What Mitigation is NOT: Defending Against A Lethal Diagnosis

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!

• NYT, February 8, 2008NYT, February 8, 2008

• ““Hierarchy of evil”Hierarchy of evil”

“For the Worst of Us, The Diagnosis May be ‘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 To minimize the arbitrariness of how courts determine the worst of crimes, and to eliminate bias in sentencing, the worst of crimes, and to eliminate bias in sentencing, the Depravity Scale research aims to Depravity Scale research aims to establish societal establish societal standards of what makes a crime depravedstandards of what makes a crime depraved, and to , and to develop a standardized instrument based on specific develop a standardized instrument based on specific characteristics of a crime that must be proven in order to characteristics of a crime that must be proven in order to merit more severe sentences. “merit more severe sentences. “

https://depravityscale.org/depscale/ 9

Hare Psychopathy Checklist Revised (PCL-R)

• Glibness / Superficial CharmGlibness / Superficial Charm• Grandiose Self-WorthGrandiose Self-Worth• Need for StimulationNeed for Stimulation• Pathological LyingPathological Lying• Conning / ManipulativeConning / Manipulative• Lack of RemorseLack of Remorse• Shallow AffectShallow Affect• Callous / Lack of EmpathyCallous / Lack of Empathy• Parasitic LifestyleParasitic Lifestyle• Poor Behavioral ControlsPoor Behavioral Controls

• Promiscuous Sexual BehaviorPromiscuous Sexual Behavior• Early Behavior ProblemsEarly Behavior Problems• No Long-Term GoalsNo Long-Term Goals• ImpulsivityImpulsivity• IrresponsibilityIrresponsibility• Failure to Accept Failure to Accept

ResponsibilityResponsibility• Many Short-Term MarriagesMany Short-Term Marriages• Juvenile DelinquencyJuvenile Delinquency• Revocation of Conditional Revocation of Conditional

ReleaseRelease• Criminal VersatilityCriminal Versatility

Taking the PCL-R Into Capital Cases

“…“…convergent data…leads to an convergent data…leads to an inescapableinescapable conclusion: Mr. X has significant conclusion: Mr. X has significant psychopathic qualities which make him an psychopathic qualities which make him an aggressive and dangerous individual…he is aggressive and dangerous individual…he is more aggressive than typical violent more aggressive than typical violent offenders…”offenders…”

“…“…even in prison, managing his aggressive even in prison, managing his aggressive tendencies will present an ongoing tendencies will present an ongoing challenge…”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 Clearly, labeling someone with psychopathic traits and calling him a psychopathic traits and calling him a psychopath is highly stigmatizing and has psychopath is highly stigmatizing and has a critical impact on how defendants are a critical impact on how defendants are viewed.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):Hare (1998):“…single most important clinical construct “…single most important clinical construct in the criminal justice system”in the criminal justice system”

• OROR• Lewis (1974): Lewis (1974): “…diagnostic subgroupings … seldom “…diagnostic subgroupings … seldom

have sharp & definite limits … Worst of all is have sharp & definite limits … Worst of all is psychopathic personality”psychopathic personality”

• Blackburn (1988): It Blackburn (1988): It “…remains a mythical entity…” & “…remains a mythical entity…” & “…should be discarded”“…should be discarded”

• Gunn (1998): Gunn (1998): “An elusive concept with moral “An elusive concept with moral overtones” overtones”

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Is it just a tautology or post-hoc descriptor?

• ……for most if not all things society considers for most if not all things society considers “bad” or “evil”?“bad” or “evil”?– Or at least people we Or at least people we reallyreally dislike? dislike?

• ““Why’d he do that?”Why’d he do that?”• “ “Must be a psychopath.”Must be a psychopath.”• ““What’s a psychopath?”What’s a psychopath?”• “ “Someone who’d do that.”Someone who’d do that.”

Ellard (1998) 16

Uncritical Acceptance within the Clinical/Forensic Field?

• “…“…unparalleled as a measure for making risk unparalleled as a measure for making risk assessments” assessments”

• Salekin, Rogers, & Sewell (1996)Salekin, Rogers, & Sewell (1996)

• “…“…single most important clinical construct in the single most important clinical construct in the criminal justice system”criminal justice system”

• Hare (1998), Hemphill & Hare (2004)Hare (1998), Hemphill & Hare (2004)

• “…“…failure to consider psychopathy when failure to consider psychopathy when conducting a risk assessment may be conducting a risk assessment may be unreasonable (from a legal perspective) or unreasonable (from a legal perspective) or unethical (from a professional perspective)”unethical (from a professional perspective)”

• Hart (1998)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 Prediction of Future Dangerousness in

Capital Murder Trials: Is it Time to Capital Murder Trials: Is it Time to Disinvent the Wheel? John Edens, et al., Disinvent the Wheel? John Edens, et al., 2005. 2005. Law and Human BehaviorLaw and Human Behavior, 29:1, 55-, 29:1, 55-86.86.

Edens, et a., 2005

“ “Clinical assertions that a defendant is likely Clinical assertions that a defendant is likely to commit future violent acts appears to be to commit future violent acts appears to be highly inaccurate and ethically highly inaccurate and ethically questionable, at best…questionable, at best…

……available research offers little support…available research offers little support…that prediction will be appreciably that prediction will be appreciably improved by relying on more structured improved by relying on more structured risk assessment [measures].”risk assessment [measures].”

Peer-Reviewed Journal Article

• Does Interrater (Dis)agreement on Does Interrater (Dis)agreement on Psychopathy Checklist Scores in Sexually Psychopathy Checklist Scores in Sexually Violent Predator Trials Suggest Partisan Violent Predator Trials Suggest Partisan Allegiance in Forensic Evaluations? Allegiance in Forensic Evaluations? Daniel Murrie, et al., 2008. Daniel Murrie, et al., 2008. Law and Law and Human Behavior, Human Behavior, 32:352-35632:352-356..

Murrie, et al., 2008

• ““Differences between scores from Differences between scores from opposing evaluators were usually in a opposing evaluators were usually in a direction that supported the party who direction that supported the party who retained their services….Results raise retained their services….Results raise concerns about the potential for a forensic concerns about the potential for a forensic evaluator’s “partisan allegiance” to evaluator’s “partisan allegiance” to influence PCL-R scores in adversarial influence PCL-R scores in adversarial proceedings.”proceedings.”


• Do Some Evaluators Report Consistently Do Some Evaluators Report Consistently Higher or Lower PLC-R Scores than Higher or Lower PLC-R Scores than Others: Findings from a Statewide Sample Others: Findings from a Statewide Sample of Sexually Violent Predator Evaluations.of Sexually Violent Predator Evaluations.

• Boccaccini, Murrie & Turner. (2008). Boccaccini, Murrie & Turner. (2008). Psychology, Public Policy and Law, 14(4),Psychology, Public Policy and Law, 14(4), pp. 262-283.pp. 262-283.

Boccaccini, et al., 2008

• ““More than 30% of the variability in PCL-R scores More than 30% of the variability in PCL-R scores was attributable to differences among evaluators…was attributable to differences among evaluators…these findings raise concerns about the field reliability these findings raise concerns about the field reliability of the PCL-R…”of the PCL-R…”

• ““[A]s the amount of variance attributable to evaluators [A]s the amount of variance attributable to evaluators approaches the amount of variance attributable to the approaches the amount of variance attributable to the offender, any score or opinion from the evaluator offender, any score or opinion from the evaluator becomes less useful and fails to serve the purpose becomes less useful and fails to serve the purpose for which evaluators testify in court: to provide for which evaluators testify in court: to provide nonbiasing assistance to the trier of fact.”nonbiasing assistance to the trier of fact.”


• On Individual Differences in Person On Individual Differences in Person Perception: Raters’ Personality Traits Perception: Raters’ Personality Traits Relate to Their Psychopathy Checklist-Relate to Their Psychopathy Checklist-Revised Scoring Tendencies. Audrey Revised Scoring Tendencies. Audrey Miller, et al., Miller, et al., 2011. 2011. Assessment,Assessment, online online version of publication.version of publication.

Miller, et al., 2011

• ““[T]his study is the first to demonstrate that [T]his study is the first to demonstrate that raters’ personalitiesraters’ personalities may explain some may explain some variability in scores they assign to variability in scores they assign to offenders.”offenders.”


• Do Core Interpersonal and Affective Traits Do Core Interpersonal and Affective Traits of PCL-R Psychopathy Interact with of PCL-R Psychopathy Interact with Antisocial Behavior and Disinhibition to Antisocial Behavior and Disinhibition to Predict Violence?Predict Violence?

• Kennealy, et al., 2010. Kennealy, et al., 2010. Psychological Psychological Assessment, 22(3),Assessment, 22(3), 569-580. 569-580.

Kennealy, et al., 2010

• The interpersonal/affective scale of the PCL-R The interpersonal/affective scale of the PCL-R did did notnot interact with the Social Deviance scale to interact with the Social Deviance scale to predict violencepredict violence

• ““Use of the PCL-R…invites mistaken assumptions Use of the PCL-R…invites mistaken assumptions that violence risk reflects emotional detachment, that violence risk reflects emotional detachment, predation, and inalterable dangerousness.”predation, and inalterable dangerousness.”

• ““[T]he results of this study challenge common [T]he results of this study challenge common assumptions about the interactive relationship assumptions about the interactive relationship assumed to exist between the PCL-R factor assumed to exist between the PCL-R factor scores and violence.”scores and violence.”


• The Efficacy of Violence Prediction: A The Efficacy of Violence Prediction: A Meta-Analytic Comparison of Nine Risk Meta-Analytic Comparison of Nine Risk Assessment Tools.Assessment Tools.

• Yang, et al., 2010. Yang, et al., 2010. Psychological Bulletin, Psychological Bulletin, 136(5), 136(5), 740-767.740-767.

Yang, et al., 2010 (con’t)

• ““After almost five decades of developing risk prediction After almost five decades of developing risk prediction tools, the evidence increasingly suggests that the ceiling tools, the evidence increasingly suggests that the ceiling of predictive efficacy may have been reached with the of predictive efficacy may have been reached with the available technology….Although it may be possible to available technology….Although it may be possible to improve on our understanding about predicting what an improve on our understanding about predicting what an individual may do in a hypothetical situation, it will be individual may do in a hypothetical situation, it will be much more difficult to predict the situation that the much more difficult to predict the situation that the individual actually encounters in the open community. individual actually encounters in the open community. Even predicting violence within an institutional Even predicting violence within an institutional environment is difficult, where the assessor has much environment is difficult, where the assessor has much more information about that environment.”more information about that environment.”

Yang, et al., 2010

• Sophisticated analysis of the accuracy of nine Sophisticated analysis of the accuracy of nine leading violence risk assessment tools, including leading violence risk assessment tools, including the PCL-Rthe PCL-R

• All nine had only moderate predictive accuracy, All nine had only moderate predictive accuracy, with none leading the packwith none leading the pack

• ““The moderate level of predictive accuracy of The moderate level of predictive accuracy of these tools suggests that these tools suggests that they should not be they should not be used solely for some criminal justice used solely for some criminal justice decision making that requires a very high decision making that requires a very high level of accuracylevel 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 Is criminal behavior a central component of psychopathy? Conceptual directions for of psychopathy? Conceptual directions for resolving the debate.”resolving the debate.”

• Skeem, J.L. & Cooke, D.J. (2101) Skeem, J.L. & Cooke, D.J. (2101) Psychological Assessment, 22(2), Psychological Assessment, 22(2), 433-433-445.445.

Skeem & Cooke (2010)• ““The development of the PCL-R fueled intense clinical The development of the PCL-R fueled intense clinical

interest in the construct of psychopathy.interest in the construct of psychopathy.• Unfortunately, a side effect of this interest has been Unfortunately, a side effect of this interest has been

conceptual confusion, and … the conflating of measures conceptual confusion, and … the conflating of measures with constructs.with constructs.

• Indeed, the field is in danger of equating the PCL-R with Indeed, the field is in danger of equating the PCL-R with the theoretical construct of psychopathy.the theoretical construct of psychopathy.

• ……a convenient fiction about the PCL-R and its relation a convenient fiction about the PCL-R and its relation to violence must be examined to avoid the view that to violence must be examined to avoid the view that psychopathy is merely a violent variant of APD…the psychopathy is merely a violent variant of APD…the authors believe the evidence favors viewing criminal authors believe the evidence favors viewing criminal behavior as a correlate, not a component, of behavior as a correlate, not a component, of psychopathy.”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 • 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)• PTSD or Traumatic Stress ResponsesPTSD or Traumatic Stress Responses• Bipolar Disorder or Major DepressionBipolar Disorder or Major Depression• Schizophrenia or Delusional DisorderSchizophrenia or Delusional Disorder• Mental RetardationMental Retardation• Frontal or Temporal Lobe Brain DamageFrontal or Temporal Lobe Brain Damage• Fetal Alcohol Syndrome or EffectFetal Alcohol Syndrome or Effect• Learning Disabilities and their EffectsLearning Disabilities and their Effects• Pervasive Developmental DisordersPervasive Developmental Disorders• Obsessive Compulsive Disorder and/or Tourette’s Obsessive Compulsive Disorder and/or Tourette’s

SyndromeSyndrome

ASPD or Brain Damage?

• Inconsistent work Inconsistent work performanceperformance

• Irritability & Irritability & aggressionaggression

• Failure to plan aheadFailure to plan ahead• Recklessness Recklessness

regarding safetyregarding safety• Lack of remorseLack of remorse

• Trouble in academic/ Trouble in academic/ occupational settingsoccupational settings

• Difficulty managing Difficulty managing emotion; impulsivityemotion; impulsivity

• Planning deficitsPlanning deficits• Unable to anticipate Unable to anticipate

consequencesconsequences• Emotional flatnessEmotional flatness

Neuropsychological Factors

• “…“…[T]he fact that children, adolescents, [T]he fact that children, adolescents, adults and elderly patients with prefrontal adults and elderly patients with prefrontal deficits are characterized by antisocial, deficits are characterized by antisocial, aggressive behavior makes a compelling aggressive behavior makes a compelling lifespan case for a prefrontal dysfunction lifespan case for a prefrontal dysfunction theory of antisocial, aggressive behavior.”theory of antisocial, aggressive behavior.”

““Annotation: The role of prefrontal deficits, low Annotation: The role of prefrontal deficits, low autonomic arousal, and early health factors in the autonomic arousal, and early health factors in the development of antisocial and aggressive behavior in development of antisocial and aggressive behavior in children.” Adrian Raine, 2002. Journal of child children.” Adrian Raine, 2002. Journal of child Psychology and Psychiatry, 43 (4), 417-434.Psychology and Psychiatry, 43 (4), 417-434.

ASPD or Post-Traumatic Stress Disorder?

• ASPDASPD• Irritability & Irritability &

aggressionaggression• ImpulsivityImpulsivity• Failure to follow social Failure to follow social

normsnorms• Recklessness Recklessness

regarding safetyregarding safety• Lack of remorseLack of remorse

• PTSDPTSD• Affective lability, Affective lability,

emotional reactivityemotional reactivity• HypervigilanceHypervigilance• Persistent expectation Persistent expectation

of betrayal, distrustof betrayal, distrust• Traumatic Traumatic

reenactmentsreenactments• Psychic numbingPsychic numbing

ASPD or Bipolar Disorder?

• ASPDASPD• Irritability & Irritability &

aggressionaggression• Failure to plan ahead, Failure to plan ahead,

irresponsibilityirresponsibility• Recklessness Recklessness

regarding safetyregarding safety• Superficial charm, Superficial charm,

glibnessglibness

• Bipolar DisorderBipolar Disorder• Irritable mood states; Irritable mood states;

mixed statesmixed states• Impairment in Impairment in

functioningfunctioning• Driven, goal-directed Driven, goal-directed

behaviorbehavior• Grandiosity, flight of Grandiosity, flight of

ideasideas

“Truancy” – antisocial / conduct disorder language

• What is really going on?What is really going on?

• What is the factual predicate?What is the factual predicate?

Truancy – antisocial label

• Factual predicate: misses school daysFactual predicate: misses school days• What might be going on?What might be going on?• Mood symptom: can’t concentrateMood symptom: can’t concentrate• Anxiety/PTSD symptom: intrusionsAnxiety/PTSD symptom: intrusions• Psychotic symptom: can’t functionPsychotic symptom: can’t function• Brain dysfunction symptom: LD/IDBrain dysfunction symptom: LD/ID• Social symptom: hiding bruises, peer rejectionSocial symptom: hiding bruises, peer rejection

“Pathological liar”



“Pathological Liar”

• Factual predicate: Statement contradict Factual predicate: Statement contradict evidenceevidence

• What might be going on?What might be going on?• Mood symptom: delusions of grandeurMood symptom: delusions of grandeur• Anxiety/PTSD symptom: survival mode, Anxiety/PTSD symptom: survival mode,

protecting siblingsprotecting siblings• Psychotic symptom: misperceives realityPsychotic symptom: misperceives reality• Brain dysfunction symptom: confabulationBrain dysfunction symptom: confabulation• Social symptom: covering up shameSocial symptom: covering up shame

“Cold-blooded killer”



“Cold-blooded killer”

• Factual predicate: Shows no emotionFactual predicate: Shows no emotion• What might be going on?What might be going on?• Mood symptom: anhedonia, flat affectMood symptom: anhedonia, flat affect• Anxiety/PTSD symptom: psychic numbingAnxiety/PTSD symptom: psychic numbing• Psychotic symptom: catonia, psychotropic medsPsychotic symptom: catonia, psychotropic meds• Brain dysfunction symptom: altered emotionalityBrain dysfunction symptom: altered emotionality• Social symptom: cultural stoicismSocial symptom: cultural stoicism

DSM Text for Avoiding a Diagnosis of

Conduct Disorder

• May be misapplied in settings where May be misapplied in settings where patterns of undesirable behavior are patterns of undesirable behavior are sometimes viewed as protectivesometimes viewed as protective

• Immigrant youth from war-ravaged Immigrant youth from war-ravaged countries would not necessarily warrant countries would not necessarily warrant a diagnosisa diagnosis

• Social and economic context must be Social and economic context must be consideredconsidered

DSM Text for Avoiding a Diagnosis of Personality

Disorder• Evaluation of long-term functioningEvaluation of long-term functioning• Multiple interviews, spaced over timeMultiple interviews, spaced over time• Must be distinguished from situational Must be distinguished from situational

stressors or more transient mental statesstressors or more transient mental states• Must rule out symptoms as Must rule out symptoms as

manifestations of another mental disorder, manifestations of another mental disorder, or effects of drugs or meds, or effects of or effects of drugs or meds, or effects of medical condition (e.g., head trauma)medical condition (e.g., head trauma)


Personality Disorder

• Caution when diagnosing during mood Caution when diagnosing during mood or anxiety episodes (consider, e.g., or anxiety episodes (consider, e.g., PTSD)PTSD)

• Caution when behaviors follow Caution when behaviors follow intoxication or withdrawal, or activities intoxication or withdrawal, or activities sustaining a dependencysustaining a dependency

• Caution when acculturation problems Caution when acculturation problems follow immigrationfollow immigration


Personality Disorder

• Should take into account individual’s Should take into account individual’s ethnic, cultural and social backgroundethnic, cultural and social background

• Should not be confused with “the Should not be confused with “the expression of habits, customs, or expression of habits, customs, or religious and political values professed religious and political values professed by the individual’s culture of origin”by the individual’s culture of origin”

DSM Rule-Outs for Antisocial Personality Disorder

• Behaviors must not occur exclusively Behaviors must not occur exclusively during the course of schizophrenia or a during the course of schizophrenia or a manic episodemanic episode

• May be misapplied to individuals in May be misapplied to individuals in settings in which antisocial behavior may settings in which antisocial behavior may be part of a protective survival strategybe part of a protective survival strategy

• Must consider social and economic Must consider social and economic contextcontext

Problems with the Antisocial Diagnosis

• There are 848 different ways There are 848 different ways to meet DSM-III-R diagnostic to meet DSM-III-R diagnostic criteria for ASPD, yet only one criteria for ASPD, yet only one diagnostic label is given to diagnostic label is given to characterize all of these cases characterize all of these cases (Widiger and Francis, 2002)(Widiger and Francis, 2002)

Ethical obligations of the Capital defense lawyer

• 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:

• Is it true?• Is there a broader cultural/factual context?• Is there a mitigating explanation or

interpretation?

Loyalty to the Client

• 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

• Diagnosis based on single interviewDiagnosis based on single interview

• Access to police reportsAccess to police reports

• No comprehensive search for records No comprehensive search for records

• No independent social history informationNo independent social history information

• Conclusions based solely on client self-Conclusions based solely on client self-reportreport

Psychological Evaluation, 1991 (Based on self report)

““It…appear[s] that Mr. Stevens’ family background It…appear[s] that Mr. Stevens’ family background is relatively stable. His mother worked in local is relatively stable. His mother worked in local convalescent hospitals… Mr. Stevens was never convalescent hospitals… Mr. Stevens was never placed out of the home. He does not recall placed out of the home. He does not recall having any broken bones or…needing sutures. having any broken bones or…needing sutures. Discipline in the family home involve corporal Discipline in the family home involve corporal punishment. Mr. Stevens denies that this was punishment. Mr. Stevens denies that this was excessive…His background is unremarkable…excessive…His background is unremarkable…no history of abuse that I could determine.”no history of abuse that I could determine.”

Juvenile Court Records, 1977

“ “The minors came to the attention of the The minors came to the attention of the juvenile authorities when the principal juvenile authorities when the principal noticed a severe eye injury to Joey caused noticed a severe eye injury to Joey caused by a whipping given to him by his mother. by a whipping given to him by his mother. The minor was seen to have multiple The minor was seen to have multiple linear and loop-shaped lesions over his linear and loop-shaped lesions over his entire body in various stages of healing. entire body in various stages of healing. His sister also had multiple linear and loop His sister also had multiple linear and loop marks and scars over her entire upper marks and scars over her entire upper body.”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 Understand the difference between a factfact and an and an interpretationinterpretation of that fact of that fact– Nonjudgmental critical thinking is not an Nonjudgmental critical thinking is not an

oxymoron!oxymoron!

• Learn to recognize and identify Learn to recognize and identify symptoms. (Most important principle symptoms. (Most important principle for investigation and development of for investigation and development of mitigation)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

Documents

What Mitigation is NOT: Defending Against A Lethal Diagnosis