Tuesday, September 30, 2008

9th circuit upholds expert witness exclusion

Proposed testimony on murder victim's suicide risk

Jeffrey Moses' defense against the accusation that he murdered his wife Jennifer was that she shot herself to death. As evidence, he wanted to call Dr. Lawrence Wilson, a forensic psychiatrist and expert on suicide.

At a pretrial evidentiary hearing, Dr. Wilson said he would testify about Jennifer's depression and substance abuse. To counter the testimony of government witnesses who said she did not appear visibly depressed, he was prepared to opine that someone who is severely depressed can mask such feelings from friends and co-workers.

As law professor Colin Marshall summarized it over at the EvidenceProf Blog:
Dr. Wilson was also prepared to testify that several risk factors, such as depression, substance abuse, and access to firearms, heighten the risk of suicide. Additionally, he was prepared to testify that lay persons do not fully understand the implications of major depression and the connection between these various risk factors and suicide. Although Dr. Wilson was not willing to opine that Jennifer Moses committed suicide, he was prepared to testify that Jennifer Moses fell "into a group of people with an extreme number of severe and significant risk factors for suicide" and that "she continued to suffer [from] major depression...that continued to the time of her death."
The trial court excluded Dr. Wilson's testimony on the grounds that much of it was within the common knowledge of potential jurors, and was cumulative in light of other evidence that Jennifer did indeed suffer from depression. Also, Dr. Wilson's testimony that 15 percent of people with depression ultimately kill themselves was too prejudicial and potentially confusing to a jury, the trial court ruled.

The Washington state case is Moses v. Payne, 2008 WL 4192031 (9th Cir. 2008), available online here. The analysis by Professor Colin Miller from the John Marshall School of Law is here.

Monday, September 29, 2008

Odd twist in latest DNA exoneration

Speaking of movies -- here's a yarn that would make a good film plot:

A man named Clay Chabot is suspected of raping and killing a woman named Galua Crosby. He goes to trial. A key piece of evidence is the testimony of his brother-in-law. The brother-in-law, Gerald Pabst, testifies that Chabot forced him to tie up Mrs. Crosby and then ordered him out of the room; he could hear Ms. Crosby saying "no" before she was shot. With this kind of evidence, it is no surprise that Chabot is convicted. He gets life.

For the next two decades, Chabot insists he is innocent. He requests DNA testing to prove it. Finally, he gets his wish and - guess what - the incriminating DNA belongs to his good samaritan brother-in-law.

What makes the case all the more interesting is that the prosecutor, Janice Warder, had cut a secret deal with Pabst, promising him immunity from prosecution in exchange for his testimony. Considering his guilt, it was too good a deal to pass up.

And, since no bad deed goes unrewarded, the prosecutor went on to become a judge in Dallas County, Texas; she is now up for uncontested reelection as the District Attorney of Cooke County, Oklahoma.

For Dallas Morning News coverage on this case, see:

Former Dallas County prosecutor who withheld evidence will be Cooke County's District Attorney

Judge calls for retrial in 1986 slaying because of ex-prosecutor's misconduct

Jury convicts man of murder in 1986 Garland slaying

On an unrelated note, the Dallas Morning News also has a cool web page devoted to the Dallas Police Department's cold-case squad and some of its more interesting unsolved cases. Check it out; it's better than the TV series by the same name.

Hat tip: Grits for Breakfast

Sunday, September 28, 2008

Engaging new techno-political thriller

Eagle Eye

I don't know about you, but on those rare occasions when I have time to go see a movie, I am having trouble finding any worth seeing. With that in mind, I thought I would pass along a recommendation for Eagle Eye. It's an action thriller with a timely and relevant message. If you liked Gattaca (1997), you'll enjoy this one. I won't say more on this blog, but my Amazon review is online here.

Friday, September 26, 2008

New manual for SVP evaluators

I just finished reading the brand-new manual, Evaluation of Sexually Violent Predators by Philip H. Witt and Mary Alice Conroy, and I regret to say that I was disappointed. Perhaps the title should have been a clue: We are supposed to be evaluating convicted sex offenders to see whether they meet the legal criteria of being "Sexually Violent Predators," not making an a priori assumption that they do. At any rate, I found the book superficial and one-sided.

For more specifics, see my Amazon review - online here. (If you like the review, please click on the little "Yes" button where it says "Was this review helpful to you?" That helps to boost my Amazon ratings, which improve the placement of my reviews.)

The manual is one in a new "Best Practices in Forensic Mental Health Assessment" series from Oxford University Press. The series editors include such luminaries in forensic psychology as Thomas Grisso and Kirk Heilbrun.

The title in the Oxford series that I'm really looking forward to is The Evaluation of Juveniles' Competence to Stand Trial by Thomas Grisso and my old colleague from Washington, Ivan Kruh, both of whom really know their stuff on this topic. It's due out in November; you can pre-order it here for just $35.

Thursday, September 25, 2008

Jam-packed new issue of psychiatry-law journal

The latest issue of the Journal of the American Academy of Psychiatry and the Law is now available online, with interesting articles on competency, insanity, dangerousness, practice guidelines, diagnosis in SVP proceedings (a topic I am addressing in an upcoming training and an article in press), and much more:


The LEGAL DIGEST section includes the following summaries and analyses:
And there's even more, believe it or not – check out the full table of contents here.

Wednesday, September 24, 2008

Memory: The sharper, the falser

One of the most surprising things about memory is that contrary to popular belief, the more specific the detail, the less likely the memory is to be accurate. And while gaps in a memory are generally believed to indicate an unreliable memory, the reality is that gaps are virtually a hallmark of the remembering process.

"People still have this intuitive belief that if someone recounts a memory, it must be true if they display strong emotions," says Cara Laney, lecturer in forensic psychology at the University of Leicester. "But I've been studying memory so long that I don't trust very many of my childhood memories at all."

From rose-tinted views of childhood to clear recollections of events that never happened, research shows that memories are both suggestible and inherently idealised.

The rest of UK Guardian reporter Kate Hilpern's fascinating summary of memory research, "Is your mind playing tricks on you?"” in online here. The accuracy of memories is of central import in the field of forensic psychology, as well as related fields such as criminal investigation. So, if Hilpern's brief summary whets your appetite for more, I highly recommend scholar Daniel Schacter’s The Seven Sins of Memory: How the Mind Forgets and Remembers (my Amazon review is here). After reading about the seven sins, you’ll never think the same about your own memory, or anyone else's.

Tuesday, September 23, 2008

Willie Bosket: Tale of a wasted life

Imagine spending one day all alone in a 9-by-6-foot room.

Now, imagine spending one week in that room. How about one year? It seems almost unbearable.

But Willie Bosket hasn't been in that room for just a day or a week or a year. He has spent two entire decades there, and he is scheduled to be there for another four - until the year 2046. In fact, since the age of 9, the 45-year-old New Yorker has been locked up for all but about two years of his life. He gets three showers a week, plus one hour a day of solitary "recreation."

If that is not torture, I don't know what is.

As today's New York Times describes him, the man who at age 15 killed two people on a New York subway is "a paradox, a man of charm and extraordinary intelligence but also of inexplicable fits of rage." His story also exemplifies the human spirit at its most enduring:

Despite his bleak situation, Mr. Bosket refused to concede defeat: "I'm not broken down and never will be."
His life has always been empty, he said. "I grew up with nothing," he said. "I was born with nothing. I still have nothing. I will never have nothing. Forty-five years of living the way I have lived, I like 'nothing.' No one can take 'nothing' from you."

"I've become so callous to the poking of the sword that, literally, instead of bleeding to death, the blood was drained and I became absent of concern, void of emotions, cold - plain cold to the degree that not much affects me anymore," he said.


Yet Mr. Bosket did hint at something of a life of suffering.


"If somebody came to me with a lethal injection, I'd take it," he said. "I'd rather be dead."
The full story, "Two Decades in Solitary" by John Eligon, is here. If Bosket's name sounds familiar, it is because he is rather infamous. It was his case that led to New York's law allowing children to be tried as adults. His family is the subject of a controversial 1995 book by journalist Fox Butterfield, All God's Children: The Bosket Family and the American Tradition of Violence (available in a new paperback edition this year) that traces the family's descent from slavery in South Carolina. The Crime Library also has an online version of Bosket's life story. The prisoner portrait above was drawn by his father, Butch, when he was an inmate at the Wiltwyck School for Boys as a child; by the time his son Willie was born, Butch himself was already serving life in prison.

Tuesday, September 16, 2008

Hang 'em high county to reverse course

Dallas will review all pending executions

Texas executes far more people than any other U.S. state. And within Texas, Dallas County is second only to Harris County (Houston). But now, a crusading prosecutor is set to reverse course, calling for a potential halt to all proceedings until the guilt of each condemned man can be ascertained.

"I don't want someone to be executed on my watch for something they didn't do," said the maverick D.A.

As today's Dallas Morning News reports,
Troubled that innocent people have been imprisoned by faulty prosecutions, District Attorney Craig Watkins said Monday that he would re-examine nearly 40 death penalty convictions and would seek to halt executions, if necessary, to give the reviews time to proceed.

Mr. Watkins told The Dallas Morning News that problems exposed by 19 DNA-based exonerations in Dallas County have convinced him he should ensure that no death row inmate is actually innocent.

"It's not saying I'm putting a moratorium on the death penalty," said Mr. Watkins, whose reviews would be of all of the cases now on death row handled by his predecessors. "It's saying that maybe we should withdraw those dates and look at those cases from a new perspective to make sure that those individuals that are on death row need to be there and they need to be executed."

He cited the exonerations and stories by The News about problems with those prosecutions as the basis for his decision. The exonerations have routinely revealed faulty eyewitness testimony and, in a few cases, prosecutorial misconduct.

Fred Moss, a law professor at Southern Methodist University, said he had never heard of another prosecutor in the country who had conducted the type of review Mr. Watkins proposed.

"It's really quite extraordinary," Mr. Moss said.
Under Watkins' proposal, all pending death cases will be reviewed by his office's Conviction Integrity Unit, which was created last year.

It remains to be seen whether this remarkable about-face will rub off on Harris County, which as of the latest count had surpassed the next-highest state (Virginia) in number of people executed.

The full story is here. Related coverage in the Dallas Morning News is here.

Thursday, September 11, 2008

Prosecuting Internet-based sex crimes

Can expert witnesses play a role?

The following facts come from a court case much like several that I have been involved in:

Dennis Joseph is a 40-year-old married man with a 6-year-old daughter. He spends a lot of time on the Internet. Indeed, one might say he is addicted. Once upon a time, he entered the online chat room "I Love Older Men," and began chatting with "Teen2Hot4U."

"Teen2Hot4U" identified herself as "Lorie," a 13-year-old girl. Lori eventually introduced him to her friend Julie, also 13. Eventually, after lots of back-and-forth chatting, Joseph and Julie arranged to meet.

Joseph later said he was not planning to have sex with an underage girl, he just wanted to see if Julie was a real teen or an adult woman engaged in role-playing.

He got his answer when he showed up at the Franklin Street Station Cafe in Manhattan for the meeting. Instead of a teenage girl, the real Julie was a grown man by the name of Austin Berglas who happened to be an FBI agent and who promptly arrested him. "Teen2Hot4U,"meanwhile, turned out to be a 55-year-old crusader named Stephanie Good who made her reputation surfing the Internet looking for sexual predators to report to Berglas; she even wrote a book on her exploits, grandiosely titled "Exposed: The Harrowing Story of a Mother's Undercover Work with the FBI to Save Children from Internet Sex Predators."

At his federal district court trial in New York, Joseph said he had thought all along that Lorie and Julie were probably adults, based on their sexual knowledge, but he played along as part of his practice of online fantasy role-playing.

His wife backed him up. She testified that Joseph liked muscular woman and was addicted to sexual fantasy role-playing. He even belonged to an Internet group called "Muscleteens," she testified, that solicits pictures of young female bodybuilders.

In his defense, Joseph had also planned to call an expert witness, Dr. James Herriot. Not the James Herriot of veterinary fame, but a professor at the Institute of Advanced Human Sexuality in San Francisco who has researched sexual communication on the Internet. Dr. Herriot would have testified about the fantasy role-playing that takes place in Internet chat rooms.

The trial judge barred Herriot's expert testimony. Joseph was convicted and sentenced to eight years in federal prison. This week, the Second Circuit Court of Appeals overturned the conviction. Although the reversal was on unrelated grounds, the appellate opinion includes a lengthy plea for the judge to reconsider that exclusionary ruling.

"Although the admission or exclusion of expert testimony is [at] the discretion of the court, we urge the District Court to give a more thorough consideration to the defendant's claim to present Dr. Herriot's testimony…. Dr. Herriot's field of study and experience qualified him to offer relevant testimony…. Dr. Herriot's opinions appear to be highly likely to assist the jury to 'understand the evidence.' … Although some jurors may have familiarity with Internet messaging, it is unlikely that the average juror is familiar with the role-playing activity that Dr. Herriot was prepared to explain in the specific context of sexually oriented conversation in cyberspace…. Obviously a jury would not have to accept Joseph's claim that he planned only to meet 'Julie' to learn who she was and that he lacked any intention to engage in sexual conduct with her, but the frequent occurrence of such 'de-masking' of chat-room participants might provide support for the defense."
In a case similar to Joseph's, Dr. Herriot was allowed to testify and the defendant was acquitted, the appellate ruling noted. (That case is U.S. v. Wragg, 01 Cr. 6107.)

The ruling, United States v. Joseph, 2008 WL 4137900 (2nd Cir. 2008), is online here.

Hat tip: Colin Miller (EvidenceProf Blog). Photo credit: Kim Dench ("Temple Dancer"), Creative Commons License.

Monday, September 8, 2008

Convention crackdown redux

Domestic espionage and arrests get little attention

I try to steer away from electoral politics on this blog, despite the abundance of tantalizing fodder. But the federal law enforcement crackdown on convention protestors - which has gotten little mainstream media attention - is worth noting, harkening back as it does to the bygone era of Cointelpro and the Chicago 7.

Marjorie Cohn, a prominent law professor at the Thomas Jefferson School of Law and the author of a new book called Cowboy Republic, has written an eye-opening piece on the "preemptive tactics" to contain protests surrounding the Republican Convention in Minnesota. Salon.com is also giving the issue some press.

Cohn's report, online here, documents FBI-led infiltration of leftists including - in a modern-day twist on the infamous old Cointelpro snooping - a group of vegans, as well as preemptive searches, seizures and arrests by teams of 25-30 officers in full riot gear with weapons drawn.

The raids targeted members of "Food Not Bombs," an anti-war protest group that provides free vegetarian meals every week in hundreds of cities all over the world. The group fed rescue workers at the World Trade Center after 9/11 and Gulf Coast evacuees after Hurricane Katrina. Also targeted was I-Witness Video, a civil libertarian police watchdog group.

City council members in St. Paul, Minnesota have expressed outrage over law enforcement actions "that appear excessive and create an atmosphere of fear and intimidation for those who wish to exercise their first amendment rights," according to Cohn's article.

Analyzing the legal basis for the crackdown, Cohn states:
Preventive detention violates the Fourth Amendment, which requires that warrants be supported by probable cause. Protestors were charged with "conspiracy to commit riot," a rarely-used statute that is so vague, it is probably unconstitutional. [Bruce Nestor, president of the Minnesota chapter of the National Lawyers Guild] said it "basically criminalizes political advocacy."
Glenn Greenwald over at Salon.com says the most extraordinary thing about the heavy-handed crackdown is how little media attention or outcry it has provoked:
So here we have a massive assault led by Federal Government law enforcement agencies on left-wing dissidents and protesters who have committed no acts of violence or illegality whatsoever, preceded by months-long espionage efforts to track what they do. And as extraordinary as that conduct is, more extraordinary is the fact that they have received virtually no attention from the national media and little outcry from anyone. And it's not difficult to see why. As the recent "overhaul" of the 30-year-old FISA law illustrated -- preceded by the endless expansion of surveillance state powers, justified first by the War on Drugs and then the War on Terror -- we've essentially decided that we want our Government to spy on us without limits. There is literally no police power that the state can exercise that will cause much protest from the political and media class and, therefore, from the citizenry.
Perhaps the lack of attention was because everyone was too busy parodying surprise vice presidential candidate Sarah Palin? (See that more entertaining story over at Newsweek.)

The Salon article, online here, has links to other coverage. Cohn's column, "Preemptive strike against protest at RNC," is online here. The sketch above (in case you are too young to remember it!) is of Bobby Seale, the Black Panther who was shackled and gagged during the "Chicago Seven Conspiracy Trial" stemming from the
antiwar protests outside the Democratic National Convention exactly 40 years ago.
Hat tip: Jane

Sunday, September 7, 2008

Trapped in a treatment mall

The article by that title in this month's California Lawyer reminds me of the Eagles lyrics:

You can check out anytime you want,
But you can never leave.
"Pause for a moment in the sun-dappled area they call The Mall at Coalinga State Hospital, and it looks for all the world like Anytown, U.S.A. Against the south wall is the barber shop ("Back at 3:30" announces a sign in the window), and close by is the post office and the Union Square Cafe. Other destinations are known by names that make the facility sound more like a California theme park than a hospital: the Calistoga Dental Office, the Moss Landing Lending Library, the Candlestick Park Visitor's Center. Everything is Disneyland spotless, down to the buffed tile floors.

"But things aren't all they appear to be at Coalinga State Hospital--not by a long shot. The compound's theme-park veneer masks a much harsher reality: Coalinga is a long-term treatment facility for rapists and pedophiles. And most of the 762 patients currently in residence may never leave--except in a box."

The article continues here. The online version has lots of statistical trivia on California's Coalinga State Hospital, a frequent topic of this blog:

Friday, September 5, 2008

Of child molestation and crystal balls

How much can a forensic psychologist really tell?

Defense attorneys regularly telephone me seeking an expert to testify that their client does not "fit the profile" of a child molester.

"What profile?" I want to ask. Men who molest children have no special profile. They come in all shapes and sizes.

After explaining this, I always pass on such cases.

Some forensic psychologists disagree. They think there is a profile, or that we can reliably determine the veracity of children who say they were abused.

Forensic psychologist excluded

In Louisiana, after the courthouse reopened following Hurricane Gustav, one such expert was slated to testify in the high-profile trial of church pastor Louis D. Lamonica.

The defense planned to call the forensic psychologist to tell jurors how to judge the veracity of abuse allegations made by children. No can do, ruled Judge Zoey Waguespack; the children's veracity is up to the jury to decide. Prosecutors had cited Supreme Court precedents to support that position.

The jury began deliberating yesterday. They must decide whether Lamonica molested his two young sons or falsely confessed, as the defense maintains, because he was being controlled by a self-proclaimed prophet who had tortured him, deprived him of sleep, and forced him to wear a dress and two rubber snakes.

The jurors' job won't be easy. Lamonica's sons - both now adults - testified that they were never abused. They, too, allege their confessions were the result of control by self-proclaimed prophet Lois Mowbray, who was arrested but never charged in the case. The boys testified that Mowbray controlled their mother and had her coerce the boys into accusing their father.

The bizarre case harkens back to the largely discredited satanic ritual abuse hysteria of the 1980s. In his tape-recorded confession, which was played for jurors, Lamonica talked about a child-sex ring at his Hosanna Church that practiced satanic cult rituals. Former church members also testified that the church had devolved from an established church into a Christian cult where worshippers publicly confessed and vomited to cast out the demons of sin. The allegations rocked the small town of Ponchatoula, about 40 miles northwest of New Orleans.

Ironically, the case broke when Lamonica himself walked into the local sheriff's station back in 2005 and began babbling about having molested children, taught them to have sex with each other and with a dog, and poured cat blood over the bodies of his young victims. At his trial, Lamonica testified that was all lies.

Unfortunately, the jurors won't have much in the way of science to guide them in choosing which of Lamonica's two diametrically opposed stories to believe.

But wait! High-tech mind reading in the works

While not in time to help Lamonica's jurors, scientists are feverishly working on new technologies to enable us to differentiate truth from lies. The science holds promise, they say, for identifying pedophiles based on their mental attitudes toward children.

Researchers tout the Implicit Association Test (IAT), developed by Harvard scholars to measure unconscious racism, as having the potential to sniff out pedophiles and even psychopathic murderers. (See Gray et al, 2003 and 2005.) A modified IAT called the Timed Antagonistic Response Alethiometer (TARA) can classify responders as liars or truth tellers based on the speed at which they classify sentences and "manipulate response incongruities," they claim. (See Gregg, 2007.) Other researchers have been working to adapt functional magnetic resonance imaging (fMRI) into a lie-detection tool, with mixed results. (See Ganis et al, 2003, and Iacono & Lykken, 1999.)

The current issue of Psychological Science presents an article summarizing this research and offering a new tweak, the autobiographical IAT (aIAT), which researchers boast "outperforms currently available lie-detection techniques."

The authors concede that this and other emergent technologies do "leave important neuroethical issues unresolved." (See Wolpe et al 2005.)

You don't say.

In the forensic realm, it seems particularly problematic to equate attitudes with behavior. After all, many more men lust after children and teens than go on to commit illegal sex acts against them.

The Psychological Science article is: "How to Accurately Detect Autobiographical Events," by Giuseppe Sartori, Sara Agosta, Cristina Zogmaister, Santo Davide Ferrara, & Umberto Castiello. The abstract is available online, and the full article can be requested from the first author.

The Lamonica story, from the Advocate in Baton Rouge, Louisiana, is here. You can search the newspaper's database using the keyword Lamonica for additional case coverage. A New York Times article on the original arrests is here. The Rick A. Ross Institute, which bills itself as a repository for information on cults, has much more on the Hosanna Church here.

A few of my prior related blog posts are:
Scholarly articles referenced in this post are:

Ganis, G., Kosslyn, S.M., Stose, S., Thompson, W.L., & Yurgelun-Todd, D.A. (2003). Neural correlates of different types of deception. Cerebral Cortex, 13, 830–836.

Gray, N.S., Brown, A.S., MacCulloch, M.J., Smith, J., & Snowden, R.J. (2005). An implicit test of the associations between children and sex in pedophiles. Journal of Abnormal Psychology, 114, 304–308.

Gray, N.S., MacCulloch, M.J., Smith, J., Morris, M., & Snowden, R.J. (2003). Violence viewed by psychopathic murderers. Nature, 423, 497–498.

Gregg, A.I. (2007). When vying reveals lying: The Timed Antagonistic Response Alethiometer. Applied Cognitive Psychology, 21, 621–647.

Iacono, W.G., & Lykken, D.T. (1999). Update: The scientific status of research on polygraph techniques: The case against polygraph tests. In D.L. Faigman, D.H. Kaye, M.J. Saks, & J. Sanders (Eds.), Modern scientific evidence: The law and science of expert testimony (pp. 174–184). St. Paul, MN: West Publishing.

Wolpe, P.R., Foster, K.R., & Langleben, D.D. (2005). Emerging neurotechnologies for lie-detection: Promises and perils. The American Journal of Bioethics, 5 (2), 39–49.

Photo credits: ora mia and Josh Bancroft (Creative Commons license)

Wednesday, September 3, 2008

NPR series on confidential informants

Confidential informants are the lifeblood of law enforcement's effort to fight crime. But the best informants are generally very bad people - ruthless criminals - and while their information helps the FBI crack cases, the practice of using these informants is fraught with risk.

So begins an interesting 3-part NPR series by Dina Temple-Raston on the pitfalls of law enforcement reliance on informants.

Part One, "Bulger Case Changed FBI's Role With Informants," features the infamous case of Whitey Bulger, the Irish godfather who corrupted two FBI agents back in the 1970s.

Part Two is entitled, "Some FBI Agents Pay High Price For Using Snitches."

And in Part Three, "Legislator Aims To Regulate FBI Behavior," we hear about the controversial proposal by Rep. William Delahunt (D-MA) to subject FBI agents to criminal prosecution if they don't alert local law enforcement when one of their informants commits a crime.

Illustration: Popular Science August 1958; credit to Radio River (Creative Commons license).

 
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