Transcript funding - Arizona Capital Representation Project

What Mitigation is NOT:
Defending Against A Lethal Diagnosis
Danalynn Recer
Gulf Region Advocacy Center
www.gracelaw.org
Not Just Any Diagnosis
• No Diagnosis is Mitigating outside the
context of a whole life
• Not every diagnosis is mitigating
• Diagnoses are just labels
Anti-social Personality
• Never Mitigating
• Not a medical dx for treatment
purposes
• Punitive labeling
ASPD = Dehumanization
masquerading as science
• It’s justifiable “to kill those who are monsters or
inhuman because of their abominable acts or
traits, or those who are ‘mere animals’ (coons,
pigs, rats, lice, etc.) . . .” because they are
excluded “from the universe of morally protected
entities.”
– Craig Haney, The Social Context of Capital Murder:
Social Histories and the Logic of Mitigation, 35 Santa
Clara L. Rev. 547, 559 (1995).
Lucrative Quasi-Science!
“For the Worst of Us, The
Diagnosis May be ‘Evil’”
• NYT, February 8, 2008
• “Hierarchy of evil”
“Evil” (ASPD) is convenient
and marketable!
• “Locating the causes of capital crime
exclusively within the offender—whose evil
must be distorted, exaggerated, and
mythologized—not only makes it easier to
kill them but also to distance ourselves
from any sense of responsibility for the
roots of the problem itself.”
– Craig Haney
Quantifying Value Judgments
for the Courts?
• “To minimize the arbitrariness of how courts determine the
worst of crimes, and to eliminate bias in sentencing, the
Depravity Scale research aims to establish societal
standards of what makes a crime depraved, and to
develop a standardized instrument based on specific
characteristics of a crime that must be proven in order to
merit more severe sentences. “
https://depravityscale.org/depscale/
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Hare Psychopathy Checklist
Revised (PCL-R)
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Glibness / Superficial Charm
Grandiose Self-Worth
Need for Stimulation
Pathological Lying
Conning / Manipulative
Lack of Remorse
Shallow Affect
Callous / Lack of Empathy
Parasitic Lifestyle
Poor Behavioral Controls
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Promiscuous Sexual Behavior
Early Behavior Problems
No Long-Term Goals
Impulsivity
Irresponsibility
Failure to Accept
Responsibility
Many Short-Term Marriages
Juvenile Delinquency
Revocation of Conditional
Release
Criminal Versatility
Taking the PCL-R Into Capital
Cases
“…convergent data…leads to an inescapable
conclusion: Mr. X has significant
psychopathic qualities which make him an
aggressive and dangerous individual…he is
more aggressive than typical violent
offenders…”
“…even in prison, managing his aggressive
tendencies will present an ongoing
challenge…”
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Penalty-Phase Testimony
“The psychopath, as I say, has the
ability to look very normal. However,
if you know what you are looking for,
it is kind of like seeing a bowl of fruit,
and you say to yourself, gosh that
bowl of fruit looks wonderful, it looks
very good. But when you get close to
the bowl of fruit and pick it up you
realize that it’s fake fruit. And the
psychopath is a lot that way.”
U.S. v Barnette
(2002)
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The Take-Home Message(s)
• Clearly, labeling someone with
psychopathic traits and calling him a
psychopath is highly stigmatizing and has
a critical impact on how defendants are
viewed.
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Requirements for Diagnosis
• Rule Out: Must eliminate other causes
of behavior
• Must have had conduct disorder prior
to age 15
Is psychopathy a viable
scientific construct?
• Hare (1998):“…single most important clinical
construct in the criminal justice system”
• OR
• Lewis (1974): “…diagnostic subgroupings …
seldom have sharp & definite limits … Worst of all
is psychopathic personality”
• Blackburn (1988): It “…remains a mythical
entity…” & “…should be discarded”
• Gunn (1998): “An elusive concept with moral
overtones”
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Is it just a tautology or post-hoc
descriptor?
• …for most if not all things society considers
“bad” or “evil”?
– Or at least people we really dislike?
• “Why’d he do that?”
• “Must be a psychopath.”
• “What’s a psychopath?”
• “Someone who’d do that.”
Ellard (1998)
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Uncritical Acceptance within the
Clinical/Forensic Field?
• “…unparalleled as a measure for making risk
assessments”
• Salekin, Rogers, & Sewell (1996)
• “…single most important clinical construct in the
criminal justice system”
• Hare (1998), Hemphill & Hare (2004)
• “…failure to consider psychopathy when
conducting a risk assessment may be
unreasonable (from a legal perspective) or
unethical (from a professional perspective)”
• Hart (1998)
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Concerns about the ethics, reliability,
and validity of using the PCL-R and
assessment of future dangerousness
• Peer-Reviewed Journal Articles
– Prediction of Future Dangerousness in
Capital Murder Trials: Is it Time to
Disinvent the Wheel? John Edens, et al.,
2005. Law and Human Behavior, 29:1, 5586.
Edens, et a., 2005
“Clinical assertions that a defendant is likely
to commit future violent acts appears to be
highly inaccurate and ethically
questionable, at best…
…available research offers little
support…that prediction will be
appreciably improved by relying on more
structured risk assessment [measures].”
Peer-Reviewed Journal Article
• Does Interrater (Dis)agreement on
Psychopathy Checklist Scores in Sexually
Violent Predator Trials Suggest Partisan
Allegiance in Forensic Evaluations?
Daniel Murrie, et al., 2008. Law and
Human Behavior, 32:352-356.
Murrie, et al., 2008
• “Differences between scores from
opposing evaluators were usually in a
direction that supported the party who
retained their services….Results raise
concerns about the potential for a forensic
evaluator’s “partisan allegiance” to
influence PCL-R scores in adversarial
proceedings.”
Peer-Reviewed Journal Article
• Do Some Evaluators Report Consistently
Higher or Lower PLC-R Scores than
Others: Findings from a Statewide Sample
of Sexually Violent Predator Evaluations.
• Boccaccini, Murrie & Turner. (2008).
Psychology, Public Policy and Law, 14(4),
pp. 262-283.
Boccaccini, et al., 2008
• “More than 30% of the variability in PCL-R scores
was attributable to differences among
evaluators…these findings raise concerns about the
field reliability of the PCL-R…”
• “[A]s the amount of variance attributable to evaluators
approaches the amount of variance attributable to the
offender, any score or opinion from the evaluator
becomes less useful and fails to serve the purpose
for which evaluators testify in court: to provide
nonbiasing assistance to the trier of fact.”
Peer-Reviewed Journal Article
• On Individual Differences in Person
Perception: Raters’ Personality Traits
Relate to Their Psychopathy ChecklistRevised Scoring Tendencies. Audrey
Miller, et al., 2011. Assessment, online
version of publication.
Miller, et al., 2011
• “[T]his study is the first to demonstrate that
raters’ personalities may explain some
variability in scores they assign to
offenders.”
Peer-Reviewed Journal Article
• Do Core Interpersonal and Affective Traits
of PCL-R Psychopathy Interact with
Antisocial Behavior and Disinhibition to
Predict Violence?
• Kennealy, et al., 2010. Psychological
Assessment, 22(3), 569-580.
Kennealy, et al., 2010
• The interpersonal/affective scale of the PCL-R
did not interact with the Social Deviance scale to
predict violence
• “Use of the PCL-R…invites mistaken
assumptions that violence risk reflects emotional
detachment, predation, and inalterable
dangerousness.”
• “[T]he results of this study challenge common
assumptions about the interactive relationship
assumed to exist between the PCL-R factor
scores and violence.”
Peer-Reviewed Journal Article
• The Efficacy of Violence Prediction: A
Meta-Analytic Comparison of Nine Risk
Assessment Tools.
• Yang, et al., 2010. Psychological Bulletin,
136(5), 740-767.
Yang, et al., 2010 (con’t)
• “After almost five decades of developing risk prediction
tools, the evidence increasingly suggests that the ceiling
of predictive efficacy may have been reached with the
available technology….Although it may be possible to
improve on our understanding about predicting what an
individual may do in a hypothetical situation, it will be
much more difficult to predict the situation that the
individual actually encounters in the open community.
Even predicting violence within an institutional
environment is difficult, where the assessor has much
more information about that environment.”
Yang, et al., 2010
• Sophisticated analysis of the accuracy of nine
leading violence risk assessment tools, including
the PCL-R
• All nine had only moderate predictive accuracy,
with none leading the pack
• “The moderate level of predictive accuracy of
these tools suggests that they should not be
used solely for some criminal justice
decision making that requires a very high
level of accuracy…”
Hare’s response to critique
• Robert Hare threatened to sue the authors
and publisher of a peer-reviewed journal to
prevent publication of an article critiquing
the PCL-R
Letter from Hare’s attorney
• “…[We] have no choice but to seek
financial damages from your publication
and from the authors of the article, as well
as a public retraction of the article…”
• “[The paper] was fraught with
misrepresentations…and a completely
inaccurate summary of what amounts to
[Hare’s] life work…”
Long delay before paper was published
• “Is criminal behavior a central component
of psychopathy? Conceptual directions for
resolving the debate.”
• Skeem, J.L. & Cooke, D.J. (2101)
Psychological Assessment, 22(2), 433445.
Skeem & Cooke (2010)
• “The development of the PCL-R fueled intense clinical
interest in the construct of psychopathy.
• Unfortunately, a side effect of this interest has been
conceptual confusion, and … the conflating of measures
with constructs.
• Indeed, the field is in danger of equating the PCL-R with
the theoretical construct of psychopathy.
• …a convenient fiction about the PCL-R and its relation
to violence must be examined to avoid the view that
psychopathy is merely a violent variant of APD…the
authors believe the evidence favors viewing criminal
behavior as a correlate, not a component, of
psychopathy.”
Skeem, J.L., & Cooke, D.J. (2010). Is criminal behavior a central component of psychopathy?
Conceptual directions for resolving the debate. Psychological Assessment, 22, 433-445.
Fallout: What is he afraid of?
Chilling effects on academic freedom
• “[T]he threat of litigation constitutes a
serious threat to academic freedom and
potentially to scientific progress…
Norman Poythress & John Petrila,
International Journal of Forensic Mental
Health
Trial Strategy & Credibility
Issues
• “…a zealous attorney may attempt to
discredit the scientific underpinnings of the
PCL-R by drawing attention to this threat to
sue and accompanying demand to
withhold publication of a paper that is
critical of the PCL-R and which has been
judged by peer review to be appropriate for
dissemination in the professional literature.
– Poythress & Petrila (2010)
What You Must Do in
Response
• Thorough investigation
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Of all prior bad acts
Narrative of mental health status over time
Thorough social history investigation
Circumstances of prior diagnoses
• Testing and Evaluation for other
diseases and disorders
ASPD: What Else Could it Be?
(a non-inclusive list)
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PTSD or Traumatic Stress Responses
Bipolar Disorder or Major Depression
Schizophrenia or Delusional Disorder
Mental Retardation
Frontal or Temporal Lobe Brain Damage
Fetal Alcohol Syndrome or Effect
Learning Disabilities and their Effects
Pervasive Developmental Disorders
Obsessive Compulsive Disorder and/or
Tourette’s Syndrome
ASPD or Brain Damage?
• Inconsistent work
performance
• Irritability &
aggression
• Failure to plan ahead
• Recklessness
regarding safety
• Lack of remorse
• Trouble in academic/
occupational settings
• Difficulty managing
emotion; impulsivity
• Planning deficits
• Unable to anticipate
consequences
• Emotional flatness
Neuropsychological Factors
• “…[T]he fact that children, adolescents,
adults and elderly patients with prefrontal
deficits are characterized by antisocial,
aggressive behavior makes a compelling
lifespan case for a prefrontal dysfunction
theory of antisocial, aggressive behavior.”
“Annotation: The role of prefrontal deficits, low
autonomic arousal, and early health factors in the
development of antisocial and aggressive behavior in
children.” Adrian Raine, 2002. Journal of child
Psychology and Psychiatry, 43 (4), 417-434.
ASPD or Post-Traumatic Stress
Disorder?
• ASPD
• Irritability &
aggression
• Impulsivity
• Failure to follow social
norms
• Recklessness
regarding safety
• Lack of remorse
• PTSD
• Affective lability,
emotional reactivity
• Hypervigilance
• Persistent expectation
of betrayal, distrust
• Traumatic
reenactments
• Psychic numbing
ASPD or Bipolar Disorder?
• ASPD
• Irritability &
aggression
• Failure to plan ahead,
irresponsibility
• Recklessness
regarding safety
• Superficial charm,
glibness
• Bipolar Disorder
• Irritable mood states;
mixed states
• Impairment in
functioning
• Driven, goal-directed
behavior
• Grandiosity, flight of
ideas
“Truancy” – antisocial / conduct
disorder language
• What is really going on?
• What is the factual predicate?
Truancy – antisocial label
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Factual predicate: misses school days
What might be going on?
Mood symptom: can’t concentrate
Anxiety/PTSD symptom: intrusions
Psychotic symptom: can’t function
Brain dysfunction symptom: LD/ID
Social symptom: hiding bruises, peer rejection
“Pathological liar”
• What is really going on?
• What is the factual predicate?
“Pathological Liar”
• Factual predicate: Statement contradict
evidence
• What might be going on?
• Mood symptom: delusions of grandeur
• Anxiety/PTSD symptom: survival mode,
protecting siblings
• Psychotic symptom: misperceives reality
• Brain dysfunction symptom: confabulation
• Social symptom: covering up shame
“Cold-blooded killer”
• What is really going on?
• What is the factual predicate?
“Cold-blooded killer”
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Factual predicate: Shows no emotion
What might be going on?
Mood symptom: anhedonia, flat affect
Anxiety/PTSD symptom: psychic numbing
Psychotic symptom: catonia, psychotropic meds
Brain dysfunction symptom: altered emotionality
Social symptom: cultural stoicism
DSM Text for Avoiding a
Diagnosis of
Conduct Disorder
• May be misapplied in settings where
patterns of undesirable behavior are
sometimes viewed as protective
• Immigrant youth from war-ravaged
countries would not necessarily warrant
a diagnosis
• Social and economic context must be
considered
DSM Text for Avoiding a
Diagnosis of Personality
Disorder
• Evaluation of long-term functioning
• Multiple interviews, spaced over time
• Must be distinguished from situational
stressors or more transient mental
states
• Must rule out symptoms as
manifestations of another mental
disorder, or effects of drugs or meds, or
effects of medical condition (e.g., head
trauma)
DSM Text for Avoiding a
Diagnosis of
Personality Disorder
• Caution when diagnosing during mood
or anxiety episodes (consider, e.g.,
PTSD)
• Caution when behaviors follow
intoxication or withdrawal, or activities
sustaining a dependency
• Caution when acculturation problems
follow immigration
DSM Text for Avoiding a
Diagnosis of
Personality Disorder
• Should take into account individual’s
ethnic, cultural and social background
• Should not be confused with “the
expression of habits, customs, or
religious and political values professed
by the individual’s culture of origin”
DSM Rule-Outs for
Antisocial Personality Disorder
• Behaviors must not occur exclusively
during the course of schizophrenia or a
manic episode
• May be misapplied to individuals in
settings in which antisocial behavior may
be part of a protective survival strategy
• Must consider social and economic
context
Problems with the Antisocial
Diagnosis
• There are 848 different ways
to meet DSM-III-R diagnostic
criteria for ASPD, yet only one
diagnostic label is given to
characterize all of these cases
(Widiger and Francis, 2002)
Ethical obligations of the Capital
defense lawyer
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Loyalty to client
Thorough investigation (Wiggins, Rompilla)
Independent & informed professional judgment
Obtain expert, investigative, and other
professional services reasonably necessary
or appropriate to provide high quality legal
representation… (Guideline 4.1B) (i.e., duty to
reach out!)
Loyalty to the Client in Capital
Sentencing Context
1. Establish a working relationship (rapport)
2. Avoid the human tendency to judge
3. Investigate all mitigating hypothesis of all
negative behaviors:
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Is it true?
Is there a broader cultural/factual context?
Is there a mitigating explanation or
interpretation?
Loyalty to the Client
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The entire team owes a duty of loyalty
Patience, understanding, rapport
Cultural sensitivity
Exhaustive investigation
Look for mitigating explanation of
negative demeanor/conduct,
• give client the benefit of the doubt!
Supp. Guideline 5.1:
Rapport is Crucial
• Rapport is a “dynamic, harmonious
relationship in which information flows
freely because patients feel accepted
with both their assets and liabilities.”
• “a relationship between the [client or
witness] and [the defense team] that
reflects warmth, genuine concern, and
mutual trust.”
– Sadock & Sadock, A Synopsis of Psychiatry
Ethical Duty: Observational
caretaker
• Because only defense team members
have access to the client over time, it is
their duty to “act as the observational
caretakers for the mental status symptoms
of the client.”
• Therefore, defense team members must
be trained to “perceive data from multiple
sources,” including “history, . . . nonverbal
cues, [and] listening at multiple levels.
– Deana Logan
Understand the client’s past;
Project into the future
• lessen the client’s culpability;
• show the client’s capacity for empathy,
remorse;
• illustrate the client’s desire to function
in the world,
• rebut or explain evidence presented by
the prosecutor
Misdiagnosis, Case Example 1
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Diagnosis based on single interview
Access to police reports
No comprehensive search for records
No independent social history information
Conclusions based solely on client selfreport
Psychological Evaluation, 1991
(Based on self report)
“It…appear[s] that Mr. Stevens’ family background
is relatively stable. His mother worked in local
convalescent hospitals… Mr. Stevens was never
placed out of the home. He does not recall
having any broken bones or…needing sutures.
Discipline in the family home involve corporal
punishment. Mr. Stevens denies that this was
excessive…His background is
unremarkable…no history of abuse that I could
determine.”
Juvenile Court Records, 1977
“The minors came to the attention of the
juvenile authorities when the principal
noticed a severe eye injury to Joey caused
by a whipping given to him by his mother.
The minor was seen to have multiple
linear and loop-shaped lesions over his
entire body in various stages of healing.
His sister also had multiple linear and loop
marks and scars over her entire upper
body.”
Notable cases of misdiagnosed
ASPD
• Rompilla v. Beard, 545 U.S. 374 (2005)
– Before: ASPD x 4 (Trial)
– After: MR, schizophrenia, Fetal Alcohol
Syndrome, (PCR Social history)
• Parkus v. Delo, 219 S.W.3d 250 (Mo.
2007)
– Before: ASPD x 3 + SVP (Trial)
– After: MR, schizophrenia, Fetal Alcohol
Syndrome (PCR Social History)
How do we avoid
misdiagnoses?
• Understand the difference between a
fact and an interpretation of that fact
– Nonjudgmental critical thinking is not an
oxymoron!
• Learn to recognize and identify
symptoms. (Most important principle
for investigation and development of
mitigation)
Character and mental health
• “…episodes of impulsive, …unprovoked
violence … can certainly be consistent with brain
damage, paranoia, irritability and other signs of
mental illness.”
• “Mr. Eaton is genuinely and deeply remorseful
for his crime. Again, this information is helpful
on many levels, and would help complete an
accurate and humanizing clinical picture of Dale
Eaton.”
– Dr. Kenneth Ash, pretrial examiner
Character and mental health
“[Friends and family] describe Jeff Paul as
a kind and sensitive person. He… cared
for sick and injured animals, including a
pet that was cruelly injured by [his father],
and a raccoon and a duck Mr. Paul
rescued in the wild. These behaviors
weigh against his having an anti-social
personality, and suggest that something
different is at play.
– Dr. Irving Kuo, pretrial examiner
Countering State’s Expert
• Investigate them
• Prior testimony, publications, etc.
• Training, experience
• Present them with Data to Flip Them