Category: Uncategorized

sane enough to be convicted/too insane to stand trial

Brian David Mitchell’s kidnapping trial dragged on for years because Utah found him incompetent to stand trial. The feds stepped in and succeeded where Utah failed. They found him competent to stand trial and won a conviction. 

That leaves us with a strange paradox: a man who, on one hand, is mentally incompetent to stand trial, and on the other hand, is sane enough to be branded a sex offender and locked up in prison. 

How can someone be mentally incompetent and “sane” at the same time?

Simple.

Competency = ability to communicate with attorney and understand the charges, both factually and rationally.

Insanity = not knowing or understanding the consequences of one’s actions at the time a crime was committed.

Oversimplified, but the basic gist.

And: 

Competency = the time of the trial.

Insanity = the time of the crime.

They are separate legal standards and mean different things. 

So why did the feds find Mitchell competent, while Utah did not? 

This article from the Deseret News explains how the feds learned from the state’s mistakes. Essentially, they had the power and privilege of hindsight. 

Or does it go back to the Catch-22 in which many Utahans felt trapped? 

religion on trial?

Earlier, I wondered about the cultural bases — and potential biases — underpinning conflicting psychiatric evaluations of Brian David Mitchell. The clashing diagnoses seemed to trap Mormons between a rock and a hard place. After all, a large part of whether Mitchell was “insane” rested on whether his religious beliefs were “bizarre”—beliefst based in the LDS faith. 

I am not the only one who asked these questions. Salt Lake City Weekly published an interesting piece about the Catch-22 Mormons faced with this Mitchell: 

Let’s say the jury of his peers finds him sane. Because we have had an eminent theologian from BYU testify that Immanuel/Mitchell’s religious writings are coherent and well-reasoned, it follows that his crime was a consequence of his beliefs, and therefore not a crime. His beliefs, after all, called for him to take a virgin as a plural wife, the first of seven times seven to enjoy what he called a “quargasm.” He is therefore not guilty by reason of sanity.

If, on the other hand, the jurors, persuaded by the psychiatrist’s testimony that Immanuel/Mitchell’s religious beliefs are bogus and bizarre, find him insane, it follows that Mormon beliefs are insane, since they are one and the same with Immanuel/Mitchell’s beliefs. Believe me, either way this turns out is not good for us down at headquarters.

What place do religious questions have in a criminal trials? In Mitchell’s case, there was probably no way to evaluate his mental health without confronting serious questions about his religious beliefs. However, if “reasonableness” is part of the test, whose religion could possibly earn a passing score? Religion is not about reason. It is about faith. 

After the jury found Mitchell guilty yesterday, several jurors spoke in front of the courthouse. One juror noted how Mitchell never spouted off about religion while kidnapping Elizabeth Smart. Instead, he used a knife to her back.

The trial transcript reveals how Mitchell manipulated others without bizarre outbursts or religious justifications:

Viti: And during the times that you observed him engage in such behavior, did you believe that he was being sincere at those times?

Smart: No.

Viti: At any of these times that he engaged with others besides you or Ms. Barzee, did he ever proclaim that he was the Davidic king?

Smart: No.

Viti: Did he ever proclaim he was the one mighty and strong?

Smart: No.

Viti: A prophet?

Smart: No.

Viti: Did he discuss polygamy with anyone?

Smart: No. Viti: Would he tell them to repent?

Smart: No.

Viti: Would you ever observe him with other people shutting his eyes, folding his hands and singing religious hymns?

Smart: Not that I can recall.

In other words, there was method to Mitchell’s madness. He used religion when it suited him.

That, more than his particular beliefs, holds the most evidentiary value—at least to me. It requires no value judgment, no faith, and no cultural bias to see it.  

implausible plausibility

The Brian David Mitchell case gets curiouser and curiouser.

Forensic psychiatrist Dr. Noel Gardner testified on Tuesday that Mitchell is not mentally ill, since his ideas “are similar to those held by many fundamentalist Mormons, and in some cases mirror mainstream LDS beliefs, thereby making them non-bizarre.”

Earlier testimony from forensic psychiatrist Dr. Paul Whitehead characterized Mitchell’s beliefs as non-bizarre or “plausible but highly unlikely.” 

However, a psychologist in Missouri diagnosed Mitchell with paranoid schizophrenia, labeling his ideas “bizarre” and “not plausible at all.”

Under cross-examination, Gardner blamed some of the difference on culture. To non-Mormons outside Utah, certain beliefs might seem bizarre. However, locals might find them more “familiar,” he said, according to the Desert News article. Hence, the different diagnoses.

I wonder what local Mormons think of this characterization. Really? Locals do not see anything bizarre in Mitchell’s beliefs? I doubt that.

From my point of view (non-Mormon, living in Utah), the “cultural relativism” explanation makes little sense. While I confess that many Mormon beliefs confuse and confound me, I have not encountered anyone like Mitchell. Then again, Gardner was talking about belief—not behavior. 

If different diagnoses sometimes come down to cultural relativism, I wonder what that says about forensic psychiatry or psychiatric diagnosis in general. How much does a forensic psychiatrist’s cultural or religious background play into determining the “plausibility” of a defendant’s beliefs? How many defendants receive tougher or weaker sentences than they deserve because of cultural relativism in diagnoses? 

Of course, none of this means I believe Mitchell or feel qualified to make determinations about his mental health. The trial has just raised important questions.

Rape as Mental Illness: Paraphilic Coercive Disorder

Rape as Mental Illness: Paraphilic Coercive Disorder

In November, forensic psychiatrists attending a conference of the American Association of Psychiatry and Law (AAPL) voted down three new sexual diagnoses proposed for inclusion in the DSM-V. One of the proposed diagnoses, Paraphilic Coercive Disorder, would essentially create a psychological disorder for rapists: rape as mental illness.

The vote does not exert a direct influence on the DSM-V, but the symbolism is powerful.

According to the DSM-5 Development site, the diagnostic criteria for Paraphilic Coercive Disorder are:

A.    Over a period of at least six months, recurrent, and intense sexual arousal from sexual coercion, as manifested by fantasies, urges, or behaviors.
B.     The person has clinically significant distress or impairment in important areas of functioning, or has sought sexual stimulation from forcing sex on three or more nonconsenting persons on separate occasions.  
C.     The diagnosis of Paraphilic Coercive Disorder is not made if the patient meets criteria for a diagnosis of Sexual Sadism Disorder.

If included in the DSM-V, Paraphilic Coercive Disorder would essentially turn “rape” into a medical condition, opening the door for defense attorneys to argue “diminished capacity,” and perhaps even “irresistible impulse” in some jurisdictions.

The placement of “or” under criteria B strikes me as significant, because (as I read it) it means someone could receive the diagnosis without actually having committed three or more rapes. “Clinically significant” distress about coercive fantasies would suffice. How far would the fantasies have to go? What if a man feels aroused by fantasies of tying up his girlfriend? What if he feels ashamed of that? How much shame would he need to feel to qualify as “clinically significant?”

In addition, it appears one would not have to be a serial rapist to have Paraphilic Coercive Disorder, which also means this particular sexual disorder makes no distinction between serial rapists and other kinds of rapists. Granted, I am not a psychiatrist. Perhaps there is some distinction here I fail to see.

Most of all, though, I wonder about the impact of this disorder (should it make its way into the DSM-V) on “Sexually Violent Predator” civil commitments. Civil commitments occur after sex offenders have served their sentences. Instead of locking up sex offenders based on jury convictions, though, the state locks them up for crimes not yet committed. The basic premise is that “sexually violent predators” are likely to strike again.

For an example of a civil commitment statute, check out King County, WA. Notice that civil commitment requires a mental abnormality or personality disorder in addition to a prior sex offense conviction.

“Paraphilic Coercive Disorder” seems broad enough to make SVP determinations easier-perhaps even easier enough to expand them. This leads me to wonder what kinds of processes-scientific, legal, ethical-exist to monitor the creation of psychological disorders. Does the state influence the creation of new disorders to justify (and simplify) “sexually violent predator” evaluations? If so, can they get away with it-and what does that mean for civil liberties?

What about forensic psychiatrists? Might they want to create disorders to simplify SVP evaluation? Probably not. After all, forensic psychiatrists voted this disorder down. More than once. Even still, it raises questions about the relationship between psychiatric professionals and the legal system. 

For more on this issue, read my previous post.

For a very interesting discussion, read here.

It turns out, I am not the only one worried about potential influence of government evaluators on the creation of new disorders.

crying wolf

Yesterday in the federal courthouse here in Salt Lake City, Brian David Mitchell — the man on trial for kidnapping Elizabeth Smart — had a seizure. 

Online commenters immediately jumped on the headline and accused him of faking. Just read any article and scan the comments. If you are in Salt Lake City, just listen in at coffee shops; it will not take long before the subject comes up.

As an epileptic myself, I cannot let this go unaddressed. 

Yes, I find Brian David Mitchell revolting. Yes, I am sick of his phony outbursts into song that disrupt his trial. I use the word “phony” because observers have noted Mitchell’s penchant for waiting until the trial gets underway to sing for his Tony. According to the Deseret News, he sings until the judge boots him out of court into an annex, and he “never sings once he has been seated in the annex.” 

In any case, his little outbursts hardly seem relevant: an insanity defense has a very specific legal meaning, and just being mentally ill never cuts it. 

That is not to say MItchell’s mental illness is phony; he has, after all, been diagnosed with schizophrenia by one psychiatrist, and I am not qualified to determine his mental health. Rather, there just seems — at times — to be method behind his madness. 

Seizures, however, are hard to fake and get away with it. Worse, this suspicion that seizures are “not real” or “easy to fake” only serves to undermine epileptics who live with this disease every day. 

You see, even average, everyday, non-criminal epileptics suffer accusations like those littering the Internet about Brian David Mitchell. Once, when I suffered a grand mal seizure following a track race, I woke up to discover my track coach hovering over me, chewing me out for making the team look bad — not to mention, wrecking her plans for the next race in which I was slotted to run.

Bosses have accused me of just trying to get out of work.

One employer became hostile and embittered because I needed some very minor accommodations in scheduling. 

Of course, MItchell may have done this to himself by “crying wolf” with his apparently phony outbursts. More importantly, his antics – if they are indeed phony – only serve to harm people truly suffering from mental illness, making them appear crafty. Then again, I suspect the media would portray him as crafty no matter if an MRI showed a chunk missing from his hippocampus or temporal lobe. 

I suppose I just hate that epilepsy has yet another negative association. It was the last thing epileptics need. 

The response to MItchell’s seizure comes from deep anger and disgust—and rightly so. But the response to his seizure is not all that different than the responses to mine or those of friends I know with epilepsy. That is a truth that must be faced. 

a well-groomed witness

Last week, I attended a webinar presented by Stevee Ashlock of The Trial Experts. The webinar, entitled “Credibility is Believability: Success in the Courtroom,” offered practical, nitty-gritty tips on how to be an effective expert witness. Ashlock shared advice about how to dress for the courtroom, use posture and gestures to enhance believability, answer questions (particularly tough or ambiguous ones), present evidence and state opinions. 

Throughout the webinar—and for the past week—I have been thinking about how much work it takes just to persuade people to believe you. No matter how impressive your credential or squeaky-clean your professional record, you have to fight for every fact and opinion. The problem is, many of the rules for effective presentation are unwritten, unspoken and unknown (at least consciously) to the average person. 

For example, Ashlock described an upright, straight posture as “non-committal.” She advised attendees to sit up straight and tall anytime lawyers probe outside their areas of expertise or when cross-examinations get a little nasty. Remember the old playground sing-song: “I am rubber. You are glue. Whatever you say bounces off me and sticks to you.” Sit up tall in court and you have the grown-up (and more serious) version. Of course, I do not mean to diminish the seriousness of cross-examination. 

By contrast, leaning forward indicates “persuasion.” Expert witnesses should lean forward when offering an opinion or stating a crucial fact.

Since attending the seminar, I have paid attention to when I or others lean forward. Every time I do it, I feel as though I am “owning” my words—whether persuading my husband that we really ought to order take-out or whispering to him about a weirdo at the next library table.

But I cannot be sure if knowing about these two postures has influenced how I use them. Maybe the webinar planted the seed. Maybe I did not always lean forward like this or sit up tall to deflect someone else’s ideas. In fact, I know that I have always felt like I was owning my ideas when I sat up tall—not deflecting someone else or refusing to commit. I associated a straight posture with pride and confidence. Then again, maybe pride and confidence are precisely why the straight posture deflects an aggressive cross-examination.

Un-Groomed Witnesses

All of this has me thinking about “formulas” for credibility and believability. If a formula of gestures, postures, attire and demeanor really does exist, what about all the “un-groomed” witnesses out there who come off a little rough around the edges? What about those who operate in a particular subculture with different signifiers for credibility? Who decided on all the “rules” for believability and credibility in the first place?

Granted, people tend to demand higher standards for expert witnesses than for regular, everyday people. But still, it seems that “everyday” people stand at a significant disadvantage when it comes to believability on the witness stand (both the literal stand in a courtroom and a figurative one in everyday life). In a world where even experts have to attend webinars and classes to groom themselves for the stand, what chances do non-experts have with the jury?

Likewise, if credibility can be codified into a series of gestures and postures, does that make it harder to sniff out inaccurate information (or even outright lies)? It reminds me a little of a crime expose program I saw recently. Reporters caught counterfeiters on tape in a “To Catch a Predator”-style bust. After all the counterfeiters had been carted off to jail, the reporters showed step-by-step how counterfeiters created fake U.S. currency. However, the show host admitted to leaving out key steps; he did not want to give viewers a free course in “Fake Money 101.”

When witnesses know the “rules” for credibility, can they exploit them? If so, how convincing will their currency look? 

baby guns – women, weapons and design

Female body guards for the Royals and the Prime Minister in Britain may carry Baby Glocks:

Often seen as a ‘girl’ gun in the hands of female detectives in TV programmes like CSI Miami and Criminal Minds, the Baby Glock is smaller, lighter and easier to use for those with smaller hands.

But critics have warned that police chiefs are putting political correctness before security as officers from Scotland Yard’s elite protection squad could be hampered by the smaller weapon if they come under attack.

Police want to recruit more women. Women (supposedly) feel more comfortable with smaller guns. It seems a simple enough formula: Offer smaller guns to female officers, and see if women swarm to police academy.

But when I read the article above, I immediately aimed my sights on the name of the pistol: “Baby Glock.”

If Glock designed this gun for female hands, why not call it a “Lady Glock” (as I have seen with several other small pistols)? I did a little sleuthing to find out, and to be fair, the gun was not necessarily designed for women. Nowhere does the Glock website call the “Baby Glock” a “women’s gun.” However, it certainly gets marketed that way. And if Glock participates in product placement ala CSI Miami, then the company benefits from the “girl gun” label. 

Or on the flip side: Why do crime shows present the Baby Glock as a “girl gun?” 

The term “baby” feels, well, infantalizing. Insulting. Women are not “baby” versions of men. And let’s get real. It does not refer to actual, you know, babies.

All of this reminds me of when my husband wanted to get me interested in pistol shooting. I challenged him to find me a pink gun, thinking that no such pistol could possibly exist. Really, though, I felt secretly drawn to the mix of the girlish with the deadly. It felt very Bond Girl—garter-style holsters, poisonous lipsticks, spy cameras. I would never admit it to him (at the time, anyway), but I wanted that gun. I wanted a little design with my deadly force. 

Besides practical issues such as the size of their hands, do women have a different aesthetic relationship with weapons? If so, why? What does it signify?

rules of evidence for writers part two: self-incrimination

One of my long-time writing friends believes the highest responsibility for writers is to explore artistic truth—not truth, mind you, but artistic truth. Memoirs and personal essays should strive for coherence, beauty and order even if it means doctoring (or dirtying up) the details to suit an aesthetic objective. 

He never advocates changing a major detail or fact, but he feels no qualms about messing with the color of a dress or screwing with chronology to suit the demands of the narrative. Of course, he leaves open the question of what constitutes minor or major details.

Other writer friends draw a line in the sand at even the most minor details (the weather on the day grandma died, the color of your sister’s sneakers) and suggest that anything short of the hard facts represents a betrayal of writer ethics and audience trust. 

Self-Incrimination

In graduate school, I worked with a mentor who suggested a sort of middle ground: incriminating ourselves by leaving clues to our biases and personal failings right there in our manuscripts. Undermining our own authority would, in turn, undermine our power. 

He wanted writers to confront their complicity in their experiences, their writing, their own misery—everything. 

That last idea appeals to me.  I like to poke holes in my own case. I like to plant the seeds of reasonable doubt about my own ideas. I consider my own point of view unreliable at best, and I drop hints in my writing in the hopes readers will feel the need to cross-examine my characters (including me).

But what about when “complicity” is itself a false construct – or at the very least, an ethically slippery one?  For example, one of my graduate-school essays depicted abuse I endured growing up, and a mentor wrote notes in the margin along these lines:

Good work here, but try to explore what you did to incite this. How were you complicit?

The scene: a five-year-old me, beaten with the buckle end of a belt.  

The very suggestion that I incited this violence set me back at least several years in my process of healing. More importantly, it seemed to me an unethical direction for the essay, given that other abuse survivors – and abusers – might read it.  I did not want to perpetuate myths that pin blame on victims. 

Perhaps “complicity” in this context has to imply something other than culpability or responsibility. Maybe it has to refer to process instead: recognizing our complicity in manufacturing truth whether we stick to the facts or not.

Doe Network Featured Cases: Eugene Martin and John Gosch

I have decided to feature Doe Network missing persons cases each week. Although Forensic Writerfocuses on creative writing and forensics, I feel that the blog should also feature unresolved cases—both to help spread awareness and to promote the Doe Network’s amazing work.If you have a case you want featured, email me at forensic (dot) writer at gmail (dot) com.

This week, I want to focus on two cases in Iowa from the early 80s: Eugene Martin and John Gosch. Both boys went missing from their newspaper delivery routes in Polk County, Iowa. Gosch went missing at the age of 12 in 1982. Martin was 13 when he vanished in 1984.

Here are pictures of the two boys from the Doe Network website, including age progressions:

John David Gosch 
Missing since September 5, 1982 from West Des Moines, Polk County, Iowa.

Left: Gosch, circa 1982; Right: Age-progressed to age 35 (circa 2005) source: doenetwork.org

Eugene Wade Martin 
Missing since August 12, 1984 from Des Moines, Polk County, Iowa.

Right: Age-Progression to age 34 (circa 2004) source: doenetwork.org

I was just a kid when the Gosch case made headlines in Iowa. Gosch had gone missing while delivering newspapers on his regular morning route, and parents all over the state suddenly felt very squeamish about allowing their kids to sign up as newspaper delivery boys (yes, a decidedly non-gender-neutral term, but that’s how people talked in Iowa in the 1980s). My older sister wanted a paper route, but our dad promptly crushed those dreams, citing Johnny Gosch. I suppose I cannot blame him.

The Eugene Martin case seemed to confirm worries that Johnny Gosch was not an isolated incident. Innocent, sweet, safe Iowa no longer lived up to any of those images.

For some reason, though, the Johnny Gosch case cast the darkest shadows in Iowans’ psyches. I do not know why or how—maybe just because he hit the headlines first—but his case is iconic. Eugene Martin gets less coverage and recognition. However, the cases may actually be connected.

A case summary about Gosch on Iowa Cold Cases details how his mother, Noreen, has received mysterious photographs of her son in captivity (warning: images are disturbing). According to Noreen’s Johnny Gosch Foundation website, those photographs indicate that her son was taken captive by a human-trafficking ring. Forensic experts have verified that the photos are of Johnny Gosch, and evidence indicates he is still alive—but in hiding to protect his life. 

Noreen also indicates that she received a tipoff from a local private investigator about another newspaper delivery boy kidnapping that would occur. The tip said it would happen the second weekend of August 1984 in south Des Moines—the weekend and location of Eugene Martin’s disappearance. 

Take a look at these composite drawings released on Noreen’s website. Do you recognize this man? He may be involved in the Johnny Gosch kidnapping:

 Updated ten years after Johnny’s kidnapping:
 

From the Johnny Gosch foundation website: “The dark areas on his cheeks are “severe pock marks from acne scarring”. This has been consistent in the description given by all witness’s.”

Thank you to the Doe Network, Iowa Cold Cases and the Johnny Gosch Foundation for all that you do.