Wednesday, November 28, 2012

Jury Expert: Timely focus on false confessions

"Why on earth would anyone, anywhere, ever confess to a serious crime they did not commit? Especially something like murder? Seriously? Mock jurors find this hard to believe." In the latest issue of the Jury Expert, two trial consultants present the research on why people falsely confess and the cascade of errors that follow a false confession.

The release of the documentary The Central Park Five makes Douglas Keene and Rita Handrich's overview, "Only the Guilty Would Confess to Crimes": Understanding the Mystery of False Confessions, especially timely. The consultants provide a concise summary of current research findings and references, making it an excellent resource for criminal attorneys, investigators, judges, law enforcement officials, students of law and public policy and, of course, forensic professionals. It is followed by commentaries from widely renowned false confession expert Saul Kassin and three others, including your blogger.

My essay, "Disputed confessions: The many hats of the expert witness," may be of special interest to this blog's readers, as it details the role of the expert witness in cases involving disputed confessions. I discuss the distinctions between "pure" academic research and clinical assessment, and the role of the forensic expert in evaluating both psychological vulnerabilities that might contribute to an unreliable confession and the separate issue of a suspect's comprehension of the mandatory Miranda rights waiver.

In an accompanying feature in the November/December issue, jury consultant Diane Wiley of the National Jury Project provides a supplemental jury questionnaire covering the issues attorneys need to address in a false confessions case.

And there's even more on the confessions topic in the new issue, hot off the press today: Rita Handrich reviews the 2010 volume, Police Interrogations and False Confessions: Current Research, Practice, and Policy Recommendations, edited by well-known scholars Daniel Lassiter and Christian Meissner.

The main feature (with accompanying essays) is HERE; my essay is HERE, and the entire current issue and back issues of the always-excellent Jury Expert can be accessed HERE. For you tweeters, the Jury Expert's Twitter feed is HERE.

Saturday, November 24, 2012

Ayres case: Final act in long-running competency drama?

Notorious psychiatrist found fit for trial on molestation charges

The case has all of the elements of high drama: A once-respected child psychiatrist accused of molesting vulnerable boys sent to him by the courts. Allegations that prosecutors turned a blind eye. Pressure from victim’s rights lobbyists. And, of special interest to this blog’s readers, a bevy of mental health experts presenting contradictory evidence.

For forensic professionals, the case raises many questions that make it useful as a teaching tool:

  • Is competency an all-or-none construct?
  • Does symptom exaggeration equate to full-out malingering?
  • How might dementia affect a defendant’s trial abilities?
  • What weight should be given to the opinions of laypersons as opposed to trained psychologists and psychiatrists? 
William Ayres
The four-day competency hearing in San Mateo County, California (just south of San Francisco) was the latest in the long-running saga of William Ayres, one-time president of the American Academy of Child and Adolescent Psychiatry and host of a controversial 1960s public television sex education show for children, "Time of Your Life."

Ayres was arrested in 2007 on charges of molesting six boys, ages 9 to 13, between 1988 and 1996. He was suspected of molesting many more, but the statute of limitations barred prosecution. At his 2009 trial he claimed he was just conducting routine medical exams of his child patients. Although psychiatry focuses on the mind, he apparently felt the genital area was also necessary to probe. The jury deadlocked. After a subsequent jury trial on the issue of competency ended in another hung jury, the two sides stipulated that he was incompetent due to dementia. He spent about nine months at Napa State Hospital -- where defendants in Northern California are sent for competency restoration treatment -- before the hospital decided that he was faking dementia to avoid trial and sent him back.

The prosecution's star witness at the four-day hearing was a newly minted psychologist, licensed for less than one year, who bills himself as an expert on malingering. John McIlnay, who came to Napa after earning his PsyD degree in 2010 from the Christian evangelical school of Azusa Pacific, testified that the 80-year-old psychiatrist was cleverly malingering dementia in order to avoid retrial.

As an example, McIlnay recounted an episode in which Ayres talked with the head nurse about a perceived lack of safety on the unit. A day or so later, the nurse implemented some of his suggestions to address the problem. Ayres noticed, and sought her out to thank her. All of this indicated to McIlnay that Ayres could competently identify a problem, determine solutions, take effective steps to rectify the problem and, inconsistent with a dementia, track all of this in his memory.

Another example offered of spontaneous functioning inconsistent with dementia was his query of a nursing supervisor, when he returned to the hospital from a court hearing, as to whether he still had the same room; he reportedly walked straight to his old room without being directed.

Bolstering McIlnay’s testimony was that of a nurse on the intake unit who sounded the alarm that Ayres might be faking, in part because he was uncooperative with the treatment team. She testified that Ayres was able to correctly relate his medical history, supply the names of all of his medications, and even spell the word "Alzheimer’s" for her.

I didn't find that last example especially compelling. As I learned while doing a neuropsychology internship with the Alzheimer's Center of Northern California, overlearned information is often the last to go. A trained psychiatrist could easily retain the spelling of a word such as Alzheimer's even while suffering from that very condition himself.

Hospital staff divided

McIlnay's determination of malingering was countered by two members of Ayres's treatment team at the hospital, psychologist Thomas Knoblauch and psychiatrist Scott Sutherland. Additionally, Napa psychologist Erin Warnick, who conducted neuropsychological testing, testified that Ayres exaggerated his symptoms at times, but nonetheless had a dementing condition.

Warnick found a number of deficits that would interfere with Ayres's trial competency, including difficulty learning new information, inaccurate recall of some information, language deficits that interfered with retrieving and communicating relevant information in a coherent fashion, impairment in tracking thoughts and inhibiting irrelevant responses, mental perseveration, and emotional and cognitive disorganization when under stress, as might occur during a serious and extended trial.

In his brief decision finding Ayres competent to stand trial, Judge John Grandsaert discounted the testimony of all three clinicians as lacking objectivity.

The public split among hospital staff comes amid a new policy, intended to provide at least a veneer of greater objectivity, barring psychologists and psychiatrists on treatment units from writing forensic reports. While the judge faulted the treatment team as lacking objectivity, to my knowledge there was no discussion of potential bias among the staff members who labeled Ayres as malingering. In a peer-reviewed case study in the Journal of Forensic Psychology Practice, I wrote about my observation of a state hospital bias toward labeling criminal patients as malingerers. If nothing else, from a purely practical standpoint the diagnosis frees up scarce beds. In this case, hospital nurses and technicians might be biased against Ayres not just due to their institutional affiliation, but also because of the nature of the allegations.

The judge also discounted the opinion of UC San Francisco neuropsychologist Amanda Gregory, who testified for the defense, and that of Ayres's attorney, Jonathan McDougall, who in a relatively unusual move took to the witness stand to explain his client's difficulties in rationally assisting in his own defense.

In addition to McIlnay, the judge also afforded greater weight to two other experts called by the prosecution, both of whom opined that Ayres was competent. George Wilkinson, a forensic psychiatrist, concluded Ayres was malingering after the elderly colleague greeted him by name in their first meeting in more than a year. Wilkinson testified that Ayres did have a dementing condition, but was exaggerating his level of impairment. Similarly, forensic psychologist Paul Good -- who evaluated Ayres several times over a two-year period -- testified that Ayres had a dementia, but nonetheless was competent to stand trial "by the thinnest of margins."

Test data brushed aside

Complicating the clinical picture, Ayres passed several specialized tests for malingering administered by various professionals. These included tests of cognitive feigning (the Test of Memory Malingering and the Word Memory Test), tests of malingered incompetence, a test of malingered psychosis (the Miller Forensic Assessment of Symptoms Test), and measures of symptom distortion that were embedded in the longer neuropsychological test batteries.

The judge dismissed all of these data, concluding that Ayres's professional training and experience as a psychiatrist rendered him savvy enough to fake out the seasoned experts:
"The defendant's conduct and statements at Napa State Hospital viewed in the light of his extensive professional training and experience and his intellectual capabilities that were demonstrated from time to time in the evidence in this case showed the defendant to be competent and at the very least exaggerating his cognitive deficits." 
Obviously, a psychiatrist who understands the concept of malingering and knows about the existence of tests to detect it is better positioned to get away with faking than the average layperson. But we're talking about an elderly psychiatrist with no known training in the methodology of contemporary malingering tests. It might pose a challenge, for example, to differentiate neuropsychological tests that are measures of effort (which one would have to do well on to avoid being suspected of malingering) from those that measure cognitive decline (on which one would need to bomb in order to get a dementia diagnosis).

To be competent, the defendant must have a factual and rational understanding of his legal situation and have the rational capacity to assist in his defense. Here, the burden was on the defense to prove, by a preponderance of the evidence, that Ayres was not competent. Had he been found incompetent and permanently unrestorable to competency, he would have avoided trial, but might have faced a legal conservatorship.

The case has spawned its own victim advocacy website
The backdrop to all of the legal wrangling over malingering is a vocal victims' advocacy chorus chomping at the bit to see Ayres get justice. With the specter of Jerry Sandusky lurking in the background, the case has earned national publicity, and even has its own advocacy website: "William Ayres: Child Molester and Malingerer" featuring blow-by-blow coverage. Prosecutors initially dragged their feet on filing charges despite around three dozen alleged victims stepping forward; for a while the courts were still sending boys to Ayres even while he was under investigation. Now that they are on board, prosecutors are anxious to redeem themselves by moving forward against the increasingly feeble octogenarian before it is too late.

Malingering: All-or-nothing?

With such a confluence of interests embracing the image of Ayres as malingerer, any nuance is lost. Symptom exaggeration, so commonplace in our work, is equated as synonymous with all-out malingering, or the complete fabrication of a mental disorder for purposes of secondary gain. As I wrote about in my 2008 case study, individuals who are genuinely impaired may also exaggerate symptoms at times, for a variety of reasons, and it is sometimes quite difficult to disentangle the truth.

There is no doubt that a sly and intelligent defendant can fake out the experts. The best example I know of is that of Vincent "The Chin" Gigante, a Mafia don who feigned insanity for years. But outside of fiction and the movies, such sophisticated deception is rare.

Did it happen here? It's hard to know for sure. But one thing is certain: If Ayres truly does have a progressive dementia such as Alzheimer's, he will only get more impaired as the case drags on. So it would be premature to rule out the possibility of a renewed claim of incompetency as the March 11 trial date draws near.

Meanwhile, Ayres has been released on $900,000 bail, raising another issue that is ripe for reform. More than 70 percent of the 71,000 inmates in California's county jails are there because they are too poor to post bail. From the perspective of social justice, it seems odd for a man suspected of molesting dozens of boys to be walking the streets for year after year while petty miscreants lounge in jail awaiting trial on misdemeanor charges of vandalism or petty theft.

Further resources:

Tuesday, November 20, 2012

Double murderer gets death in crude parody of justice

"Ha-ha."

That was the reaction of a double murderer to today's jury verdict sentencing him to death. Representing himself at trial, Nathaniel Burris had told jurors in Martinez, California to flip a coin, as he couldn't care less whether he received the death penalty or life without the possibility of parole.

"Send me on my way," he told the jury through a severe speech impediment. "I'm happy, I'm smiling and laughing. I have no remorse."*

According to blow-by-blow news accounts by local news reporter Malaika Fraley of the Contra Costa Times, Burris giggled and cursed his way through the entire trial. He repeatedly said he was justified in killing his estranged girlfriend and her male friend, whom he suspected of trysting with her, and testified he would "do it again." After the verdict was read, he cursed and gloated at his male victim's relatives, yelling: "I blew your brother's brains out, and there's nothing you can do about it."

Even more bizarre, after calling himself as the sole defense witness at the penalty phase of the trial, Burris made a surprise admission: He had committed three unsolved armed robberies of San Francisco pharmacies in the 1990s.

When the prosecutor tried to pin him down about these holdups, cross-examining him as to what kind of gun he had used, Burris grinned and refused to answer: "At this time, I'm not going to answer your questions. Motion denied."

A juror who talked to the news reporter after the verdict said jurors were appalled by Burris's courtroom antics, and had a tough time understanding his right to present no defense. They deliberated for a little over a day before leveling the ultimate penalty, in part out of fear that Burris would kill other prisoners -- as he had testified he would -- if given a life sentence and housed with other men.

Mental health overlooked? 

Searching through news archives on the high-profile case (Burris was dubbed "the toll plaza killer" because the killings happened at the entrance to the Richmond-San Rafael Bridge), I could find no reporting on whether Burris was ever evaluated to determine whether he was competent to stand trial. If he was evaluated, and the results not publicized, he must have been found competent.

That seems odd, given his bizarre behavior throughout the trial. In the 2008 case of Indiana v. Edwards, the U.S. Supreme Court set the competency bar higher for defendants who elect to act as their own attorneys at trial, ruling that there is no Constitutional right to self representation. Earlier this year, California's high court took that line of reasoning even further, ruling that a judge may bar a defendant from representing himself even if he has been found competent to stand trial.
But the Burris case was a throwback to the pre-Edwards days in which the Long Island railroad killer, Colin Ferguson, was able to railroad himself straight to prison. The spectacle was like handing the prosecutor a shotgun loaded with buckshot and seeing if he could hit the defendant at a range of five feet.

Not difficult. Not pretty. And certainly not dignified for the legal system.

Not a one-time case

This isn't the first time in recent memory that Contra Costa County (northeast of San Francisco) has hosted such a farcical spectacle. Three years ago, a man named Edward Wycoff was allowed to represent himself in the ambush killings of his sister and brother-in-law. Like Burris, he was unrepentant. He testified at trial that he should win an award for ridding the world of two evil people who were "too easy" on their children and had not invited him over for Christmas.

I’m sure you can guess the outcome.

The jury deliberated only 45 minutes before sentencing Wycoff to die. And that was even after the son of the dead couple -- who had opposed the death penalty -- testified that Wycoff was too emotionally impaired to get the ultimate penalty.

In Burris's case, the prosecutor insisted that the defendant's bizarre conduct was irrelevant.

Snapshot of Burris with murder victim Deborah Ross
"Don't misunderstand what we've seen here for some mental disorder or defect," said Chief Assistant District Attorney Harold Jewett. "He's just a psychopathic killer."

But we have only his word on this, because there is no publicly available information on whether Burris's psychological functioning was ever fully explored. In a typical capital case, psychiatric problems, brain damage, childhood trauma, and a host of similar factors are explored as potentially mitigating circumstances that may be presented at the penalty phase of the trial.

For a psychopathic killer, Burris seemed to have an awfully strong death wish. The case reminded me a bit of the landmark case of Richard Moran, who strode into the Red Pearl Saloon in Carson City, Nevada back in 1984 and shot the bartender and a customer dead before looting the cash register. Facing the death penalty, Moran waived his right to counsel, pleaded guilty, and was sentenced to death.

Here, the charade took a little longer to play out, but the outcome was just as foregone. 

Burris spent quite a bit of time scoffing at the prospect of the death penalty, saying that California's capital sentencing scheme is so dysfunctional that his execution will be held up by appeals for the next 30 to 40 years, while he lives out his life comfortably on Death Row. I have to agree with him there. Especially given his questionable competence, which will be ripe grounds for appeal, I predict that the death penalty will be abolished in California before Burris gets the needle. Public support for capital punishment has never been lower in California. The internationally watched Proposition 34, which would have eliminated executions in the state, was narrowly defeated (53 to 47 percent) even as Burris stood trial, and the issue is unlikely to go away.

In the meantime, Burris sees no problem at all.

"I'm walking the plank. It's my plank to walk. I don't want anyone pushing me, guiding me or holding my hand," he told the jury charged with deciding his fate. “My life has been really interesting. I love it, and I'm actually interested in what's going to happen down the road."

"I’m as cool as a cucumber." 
* * * * *

*All direct quotes in this post were gleaned from the detailed news accounts by Malaika Fraley of the Contra Costa Times. Thank you for the reporting, Ms. Fraley.

Related blog posts:
My page of competency case resources is HERE.

Sunday, November 4, 2012

Iran hostage takes on California prison SHU's

"Free country" throwing thousands in hole for their beliefs

Shane Bauer spent 26 months in Iran's Evin Prison, four of them in solitary, after he and two fellow hikers were apprehended on the Iraqi border in 2009. Seven months after his release, he visited the segregated housing unit (SHU) at the infamous Pelican Bay Prison in his home state of California.

In Iran, his cell was twice as big as those at Pelican Bay. He slept on a mattress, rather than a thin piece of foam. And he wasn’t required to defecate at the front of his cell, in full view of guards. But, most of all, the investigative journalist noticed the lack of windows in the SHU cells:

"Without [the] windows, I wouldn't have had the sound of ravens, the rare breezes, or the drops of rain that I let wash over my face some nights. My world would have been utterly restricted to my concrete box, to watching the miniature ocean waves I made by sloshing water back and forth in a bottle; to marveling at ants; to calculating the mean, median, and mode of the tick marks on the wall; to talking to myself without realizing it. For hours, days, I fixated on the patch of sunlight cast against my wall through those barred and grated windows. When, after five weeks, my knees buckled and I fell to the ground utterly broken, sobbing and rocking to the beat of my heart, it was the patch of sunlight that brought me back. Its slow creeping against the wall reminded me that the world did in fact turn and that time was something other than the stagnant pool my life was draining into."

Bauer's investigative piece in Mother Jones is the most thoroughly documented report I have seen on the politics of long-term solitary confinement in California. The ex-hostage convincingly demonstrates that a tool supposedly created to staunch prison gang violence is being used to torture prisoners who engage in prison activism, hold Afro-centric worldviews, or simply read the wrong books.



As even prison administrators admit, only a small minority of those being held in long-term solitary confinement are classified as gang members; even fewer are gang leaders. Rather, most are so-called "gang associates." It's hard to see how a prisoner serving a lengthy term can avoid all associations with the ubiquitous prison gangs. But the evidence used to toss prisoners into long-term SHU isolation can be very thin, including possession of such written materials as:
  • "Black literature" (including The Black People's Prison Survival Guide which, ironically, counsels prisoners to stay away from gang leaders)
  • Publications by California Prison Focus, a prison reform group that advocates the abolition of the SHUs
  • Bestsellers such as Sun Tzu's The Art of War and Machiavelli's The Prince

(A list of the types of items that can get prisoners thrown into solitary is HERE; a sample list of one prisoner's suspect materials is HERE.)


Most troubling is the lack of due process. Prisoners are not entitled to legal representation at the 20-minute hearings that decide their fate for decades. There is no judicial oversight to prevent trumped-up evidence from being introduced. Indeed, one judge ruled that it is not illegal for prison authorities to fabricate information in order to lock somebody away in solitary.

Click on image  to experience interactive SHU cell as narrated by Bauer
"Other than the inmate, there is only one person present -- the gang investigator -- and he serves as judge, jury, and prosecutor. Much of the evidence -- anything provided by informants -- is confidential and thus impossible to refute. That's what Judge Salavati [in Iran] told us after our prosecutor spun his yarn about our role in a vast American-Israeli conspiracy: There were heaps of evidence, but neither we nor our lawyer were allowed to see it."

In the wake of last year’s hunger strikes, California prison officials claim they are reforming the system. SHU prisoners are now allowed calendars, as well as handballs to use in the small concrete dog runs in which they can exercise, alone, for one hour each day. If they abstain from gang activity for a year, they can now get a deck of cards; three years earns them a chessboard.

But there's a major catch. The Department of Corrections is vastly expanding the list of serious rules violations. Mere possession of articles or pictures depicting "security threat groups" (the new name for gangs) will constitute "serious rule violations on par with stabbing somebody," Bauer reports. And the list of such groups has expanded to 1,500, including everything from Juggalos (followers of the popular hip hop group Insane Clown Posse) to "revolutionary groups” to "Black-Non Specific," a term that, as Bauer notes, suggests that "any group with the word 'black' in its name can be considered disruptive."

The rationale for this repression that has been repeatedly condemned by international and U.S. human rights groups is the need to reduce gang influence in prisons. However, Bauer explains,there is no evidence that such solitary confinement regimens reduce prison violence. To the conrary, prisons that have reduced or eliminated supermaxes have seen parallel reductions in prison violence.


I highly recommend reading the Mother Jones report, "Solitary in Iran Nearly Broke Me. Then I Went Inside America's Prisons."

My most recent blog post on the Pelican Bay SHU, focusing on an Amnesty report and a class-action lawsuit and containing links to prior related posts, is HERE.

Related: National Law Journal report, The graying of the penitentiary

My Amazon review of the new movie ARGO, about the 1979-1980 Iranian hostage crisis, is HERE; if you find it helpful, please click on "yes" at the bottom.

 
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