offenders is all the rage today, a perceived rise in insanity verdicts was a hot-button topic in the 1980s and 1990s, in the wake of John Hinckley's insanity acquittal in the attempted assassination of President Ronald Reagan. The verdict triggered widespread public concern over the reliability of psychiatric testimony, and the U.S. Congress and half of the states changed their laws to limit or eliminate the insanity defense.

In reality, the popular concern was misplaced. Insanity is very rarely invoked as a defense, being used in less than one percent of cases, and it is successful even more rarely. And, contrary to public opinion, forensic psychologists and psychiatrists who evaluate a defendant's mental state are most likely to conclude that he or she does not meet the legal threshold for insanity.

So who continues to cite the wizard amendment in books and articles, and for what purpose?

Not surprisingly, the Scientologists -- haters of all things psychiatric -- were among the first to embrace it. A 1997 article in the Scientology front magazine USA Today (no relation to the newspaper), blaming psychiatry for "the breakdown of law and order," leads off with the amendment.

Other critics of psychiatry, including Thomas Szasz and Tana Dineen, jumped aboard the train, approvingly citing the wizard passage in their books. Even the authors of forensic how-to texts, such as Christopher Slobogin, Ralph Slovenko, and Robert Meyer and Christopher Weaver, took to citing the passage, as a cautionary message about forensic excesses and overconfidence in prediction.

Walter Olson, Senior Fellow, Cato Institute

And then there's the resurrection of the wizard amendment in the blogosphere. No doubt, many posters are just enchanted by the guffaw factor. But it is no coincidence that its most prominent disseminator is Overlawyered. This blog (which claims to be "the oldest law blog") is the mouthpiece of Walter Olson, a senior fellow at the conservative think tank the Cato Institute; formerly, Olson was with the Manhattan Institute, a right-wing think tank founded by former CIA director William Casey.

You have to give these people their props. They are pure geniuses when it comes to spinning the news to illustrate the supposed excesses of the civil trial system, as in the infamous case of the scalding McDonald's coffee. (For more on that, check out the new movie, Hot Coffee.) By exaggerating the costs and ignoring the benefits of the U.S. tort system, they aim to limit class action lawsuits and other methods for citizens to seek redress when they are injured by corporate greed and malfeasance.

And the wizard satire is brilliant in tapping into not only rancor toward the trial system, but also deep-seated cultural hostility toward the intelligentsia, the class resentments so deftly harnessed by Sarah Palin and the Tea Party back in 2008.

As readers know, I am the last to defend arrogant forensic psychiatrists and psychologists; this blog is known for blowing the whistle on our field's excesses: The $500,000 competency report, the "boatloads" of cash earned by some government evaluators, the bogus psychiatric diagnoses being promulgated in sexually violent predator cases.

But, let's face it. By and large forensic evaluators are pawns, not chess masters. We are invited into the legal realm by attorneys and courts, and serve at their discretion. While a few of us may exhibit an arrogance meriting a wizard hat, by and large forensic practitioners are appropriately humble and honest, and make every effort to remain within the limits of our science.

So, while the wizard amendment may be humorous at first blush, the meaning behind the message turns out to be anything but funny.

Notes:

(1) There are different versions of its progress through the legislature. Harper's Magazine, in a July 1995 report, said it was approved by the state senate but rejected by the house of representatives. Another popular scenario has it winning in both the senate and the house, the latter by a vote of 46-14, before being vetoed by the governor. The amendment's author, Duncan Scott, gave a different account to blogger Erik Magraken, saying the language was removed before the bill even reached the house. The online records of the New Mexico Legislature only go back as far as 1996, but if anyone wants to dig back through the paper records, the citation is: Senate Floor Amendment 1 to Senate Bill 459 (Richard Romero), 42nd Leg., 1st Session (New Mexico 1995).

(2) My favorite blog post on the wizard amendment is by Tom Freeland, a Mississippi lawyer, who said the provision reminded him of one tacked onto a "victim’s rights" bill being pushed through the Mississippi senate, which would have granted victims the right to sit at the counsel table in a criminal trial. A Mississippi senator, Hob Bryan, "annoyed proponents by moving that the provision be waived in murder cases," Freeland reported.