Discerning bias in forensic psychological reports in insanity cases

Tess M. S. Neal
Behavioral Sciences & the Law, (2018).

Abstract

This project began as an attempt to develop systematic, measurable indicators of bias in written forensic mental health evaluations focused on the issue of insanity. Although forensic clinicians observed in this study did vary systematically in their report‐writing behaviors on several of the indicators of interest, the data are most useful in demonstrating how and why bias is hard to ferret out. Naturalistic data were used in this project (i.e., 122 real forensic insanity reports), which in some ways is a strength. However, given the nature of bias and the problem of inferring whether a particular judgment is biased, naturalistic data also made arriving at conclusions about bias difficult. This paper describes the nature of bias – including why it is a special problem in insanity evaluations – and why it is hard to study and document. It details the efforts made in an attempt to find systematic indicators of potential bias, and how this effort was successful in part, but also how and why it failed. The lessons these efforts yield for future research are described. We close with a discussion of the limitations of this study and future directions for work in this area.

The research is here.

Justices Blast One-Stop-Shop Experts in Alabama

Tim Ryan
Courthouse News
Originally posted April 24, 2017

The Supreme Court’s liberal justices shredded an argument by Alabama’s solicitor general Monday that criminal defendants are not entitled to a mental health expert separate from the ones tapped by prosecutors.

McWilliams v. Dunn, the case the Supreme Court heard this morning, is nested inside the court’s 1984 decision in Ake v. Oklahoma, which held that poor criminal defendants using a defense of insanity are entitled to an expert to help support their claim.

A split has emerged in the 30 years since the decision, with some states deciding one expert helping both the prosecution and defense satisfies the requirement, and others choosing to assign an expert for the defendant to use exclusively.

The article is here.

Legal Insanity and Executive Function

Katrina Sifferd, William Hirstein, and Tyler Fagan
Under review to be included in The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies (Mark D. White, Ed.) Praeger (expected Nov. 2016)

1. The cognitive capacities relevant to legal insanity

Legal insanity is a legal concept rather than a medical one. This may seem an obvious point, but it is worth reflecting on the divergent purposes and motivations for legal, as opposed to medical, concepts. Medical categories of disease are shaped by the medical professions’ aims of understanding, diagnosing, and treating illness. Categories of legal excuse, on the other hand, serve the aims of determining criminal guilt and punishment.

A theory of legal responsibility and its criteria should exhibit symmetry between the capacities it posits as necessary for moral, and more specifically, legal agency, and the capacities that, when dysfunctional or compromised, qualify a defendant for an excuse. To put this point more strongly, the capacities necessary for legal agency should necessarily disqualify one from legal culpability when sufficiently compromised. Thus one’s view of legal insanity ought to reflect whatever one thinks are the overall purposes of the criminal law.  If the purpose of criminal punishment is social order, then legal agency entails the capacity to be law-abiding such that one does not undermine the social order. If the purpose is institutionalized moral blame for wrongful acts, then legal agency entails the capacities for moral agency. If a criminal code embraces a hybrid theory of criminal law, then all of these capacities are relevant to legal agency.

In this chapter we will argue that the capacities necessary to moral and legal agency can be understood as executive functions in the brain.

The chapter is here.

Suspect in Colorado Killings Enters Insanity Plea

By Jack Healy
The New York Times
Originally posted on June 4, 2013

James E. Holmes, the former neuroscience student charged with killing 12 people inside a Colorado movie theater last July, changed his plea on Tuesday to not guilty by reason of insanity.

It was an expected shift in Mr. Holmes’s defense, formalized during a court hearing in this Denver suburb. As the judge read a lengthy document describing the legal consequences and psychiatric examinations that would follow the plea, Mr. Holmes, shackled and dressed in a red jail uniform, appeared to follow along on a copy, gazing down as one of his lawyers flipped the pages.

The entire story is here.

Mental Evaluations Endorse Insanity Plea in Colorado Shootings, Defense Says

By Jack Healy
The New York Times
Published May 13, 2013

Mental health experts who evaluated the man accused of killing 12 people in a Colorado movie theater last year have offered a diagnosis that bolsters an insanity plea in the case, his lawyers said at a hearing here on Monday.

“We now have a diagnosis that’s complete,” Daniel King, a defense lawyer for the suspect, James E. Holmes, said in court. “We now have an opinion by qualified professionals.”

Mr. Holmes, 25, a former graduate student in neuroscience, faces 166 counts of murder, attempted murder and weapons charges in the July 20 shooting during a midnight premiere of the Batman movie “The Dark Knight Rises” at an Aurora movie theater. Officials say he slipped out of an emergency exit shortly after the movie began, sheathed himself in commando-style gear and then returned through the same door to spray the sold-out crowd with gunfire.

Mr. Holmes’s lawyers made a long-expected move on Monday to change his plea to not guilty by reason of insanity. At an arraignment in March, a judge entered a straightforward not guilty plea on Mr. Holmes’s behalf after his lawyers said they were not ready to enter a plea.

The entire story is here.

Mental Illness Is No Guarantee Insanity Defense Will Succeed

By RUSS BUETTNER
The New York Times
Published: April 3, 2013

Here are some excerpts:

Throughout his adult life, Mr. Tarloff, 45, has been prescribed antipsychotic medication to alleviate delusions and hallucinations. He has received a diagnosis of schizophrenia and been hospitalized against his will numerous times. And three months after one such commitment, Mr. Tarloff entered an Upper East Side medical office on Feb. 12, 2008, and killed Kathryn Faughey, a psychologist, with a mallet and a knife.

Yet a lifetime of being crazy hardly makes an insanity defense a sure thing. Mr. Tarloff’s lawyers must convince jurors, who will begin deliberations Wednesday, that he was so sick that day that he did not understand the consequences of his actions: that pounding and stabbing Dr. Faughey could kill her, or that the attack was wrong.

The standard is so difficult to meet that few defendants using the insanity defense in New York win at trial. Of 5,910 murder cases completed in the last decade statewide, only seven defendants have been found at trial to be not responsible by reason of mental disease or defect, according to the state Division of Criminal Justice Services.

The state does not track how often the defense is raised. But failed attempts at the insanity defense regularly receive public attention, including Andrew Goldstein, a schizophrenic who in 1999 pushed Kendra Webdale to her death in front of a subway train, and Renato Seabra, a Portuguese fashion model who in 2011 murdered and mutilated his lover in a Times Square hotel. Both were found criminally responsible for murder.

The entire story is here.

Psychiatrist, Also Victimized, Tells of Attack by Defendant

By Russ Buettner
The New York Times
Originally published March 12, 2013

At the murder trial of a man accused of killing an Upper East Side psychologist, several mental health experts are expected to testify about the defendant’s state of mind on the night of the slaying. But one of those experts, Dr. Kent D. Shinbach, did not come to his conclusions from the comfort of his desk.

Dr. Shinbach’s appraisal came to him as he was lying not far from a dead or dying colleague, looking up at a former patient, David Tarloff, who was wielding a bloody meat cleaver.

“He was entirely focused on the task at hand,” Dr. Shinbach, a psychiatrist, testified on Tuesday in State Supreme Court in Manhattan.

Dr. Shinbach, 75, shared an office suite with the dead psychologist, Kathryn Faughey. Mr. Tarloff’s lawyers are not contesting that he stabbed and slashed Ms. Faughey, 56, to death on Feb. 12, 2008. They are seeking to prove he was not responsible because of his mental illness.

The entire article is here.

James Holmes' Attorneys: Colorado Insanity Pleas Are Unconstitutional

By Dan Elliott
The Associated Press
Originally published March 6, 2013

Prosecutors in the deadly Colorado movie theater shooting are disputing defense arguments that the state law on insanity pleas is unconstitutional.

In court documents made public Wednesday, prosecutors said the statute has been upheld in other cases, and that judges have ways to protect defendants' rights.

Lawyers for suspect James Holmes filed motions last week asking the judge in the case to declare the law unconstitutional because it would require Holmes' attorneys to give prosecutors potentially incriminating information, such as mental health records, if he pleads not guilty by reason of insanity.

The defense said that violates Holmes' rights, including Fifth Amendment protections against self-incrimination. They said defendants who simply plead not guilty are not required to turn over such information.

The entire story is here.

Evaluations of Dangerousness among those Adjudicated Not Guilty by Reason of Insanity

Edited by Christina M. Finello, JD, PhD
American Psychology Law Society
Winter 2013 News

In many states, following an indeterminate period of hospitalization, individuals adjudicated Not Guilty by Reason of Insanity (hereafter called “acquittees” despite different international legal terminology) are typically discharged under conditional release with provisions for ongoing monitoring and recommitment (Packer & Grisso, 2011). Studies have identified factors associated with conditional release, recommitment, and reoffending in this population. However, few studies have evaluated whether risk assessment measures could assist in predicting recommitment to forensic hospitals.

A number of static factors may be associated with decisions to retain or conditionally release acquittees. For example, Callahan and Silver (1998) found that female acquittees, those with diagnoses other than Schizophrenia and those who committed non-violent offenses, were released most often. Additionally, low psychopathy and older age during one’s first criminal offense increased the likelihood of release (Manguno-Mire, Thompson, BertmanPate, Burnett, & Thompson, 2007). Dynamic and protective variables also influence decisions of retention versus release. For example, researchers identified that acquittees’ treatment compliance and responsiveness, substance use, risk of violence, and availability of structured activities in the community are relevant to release decisions (McDermott, Edens, Quanbeck, Busse, & Scott, 2008; Stredny, Parker, & Dibble, 2012).

Decisions regarding release versus retention involve determinations of future dangerousness (Jones v. United States, 1983), highlighting the relevance of violence risk assessment measures. However, available data do not indicate a strong relationship between scores on risk assessment measures and dispositional decisions. For example, McKee, Harris, and Rice (2007) observed that scores on the Violence Risk Appraisal Guide (VRAG; Quinsey, Harris, Rice, & Cormier, 1998) predicted clinicians’ recommendations for retention versus transfer from a maximum security facility, but did not predict the ultimate decisions. Côté, Crocker, Nicholls, and Seto (2012) reported that, with the exception of previous violence, presence of major mental illness, substance use problems, active symptoms of major mental illness, and unresponsiveness to treatment - the factors of the Historical, Clinical, Risk Management-20 (HCR-20; Webster, Douglas, Eaves, & Hart, 1997) identified by researchers - corresponded poorly (if at all) with those raised by evaluators in review hearings.

The entire article can be found here.

Jared Loughner to plead guilty in Tucson shooting, sources say

Mental health officials reportedly believe he is now competent to understand the charges in the killing of six people and wounding of Rep. Gabrielle Giffords and 12 others in Tucson last year.

By Richard A. Serrano
The Los Angeles Times
Originally published August 4, 2012

Jared Lee Loughner is set to plead guilty Tuesday in the shooting attack that severely wounded Rep. Gabrielle Giffords, according to knowledgeable sources, as mental health officials believe he is now competent to understand the charges against him in the assault, which killed six people and injured 13 at a gathering with the congresswoman’s constituents in Tucson.

At the hearing Tuesday morning in U.S. District Court in Tucson, psychiatric experts who have examined Loughner, 23, are scheduled to testify that they have concluded that despite wide swings in his mental capacity, at this time he comprehends what happened and acknowledges the gravity of the charges, according to two sources who spoke on condition of anonymity because the case was still unfolding.

The entire story is here.

At Trial’s End, Lawyers Say Norway Killer Is Not Insane

By Mark Lewis
The New York Times
Originally published on June 22, 2012

The trial of Anders Behring Breivik ended on Friday with an unusual reversal of roles, as defense lawyers insisted that he was sane when he killed 77 people last year and should be sentenced to prison, and prosecutors arguing that he was mentally ill and thus not criminally responsible, and should be hospitalized instead.

(cut)

Members of the defense team, in tears themselves as parents spoke about their slain children, evoked Mr. Breivik’s human rights in their conclusion that he should be held accountable for his crimes. Mr. Breivik has admitted to the killings but said they were committed in self-defense to combat what he has called the “Islamic colonization” of Europe. He has argued that an insanity judgment would detract from his cause.
      

“The defendant has a radical political project,” Mr. Lippestad said. “To make his acts something pathological and sick deprives him of his right to take responsibility for his own actions.”

The entire story is here.

Forced medication of Jared Lee Loughner OK'd by court

By Carol J. Williams

Los Angeles Times

Originally published March 5, 2012

Jared Lee Loughner

Reporting from Los Angeles — Tucson shooting suspect Jared Lee Loughner can be forcibly medicated with antipsychotic drugs, a federal appeals court ruled Monday.

In a 2-1 ruling, the U.S. 9th Circuit Court of Appeals said prison authorities have the right to treat an inmate who would otherwise be a danger to himself or others around him.

Loughner, 23, has been charged with 49 felony counts in the Jan. 8, 2011, shooting rampage outside of a Tucson supermarket in which six people were killed and 13 others injured, including U.S. Rep. Gabrielle Giffords. The congresswoman was holding a meet-the-public event when the shooter attacked.

Loughner’s defense attorneys had objected to his being forcibly treated with antipsychotic drugs. They argued that because he is a pretrial detainee who has not been convicted of any crime that he has the right to refuse medication that he believes could harm or kill him.

The entire article is here.

Judge: Killer Faked Insanity for Decades

By Elaine Silverstrini
The Tampa Tribune

More than 30 years after Carlos Bello murdered a Tampa police detective and wounded another, a judge concluded he is faking mental illness and is competent to be resentenced.

As soon as Circuit Judge Ronald Ficarrotta announced his ruling Friday, several Tampa police officers in his courtroom took out phones and began sending text messages.

Among those present was Detective Greg Stout, president of the Tampa Police Benevolent Association, who immediately after the hearing said he was sure word had spread through the department. The reaction, he said, was "jubilation."

Bello, 58, was convicted and sentenced to death in 1987 for killing Detective Gerald Rauft and shooting Detective Robert Ulriksen during a drug raid at an Ybor City home in 1981. But his sentence was overturned by the Florida Supreme Court, and Bello began years of evaluations for mental competency.

"This defendant has played the system like no one has ever played the system before," Assistant State Attorney Darrell Dirks told Ficarrotta. "He had one judge tell him in 1987 he is going to be sentenced to death. This defendant has made it his purpose that that is never ever going to happen to him. … He has done a great job. I'll give him kudos. He is a great manipulator."

The entire story is here.

Norway: Insanity Defense Not Likely

AP Exclusive

It's unlikely that the right-wing extremist who admitted killing dozens in Norway last week will be declared legally insane because he appears to have been in control of his actions, the head of the panel that will review his psychiatric evaluation told The Associated Press.

The decision on Anders Behring Breivik's mental state will determine whether he can be held criminally liable and punished with a prison sentence or sent to a psychiatric ward for treatment.

The July 22 attacks were so carefully planned and executed that it would be difficult to argue they were the work of a delusional madman, said Dr. Tarjei Rygnestad, who heads the Norwegian Board of Forensic Medicine.

In Norway, an insanity defense requires that a defendant be in a state of psychosis while committing the crime with which he or she is charged. That means the defendant has lost contact with reality to the point that he's no longer in control of his own actions.

"It's not very likely he was psychotic," Rygnestad told the AP.

The forensic board must review and approve the examination by two court-appointed psychiatrists before the report goes to the judge hearing the case. The judge will then decide whether Breivik can be held criminally liable.

Rygnestad told the AP a psychotic person can only perform simple tasks. Even driving from downtown Oslo to the lake northwest of the capital, where Breivik opened fire at a political youth camp, would be too complicated.

"If you have voices in your head telling you to do this and that, it will disturb everything, and driving a car is very complex," Rygnestad said.

"How he prepared" for the rampage — meticulously acquiring the materials and skills he needed to carry out his attack while maintaining silence to avoid detection — argues against psychosis, Rygnestad added.

By his own account, the 32-year-old Norwegian spent years plotting the attack. On July 22, he set off a car bomb that killed eight people in downtown Oslo's government district, then drove north to a youth camp on Utoya, a small lake island set amid a quiet countryside of pines and spruces.

There, he spent 90 minutes executing 69 people, mostly teenage members of the youth wing of Norway's governing Labor Party.

The entire story can be found here.