April 15, 2011

"Cruel and unusual": Sex offender seeks refuge in Canada

The autobiographical romance "Summer Of '42" depicts a coming-of-age relationship between 15-year-old Hermie and an older married woman. By the time "Dorothy" vanishes from his Nantucket vacation community, Hermie has matured from boy to man.


How much has changed in the 40 years since that movie was made. Today, rather than disappearing for parts unknown, Dorothy would be shackled and riding the bus to the nearest women's penitentiary.


But is it fair to sentence a woman to 30 years in prison for a consensual relationship with a willing teenage boy?

That is the question confronting Canadian authorities in the case of a Florida woman who is seeking refugee status in Saskatchewan. Denise Harvey fled the United States with her husband after she was sentenced to a 30-year prison term for a consensual relationship with her son's 16-year-old friend.

Denise Harvey (photo credit TC Palm)

In Canada, the age of consent is 16 so her conduct would not have been criminal. Saskatchewan authorities have not extradited Harvey because Canada does not extradite people unless the conduct is a crime in both countries. In appealing to the Canadian government for refugee status, Harvey claims her sentence amounts to cruel and unusual punishment, forbidden by the Eighth Amendment to the U.S. Constitution.

More than 10 percent of the residents of her home community of Vero Beach, Florida agree that her sentence was too extreme. They signed a petition demanding that Florida's governor pardon her.

"She didn’t get any justice down here," said petition sponsor George Sigler, a flight trainer. "She's a nice, soft-spoken woman who I believe made a mistake but that doesn't mean she should go to jail for 30 years. No one in their right mind believes a 16-year-old wasn't a willing participant."

Harvey rejected an 11-year plea bargain offer and went to trial. The teen testified that the two flirted and had a long kiss in a car before engaging in brief sexual interludes at his home and elsewhere. Harvey did not testify, but her attorney told jurors the boy stalked her after she rejected his advances. The jury heard a 20-minute recording surreptitiously recorded by police with the boy's cooperation, in which the two discussed what to do if their sexual encounters were disclosed.

After Harvey's conviction on five counts, prosecutors urged the lengthy sentence because she continued to deny wrongdoing. She fled after losing her appeal to the Florida Supreme Court.

With the case now making international headlines, the question becomes whether this is the most sensible face for a world leader to portray to the rest of the world.

The Toronto Star and the Treasure Coast Palm have additional news coverage. 

April 14, 2011

Feed that hungry judge!

Photo credit: vistavision (Creative Commons)
Attorneys: If you want your client released from jail, make sure the judge just had a bite to eat.

That is the take-home message from a new study of experienced judges in Israel. Judges were much more likely to grant parole right after they had a lunch or snack break:
The team studied more than 1,000 parole decisions made by eight experienced judges in Israel over 50 days in a ten-month period. After a snack or lunch break, 65 percent of cases were granted parole. The rate of favorable rulings then fell gradually, sometimes [to] as low as zero, within each decision session and would return to 65 percent after a break.

Jonathan Levav, a professor at Columbia Business School who co-authored the study, said the more rulings a judge makes, the greater the tendency to “rule in favor of the status quo,” but a snack break can interrupt that tendency.

The current study left unsettled the issue of whether it was the food itself or the rest period that came with it that improved the judges' dispositions toward the hopeful convicts. Previous research has shown that both glucose and mental breaks can restore mental functioning.

The study adds to a growing body of evidence on psychological bias in judicial decision-making.

  • The study, "Extraneous factors in judicial decisions" by Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso, was just published online by the Proceedings of the National Academy of Sciences. A press release with additional information on the study and its authors is HERE.

April 8, 2011

"Jurors Gone Wild": Blogging, texting, tweeting in court

On his blog, "Juror No. 7" portrayed the defense lawyer as "whacked out" and having a "Columbo detective-style of acting stupid." He complained about the court's long breaks and likened court staff to "Caltrans freeway workers" who always seem to be "picnicking alongside the freeway." … After complaining about the length of the 19-day trial, he told his readers that he had volunteered to be foreman to "expedite matters." During deliberations, he used his cell phone camera to photograph the murder weapon -- a 15-inch saw-toothed knife -- and posted the image on his blog.

Although an appellate court upheld the defendant's conviction, finding Juror No. 7’s conduct harmless, appellate attorney Linda C. Rush disagreed:
"The problem with his blog was, the responses he got were affirming his cynical attitude toward the judge and the process. He created an audience, and during deliberation he was playing to an audience that other jurors didn't even know was there."

Juror antics like this are no longer unusual, according to an article in the current issue of California Lawyer magazine. Judges and attorneys are finding themselves struggling with "how to protect a defendant's Sixth Amendment right to a fair trial when jurors are awash in social media, potentially contaminating the integrity of the proceedings," writes Pamela MacLean:
Leslie Ellis, a jury consultant with TrialGraphix in Washington, D.C., says she advises her clients to monitor jurors' Facebook, MySpace, or Twitter accounts and blogs during a trial to make sure none are discussing the case outside court sessions. "That's how a lot of jurors have been caught," she says.

Another possible alternative, raised in a case that may soon be taken up by the California Supreme Court, involves making all private social media communications posted by a juror during trial available to defense counsel.
But how much monitoring is too much? At what point will jurors begin to feel like criminal suspects and balk at serving altogether? And is all this much ado about nothing?

The full California Lawyer article is online HERE.

Related post: Blogging jurors (Nov. 26, 2008)

April 7, 2011

U.S. high court restricts federal death penalty appeals

In a 5-4 decision, the U.S. Supreme Court ruled this week that federal habeas appeals cannot consider new evidence, but must limit themselves to information already presented at the state court level. The majority opinion, written by Judge Clarence Thomas, will severely restrict federal petitions in capital cases.

The case involved Scott Pinholster of California, convicted and sentenced to death in 1984 for the robbery-murder of a local drug dealer. The only witness to testify for the defense during the penalty deliberations was Pinholster's mother, who testified that he was "a perfect gentleman at home."

Pinholster pursued his federal habeas claim after losing two appeals to the California Supreme Court, in which he argued that his court-appointed lawyer (later disbarred) had failed to present mitigating evidence during the penalty phase of his trial. Pinholster suffered severe abuse and at least two head injuries as a child; he was institutionalized for much of his adult life and there were some indications of a psychiatric disorder.

The crux of Justice Thomas's message is, "Who cares?" If errors are made during a death penalty trial, they are harmless. That is, they don't change the bottom line. Jurors would have voted for death even if they heard additional mitigating evidence, given the weight of the aggravating evidence against these bad hombres.

That's a fiction, of course. A skillful trial attorney who presents a compelling narrative of a defendant's life can often win a life-without-parole verdict (or negotiate a plea deal), even when faced with an egregious crime. Judy Clarke, Jared Loughner's attorney, is one such lawyer. Contrast her with some of the deadbeat lawyers who dine at the public trough, billing the government to represent capital clients while doing virtually no investigation and presenting little in the way of mitigating evidence at the penalty phase of the trial.

In a lengthy dissent, Justice Sonia Sotomayor (joined in part by Justices Elena Kagan and Ruth Bader Ginsburg) lamented that federal judges must now "turn a blind eye" to such miscarriages of justice, even when they result in "harsh" outcomes. "Some habeas petitioners are unable to develop the factual basis of their claims in state court through no fault of their own," she noted.

Commenting at the Law and Biosciences Digest blog, Stanford Law School visiting professor Nita Farahany portrays the case as a virtual death knell for federal claims of ineffective assistance in capital cases:
After [this] major decision … all bets are off on the likely success of claims for ineffective assistance of counsel for failure to introduce mitigating brain evidence at trial. The case may have such broad implications that the double-edged rhetoric about brain damage evidence in the majority opinion is of minor interest by comparison…. A popular claim for ineffective assistance of counsel is failure to introduce particular mitigating evidence at trial. If [federal review] is limited to the record before the state court, then the days of new evidentiary hearings on federal habeas review for ineffective assistance of counsel cases is numbered or over.

The case is the latest stemming from the Antiterrorism and Effective Death Penalty Act of 1996, §2254, which restricts the power of federal courts to grant habeas relief to state prisoners.

April 6, 2011

Oregon training on forensic work with immigrants

           "But they don’t speak
English!": The assessment of
immigrants in forensic and administrative contexts

April 18 at Portland State University, Oregon

We’ve always been a land of immigrants, but now more than ever issues of language and acculturation are at the forefront of many forensic evaluations. Never fear, our colleagues at the Northwest Forensic Institute in Portland, Oregon have set up a training to help you maneuver in these challenging contexts.

Tedd Judd, the presenter, is a Certified Hispanic Mental Health Specialist and Past President of the Hispanic Neuropsychological Society who has taught neuropsychology in 21 countries on 5 continents.

The all-day training workshop will address practicalities, skills, ethics, and resources for such evaluations in order to provide equitable services. The objective is to teach skills so participants are able to choose and refer cases appropriately and increase the range of cases they can deal with confidently and ethically. The workshop will include case presentations.

The early-bird registration fee of $175 is good until Monday, April 11; after that, the fee is $190. What a deal for six hours of Continuing Education credits.

More information is available HERE.

Also in Oregon: May 21 training on forensic diagnosis

For those of you planning to be up in the Pacific Northwest the following month, I am going to be giving an all-day training up in Oregon. My workshop, “Psychiatric Diagnoses in Court: Current Controversies and Future Directions,” will be May 21 at picturesque Wallowa Lake in eastern Oregon.

More information is available HERE (or visit my website).

April 2, 2011

Good news on young criminals

Desistance the rule, with or without incarceration 

The most thorough study to date, just released by The U.S. Department of Justice, brings lots of good news about criminal desistance among serious adolescent offenders.

The most important finding is that even adolescents who have committed serious offenses are not necessarily on track for adult criminal careers. Only a small proportion of the offenders studied continued to offend at a high level throughout the followup period.

The other critical finding was that incarceration is for the most part unnecessary and ineffective:
Longer stays in juvenile facilities did not reduce reoffending; institutional placement even raised offending levels in those with the lowest level of offending.

Instead, the study found, interventions that combined community-based supervision and substance abuse treatment helped youthful offenders stay in school, get jobs, and avoid further offending.

"Pathways to Desistance" is a multidisciplinary project that intensively followed 1,354 serious juvenile offenders ages 14 to 18 (184 girls and 1,170 boys) in metropolitan Arizona and Pennsylvania for 7 years after their convictions. Data included multiple interviews with the young offenders and their families, and analyses of official records. Edward Mulvey, Ph.D., director of the Law and Psychiatry Program at the University of Pittburgh Medical School, authored the study, which was just released by the Office of Juvenile Justice and Delinquency Prevention.

The findings should be welcome news not only for young miscreants and their loved ones, but also for taxpayers, as it supports the current move toward less expensive community interventions as an alternative to costly juvenile prisons.