Psychologist Found Guilty of Sexual Assault During Psychotherapy

Richard Bammer
www.mercurynews.com
Originally published July 27, 2019

A Solano County Superior Court judge on Friday sentenced to more than 11 years behind bars a former Travis Air Force Base psychologist found guilty last fall of a series of felony sexual assaults on female patients and three misdemeanor counts.

After hearing victim impact testimony and statements from attorneys — but before pronouncing the prison term — Judge E. Bradley Nelson looked directly at Heath Jacob Sommer, 43, saying he took a version of exposure therapy “to a new level” and used his “position of trust” between 2014 and 2016 to repeatedly take advantage of “very vulnerable people,” female patients who sought his help to cope with previous sexual trauma while on active duty.

And following a statement from Sommer — “I apologize … I never intended to be offensive to people,” he said — Nelson enumerated the counts, noting the second one, rape, would account for the greatest number of years, eight, in state prison, with two other felonies, oral copulation by fraudulent representation and sexual battery by fraudulent means, filling out the balance.

Nelson added 18 months in Solano County Jail for three misdemeanor charges of sexual battery for the purpose of sexual arousal. He then credited Sommer, shackled at the waist in a striped jail jumpsuit and displaying no visible reaction to the sentence, with 904 days in custody. Additionally, Sommer will be required to serve 20 years probation upon release, register as a sex offender for life, and pay nearly $10,000 in restitution to the victims and other court costs.

The info is here.

Neuroscience and mental state issues in forensic assessment

David Freedman and Simona Zaami
International Journal of Law and Psychiatry
Available online 2 April 2019

Abstract

Neuroscience has already changed how the law understands an individual's cognitive processes, how those processes shape behavior, and how bio-psychosocial history and neurodevelopmental approaches provide information, which is critical to understanding mental states underlying behavior, including criminal behavior. In this paper, we briefly review the state of forensic assessment of mental conditions in the relative culpability of criminal defendants, focused primarily on the weaknesses of current approaches. We then turn to focus on neuroscience approaches and how they have the potential to improve assessment, but with significant risks and limitations.

From the Conclusion:

This approach is not a cure-all. Understanding and explaining specific behaviors is a difficult undertaking, and explaining the mental condition of the person engaged in those behaviors at the time the behaviors took place is even more difficult. Yet, the law requires some degree of reliability and rigorous, honest presentation of the strengths and weaknesses of the science being relied upon to form opinions.  Despite the dramatic advances understanding the neural bases of cognition and functioning, neuroscience does not yet reliably describe how those processes emerge in a specific environmental context (Poldrack et al., 2018), nor what an individual was thinking, feeling, experiencing, understanding, or intending at a particular moment in time (Freedman & Woods, 2018; Greely & Farahany, 2019).

The info is here.

What Alan Dershowitz taught me about morality

Molly Roberts
The Washington Post
Originally posted August 2, 2019

Here are two excerpts:

Dershowitz has been defending Donald Trump on television for years, casting himself as a warrior for due process. Now, Dershowitz is defending himself on TV, too, against accusations at the least that he knew about Epstein allegedly trafficking underage girls for sex with men, and at the worst that he was one of the men.

These cases have much in common, and they both bring me back to the classroom that day when no one around the table — not the girl who invoked Ernest Hemingway’s hedonism, nor the boy who invoked God’s commandments — seemed to know where our morality came from. Which was probably the point of the exercise.

(cut)

You can make a convoluted argument that investigations of the president constitute irresponsible congressional overreach, but contorting the Constitution is your choice, and the consequences to the country of your contortion are yours to own, too. Everyone deserves a defense, but lawyers in private practice choose their clients — and putting a particular focus on championing those Dershowitz calls the “most unpopular, most despised” requires grappling with what it means for victims when an abuser ends up with a cozy plea deal.

When the alleged abuser is your friend Jeffrey, whose case you could have avoided precisely because you have a personal relationship, that grappling is even more difficult. Maybe it’s still all worth it to keep the system from falling apart, because next time it might not be a billionaire financier who wanted to seed the human race with his DNA on the stand, but a poor teenager framed for a crime he didn’t commit.

Dershowitz once told the New York Times he regretted taking Epstein’s case. He told me, “I would do it again.”

The info is here.

Therapist accused of sending client photos of herself in lingerie can’t get her state license back: Pa. court

Matt Miller
www.pennlive.com
Originally posted July 17, 2019

A therapist who was accused of sending a patient photos of herself in lingerie can’t have her state counseling license back, a Commonwealth Court panel ruled Wednesday.

That is so even though Sheri Colston denied sending those photos or having any inappropriate interactions with the male client, the court found in an opinion by Judge Robert Simpson.

The court ruling upholds an indefinite suspension of Colston’s license imposed by the State Board of Social Workers, Marriage and Family Therapists and Professional Counselors. That board also ordered Colston to pay $7,409 to cover the cost of investigating her case.

The info is here.

Google Contractors Listen to Recordings of People Using Virtual Assistant

Sarah E. Needleman and Parmy Olson
The Wall Street Journal
Originally posted July 11, 2019

Here are two excerpts:

In a blog post Thursday, Google confirmed it employs people world-wide to listen to a small sample of recordings.

The public broadcaster’s report said the recordings potentially expose sensitive information about users such as names and addresses.

It also said Google, in some cases, is recording voices of customers even when they aren’t using Google Assistant [emphasis added].

In its blog post, Google said language experts listen to 0.2% of “audio snippets” taken from the Google Assistant to better understand different languages, accents and dialects.

(cut)

It is common practice for makers of virtual assistants to record and listen to some of what their users say so they can improve on the technology, said Bret Kinsella, chief executive of Voicebot.ai, a research firm focused on voice technology and artificial intelligence.

“Anything with speech recognition, you generally have humans at one point listening and annotating to sort out what types of errors are occurring,” he said.

In May, however, a coalition of privacy and child-advocacy groups filed a complaint with federal regulators about Amazon potentially preserving conversations of young users through its Echo Dot Kids devices.

The info is here.

Ethics In The Digital Age: Protect Others' Data As You Would Your Own

Jeff Thomson
Forbes.com
Originally posted July 1, 2019

Here is an excerpt:

2. Ensure they are using people’s data with their consent. 

In theory, an increasing amount of rights to data use is willingly signed over by people through digital acceptance of privacy policies. But a recent investigation by the European Commission, following up on the impact of GDPR, indicated that corporate privacy policies remain too difficult for consumers to understand or even read. When analyzing the ethics of using data, finance professionals must personally reflect on whether the way information is being used is consistent with how consumers, clients or employees understand and expect it to be used. Furthermore, they should question if data is being used in a way that is necessary for achieving business goals in an ethical manner.

3. Follow the “golden rule” when it comes to data. 

Finally, finance professionals must reflect on whether they would want their own personal information being used to further business goals in the way that they are helping their organization use the data of others. This goes beyond regulations and the fine print of privacy agreements: it is adherence to the ancient, universal standard of refusing to do to other people what you would not want done to yourself. Admittedly, this is subjective and difficult to define. But finance professionals will be confronted with many situations in which there are no clear answers, and they must have the ability to think about the ethical implications of actions that might not necessarily be illegal.

The info is here.

An Obligation to Enhance?

Anton Vedder

Topoi 2019; 38 (1) pp. 49-52. Available at SSRN: https://ssrn.com/abstract=3407867

Abstract

This article discusses some rather formal characteristics of possible obligations to enhance. Obligations to enhance can exist in the absence of good moral reasons. If obligation and duty however are considered as synonyms, the enhancement involved must be morally desirable in some respect. Since enhancers and enhanced can, but need not coincide, advertency is appropriate regarding the question who exactly is addressed by an obligation or a duty to enhance: the person on whom the enhancing treatment is performed, or the controller or the operator of the enhancement. Especially, the position of the operator is easily overlooked. The exact functionality of the specific enhancement, is all-important, not only for the acceptability of a specific form of enhancement, but also for its chances of success for becoming a duty or morally obligatory. Finally and most importantly, however, since obligations can exist without good moral reasons, there can be obligations to enhance that are not morally right, let alone desirable.

From the Conclusion:

Obligations to enhance can exist in the presence and in the absence of good moral reasons for them. Obligations are based on preceding promises, agreements or regulatory arrangements; they do not necessarily coincide with moral duties. The existence of such obligations therefore need not be morally desirable. If obligation and duty are considered as synonyms, the enhancement involved must be morally desirable in some respect. Since enhancers and enhanced can, but need not coincide, advertency is appropriate regarding the question who exactly is addressed by an obligation or a duty to enhance: the person on whom the enhancing treatment is performed, or the controller or the operator of the enhancement? Especially, the position of the operator is easily overlooked. Finally, the exact functionality of the specific enhancement, is all-important, not only for the acceptability of a specific form of enhancement, but also for its chances of success for becoming a duty or morally obligatory. 

How celebrity activists are changing morality in America

Caroline Newman
phys.org
Originally posted July 1, 2019


Here is an excerpt:

Q. What are some of the risks of viewing celebrities as moral authorities?

A. Many argue that celebrities have no right to speak out on these issues because they do not have traditional credentials in law, religion or philosophy. I do not believe that. While there is a risk that people will pay less attention to those traditional leaders, religious or otherwise, that might not be such a bad thing, given some of the scandals we have seen recently.

Perhaps the biggest risk is that anyone with a Facebook or Twitter account can now get on their soapbox and start making moral proclamations, often with little to back that up. Morality has become more of a free-for-all and the responsibility for determining morality rests on the shoulders of everyday Americans, who might find it easier to listen to celebrities they already like rather than conducting research themselves. However, this is arguably what we have done all along, with priests, rabbis, political leaders, etc.

Q. What are some of the benefits?

A. One important benefit is that ethics becomes part of everyday life and everyday discussions. It used to be that people who studied philosophy or religion were kind of off to the side. Now that people like Taylor Swift, Oprah or Colin Kaepernick are talking about very important moral issues; those issues and debates have become mainstream and, if not cool, at least more frequently talked about.

The info is here.

Editor's Note: Ugh.

The Theory That Justified Anti-Gay Crime

Caleb Crain
The New Yorker
Originally posted June 26, 2019

Here is an excerpt:

As preposterous as the idea of homosexual panic may sound today, for much of the twentieth century it was treated as something like common sense. “When a beast attacks, you are justified in killing him,” is the way one defense attorney phrased the principle behind it, in 1940. The press, too, sometimes discussed the idea approvingly. The New York Daily News described a 1944 murder of a gay man as an “honor slaying.” In 1952, homosexual panic was listed as a mental disorder in the first edition of the American Psychiatric Association’s Diagnostic and Statistical Manual, and, as late as the nineteen-nineties, the notion was still so current in the popular mind that a Christopher Street shop selling gay-themed T-shirts was called, in what seems to have been ironic homage, Don’t Panic.

It turns out that the psychological concept has a less than illustrious origin. The term “homosexual panic,” Polchin reports, was coined by a psychiatrist named Edward Kempf, in a 1920 treatise titled “Psychopathology.” Polchin garbles a key quote from Kempf, printing “sexually attracted” where Kempf wrote “sexually attractive,” and I took a look at the relevant chapter to see if I could make sense of it. It’s understandable that Polchin got confused. Kempf’s text is neither lucid nor coherent.

Kempf theorized that homosexual panic emerged from “the pressure of uncontrollable perverse sexual cravings,” that is, from the frustration of homosexual urges that typically arose in same-sex environments, such as prison or the military. According to Kempf, symptoms of the panic included a fearfulness that could lead to catatonia, a “compulsion to seek or submit to assault,” and delusional perceptions of being poisoned or entranced. Indeed, the hallucinations and paranoid delusions that many of Kempf’s patients suffered from were quite serious. One patient imagined that broken pills were being surreptitiously put into his pudding; another went through spells of believing he was God.

The info is here.

House Panel Subpoenas Kellyanne Conway over ‘Egregious’ Ethics Violations

Jack Crowe
The National Review
Originally posted June 26, 2019


Here is an excerpt:

Henry J. Kerner, the special counsel, whose role is unrelated to Robert Mueller’s investigation, argued in his Wednesday testimony that Conway’s repeated violations of the Hatch Act — which stem from her endorsement of Republican congressional candidates during television interviews and on Twitter — created an “unprecedented challenge” to his office’s ability to enforce federal law.

Conway has dismissed the accusations of ethics violations as an unprecedented and politically motivated attack on the administration.

“If you’re trying to silence me through the Hatch Act, it’s not going to work,” Conway said when asked about her alleged violations during a May interview, adding “let me know when the jail sentence starts.”

Kerner, in his letter to the president and in his testimony, argued that Conway’s refusal to accept responsibility created a dangerous precedent and was further reason to dismiss her.

Conway’s repeated violations, “combined with her unrepentant attitude, are unacceptable from any federal employee, let alone one in such a prominent position,” Kerner testified.

Representative Elijah Cummings (D., Md.), who chairs the Committee, said he is prepared to hold Conway in contempt if she defies the subpoena.

The info is here.

Psychologists Mitchell and Jessen called to testify about ‘torture’ techniques in 9/11 tribunals

Thomas Clouse
www.spokesman.com
Originally posted May 20, 2019

Two Spokane psychologists who devised the “enhanced interrogation” techniques that a federal judge later said constituted torture could testify publicly for the first time at a military tribunal at Guantanamo Bay, Cuba, that is trying five men charged with helping to plan and assist in the 9/11 attacks.

James E. Mitchell and John “Bruce” Jessen are among a dozen government-approved witnesses for the defense at the military tribunal. Mitchell and Jessen’s company was paid about $81 million by the CIA for providing and sometimes carrying out the interrogation techniques, which included waterboarding, during the early days of the post 9/11 war on terror.

“This will be the first time Dr. Mitchell and Dr. Jessen will have to testify in a criminal proceeding about the torture program they implemented,” said James Connell, a lawyer for Ammar al Baluchi, one of the five Guantanamo prisoners.

Both Mitchell and Jessen were deposed but were never forced to testify as part of a civil suit filed in 2015 in Spokane by the ACLU on behalf of three former CIA prisoners, Gul Rahman, Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud.

According to court records, Rahman was interrogated in a dungeon-like Afghanistan prison in isolation, subjected to darkness and extreme cold water, and eventually died of hypothermia. The other two men are now free.

The U.S. government settled that civil suit in August 2017 just weeks before it was scheduled for trial in Spokane before U.S. District Court Judge Justin Quackenbush.

The info is here.

How Jared Kushner is the ultimate test for US ethics laws

Zachary Wolf
www.CNN.com
Originally posted June 14, 2019


Here is an excerpt:

Some of the things we knew about Kushner already are that he's in charge of coming up with a Middle East peace plan, he's been chummy with the Saudi crown prince the CIA thinks ordered the murder of a US-based journalist and he had trouble getting a security clearance.

But there is so very much we don't know about him. According to a report in the Guardian, a real estate company called Cadre in which he has an interest got some money from Saudi Arabia through an offshore fund run by Goldman Sachs. Their report is based on two unnamed sources. CNN has not independently verified the report.

If true, does that mean Kushner can't be involved in Middle East policy? Apparently not. The situation illustrates that the US laws meant to identify conflicts of interest don't do much to prevent them, particularly when it comes to extremely rich people like Kushner with complicated financial root systems.

Cadre is among scores of LLCs in which Kushner reported owning a stake. In his filings, Kushner reported leaving his official positions with Cadre in 2017 and is not involved in day-to-day operations. According to the new disclosures, his ongoing investment, however, is valued at $25 million to $50 million, though he reported receiving no income from it in 2018.

Here's another example having to do with Kushner's interest in Cadre. Last November, the company pitched opportunities to take advantage of a tax break created by the 2017 tax overhaul that encourages real estate investment in low-income areas. Is it a conflict that Kushner's wife, Ivanka Trump, a fellow White House adviser, pushed hard for the so-called "opportunity zone" tax break in the new tax law? She's showed up at events promoting the investment opportunity. Watchdog groups asked the Justice Department to launch an investigation.

The info is here.

Kellyanne Conway Should Be Fired For Violating Ethics Law, Oversight Office Says

Brian Naylor & Peter Overby
www.npr.org
Originally published June 13, 2019

Presidential adviser Kellyanne Conway has repeatedly criticized Democratic candidates in her official capacity in violation of the Hatch Act and should lose her job, according to the U.S. Office of Special Counsel.

The OSC, which oversees federal personnel issues, issued a stinging report Thursday, calling Conway "a repeat offender."

"As a highly visible member of the Administration, Ms. Conway's violations, if left unpunished, send a message to all federal employees that they need not abide by the Hatch Act's restrictions. Her actions thus erode the principal foundation of our democratic system — the rule of law," the office wrote to President Trump.

OSC is an independent federal ethics agency that has no relationship with former Department of Justice special counsel Robert Mueller's investigation into Russian interference with the 2016 election.

The Hatch Act forbids executive branch employees from taking part in political activities while engaged in their official duties.

In March 2018, the ethics agency found Conway broke the law twice in interviews about the Alabama Senate race. The new report focuses on her commentary on Democratic presidential candidates. It cites examples of her rhetoric, including suggesting Sen. Cory Booker of New Jersey was "sexist" and alleging that former Vice President Joe Biden was unwilling to be "held to account for his record."

The info is here.

Legal questions surround police use of facial recognition tech

Alexander J Martin, Technology Reporter and Tom Cheshire
news.sky.com
Originally posted August 23, 2017

Here is an excerpt:

He noted that despite this threat to privacy "this new database is subject to none of the governance controls or other protections which apply as regards the DNA and fingerprint databases" - and that it "has been put into operation without public or parliamentary consultation or debate."

Similar concerns were raised by Parliament's science and technology committee, which also complained to the Government that it was running two years late on its planned publication date for the joint forensics and biometrics strategy.

Although a separate forensics strategy has since been published, the biometrics strategy - which will set out how police can use technologies such as facial recognition - has still not been released by the Home Office, and it is now four years overdue.

The committee also noted that facial biometrics were currently not covered by strict rules that govern the police's collection of DNA profiles and fingerprints, and recommended the biometrics commissioner's role be expanded to include them.

The info is here.

The Lawyer Who Wants to Transform Legal Ethics with Behavioral Science

Brian Gallagher
www.ethicalsystems.org
Originally posted May 28, 2019

Here is an excerpt:

In a paper on the psychology of conflicts of interest, you wrote that, “Too often, the Supreme Court has made assumptions about the behavior of defense lawyers without empirical support.” How does behavioral science inform the way the Supreme Court should think about defense lawyers?

In the last 40 years, the Supreme Court has analyzed conflicts of interest in a manner that, I believe, makes unsupported assumptions about how criminal defense lawyers respond to allegations about their own misbehavior. My argument is that lawyers—like all people—are poorly equipped to recognize and address their own conflicts of interest. As a result, I propose that constitutional standards for conflicts of interest should be treated more like the ethical rules concerning conflicts, which focus on the risk that a conflict will influence a lawyer’s behavior rather than whether a conflict has, in fact, caused an adverse effect on the legal representation that a client received. I’m happy that my analysis has been cited by a few state courts that have looked at these and similar issues—and who knows, maybe someday the Supreme Court will cite behavioral research in forming its opinion on this topic.

You recently shared a paper on your blog, calling it a “fascinating discussion of the role of behavioral ethics in the context of judicial decision-making.” Which points or lessons stood out to you the most?

Interestingly, in a series of decisions about the constitutional standards for judicial conflicts of interest, the Supreme Court seems to be a bit more behaviorally realistic about conflicts of interest than it has been about attorney conflicts. For instance, in a case from a few terms ago, the Supreme Court—in deciding whether a justice on the Pennsylvania Supreme Court could properly adjudicate a death penalty case when he had previously been the prosecutor who authorized capital charges against the defendant—noted that “bias is easy to attribute to others and difficult to discern in oneself.” The Court went even further, noting that when a judge is asked to participate in a case in which he or she previously served as a prosecutor, there is “a risk that the judge would be so psychologically wedded to his or her previous position as a prosecutor that the judge would consciously or unconsciously avoid the appearance of having erred or changed position.”

The info is here.

How big tech designs its own rules of ethics to avoid scrutiny and accountability

David Watts
theconversaton.com
Originally posted March 28, 2019

Here is an excerpt:

“Applied ethics” aims to bring the principles of ethics to bear on real-life situations. There are numerous examples.

Public sector ethics are governed by law. There are consequences for those who breach them, including disciplinary measures, termination of employment and sometimes criminal penalties. To become a lawyer, I had to provide evidence to a court that I am a “fit and proper person”. To continue to practice, I’m required to comply with detailed requirements set out in the Australian Solicitors Conduct Rules. If I breach them, there are consequences.

The features of applied ethics are that they are specific, there are feedback loops, guidance is available, they are embedded in organisational and professional culture, there is proper oversight, there are consequences when they are breached and there are independent enforcement mechanisms and real remedies. They are part of a regulatory apparatus and not just “feel good” statements.

Feelgood, high-level data ethics principles are not fit for the purpose of regulating big tech. Applied ethics may have a role to play but because they are occupation or discipline specific they cannot be relied on to do all, or even most of, the heavy lifting.

The info is here.

Wit et al. vs. United Behavioral Health and Alexander et al. vs. United Behavioral Health

U.S. Federal Court Finds United Healthcare Affiliate Illegally Denied Mental Health and Substance Use Coverage in Nationwide Class Action

• Landmark Case Challenges the Nation’s Largest Mental Health Insurance Company for Unlawful, Systematic Claims Denials – and Wins

• Groundbreaking Ruling Affects Certified Classes of Tens of Thousands of Patients, Including Thousands of Children and Teenagers 

• Judge Rules, “At every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members’ underlying conditions.”

In a landmark mental health ruling, a federal court held today that health insurance giant United Behavioral Health (UBH), which serves over 60 million members and is owned by UnitedHealth Group, used flawed internal guidelines to unlawfully deny mental health and substance use treatment for its insureds across the United States. The historic class action was filed by Psych-Appeal, Inc. and Zuckerman Spaeder LLP, and litigated in the U.S. District Court for the Northern District of California.

The federal court found that, to promote its own bottom line, UBH denied claims based on internally developed medical necessity criteria that were far more restrictive than generally accepted standards for behavioral health care. Specifically, the court found that UBH’s criteria were skewed to cover “acute” treatment, which is short-term or crisis-focused, and disregarded chronic or complex mental health conditions that often require ongoing care.

The court was particularly troubled by UBH’s lack of coverage criteria for children and adolescents, estimated to number in the thousands in the certified classes.

“For far too long, patients and their families have been stretched to the breaking point, both financially and emotionally, as they battle with insurers for the mental health coverage promised by their health plans,” said Meiram Bendat of Psych-Appeal, Inc. and co-counsel for the plaintiffs who uncovered the guideline flaws. “Now a court has ruled that denying coverage based on defective medical necessity criteria is illegal.”

In its decision, the court also held that UBH misled regulators about its guidelines being consistent with the American Society of Addiction Medicine (ASAM) criteria, which insurers must use in Connecticut, Illinois and Rhode Island. Additionally, the court found that UBH failed to apply Texas-mandated substance use criteria for at least a portion of the class period.

The legal opinion is here.

Former Patient Coordinator Pleads Guilty to Wrongfully Disclosing Health Information to Cause Harm

Department of Justice
U.S. Attorney’s Office
Western District of Pennsylvania
Originally posted March 6, 2019

A resident of Butler, Pennsylvania, pleaded guilty in federal court to a charge of wrongfully disclosing the health information of another individual, United States Attorney Scott W. Brady announced today.

Linda Sue Kalina, 61, pleaded guilty to one count before United States District Judge Arthur J. Schwab.

In connection with the guilty plea, the court was advised that Linda Sue Kalina worked, from March 7, 2016 through June 23, 2017, as a Patient Information Coordinator with UPMC and its affiliate, Tri Rivers Musculoskeletal Centers (TRMC) in Mars, Pennsylvania, and that during her employment, contrary to the requirements of the Health Insurance Portability and Accountability Act (HIPAA) improperly accessed the individual health information of 111 UPMC patients who had never been provided services at TRMC. Specifically, on August 11, 2017, Kalina unlawfully disclosed personal gynecological health information related to two such patients, with the intent to cause those individuals embarrassment and mental distress.

Judge Schwab scheduled sentencing for June 25, 2019, at 10 a.m. The law provides for a total sentence of 10 years in prison, a fine of $250,000, or both. Under the Federal Sentencing Guidelines, the actual sentence imposed is based upon the seriousness of the offense and the prior criminal history, if any, of the defendant. Kalina remains on bonding pending the sentencing hearing.

Assistant United States Attorney Carolyn J. Bloch is prosecuting this case on behalf of the government.

The Federal Bureau of Investigation conducted the investigation that led to the prosecution of Kalina.

An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty

Michael L. Perlin, Talia Roitberg Harmon, & Sarah Chatt
Social Science Research Network 
http://dx.doi.org/10.2139/ssrn.3332730

Abstract

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process—in many ways, the most scandalous—is the inadequacy of counsel so often provided to defendants facing execution. By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients. This is not news.

And, in the same vein, anyone who has been so involved with this area of law and policy for the past 35 years knows that it is impossible to make sense of any of these developments without a deep understanding of the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the case that established a pallid, virtually-impossible-to fail test for adequacy of counsel in such litigation. Again, this is not news.

We also know that some of the most troubling results in Strickland interpretations have come in cases in which the defendant was mentally disabled—either by serious mental illness or by intellectual disability. Some of the decisions in these cases—rejecting Strickland-based appeals—have been shocking, making a mockery out of a constitutionally based standard.

To the best of our knowledge, no one has—prior to this article—undertaken an extensive empirical analysis of how one discrete US federal circuit court of appeals has dealt with a wide array of Strickland-claim cases in cases involving defendants with mental disabilities. We do this here. In this article, we reexamine these issues from the perspective of the 198 state cases decided in the Fifth Circuit from 1984 to 2017 involving death penalty verdicts in which, at some stage of the appellate process, a Strickland claim was made (in which there were only 13 cases in which any relief was even preliminarily granted under Strickland). As we demonstrate subsequently, Strickland is indeed a pallid standard, fostering “tolerance of abysmal lawyering,” and is one that makes a mockery of the most vital of constitutional law protections: the right to adequate counsel.

This article will proceed in this way. First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed, looking carefully at what happened after the Strickland-ordered remand in the 13 Strickland “victories.” Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of adequacy of counsel law fails miserably to meet the standards of this important school of thought.

Prominent psychiatrist accused of sexually exploiting patients

Michael Rezendes
The Boston Globe
Originally posted February 21, 2019

A prominent North Shore psychiatrist is facing lawsuits from three female patients who say he lured them into degrading sexual relationships, including beatings, conversations about bondage, and, in one case, getting a tattoo of the doctor’s initials to show his “ownership” of her, according to court documents.

The women allege that Dr. Keith Ablow, an author who was a contributor to Fox News network until 2017, abused his position while treating them for acute depression, leaving them unable to trust authority figures and plagued with feelings of shame and self-recrimination.

“He began to hit me when we engaged in sexual activities,” wrote one plaintiff, a New York woman, in a sworn affidavit filed with her lawsuit. “He would have me on my knees and begin to beat me with his hands on my breasts,” she wrote, “occasionally saying, ‘I own you,’ or ‘You are my slave.’”

The malpractice lawsuits, two of them filed on Thursday in Essex Superior Court and a third filed last year, paint a picture of a therapist who encouraged women to trust and rely on him, then coaxed them into humiliating sexual activities, often during treatment sessions for which they were charged.

When the New York woman had trouble paying her therapy bills, she said, Ablow advised her to work as an escort or stripper because the work was lucrative.

Although the women used their real names in their lawsuits, the Globe is withholding their identities at their request.  The Globe does not identify alleged victims of sexual abuse without their consent.

The info is here.