Sunday, May 30, 2010

Psychopathy guru blocks critical article

Will case affect credibility of PCL-R test in court?

Despite recent evidence that scores on the Psychopathy Checklist-Revised (PCL-R) vary widely in adversarial legal contexts depending on which party retained the evaluator, the test has become increasingly popular in forensic work. In Texas, indeed, Sexually Violent Predator (SVP) evaluators are required by statute to measure psychopathy; almost all use this test. It is not surprising that prosecutors find the PCL-R particularly attractive: Evidence of high psychopathy has a powerfully prejudicial impact on jurors deciding whether a capital case defendant or a convicted sex offender is at high risk for bad conduct in the future.

But a current effort by the instrument's author, Robert Hare, to suppress publication of a critical article in a leading scientific journal may paradoxically reduce the credibility of the construct of psychopathy in forensic contexts.

That's the opinion of two psychology-law leaders, psychologist Norman Poythress and attorney John Petrila of the University of South Florida (two authors of a leading forensic psychology text, Psychological Evaluations for the Courts), in a critical analysis of Dr. Hare's threat to sue the journal Psychological Assessment. The contested article, "Is Criminal Behavior a Central Component of Psychopathy? Conceptual Directions for Resolving the Debate," is authored by prominent scholars Jennifer Skeem of UC Irvine and David Cooke of Glasgow University. The study remains unpublished.

"[T]he threat of litigation constitutes a serious threat to academic freedom and potentially to scientific progress," write Poythress and Petrila in the current issue of the International Journal of Forensic Mental Health. "Academic freedom rests on the premise that advances in science can only occur if scholars are permitted to pursue free competition among ideas. This assumes that scholars have the liberty to do their work free from limitations imposed by political or religious pressure or by economic reprisals."

According to Poythress and Petrila, after the critical article passed the peer-review process and was accepted for publication, Dr. Hare's lawyer sent a letter to the authors and the journal stating that Dr. Hare and his company would "have no choice but to seek financial damages from your publication and from the authors of the article, as well as a public retraction of the article" if it was published. The letter claimed that Skeem and Cooke's paper was "fraught with misrepresentations and other problems and a completely inaccurate summary of what amounts to [Hare's] life's work" and "deliberately fabricated or altered quotes of Dr. Hare, and substantially altered the sense of what Dr. Hare said in his previous publications."

In general, defamation claims must prove that a defendant made a false and defamatory statement that harmed the plaintiff's reputation. Truth is an absolute defense. Critical opinions are also protected from defamation actions, as are "fair comments" on matters of public interest.

In this case, the contents of Skeem and Cooke's contested article have not been made public. However, it is hard to see how critical analysis of a construct that is enjoying such unprecedented popularity and real-world impact would NOT be of public interest.

Poythress and Petrila express concern that defamation claims against opposing researchers, while traditionally rare, may be becoming more common, leading to a potentially chilling effect on both individual researchers and the broader scientific community. Like so-called SLAPPS -- Strategic Lawsuits Against Public Participation -- used by corporations and other special interest groups to impede public participation, even meritless defamation lawsuits extract heavy penalties in terms of lost time and money and emotional distress.

Judges have been critical of pretextual deployment of defamation lawsuits, Poythress and Petrila report; a judge in one case warned that "plaintiffs cannot, simply by filing suit and crying 'character assassination!,' silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation."

Potential negative effects of defamation threats against scientific researchers include:
  1. Researchers avoid conducting critical research out of fear of lawsuits.
  2. Academics decline to serve as volunteer peer reviewers for academic journals due to loss of anonymity in defamation suits.
  3. Journal editors self-censor on controversial topics.
As Poythress and Petrila conclude:

Because publication of the article by Professors Skeem and Cooke has effectively been long delayed, if not ultimately suppressed, one clear impact of this threat to sue is that researchers who may have been willing to investigate alternative models of psychopathy that might have been derived from the Skeem and Cooke article are not able to do so, simply because the article is unavailable. Because science progresses, in part, both by confirming viable models and disconfirming nonviable ones, the suppression of information relevant to constructing candidate models for empirical evaluation can be viewed as impeding the progress of science….

[I]t seems clear from our review that such threats strike at the heart of the peer review process, may have a chilling effect on the values at the core of academic freedom, and may potentially impede the scientific testing of various theories, models and products.
In our view it is far better to debate such matters in peer review journals rather than cut off debate through threats of litigation.
In court, meanwhile, the effects of Dr. Hare's threat may prove paradoxical. Attorneys whose clients could be prejudiced by introduction of the Psychopathy Checklist may be able to discredit the instrument by pointing to the suppression of critical literature about the underlying construct of psychopathy.

POSTSCRIPT: Just hours after I posted this, alert readers advised me that: (1) Dr. Skeem discusses the as-yet-unpublished article in her 2009 book, Psychological Science in the Courtroom: Consensus and Controversy, co-authored by Kevin Douglas and Scott O. Lilienfeld (page 179 in the Google book view is HERE), and (2) according to Dr. Hare's website, he has a response in press (which, ironically, cites the Skeem and Cooke article as being published last year).

The full article is: "PCL-R Psychopathy: Threats to Sue, Peer Review, and Potential Implications for Science and Law. A Commentary," by Norman Poythress and John P. Petrila, in the current issue of the International Journal of Forensic Mental Health. The abstract if available HERE; the full article requires a subscription.

Dr. Hare's response is: "The role of antisociality in the psychopathy construct: Comment on Skeem & Cooke (2009)."
Hare, R. D., & Neumann, C. S. (in press). Psychological Assessment.

Of related interest:

  • "The Dark Side of Peer Review," by Stephen D. Hart, also in the current issue of the International Journal of Forensic Mental Health (abstract HERE)

  • "Does interrater (dis)agreement on Psychopathy Checklist scores in Sexually Violent Predator trials suggest partisan allegiance in forensic evaluations?" by Murrie, D.C., Boccaccini, M.T., Johnson, J.T., & Janke, C. (2008). Law & Human Behavior, 32, 352-362 (abstract HERE)

Thursday, May 27, 2010

Sex offender fallout hitting unrelated laws

Flawed idea would penalize indigent mentally ill

The U.S. state of Delaware marks the letter "Y" on the driver's licenses of sex offenders. Louisiana emblazons the words "SEX OFFENDER." Here in California, a politician running for state attorney general is trying to bootstrap a victory in next week's primary election with a copycat proposal.

Imagine the shame and humiliation when the young store clerk asks for your ID to verify your credit card signature. It's just one more brick in the wall of internal banishment, which -- as law professor Corey Rayburn Yung has pointed out -- is radically changing the face of American culture.

Of course, shaming and banishment are nothing compared with the murders driven by this hysterical and counterproductive scapegoating. Take the unfortunate Florida man who was beaten to death with a baseball bat in his own home by two men who thought he was a convicted sex offender. As it turns out, the elderly gentleman had no criminal record whatsoever; he just happened to share the same name as a sex offender.

Some may dismiss that murder as the rash act of a couple of drunken hooligans. But, as I blogged about back in 2007, such vigilanteism is not uncommon. It is fueled by the rhetoric of our presumably rational leaders -- politicians, policy makers, even mental health experts. In my primary election voter's guide, almost every candidate down to the dogcatcher is promising to make the world safer from sex criminals like Phillip Garrido.

The current freneticism is linked to the case of John Gardner, who raped and murdered teens Chelsea King and Amber Dubois in San Diego. As I noted in my April 3 post on that case, politicians would rather point fingers than accept the limitations of the science of prediction. In a plea bargain that saved his life, Gardner has been sentenced to life in prison without the possibility of parole. His fate is sealed, but the forensic repercussions are just beginning. First up, politicians have approved a $250,000 probe aimed at uncovering flaws in the state Department of Mental Health's practices of screening paroling prisoners to detect sexually violent predators.

Dangerous expansion proposed for MDO law

An especially troublesome piece of forensic fallout from the Gardner case is a proposal by the Sex Offender Management Board (SOMB), created by California's legislature in 2006 to systematize oversight of the state's sex offenders. The Board has issued a report, at the governor's request, that contains a shocking claim and recommendation:

"Changes to the Mentally Disordered Offender (MDO) Commitment Law Might Have Permitted Gardner to Be Committed to a Mental Hospital And Prevented Further Crimes"

Wow! What does the MDO law have to do with sex offenders?! For readers who are not familiar with it, California's Mentally Disordered Offender (MDO) law was enacted in 1986 to protect the public from prisoners who upon release would pose a substantial danger of physical harm to others due to a severe mental disorder. In this case, "severe mental disorder" means just what it sounds like -- a genuine psychiatric disorder (most typically of psychotic proportions) that significantly impairs functioning.

Apparently, Gardner was flagged as a possible candidate for MDO commitment because he received some mental health treatment while in prison. But he was found not to meet the criteria for involuntary hospitalization under that law. As the forensic expert who evaluated him before his trial in 2000 had noted, he had no psychotic disorder; he was "simply a bad guy who is inordinately interested in young girls."

Snippet from forensic report on Gardner, courtesy San Diego Union-Tribune

News accounts have stated that the two MDO evaluators (one from the Department of Corrections and the other from the Department of Mental Health) differed as to whether Gardner had a severe mental disorder. In such cases, a prisoner is not hospitalized unless two independent evaluators from the Board of Prison Terms agree that he meets the criteria, and in Gardner's case this second pair of evaluators also reportedly split.

Based on its skimpy information (they admitted that they had not verified the news reports about Gardner's MDO evaluations), the Board is recommending two radical changes to existing law:
  • Amend the MDO law (and remember, this law does NOT target sex offenders!) so that a prisoner is involuntarily hospitalized when a second set of evaluators comes back with a split opinion.
  • Eliminate the current right of people committed under the MDO law to an annual review by the courts; "the MDO commitment system should mirror the system which now commits sexually violent predators (SVP's) for an indeterminate term."
Double Wow! Talk about increasing the "false positive" problem exponentially!

Remember, the MDO law was not designed for sex offenders. It is meant to civilly incapacitate paroling prisoners with bona fide psychiatric disorders that make them violent. Yet these folks in the sex offender arena want to fiddle with this law in order to remove the meager procedural safeguards that protect the mentally ill from indefinite detention.

Given its timing, this proposal may not be as illogical as it might superficially appear. It comes just in time for an upcoming court hearing on whether the state can continue to handle civilly committed sex offenders differently than other civilly committed ex-prisoners.

On Jan. 28, in response to a challenge by a civilly detained sex offender named Richard McKee, the California Supreme Court ruled that the state "has not yet carried its burden of showing why SVP's, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment" [my emphasis]. The state's top court sent the case back to the original trial court to give the government "the opportunity to justify the differential treatment in accord with established equal protection principles." That hearing, coincidentally enough, is pending in San Diego Superior Court.

Wouldn't it be convenient if the state changed the procedure for other civilly committed ex-felons to treat them similarly to sex offenders, just in time for the McKee hearing? Voila -- problem solved!

Is the current Mentally Disorder Law too lenient?

Consider this scenario:

"Josiah" has a chronic psychosis. He hears voices and is religiously preoccupied. Although normally peaceable, he had one bad day back in the 1990s, during which he raved at passing cars and even hurled a few small rocks. Fortunately, no one was injured. Josiah passively obeyed the commands of passersby to lie on the ground and wait for police.

Josiah was arrested. He pleaded guilty to a felony charge and went to prison. After some time, he paroled from prison. Despite continuing homelessness and mental illness, he did not engage in any further violence. However, he was briefly returned to prison for a minor, nonviolent parole violation. Upon his re-release, he had the misfortune of being evaluated by MDO Evaluator X, who has a higher-than-average rate of "positive" opinions. Dr. X opined that Josiah posed a substantial risk of physical harm to others by reason of his chronic psychosis.

Dr. X's counterpart at the Department of Mental Health, Dr. Y, disagreed. He did not believe Josiah was dangerous, because he lacked any pattern of violent conduct. No matter. On the basis of only one psychologist's opinion, Josiah was whisked off to the state hospital. (Contrary to the impression left by the SOMB report that two additional tie-breakers are required when the initial two evaluators disagree, a second pair of evaluations is only required when evaluators differ on certain of the six criteria.)

Although he was well behaved and never assaultive, in the hospital Josiah remained religiously preoccupied, carrying his Bible everywhere and reading from it incessantly. Based on his religiosity and his rejection of psychotropic medications, hospital clinicians believed he remained dangerous, and opposed his discharge. So, he languished in the hospital for seven years. Finally, an attorney effectively challenged the state's claim of dangerousness, and a judge ordered Josiah released. He was 57 years old.

Under the current MDO law, people like Josiah can get trapped in the state hospital system. Josiah is not a sex offender, and -- unlike Gardner -- most sex offenders in prison are not even eligible to be screened under the current Mentally Disordered Offender law. Yet now, because of an isolated but highly publicized crime, along comes a proposal that would penalize mentally ill prisoners, most of whom -- like Josiah -- are poor people without the financial resources to stand up for their rights.

Time and time again, here's the way the story goes:
  1. An exceedingly rare but highly troublesome event occurs.
  2. A knee-jerk scramble ensues to find the cause and affix blame.
  3. Existing laws are impulsively altered.
  4. Unintended consequences ensue, most of them harmful.
I'm sure the SOMB felt under the gun to come up with something, since the governor was asking. But the MDO law is working just fine to do what it is supposed to do -- protect the public from severely mentally ill offenders who are dangerous. If anything, the system could use more safeguards against false positives, not fewer protections for mentally ill people like Josiah. If the law is twisted into some kind of an SVP-Lite, it will encourage misuse of diagnosis and treatment in the service of pretextual goals. And that will be sad.

It's too bad the SOMB members don't just stand up to the governor and legislature, and admit that the emperor has no clothes: Screenings are not magic. They will never be capable of predicting the future with 100 percent certainty, and eliminating all potential risk.

The false positives dilemma

When something goes wrong, politicians look for an easy fix, no matter how impractical, meaningless, or even harmful it may ultimately prove to be. As an Associated Press report noted in reference to the driver's license idea, "It's unclear how the measure might have helped Gardner's victims."

So true. Similarly, critics who claim the parole screening process was faulty are denying the unfortunate reality that even the most rigorous screening would not have saved Gardner's victims, because Gardner had no red flags. Paroled in 2005 from a six-year prison term for two counts of lewd and lascivious acts with a 13-year-old acquaintance, he looked like a garden-variety sex offender, one of many tens of thousands in California alone. He didn't come close to meeting the criteria for involuntary commitment as a sexually violent predator.
Gardner was a "false negative," someone who looked low risk but was not. Unfortunately, to eliminate all false negatives (called "Type II errors" by statisticians), one would have to vastly increase the rate of "false positives," or Type I errors, in which people are identified as at high risk when they really are not. In other words, if you reduce the risk of one type of error, you increase the risk of the other. And since the overwhelming majority of convicted sex offenders are never apprehended for another sex crime, any imperfect system geared toward identifying the small minority who will reoffend will wrongly flag many more who will not. (Most sex offenses are committed by men who have never before been apprehended, so they are not affected one way or the other by such identification efforts.)

Preventively detaining literally hundreds of thousands of aggregately low-risk men based on what a few of them might (or might not) do in the future would be unconstitutional. And on a practical level, it would be fiscally impossible. Ironically, Kansas -- the state whose pioneering sexually violent predator law withstood a constitutional challenge that paved the way for similar laws in other states -- recently suspended its SVP screenings because the process had become too costly. Strapped for cash, Kansas Department of Corrections officials decided to save $22,500 a month by stopping all psychological evaluations of paroling sex offenders. (They also closed four prisons and two boot camps and curtailed programs for offenders.)

I've said it before, but it merits repeating: Random danger is an unavoidable part of life. Sometimes, despite all of our efforts at public protection, bad stuff will still happen.

The San Diego Union-Tribune has numerous source documents on the Gardner case available online.

Graphics credits: (1) "Bogeyman" by faedrake (Creative Commons license);
(2) Type I and II errors is courtesy Tim Wilson ("Gilligan on Data" blog);
(3) "Behind the Bars" from Squibs of California, public domain (courtesy of
Indiamos)

Thursday, May 20, 2010

Comstock case: Fox News tells it like it is!

Blog followers keep asking me why I haven't posted about the U.S. Supreme Court's ruling this week in Comstock (approving the federal government's preventive detention of sex offenders). But why do I need to comment, when Fox News has got it covered?! Rarely do I see eye to eye with a Fox news commentator. So imagine my surprise (and pleasure) to find Fox running an astute commentary on the Comstock ruling.

The essay, "Sexual Offender Shenanigans," is by Keith Ablow, a forensic psychiatrist, TV personality, and mystery novelist. Dr. Ablow totally nails the slippery slope that we are sliding down in the civil commitment arena:

… In most states one of the "prongs" of being found not criminally responsible (by reason of mental illness) is the inability to conform one's behavior to the requirements of the law. Clearly, that is what federal prosecutors are contending -- but only in retrospect -- about the sexual offenders they seek to commit: They can't control themselves and never could. They are turning prisoners over to the secure hospitals that should have held them and tried to heal them from the very beginning (and, probably, for just as long)….

The potential for abuse of the federal sexual offender statute is too great. What happens when gang members are deemed too violent to be released after their prison terms are up? What happens when spousal abusers are considered too dangerous to hit the streets? How about those who conspire against the government in any way? Will they somehow find themselves not only sentenced to prison, but also later held without criminal trials in mental health units?

Sound far-fetched? Well, smart, democratic, free societies that hope to stay that way need to see the seeds of authoritarianism when they are planted. The federal sex offender law is such a seed. It blurs the boundaries between punishment for crimes and enforced psychiatric care for sick people (who can't control themselves). In so doing, it gives the government the power to lie in court and coerces the mental health care system to cover its backside.

Inappropriate government power is best sold to the public when it is said to apply only to the most hated folks among us. It's funny (actually, it's scary), though, how quickly that power could be applied to the rest of us.
Go, Fox News!

The full text of Dr. Ablow's prophetic essay is HERE. The Daily Kos blog also has a good analysis of the case and its importance. Some of my earlier coverage of the Comstock case is HERE.

Hat tip: Joe P.

Wednesday, May 19, 2010

Will antigay expert witness's scandal cause legal fallout?

By now, I expect all of you know about the antigay "expert" caught flouncing around Europe with a cute little "rent boy." Most of the commentary I've seen has focused on George Rekers's audacity and hypocrisy. (My favorite of these is by English professor Christopher Lane, author of the book, Shyness: How Normal Behavior Became a Sickness, an expose on the inner workings of the American Psychiatric Association, writing over at his Side Effects blog.)

But today's New York Times has the story I've really been curious to see, about the potential legal ramifications. Rekers has been a high-profile expert witness for years, jetting around the country to testify about how gay people are mentally imbalanced and their children troubled. Florida paid him $120,000, for example, to testify in support of a state ban on gay adoptions; he also wrote an expert declaration in California's legal battle over same-sex marriage.

As John Schwartz reports:

[T]he scandal may affect more than Dr. Rekers’s reputation. They say it places obligations on those who have relied on Dr. Rekers to inform the court in at least one continuing case to modify or withdraw their arguments.

"Each lawyer must tell the court if he comes to know that one of his witnesses has given 'false' testimony," said Stephen Gillers, an expert in legal ethics at New York University. That could come into play if the expert is discredited, he added….

The practical effect of the Rekers scandal on the legal movement to restrict gay rights is unclear. He is not the only expert espousing such views. Another Arkansas case concerning restrictions on gay adoption is under way, for example, and Dr. Rekers is not part of that case.

The universe of such experts, however, may not be large. In describing Dr. Rekers's selection in the Florida case, [Attorney General Bill McCollum, a Republican gubernatorial candidate] told reporters last week, "There were only two willing to step forward and testify, and we searched a long time."
The full story is HERE.

Photo credit: Brandon K. Thorp, Miami New Times

Saturday, May 15, 2010

Verdict reached in "killing and culpability" case

Readers who participated in last month's "Tale of Two Homicides: On Killing and Culpability" exercise may be interested to know that the jury has reached a verdict in one of the two featured cases. After several days of deliberations, a jury rejected Andrew Hoeft-Edenfield's claim of self defense, convicting him of second-degree murder in the stabbing death of a UC Berkeley fraternity man during a drunken confrontation. Scheduled to be sentenced next month, the 22-year-old faces a prison term of 16 years to life.

The San Francisco Chronicle and CBS News have more.

Friday, May 14, 2010

Brain research: Hippocampus hot, fMRI not

Court bans fMRI lie detection evidence

fMRI lie detection has been hailed as a technological breakthrough that could revolutionize legal cases by providing hard evidence about who is lying and who is telling the truth. But judges, not convinced of the brain scan's real-world validity, are just saying no.

Whereas general research about the fMRI has been admitted in the sentencing phase of some criminal trials, fMRI data has yet to be allowed in either the civil or criminal arenas as evidence of an individual's veracity.

Alexis Madrigal over at Wired magazine has been providing excellent, blow-by-blow coverage of the legal battles. In the latest skirmish, a judge in Brooklyn, New York did not even let the proposed fMRI evidence get as far as a Frye hearing, at which the plaintiff would have had to prove it was generally accepted as reliable in the relevant scientific community.

The civil case involves a woman who is suing her employer for alleged retaliation. Her attorney had sought to introduce fMRI data as evidence that a witness was telling the truth. But the defense successfully argued that, even if the fMRI data were accurate, it would infringe on the province of jurors, who in our legal system are supposed to decide the credibility of witnesses.

Critics say the scientific reliability and validity of the fMRI is far from established. If introduced in court, they say, its colorful graphics might mislead jurors and judges and derail justice. But, as Madrigal points out, this latest ruling suggests that, even if scientific reliability and validity issues are eventually settled, legal questions will remain.

Daubert hearing today in psychiatrist's fraud case

Today, the fMRI is being subjected to a Daubert evidentiary hearing in a federal case in Tennessee. Psychiatrist Lorne Semrau, charged with Medicare fraud, is seeking to introduce fMRI data as evidence of lack of intent.

The prosecution, seeking to prevent the fMRI evidence, will be calling two experts to testify about its scientific limitations, according to ScienceInsider. The two are Marcus Raichle of Washington University in St. Louis, a neurologist and veteran neuroimaging researcher, and Peter Imrey, a biostatistician at the Cleveland Clinic Foundation. Both served on a 2003 National Academy of Sciences panel that issued a critical report on the scientific validity of polygraph lie detection. Whichever way the judge rules, it could establish precedent for future cases, Stanford University law professor Henry Greely told ScienceInsider.

As I reported last year, a similar case in California in which a man sought to use fMRI evience to prove his innocence of child abuse charges was unsuccessful.

"These cases demonstrate that the collision between fMRI technology and the legal system is likely to be long and messy," concludes Madrigal, who in addition to writing for Wired is a visiting scholar at UC Berkeley's Office for the History of Science and Technology.

This season's hot brain regions

With the fMRI decidedly out of fashion in the legal arena, if you want cocktail party trivia about what topics in brain research are hot, you can get it from Neuroskeptic, a cool neuroscience blog out of the UK. The hippocampus (memory) is popular, but even more popping this season are the orbitofrontal cortex and cingulate cortex. Neuroskeptic theorizes their popularity owes to the fMRI, which makes them easier to study.

Forensic brain-scanning resources


For those of you who are interested in this area, several prominent media have recently featured analyses of forensic use of brain-scanning technology. Nature magazine did a nice overview, asking the frequently raised question of whether it is ready for prime time.

This followed a piece at the online news site Miller-McCune entitled, "A Mind of crime: How brain-scanning technology is redefining criminal culpability."

In its week in review section, the New York Times tagged off of that latter story, asking the provocative question: If all our mental states can ultimately be reduced to neurophysiological conditions, and there is really no such thing as free will, how can people be held accountable for crimes?

That philosophical question is addressed in another interesting article forwarded to me by blog subscriber Marsha from PhysOrg.com, explaining that "Free will is an illusion, biologist says."

And yet more online resources:

"For the law, neuroscience changes nothing and everything," by Joshua Greene and Jonathan Cohen.

Mind Hacks has excellent critical analysis of the science of brain scanning. For example, there's a post on the claim that brain scanning can diagnose Post-Traumatic Stress Disorder: "Brain scan diagnoses misunderstanding of diagnosis."

"Beware 'voodoo' brain science," blog post, March 10, 2009

Wired article: Brain Scans as Mind Readers? Don't Believe the Hype by Daniel Carlat

Monday, May 10, 2010

Calif.: Attack on custody evaluators quashed

The California Assembly's Judiciary Committee has quashed the proposal to strip quasi-judicial immunity from family court evaluators in California that I reported on recently. The bill garnered widespread opposition from judges, attorneys, psychologists, mediators, and other professionals involved with the family courts.

In an insightful analysis, Judiciary Committee counsel Leora Gershenzon wrote about the bill's potential unintended consequences to the courts and to the very children it was ostensibly meant to protect:

Suppose the parents are locked in a bitter custody battle, with one parent raising allegations of child abuse. Today, the court may appoint an expert to look into the allegations. If this bill becomes law, the court may not be able to find an expert to assist the court in gathering information on which to base a decision. Even if the court does find a willing evaluator, the evaluator, if he or she does not have absolute proof that the parent is abusing the child, may be very reluctant to raise such claims … for fear of being sued by the potentially abusive parent. Without this information, the court may unknowingly award custody to the child abuser, the very opposite goal of this legislation....

[Or] consider the situation where one parent has significant sums of money. Suppose this parent has been bullying the other parent, and the children, and dragging on the underlying custody litigation for years. The evaluator appointed in this case, again assuming one can be found, would almost certainly know that if she says anything too negative about the wealthy parent that she will be sued down the road. Assuming the evaluator chooses to continue the evaluation, she may, out of fear of future litigation, simply write a vague report with little information to help the court in making its difficult decision. Without that critical information, the court may award custody to the bullying parent and take the children away from the parent who has been trying to protect them.
The California Judges Association vigorously opposed the bill, stating it would cause significant hardship for the courts. It cited the 1990 opinion of Howard v. Drapkin, which held that quasi-judicial immunity was essential for professionals who help the overburdened judiciary: "Without such immunity, such persons will be reluctant to accept court appointments or provide work product for the courts' use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs." Wrote the Judges Association:
Never has the Howard holding been truer than today. Consider the Los Angeles Superior Court, which conducts the largest alternative dispute resolution (ADR) program in the country. Tens of thousands of mediations, arbitrations, evaluations, and settlement conferences take place each year in LA.... Los Angeles Superior Court is already laying off employees and closing courtrooms to make ends meet. It relies heavily on ADR to administer justice efficiently and effectively while reducing the backlog of cases. Strip neutrals of their quasi-judicial immunity and Los Angeles Superior Court, along with the rest of the Judiciary, is sure to be overburdened by the additional weight of having to try all the cases that would otherwise have been taken care of through ADR.
I am informed that at last week's hearing, the bill's author, Assembly member Jim Beall, agreed to amend the bill to instead establish a framework for a statewide grievance system for parents in the family court system.

Some sort of a quality-control mechanism is essential to protect against shoddy child custody evaluations. This benefits everyone -- parents, the courts, and the majority of hard-working, ethical professionals in the field. However, the need for a brand-new grievance mechanism is less clear, because California law already mandates that each county establish grievance procedures for family court cases. (Here are sample forms from San Diego County and Santa Clara County.)

Unfortunately, local compliance with this law (Rule of Court 1257) is uneven, encouraging parents who are dissatisfied with an evaluator's report or testimony to file complaints with the state Board of Psychology. So, rather than setting up an entirely new system with lots of unknowns, a better solution might be for all of the counties to implement the procedures that are already mandated.

The defeat of Beall's poorly thought out proposal is certainly welcome news. As opponents noted, the consequences could have been catastrophic for both family courts and the families who use them. If professionals were stripped of the legal protections that allow them to feel confident enough to issue ethical and neutral opinions, the most qualified and ethical evaluators -- those who are in high demand and have plenty of other types of work to fall back on -- would have fled this high-conflict arena in droves. This in turn would have left only shoddy practitioners, driven the costs of evaluations beyond the reach of all but the rich, and further overburdened other state services.

However, we still don't know what Beall intends with this grievance procedure. Who will be chosen to evaluate the evaluators? What qualifications and knowledge will they have? How will they be appointed and what will assure their neutrality and expertise? What remedies will exist if fault is found with an evaluation? Will this body have the ability to impose sanctions, thereby driving up the cost of malpractice insurance, a cost which will ultimately be passed along to the consumers? Much remains unknown.

Litigious parents are the wealthy extreme

When I reported on this issue two weeks ago, I unwittingly dipped the tip of my pinkie finger into the lake of vitriol in which high-conflict child custody cases float. I was deluged with comments, most of them unpublishable because they contained slanderous comments about individuals involved in specific litigation.

I guess I should have expected this. After all, the parents who end up in high-conflict custody battles are the angriest and most litigious fraction of divorcing parents. The courts call upon psychologists and other experts to assist in only a tiny minority -- somewhere between 2 and 4 percent -- of the messiest and most complex cases. Many of the parents that psychologists evaluate are so consumed by pathological narcissism that they are incapable of seeing their role in damaging or destroying their own children.

An example of the extremes to which parents with the financial resources may go if unchecked is the case of Segal v. Lynch, in the news today. Moses Segal, a developer whom a court described as "an extraordinarily wealthy man" with a net worth of more than $100 million, sued co-parent Cynthia Lynch for allegedly alienating the couple's two children from him. In a potentially precedent-setting case, a New Jersey appellate court has ruled that a parent may sue for infliction of emotional distress, but only if the other parent's conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Segal did not meet that burden, the court ruled, dismissing the lawsuit under the parens patriae doctrine because of its potential to damage the children. As the New Jersey Law Journal reports:
The court described the case as a novel one, pitting 'the fundamental principles of a child's best interests against the right of a civil claimant to obtain compensation for his or her injuries from a tortfeasor.' The panel found the 'overarching force driving this civil action' was not the best interest of the children, who would be in the middle of a litigation 'tug-of-war' where liability would turn on showing [that] outrageous and malicious acts by Lynch 'severely compromised' Segal's bond with them. As key witnesses, they would be subjected to psychological examination and questions about what their mother and father said and how it made them feel, with their responses used by one parent against the other.
Segal's attorney said the father may appeal the ruling to the state Supreme Court.

In my own brief foray into high-conflict child custody work, I came to regard the professionals who were willing to stick it out with vengeful parents as practically saints. So, it is hard for me to fathom why a public servant such as Assemblyman Beall would want to target these professionals and the overburdened courts that rely on them. As I wrote previously, this is the polar opposite of the trend in other U.S. states, which over the past couple of decades have extended greater statutory protections to custody evaluators who are targeted by frivolous, manipulative and mean-spirited complainants.

Kudos to the Judiciary Committee for its wisdom in rejecting this dangerous proposal.

Recommended reading:

"Tearing the child apart: The contribution of narcissism, envy, and perverse modes of thought to child custody wars," by Michael Donner (a child custody evaluator, special master, and chair of the Ethics Committee of the California Psychological Association, Psychoanalytic Psychology, 2006


Graphics credits: (1) Kungfootv; (2) Oape (Creative Commons license)

Tuesday, May 4, 2010

"CSI Effect": Fact or fiction?

Since introduced by Time magazine in 2002, the "CSI Effect" has become a cultural staple, imbued with the imprimatur of fact. The judicial system and media discuss it as a grave problem; the FBI has even produced a video warning of its impact. Just last week, the Economist of London issued an uncritical report asserting the reality of the effect, based on an upcoming article in Forensic Science International.

However, as Mind Hacks pointed out, both the Economist story and the underlying FSI article rely mainly on anecdotal evidence. The scientific verdict is not yet in.

Indeed, when I last discussed the phenomenon here, two years ago, a study by Michigan Judge Donald Shelton was raising doubts. Judge Shelton found scant evidence to support claims by prosecutors that jurors' unrealistic demands for hard scientific evidence were causing unjustified acquittals. As the debate continues, I thought it time for an update.

I find it ironic that a phenomenon being blamed for injecting a biased expectation of science into the courtroom has not in itself been subjected to much scientific scrutiny. After all, anecdotes are not science; they can be used to prove almost anything.

As it turns out, some legal scholars are putting the CSI Effect to empirical scrutiny, and -- guess what -- a measurable effect in the predicted direction is hard to prove. In fact, if Crime Scene Investigation and other enormously popular forensic TV shows are having any effect, it may be in the opposite direction -- toward making juries more conviction-prone.

Mind Hacks provided links two excellent scholarly analyses, both available online and well worth reading. The first, by Simon Cole, a Criminology, Law and Society professor at UC Irvine, and doctoral student Rachel Dioso-Villa, was published last April in the Stanford Law Review. The second, by media law professor Kimberlianne Podlas of the University of North Carolina, was published in October in the Loyola of Los Angeles Entertainment Law Review.

Podlas initially devised a creative plan: She would ask prosecutors to give her details of cases in which they believed an acquittal was due to the CSI Effect; then she would have defense attorneys review the case files for alternate explanations. But, she found, 19 of the 20 cases provided to her by prosecutors had actually resulted in convictions, thereby disproving the effect.

Lacking any "real" CSI cases to analyze, she devised a mock jury case in which she manipulated the strength of the scientific evidence. She found no evidence of a difference in outcome between heavy and light viewers of the TV show Crimes Scene Investigation. As she wrote:

"What is labeled a CSI Effect may more accurately be described as a rationalization embraced by members of law enforcement who find themselves on the losing side of a prosecution. By attributing a loss to CSI's wrongful influence, a prosecutor can obtain an explanation yet maintain a belief that an acquittal was misguided. Although this cognitive rationalization is understandable, it should not be mistaken for empirical proof that the CSI Effect operates anywhere other than in the minds of those proposing it."
In their excellent critical overview, Cole and Dioso-Villa go further, suggesting a propaganda parallel between the CSI Effect and the "litigation explosion" myth promulgated in the 1970s through a well-funded insurance industry campaign against civil plaintiff's attorneys. As in that instance, popular belief persisted even after social scientists thoroughly debunked the claimed explosion in litigation:
"Tort reformers' narratives captured a much greater share of media attention than did those of scholars…. Indeed, in the wake of media claims about the litigation explosion, socio-legal scholars documented that media coverage of civil law overwhelmingly emphasized plaintiff victories and high punitive damage awards. Thus, the supposed existence of a litigation explosion became educated common sense among jurors and even judges."
Remember the McDonald's coffee spill and the microwaved poodle, urban legends still infamous today? These tales, Cole and Dioso-Villa argue, are akin to the "horror story" anecdotes of the CSI Effect, such as the supposed case in which a jury acquitted a rapist despite incriminating DNA evidence, just because soil found in the victim's cervix was not tested:
"Echoing the litigation explosion, CSI effect discourse is widely disseminating through the American public the belief that television drama is disadvantaging criminal prosecutions. And yet, the available evidence does not support this claim. Indeed, the available evidence suggests that the opposite may just as easily be the case: forensic-themed police procedural dramas may actually advantage the prosecution in criminal cases."

As shown in the above table, Cole and Dioso-Villa's analysis of several hundred media reports since 2002 revealed not one, but six claimed effects of forensic television shows on popular culture, depending upon the constituency doing the talking. The most dominant of these, the "strong prosecutor's effect," maintains that watching crime dramas makes jurors more likely to acquit guilty defendants. But, the scholars argue, the available evidence suggests an opposite effect:
"Jurors who are consumers of the popular media might believe that prosecutors are typically disadvantaged in criminal trials; that high expectations for forensic evidence are 'unreasonable'; and that criminal convictions are becoming increasingly rare and difficult to achieve. Jurors who believe these things might be more sympathetic to prosecutors out of sympathy for the perceived underdog or in attempt to correct for the perceived excesses of antecedent juries. Claiming to be disadvantaged is a familiar trope in trial advocacy, especially in opening and closing arguments; prosecutors frequently point out that they bear the burden of proof, whereas defense attorneys often refer to their lack of resources or to the awesome power of the state."
This is a similar conclusion to that of Podlas, who wrote:
"If there is a CSI Effect, narrative theory and common sense suggest that it will benefit law enforcement. CSI features the fantastical world of forensics and smart police work. …This story may cultivate the notion that forensic scientists and their methods are legitimate and reliable, thus bolstering the prosecution’s case…. Indeed, scientific evidence is very seductive to jurors, and they tend to overvalue its probity and overestimate its infallibility."
Although the CSI Effect pertains to criminal court while the Litigation Explosion myth targeted the civil realm, they share a similar distrust of jurors, that is, of the ability of common citizens to be fair and find the truth. This lack of faith, from my experience as a court observer over several decades, is misplaced.

Hat tip: Mind Hacks

 
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