SOCW 6135

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Chapter 7

Criminal Sentencing

This chapter has four case reports on criminal sentencing. Although FMHA on criminal sentencing may be conducted for a variety of charges (for example, see Chapter 12 for an example of a federal criminal sentencing evaluation), all four reports in this chapter are capital sentencing evaluations. We have focused on this kind of FMHA because capital sentencing evaluations are among the most detailed and demanding forensic assessments that are performed. The principle applied to the first case involves the nature of notification or informed consent that is applicable in FMHA, while the teaching point elaborates on this issue in the context of capital sentencing evaluations. The principle associ- ated with the second case—obtain relevant historical information—addresses the importance of history in FMHA broadly considered, while the teaching point again contains a more specific elaboration on the application of this prin- ciple in capital sentencing cases. The principle applied to the third case in- volves the importance of impartiality in FMHA and the need to decline certain referrals when impartiality does not appear possible for the forensic clinician. This is a particularly important consideration in capital sentencing cases, which often involve heinous acts; the teaching point involves the perspective of the contributing forensic clinician on “cases that I won’t take—and why.” Finally, the principle regarding the importance of history is again applied to the fourth case, reflecting the particular relevance of historical information on defendants undergoing capital sentencing evaluations. The teaching point addresses the accuracy of third-party information that contributes to the development of an appropriately comprehensive history in this kind of FMHA.

Case 1

Principle: Provide appropriate notification of purpose and/or obtain appropriate

authorization before beginning

This principle concerns the information about the evaluation conveyed to the individual being assessed, and the nature of the authorization needed, before

116 Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2021-02-07 21:13:36.

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Criminal Sentencing • 117

the evaluation begins. This can vary depending on whether the context of the evaluation calls for providing the evaluee with relevant information (notifica- tion of purpose), or providing this information and also obtaining informed consent. This distinction is important because it suggests that while informed consent is needed in some forensic assessments, it is not in others—and need not be requested in the same way.

Evaluations that are authorized by court order generally do not require informed consent.1 FMHA on competence to stand trial or involuntary civil commitment are examples. For such evaluations, it is appropriate to begin with a notification of purpose. For other types of FMHA that are not conducted under court order, typically cases that are referred by the individual’s attorney, the forensic clinician must obtain the informed consent of the individual being assessed.

In either instance, the forensic clinician should identify himself/herself, describe the evaluation to be conducted (its purpose, who requested or author- ized it, how it might be used, and how the results will be conveyed), and indicate that the evaluation is not part of a therapeutic or treatment relation- ship. Generally, the information should be conveyed in clear, basic language appropriate to the individual’s capacity for understanding written or spoken language. A reasonable guideline is that such information should be conveyed at a comprehension level no higher than necessary to take a standardized objec- tive test such as the MMPI-2. The information should be provided at an even more basic level if the individual has significant intellectual and/or verbal com- prehension deficits. It is also important to assess how well the individual has understood this information.

Much of the information provided to the individual being evaluated will be comparable under both the informed consent and notification of purpose/ limits on confidentiality conditions. However, there may be differences be- tween the information provided under each condition in the following areas: (1) the purpose of the evaluation; (2) who has authorized the evaluation; (3) how the evaluation will be used; (4) the expected and possible limits on confi- dentiality; (5) whether the individual can exercise discretion over how and when the report will be used; and (6) who will receive the results of the evalua- tion.

Elaboration of this approach to notification of purpose and informed con- sent can be found in the Criminal Justice Mental Health Standards (American Bar Association [ABA], 1989) and the Guidelines for Child Custody Evaluations in Divorce Proceedings (American Psychological Association [APA], 1994). The Criminal Justice Mental Health Standards indicates that both the evaluating forensic clinician and the defense attorney have obligations to provide a defen- dant with a clear explanation of the purpose and nature of the evaluation, the potential uses of any disclosures made during the evaluation, the conditions under which the prosecution will have access to information obtained and re- ports prepared, and the consequences of the defendant’s refusal to cooperate

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2021-02-07 21:13:36.

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118 • Forensic Mental Health Assessment

with the evaluation. The Guidelines for Child Custody Evaluations in Divorce Proceedings recommends that informed consent be obtained from all adults, participants, and as appropriate, child participants, and that all participants be informed about the limits of confidentiality and the disclosure of information.

Additional support for providing appropriate notification of purpose and/ or obtaining informed consent before beginning the FMHA can be found in several sources of authority. The American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct (APA, 1992) addresses this prin- ciple as follows:

When psychologists provide assessment, evaluation . . . or other psychological ser- vices to an individual, a group, or an organization, they provide, using language that is reasonably understandable to the recipient of those services, appropriate information beforehand about the nature of such services and appropriate information later about results and conclusions. (p. 1600; emphasis added)2

In addition, the Ethics Code clearly describes the importance of this type of notification:

Psychologists discuss with persons and organizations with whom they establish a scientific or professional relationship (including, to the extent feasible, minors and their legal representatives) (1) the relevant limitations on confidentiality, including limitations where applicable in group, marital, and family therapy or in organization consulting, and (2) the foreseeable uses of the information generated through their services. (p. 1606)

The Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) elaborates on the distinction be- tween notification and informed consent and the appropriate procedure when the latter is needed but not obtained:

Unless court ordered, forensic psychologists obtain the informed consent of the cli- ent, or party, or their legal representative, before proceeding with such evaluations and procedures. If the client appears unwilling to proceed after receiving a thorough notification of the purposes, methods, and intended uses of the forensic evaluation, the evaluation should be postponed and the psychologist should take steps to place the client in contact with his/her attorney for the purpose of legal advice on the issue of participation. (p. 659)

The Specialty Guidelines also refers specifically to the importance of informing the individual of his or her relevant legal rights:

Forensic psychologists have an obligation to ensure that prospective clients are in- formed of their legal rights with respect to the anticipated forensic service, of the purpose of the evaluation, of the nature of the procedures to be employed, of the intended uses of any product of their services, and of the party who has employed the forensic psychologist. (p. 659)

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Criminal Sentencing • 119

The Principles of Medical Ethics with Annotations Especially Applicable to Psychi- atry (American Psychiatric Association, 1995) indicates that

Psychiatric services, like all medical services, are dispensed in the context of a con- tractual arrangement between the patient and the treating physician. The provisions of the contractual arrangement, which are binding on the physician as well as on the patient, should be explicitly established. (p. 4) A physician shall respect the rights of patients, of colleagues, and of other health

professionals, and shall safeguard patient confidences within the constraints of the law. (p. 5)

Although this language is less explicit than that in the Specialty Guidelines, there is an emphasis on two similar points. The first involves the understanding about the nature of the relationship, which is explicitly established, and the second involves a respect for confidentiality rights under the law. This is de- scribed even more explicitly when the Principles of Medical Ethics addresses services that are more similar to FMHA than many described in this document:

Psychiatrists are often asked to examine individuals for security purposes, to deter- mine suitability for various jobs, and to determine legal competence. The psychia- trist must fully describe the nature and purpose and lack of confidentiality of the examination to the examinee at the beginning of the examination. (p. 6)

As with the other sources of ethics authority, the Ethical Guidelines for the Practice of Forensic Psychiatry (American Academy of Psychiatry and the Law [AAPL], 1995) emphasizes the importance of establishing the limitations on confidentiality at the beginning of the evaluation. They note that

An evaluation of forensic purposes begins with notice to the evaluee of any limita- tions on confidentiality. Information or reports derived from the forensic evaluation are subject to the rules of confidentiality as apply to the evaluation and any disclo- sure is restricted accordingly. (p. 1)

In several places, the Ethical Guidelines also allude to the distinction between informed consent and notification of purpose:

The informed consent of the subject of a forensic evaluation is obtained when possi- ble. Where consent is not required, notice is given to the evaluee of the nature of the evaluation. If the evaluee is not competent to give consent, substituted consent is obtained in accordance with the laws of the jurisdiction. (p. 2)

The distinction between circumstances involving the need for informed consent versus those requiring notification is again made:

It is important to appreciate that in particular situations, such as court ordered eval- uations for competency to stand trial or involuntary commitment, consent is not required. In such a case, the psychiatrist should so inform the subject and explain that the evaluation is legally required and that if the subject refuses to participate in

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120 • Forensic Mental Health Assessment

the evaluation, this fact will be included in any report or testimony. (AAPL,1995, p. 2)

In addition, the importance of emphasizing that the clinician is playing a foren- sic role, rather than providing treatment, is underscored:

The forensic situation often presents significant problems in regard to confidentiality. The psychiatrist must be aware of and alert to those issues of privacy and confiden- tiality presented by the particular forensic situation. Notice should be given as to any limitations. For example, before beginning a forensic evaluation, the psychiatrist should inform the evaluee that although he is a psychiatrist, he is not the evaluee’s “doctor.” The psychiatrist should indicate for whom he is conducting the examina- tion and what he will do with the information obtained as a result of the examina- tion. (p. 2)

The forensic clinician should provide information about the evaluation that is accurate in the context of the individual’s legal circumstances and consistent with applicable statutes, administrative code, and case law. It should be com- municated in plain, simple language. If written notification is provided, then the required reading level should not be greater than that necessary to take a standard psychological test such as the MMPI-2. Whether this information is provided orally or in writing, the evaluator should check to determine how much of the information was understood by asking that the major elements be recalled and, if necessary, paraphrased.

The importance of disclosure as part of notification of purpose and in- formed consent, in the context of FMHA, was highlighted in Estelle v. Smith (1981). In Estelle, the U.S. Supreme Court affirmed the lower court’s decision to prohibit the use of the results of a trial competence evaluation in a subse- quent sentencing proceeding in which the defendant was not notified that the results of the FMHA could be used in both proceedings.3

The present case report provides an example of the application of this principle. The purpose of the evaluation was to provide the defense with infor- mation relevant to the capital sentencing of a 21-year-old man charged with murder. More specifically, the report indicates that the evaluation was con- ducted because the defense attorney wanted the jury to understand the defen- dant’s history of antisocial behavior in the context of the possible presence of neuropsychological dysfunction. Given the death penalty context and the de- fense-requested status of the evaluation, informed consent is clearly an impor- tant issue in this case.

Because the defendant appeared to have neuropsychological deficits, it was particularly important that the forensic clinician ensured that the defendant understood the relevant information. Accordingly, such information would have been provided at a very basic level.

The defendant in this case, Jimmy M., was charged with aggravated mur- der in the shooting death of a police officer in November of 1997. Mr. M has an extensive criminal record and a history consistent with an antisocial person-

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Criminal Sentencing • 121

ality disorder. The question often raised by defense attorneys in such a case is whether to introduce such evidence to the jury or to avoid any mention of such a disorder. Antisocial personality disorder is not usually considered to be a mitigating factor.

In this case, the defense attorneys felt that the jury should be educated about the disorder and given a complete history of this defendant in order to explain why Mr. M acted the way he did. In addition to the antisocial personal- ity disorder, Mr. M had suffered from a serious head injury, resulting in the request for a neuropsychological evaluation. Therefore, the following report contains a mitigation report, which includes a separate report from a consulting neuropsychologist.

PSYCHOLOGICAL REPORT 5. Metro Life Flight & Hospital 6. Superior County Jail Medical 7. Juvenile Court SummaryRe: State of Ohio v. Jimmy M 8. Youth Detention Center Summary

Preliminary Psychological Evaluation 9. Probation Summary 10. Jail Records Summary

Jimmy M is a 21-year-old African American male 11. Child Support Summary referred to me for a psychological evaluation. He 12. Superior County Youth Detention

Centeris currently charged with aggravated murder, 13. Presentence Report, Case #xxxxxwith death penalty specifications. Mr. M was in- 14. M Docket, Case #xxxxxterviewed on the following dates for a total of ap- 15. Employment Summary and records fromproximately 14 hours:

Mag-Nif, Inc., Borg-Warner, and Royal Plastics, and

• December 24, 1997 16. Darlene M Docket Summaries: 2/85 trial

• December 31, 1997 digest Docket CR #xxxxx, Docket CR

• January 30, 1998 #xxxx, Docket CR #xxxxx.

• February 12, 1998 • February 22, 1998 • April 30, 1998

CREDENTIALS• May 28, 1998

I am a Board Certified Forensic Psychologist and a In addition to the clinical interview, the fol- Diplomate of the American Board of Professional

lowing materials were reviewed and taken into Psychology, and am licensed to practice psychol- consideration in the preparation of this report: ogy in Ohio. I am Professor of Psychology at Lake

Erie College and Director of their Criminal Jus- 1. Leroy School Records tice Program. I am also the Associate Director for 2. Thompson School Records the Lake County Forensic Psychiatric Clinic and 3. Leroy General Hospital Records cover-

have worked there for the past 17 years perform- ings periods of treatment from 9/21/

ing evaluations for the Lake County Court of 76–9/24/76, 12/22/76, 2/12/77, 3/26/

Common Pleas. My private practice includes77, 6/28/77, 8/1/77, 8/20/77, 10/28/77, both clinical and forensic psychology. I have eval-12/16/77–12/19/77, 3/16/85, 6/9/85, uated well over 5,000 adult criminal defendants,8/20/85, 9/14/88, 9/15/88, 3/22/89, including approximately 175 charged with capital8/11/89, 9/16/94, 8/10/97, and 8/12/97

4. Records from Leroy Clinic offenses.

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122 • Forensic Mental Health Assessment

SOCIAL HISTORY after he was attacked with a hammer by Ron Hall, according to Leroy Hospital records. These

Jimmy M reported that he was born to Darlene records indicate that he was unconscious for sev-

M (who was 15 years old when she got pregnant) eral days. Mr. M recalled that he experienced at

and apparently Bob Hoover on September 21, least one seizure following his hospitalization. Due

1976. He indicated that he has only seen his fa- to the serious nature of this injury, a thorough neu-

ther twice, once when he was in the fifth or sixth rological and neuropsychological evaluation is indi-

grade and a second time last year while he was cated to determine if there is any lasting neurologi-

incarcerated. He indicated that he was primarily cal impairment. Mr. M has had numerous visits to

raised by Martha Washington as his foster grand- the emergency room for a variety of ailments

mother; Ms. Washington was Jimmy’s mother’s throughout much of his life. (Please refer to the

foster parent. Ms. Washington raised a number of enclosed time line.)

foster children. Records indicate that Darlene M was a drug addict and alcoholic who was arrested SUBSTANCE ABUSE HISTORY and spent time in jail and prison before dying of

Mr. M describes himself as a social drinker. Hea drug overdose in 1989. On one occasion, when stated that he used marijuana daily and denies useMr. M was eight years old, according to court of cocaine.documents, Darlene and her codefendants used

Mr. M to hide stolen money. Mr. M’s records in- LEGAL HISTORYdicate significant behavioral problems following

his mother’s death. He subsequently had numer- Mr. M’s juvenile records indicate that his first of- ous contacts with juvenile authorities and was fense was for shoplifting in 1992. Other offenses placed with the Department of Youth Services on include trespassing, curfew violations, attempted several occasions. He reported numerous conflicts arson stemming from a wastebasket fire at Leroy with his grandmother, and records indicate that High School, disorderly conduct, and truancy. He Ms. Washington was often unwilling to assume also has a felony drug possession and a misde- custodial care, although on other occasions she meanor firearm violation. On five occasions he would request custody. Mr. M stated that they was confined to the Leroy County Youth Deten- remain close today. tion Center. According to Thompson and Leroy school rec- Mr. M’s adult records includes convictions for

ords, Mr. M attended three different elementary felonious assault and carrying a concealed weapon. schools in Leroy and Youngstown. He attended He reported that he assaulted Ron Hall, who had Leroy High School through the 11th grade. He previously beaten him unconscious, requiring was sent to the Cuyahoga Hills Boys School and neurosurgery. Mr. M was incarcerated from June obtained his GED in August of 1994. 1996 to April 1997. He reported that when he was 14, about a

year after his mother died, he joined the 59th and PSYCHOLOGICAL TESTING Hoova gang, a sect of the Leroy Crips. He consid-

On the Wechsler Adult Intelligence Scale- ers the gang to be part of his family, since several

Revised (WAIS-R), Mr. M obtained a Verbal IQ of his relatives are members. He added that he is

of 92 (30th percentile), a Performance IQ of 82 not particularly active in the gang at present.

(11th percentile), and a Full-Scale IQ of 86 (18th Mr. M has fathered two children, he said. He

percentile). This places him in the Low Average has a five-year-old daughter by Jane Callow; a

range of intelligence. The WAIS-R is a standard second child, born to Betty Hard, died at two

measure of intellectual functioning and reflects an months. Prior to his arrest, Mr. M reported, he

individual’s ability to think rationally, act pur- had been seeing Karina Smith.

posefully, and deal effectively with his envi- ronment. The difference between Verbal and

MEDICAL HISTORY Performance IQ scores is suggestive of possible neuropsychological impairment. Mr. M shouldMr. M was diagnosed with asthma when he was

10 years old. He underwent neurosurgery in 1994 therefore be evaluated for such impairment.

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Criminal Sentencing • 123

In responding to the test and during the inter- Porteus Maze Test; Wisconsin Card Sorting Test (WCST); Boston Naming Test; Controlled Oralview process, it became clear that Mr. M is sur-

prisingly intelligent and articulate. His abstract Word Retrieval Test (FAS); Category Instance Generation Test (CIG); Finger Oscillation Test;thinking capacity is quite high, and he demon-

strates a sophisticated understanding of some Wide Range Achievement Test-3rd edition (WRAT-3: Reading subtest); Beck Depression In-complex issues.

The Minnesota Multiphasic Personality Inven- ventory (BDI). Years Education Mr. M said he went totory-2nd edition (MMPI-2) is a test designed to

assess a number of the major patterns of personal- school up to the 11th grade and subsequently ob- tained his GED. He described his school perfor-ity and emotional disorders. Mr. M produced a

number of internally inconsistent and unusual re- mance as follows: “I never really applied myself.” He also reports a history of frequent truanciessponses. The resulting profile is therefore not

valid according to the usual criteria for validity and school suspensions. According to the Leroy Board of Education records, his grades declinedassessment. as he progressed through school and became in- creasingly truant. When questioned as to why heNeuropsychological Assessment (performed by John had been so frequently suspended, he replied,Riley, Ph.D., ABPP) “tardiness.”

Date of Examination: 5/15/98 Psychiatric Mr. M reported a history of de- pressed mood beginning at the age of 13 whenDate of Report: 6/1/98 his mother died, following which he “startedReferral Question and Issues Prompting the withdrawing from people and stayed to myself.”Referral: The defendant, Mr. M , was re- He also reported an increase in irritability follow-ferred for evaluation by his co-counsels, Rob-

ert Tillick and David Dipple, in order to de- ing the 9/16/94, assault. He further noted that, termine the presence, nature, and extent of at the time of the acts leading to his arrest on brain dysfunction secondary to a reported as- the current charges, this irritability had increased, sault with the claw end of a hammer on “because many family members were in jail for a 9/16/94. long time.” He stated, “I was facing a robbery

charge and I didn’t want to go to jail.” Mr. M Sources of Information expressed paranoid beliefs “that the police de-

partment hates me and my family and they are Leroy Board of Education

all conspiring; my lawyers and the judge are all Leroy County Medical Center Emergency De- conspiring against me.” He stated that the onset partment (ED). of these beliefs was in 1992. Mr. M’s MMPI-2 Metro Health Medical Center profile dated 2/13/98, while only marginally valid, Summary of medical and schooling records did show very severe paranoid trends, which are provided by Mr. M’s counsel. consistent with what he had reported during the

interview with me on 5/15/98. There is no appar-MMPI-2 profile provided by Dr. James Eisen- berg. ent history of mental health treatment.

Current Medications None.WAIS-R test protocol provided by Dr. James Substance Abuse History Cannabis abuse fromEisenberg.

the age of 14 years.Clinical interview and testing of Mr. M by Medical History Relevant to Referral Questionthis examiner (5/15/98).

Mr. M was assaulted with the claw end of a ham- mer on 9/16/94. He reported a loss of conscious-Neuropsychological Test Battery Paced Audi-

tory Serial Addition Test (PASAT); Trigram Re- ness (LOC) of three days duration, stating that he was unconscious until he awoke from surgery.call Test; Stroop Test; Rey Complex Figure Test

and Recognition Trial (RCFT); Recognition Mem- The summary provided by Mr. M’s counsel stated that the EMS report indicated that he was con-ory Test; Wechsler Memory Scale III (WMS-III);

Wechsler Adult Intelligence Scale-III (WAIS-III); fused and disoriented and that he had been con-

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124 • Forensic Mental Health Assessment

scious when they had arrived at West 30th and Despite this, however, Mr. M appears to have sustained significant acute insult to the brain asSuperior Avenue in Leroy, Ohio. This same sum-

mary reported that Mr. M had a grand mal sei- indicated by the head CT scan data showing the following:zure shortly after arrival in Leroy County Medical

Center’s ED and had to be intubated. This was 9/16/94—Depressed, communited (crushed into small pieces) left parietal skull fracture andconfirmed in the records from Leroy County

Medical Center, as was the fact that he had been associated epidural (outside of the dura mata, which is the outermost and most fibrous of the“assaulted with a hammer and beaten up in the

face and head multiple times.” He was also de- three membranes covering the brain just under- neath the skull) hematoma (collection of blood,scribed as having received superficial knife

wounds. These same records state that Mr. M was usually clotted); subarachnoid hemorrhage bilat- erally.conscious, although not talking on arrival at the

ED. He was described as alert and oriented to 9/17/94—Status postcraniectomy with small amount of blood in the left parieto-occipital re-time, place, and person.

It is not clear whether Mr. M is confusing a gion of the skull; small amount of blood in the interhemispheric fissure; small area of contusionloss of consciousness with posttraumatic amnesia

or a period of confusion following the trauma. (bruise) in the region of the depressed fracture. According to Mr. M, the Dilantin he was pre-Mr. M’s final diagnoses at Leroy County Medical

Center were as follows: scribed following the postassault seizure was sup- posed to be continued for two years (presumably as a prophylactic). However, he discontinued tak-Rule out intracerebral bleed ing it after six months, “because I felt I wasn’tExtensive head injury going to have seizures, and I read about the side

Fracture mandible effects and didn’t want that either.” He indicated

Fracture nasal bones that he never actually experienced side effects or

Open fracture right little finger any subsequent seizures. Grand mal seizure activity Cognitive Complaints Mr. M reported an ap-

proximate 25%–33% reduction in concentration and memory as a result of the head injury sus-According to Leroy County Medical Center rec-

ords, Mr. M was life-flighted to MetroHealth tained on 9/16/94. The impact of this decline in cognitive functioning being reported by Mr. MMedical Center, where his condition was listed as

critical. The Metro Life Flight nursing note dated includes difficulty initiating activities, remember- ing directions, remembering what others have9/16/94, indicated that, prior to intubation, Mr.

M was moving all four extremities purposefully, communicated to him after a period of time has elapsed, and keeping track of conversations. Inindicating that he was conscious. While his Glas-

gow Coma Scale (GCS) was only 9 at Leroy particular, he reports difficulty remembering, “when the sentences are too long; when peopleCounty Medical Center, this was apparently due

to his having been chemically paralyzed with started using long sentences in court.” Assessment Results Mr. M’s performance onneuroconium to facilitate intubation, because he

was seizing. This procedure is conducted in order neuropsychological tests, including screening pro- cedures for detecting malingering of memory im-to prevent the swallowing of the tongue and to

maintain an open trachea. Subsequent to intuba- pairment, very clearly indicates that he is not ma- lingering impaired cognitive test performance.tion, his GCS reading was 15, and he was de-

scribed as alert and oriented, indicating that he For example, his scores on a recognition memory challenge were well outside the range of those in-was conscious. Sprinkled throughout the Metro-

Health records is the unresolved issue of whether structed to exaggerate memory disturbance or where there is external evidence of a powerfulthere was any loss of consciousness (e.g., ALOC,

“no loss of consciousness”). Even if there was a incentive to malinger. Further evidence arguing against a diagnosis of malingering is the fact thatloss of consciousness, it does not appear to have

been prolonged. he performed within expected limits on most

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Criminal Sentencing • 125

clinical measures of brain functioning, the excep- on randomly arrayed blocks. Divided attention/ speed of processing deficits were also quite evi-tion being divided attention/speed of processing.

The comparable level of performance on current dent when attempting to sum aloud randomly presented numbers, adding each number to theand premorbid measures of IQ argues against a

global deterioration in overall brain functioning, immediately preceding one under speed-demand- ing conditions. Finally, the speed of processing in-as does his normal range performance on demen-

tia-sensitive language measures, that is, confron- dex of the WAIS-III, as represented by the scale score of 4 on the Digit Symbol-Coding subtest, istation naming and generative naming.

Mr. M’s ability to lay down and retain newly the lowest of all the WAIS-III indexes. A discrep- ancy of this magnitude occurs in less than 1% ofacquired material of both a verbal and visuospa-

tial nature appears to be intact. Thus, he was well the normative sample. Opinion and Etiology The overall pattern ofable to learn and retain a list of shopping items,

the details and gist of narrative material, and the test results indicates significant residual speed-of- processing/divided deficits due to the 9/16/94details of a previously copied complex design.

The fact that his Average range WMS-III memory head trauma. These are common lingering se- quelae to the type of injury sustained by Mr. M.indexes (range 103–130) were not significantly

lower than his Average range WAIS-III IQ mea- There also appears to have been an increase in irritability following this injury, another commonsures (range 98–103) also suggests that there has

been no deterioration in the ability to encode, sequela to head trauma. Such information deficits produce an increased vulnerability to irritabilityconsolidate, and retrieve new information.

Unstructured problem solving requiring flex- due to an individual’s information processing re- sources becoming overloaded. This, coupled withible adaptation to changing environmental de-

mands also appears to have been spared, as has his paranoia, would tend to trigger aggressive out- bursts. The fact that there does not appear tothe planning and organizational aspect of execu-

tive functions. Evidence for the absence of dys- have been a sustained loss of consciousness does not rule out residual brain dysfunction, especiallyfunction in executive functioning involves his

having used categorical clustering strategies when as there was evidence of acute brain insult on the CT scans and he had a seizure.retrieving material from remote memory. Mr.

M’s systematic approach to copying a design also Taken together, these findings indicate a diag- nosis of Cognitive Disorder B Not Otherwiseindicated a relative sparing of executive function-

ing, as does his implementing a plan of action Specified. In addition, by history and current pre- sentation, he would qualify for a diagnosis of An-while drawing lines to the exits of visually com-

plex mazes. Impaired performance on this maze tisocial Personality Disorder with Paranoid Fea- tures.task is conceptualized as measuring the planning

and organizational aspect of executive functions. Considering the results of the neuropsycho- logical evaluation just described, as well as thePerformance on this task is also sensitive to dis-

ruption by visuospatial and working memory other findings by Dr. Eisenberg, the undersigned would offer the following:deficits, neither of which were evident in Mr. M’s

performance. Diagnostic ImpressionsIntact visuospatial functioning is indicated by Antisocial Personality DisorderMr. M’s being able to accurately judge the angu-

lar orientation of radiating lines, copy a complex Cognitive Disorder B Not Otherwise Speci- design, or assemble blocks by visually matching fied. their designs to sample patterns. Cannabis Abuse The major residual cognitive sequelae to the

9/16/94 head trauma are speed of processing, di- The evidence for a diagnosis of antisocial per- sonality disorder for Mr. M is overwhelming. Thevided attention, and immediate span of attention.

Low span and divided attention capacity were essential feature of Antisocial Personality Disor- der is a pervasive pattern of disregard for, and vio-particularly evident when attempting to repeat in

reverse order orally presented numbers or taps lation of, the rights of others that begins in child-

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126 • Forensic Mental Health Assessment

hood or early adolescence and continues into The antisocial behavior exhibited by Mr. M is a direct result of his highly dysfunctional family,adulthood. What is of particular significance is

the effect of parental influence on this disorder. the lack of effective role models, the absence of male bonding, and the enabling by an equally an-Antisocial Personality Disorder is seen more fre-

quently in the first-degree biological relatives of tisocial and drug dependent mother. His behavior reflects his survival instincts, and his personalitythose with the disorder than it is in the general

population, and the risk to biological relatives of reflects the lack of effective empathy and moral development. Mr. M’s mother was 15 when shefemales with APD tends to be higher than the

risk to biological relatives of males with APD was pregnant and 16 when he was born. Given her own drug, alcohol, and legal problems she(American Psychiatric Association, 1994). was clearly unable to provide adequate parenting. His foster grandmother was, at best, inconsistent

DISCUSSION in her ability to provide for Mr. M and the other children within her care, who included Mr. M’sMr. M’s personal history is consistent with individ-

uals who demonstrate features of an antisocial per- mother. Following his mother’s death, Mr. M’s behavior showed clear signs of deterioration, andsonality disorder and an attachment disorder. An

attachment disorder is conceptualized as a condi- he joined the local gang. As a result of Mr. M’s early childhood experi-tion of profound insecurity with extreme vacilla-

tions between a desire for proximity and attach- ences, he has bonded to no one, has little capacity for empathy, and has shut off his emotions fromment and a dread and avoidance of engagement.

The subsequent pathology reflects traumatic at- the rest of the world. Only under conditions of strict supervision, such as with the Departmenttachment experiences beginning early in life. Pro-

longed disruption of the bonding/attachment pro- of Youth Services, has he demonstrated some ability to accomplish tasks at hand, such as com-cess leads to detachment. The child is apathetic and

stops bonding to others, becomes increasingly self- pleting his GED. absorbed, is preoccupied with nonhuman objects (material goods), and does not display emotion. These attempts at emotional detachment become Sincerely,

James R. Eisenberg, Ph.D.the precursors of an eventual pattern of adult anti- social behavior. Violence and anger help break a cy- Diplomate, American Board of Professional

Psychology (Forensic)cle of ambivalence, although the cycle repeats itself.

Teaching Point: How do you obtain informed consent in capital cases?

In some ways, informed consent in capital cases is no different than in noncapi- tal cases. However, in a capital context, the defendant is consenting to an eval- uation that is part of a process that could result in the imposition of the death penalty. In addition, there are as many as nine opportunities for an appeal, and an assessment may be requested throughout the course of the trial and appel- late process. Such potential appellate issues include pretrial (Miranda issues, voluntary confessions), trial (competency to stand trial, sanity at the time of the offense), direct appeal (additional evaluations), appeal to the state supreme court, postconviction relief (new round of evaluations), return to the state courts on postconviction issues, federal habeas, federal appeals court, and U.S. Supreme Court, with the additional possibility of evaluating a defendant’s

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Criminal Sentencing • 127

competency to be executed (see Ford v. Wainwright, 1986). For these reasons, forensic psychologists should clearly communicate to the defendant (see Estelle v. Smith, 1981) that he or she is consenting to an evaluation that is not confi- dential and that the information obtained may be subject to both direct and cross-examination throughout the course of the trial and posttrial period. Such testimony could convince a jury to impose the death penalty (and for other courts to uphold the sentencing), even if the psychologist is retained by the defense or appointed to assist the defense.

Several problems arise in capital cases that are different from noncapital cases. A defendant may deny his involvement in the alleged criminal offense, and the psychologist may be placed in the difficult position of testifying in front of a jury that has already convicted the defendant. With properly pre- pared mitigation this is not necessarily a problem. Many defendants deny their guilt, or at least deny elements of the offense that would be considered as aggravating factors. Informed consent or notification of purpose needs to be obtained or provided so the defendant understands the specific role of the expert psychologist. The psychologist is neither the factfinder nor responsible for sentencing. The defendant should clearly be informed that the psychologist will often be testifying following a guilty verdict.

Testimony in capital cases is usually linked to specific mitigating factors. Those factors often exist regardless of a defendant’s admission or denial of culpability. For example, a defendant’s denial would not contradict testimony concerning the defendant’s relationship with co-defendants. Perhaps he was not the primary offender, although still eligible for the death penalty. Testi- mony regarding the defendant’s role in the offense in relation to his co-defen- dants, and his broader tendency in social interaction to be a leader or a fol- lower, could be relevant in such cases. Even if the defendant is found to be the principal offender, a neuropsychological evaluation may give the jury sufficient grounds for recommending a life sentence over the death penalty. Consider the following mitigating factors found in many jurisdictions:

1. Whether the victim of the offense induced or facilitated it; 2. Whether it is unlikely that the offense would have been committed but for the fact that the offender was under duress, coercion, or strong provocation;

3. Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked the substantial capacity to appreciate the crimi- nality of his conduct or to conform his conduct to the requirements of the law;

4. The youth of the offender; 5. The offender’s lack of a significant history of prior criminal convictions or delin- quency adjudications;

6. If the offender was a participant in the offense but not the principal offender, the degree of the offender’s participation in the offense and the degree of the offender’s participation in the acts that led to the death of the victim;

7. The act of the defendant was not the sole proximate cause of the victim’s death; 8. It is unlikely that the defendant will engage in further criminal activity that would constitute a continuing threat to society;

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128 • Forensic Mental Health Assessment

9. Mental retardation (some states automatically exclude the mentally retarded from execution); and

10. Any other factors that are relevant to the issue of whether the offender should be sentenced to death.

Expert testimony may be used to establish most (if not all) of these mitiga- tion factors regardless of the defendant’s denial of wrongdoing. However, testi- fying to numbers two or three may pose a problem when the defendant is adamant about his innocence. If the theory of mitigation rests with residual doubt about the defendant’s legal guilt, then testimony as to the defendant’s state of mind at the time of the criminal acts would clearly undermine such a strategy. Yet in most cases, with proper voir dire and trial strategy, a defense attorney can walk the fine line between maintaining residual doubt and estab- lishing certain factors that might result in mitigation. By this point in the trial the jury has already returned a guilty verdict, but they may still want an expla- nation (although not an excuse) for the defendant’s conduct. Perhaps the only way to accomplish this is through expert testimony that can be posed as a hypothetical. Most courts give wide latitude during mitigation hearings and permit such testimony. The attorney’s job is to weigh the prejudicial versus probative value of introducing such testimony.

In most cases, defendants will provide informed consent when the role of the psychologist is clearly stated. Liebert and Foster (1994) have proposed standards of practice for mental health evaluations in capital cases. If such standards were followed, then informed consent provided by the defendants would be part of a larger process that would likely yield better-informed sen- tencing decisions by the trier of fact.

Case 2

Principle: Obtain relevant historical information

This principle concerns what constitutes “relevant” historical information and how to obtain such information in a particular case. In forensic assessment, the range of potentially relevant domains is much greater than in therapeutic assessment. For example, when conducting FMHA, in addition to gathering historical information about the social, medical, mental health, and family functioning of the individual being evaluated, it may be important to obtain further information about the individual’s criminal, military, school, sexual, and/or vocational histories, depending on the nature of the evaluation.

Historical information is particularly important for several reasons. These include the value of behavior, the importance of response style, and the accu- racy of self-reported factual information, as well as characteristics and symp-

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Criminal Sentencing • 129

toms, and the obvious need for information about the relevant thoughts, feel- ings, and behavior of the individual at a certain time when a reconstructive evaluation is being conducted. In addition, accurate historical information can strengthen the basis for predicting future outcomes (e.g., violent behavior, treatment response) that are part of some kinds of FMHA.

There is reasonably strong support for the importance of history in FMHA from ethical, legal, empirical, and standard of practice sources of authority. In general, ethics sources of authority emphasize that history is an integral part of mental health evaluation within accepted clinical and scientific standards. For example, the Ethical Principles of Psychologists and Code of Conduct (APA, 1992) indirectly addresses the important of historical information:

Psychologists’ assessments, recommendations, reports, and psychological diagnostic or evaluative statements are based on information and techniques (including per- sonal interviews of the individual when appropriate) sufficient to provide appro- priate substantiation for their findings. (p. 1603; also p. 1610 under Forensic Activi- ties)

Further, the Specialty Guidelines for Forensic Psychologists (Committee on Ethi- cal Guidelines for Forensic Psychologists, 1991) notes that:

[F]orensic psychologists have an obligation to maintain current knowledge of scien- tific, professional, and legal developments within their area of claimed competence. They are obligated also to use that knowledge, consistent with accepted clinical and scientific standards, in selecting data collection methods and procedures for an evalu- ation, treatment, consultation or scholarly/empirical investigation. (p. 661)

Neither the Principles of Medical Ethics with Annotation (American Psychi- atric Association, 1995) nor the AAPL’s Ethical Guidelines (1995) address this principle.

Legal support for this principle can be found in several sources. Generally, relevant legal standards emphasize the application of history to various legal questions. The Criminal Justice Mental Health Standards (ABA, 1989) indicates that the contents of a written report should include the “clinical findings and opinions on each matter referred for evaluation” as well as the “sources of information and . . . factual basis for the evaluator’s clinical findings and opin- ions” (p. 109). Although the Criminal Justice Mental Health Standards does not indicate specifically that historical information must be obtained, it can be reasonably inferred that it is important to describe an individual’s history in adequate detail when information from the individual’s history serves as either a source of information or a factual basis for “clinical findings and opinions.”

Case law provides some additional support for the importance of relevant historical information, particularly in cases in which the forensic issues are broad or when the legal decision can have very serious consequences for the individual being evaluated. For example, in capital cases, the defense is entitled to psychiatric assistance to provide mitigating evidence (if applicable) at sen-

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130 • Forensic Mental Health Assessment

tencing and to counter prosecution evidence of future dangerousness (Ake v. Oklahoma, 1985). History is relevant to both future dangerousness and adjust- ment to incarceration, which are among the aggravating and mitigating criteria for capital sentencing in many jurisdictions.

The application of history to FMHA may also be valuable in establishing a pattern of behavior that can serve as a context for the forensic issue(s) being assessed and for using historical information to suggest and test hypotheses. The importance of history in establishing a pattern of behavior, including serv- ing as a source of information about the probability of certain types of future behavior, is particularly apparent when addressing forensic issues that involve prediction. Making and testing hypotheses regarding forensic issues can be fa- cilitated when a detailed history is obtained, as the likelihood that a given hypothesis may account for relevant legal behavior (e.g., “he shot a stranger because he experienced command auditory hallucinations instructing him to do so”) may depend on both previous experience (e.g., the prior frequency of experienced command hallucinations) and behavior (e.g., the prior frequency of compliance with such command hallucinations).

Although historical information is part of virtually every form of mental health assessment, whether therapeutic or forensic, the scope of the needed information varies according to the type of evaluation being conducted. When the forensic issue is narrow and focuses primarily on the individual’s present state, there is less history that is relevant. By contrast, when the forensic issue is broader, or if potentially serious consequences may result, than the breadth of the relevant history may expand accordingly.

The present report provides an example of the application of this principle. It focuses heavily on the presentation of relevant historical information. The forensic clinician consulted numerous sources of information in an effort to obtain as much historical information regarding the defendant as possible. In doing so, he was able to offer a more comprehensive picture of the defendant’s history. This historical information was presented primarily to establish a pat- tern of behavior that could serve as a context for the forensic issue(s) being addressed. For example, one consideration in sentencing involved the likeli- hood that the defendant would engage in future acts of violence. Accordingly, the report focused on the defendant’s history of violent behavior in an effort to establish a pattern of behavior.

J. Reid Meloy, Ph.D., A.B.P.P. June 3, 1998 The Honorable Richard P. MatschClinical and Forensic Psychology Chief Judge United States District Court for theDiplomate, Forensic Psychology

American Board of Professional Psychology District of Colorado RE: United States of America v. Terry Lynn NicholsFellow, Society for Personality Assessment

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Dear Judge Matsch, individual. The evidence clearly describes an in- troverted, isolated individual who preferred hisI am writing to you in response to the letter

sent by Alexander Fleming, M.D., concerning own company, particularly during periods of stress in his interpersonal relationships. Introver-your sentencing of Terry Lynn Nichols tomor-

row, June 4, 1998. I have been retained by the sion is a part of one’s temperament and appears to be largely inherited. In Mr. Nichols’s case, thisUnited States Government as an expert consul-

tant and potential mitigation rebuttal witness introversion contributed to a personality that was described by others and Dr. Fleming as a “lonersince January 1997, in the federal prosecution of

Terry Nichols. . . . reclusive, even suspicious . . . reticent, if not isolated” (p. 6). I also agree with this perception of Mr. Nichols and find it quite consistent withDATABASE what we would expect in a bomber.

The findings and opinions I offer are based on my In the course of the McVeigh and Nichols tri-

studying of a voluminous amount of material pro- als, I and my assistant, Joseph McEllistrem, M.A.,

vided to me by the U.S. Attorney’s Office and conducted an exhaustive review of all the known

the FBI in the prosecution of Terry Nichols. This research on the personality and motivations of

material included approximately 8,000 pages of bombers (we searched through eight English lan-

600 different documents (including videotapes, guage computer databases). One of the charac-

audiotapes, and books read by Mr. Nichols), teristics that has been documented throughout

which also contained both defense and prosecu- the research of the past 50 years is that bombers

tion interviews of 185 individuals that had per- are often introverted, isolated, and suspicious lon-

sonally known Mr. Nichols over the course of his ers who tend to hold their emotions inside and

life. These individuals ranged from family mem- do not express them in any direct way (amply

bers, neighbors, acquaintances, and employers documented in the case of Mr. Nichols). They

who knew him primarily in Michigan, Nevada, choose, instead, a passive-aggressive mode of ex-

and Kansas, to individuals who knew him during pressing hostility, a technical term I will elaborate

his tenure in the U.S. Army from 1988–1989. Al- on below.

though I would have liked to have interviewed 2. I agree with Dr. Fleming’s opinion that Mr.

people that knew him most intimately, such as Nichols is intelligent. In fact, I was able to closely

his son, David, and his ex-wife, Susan Dever, my study the results of the vocational testing taken

efforts to conduct such interviews were met with by Mr. Nichols during his enlistment in the U.S.

vehement resistance by the defense and did not Army in April 1988. Intelligence is a very stable

succeed. In addition to these data sources (which trait, and we can confidently assume that it was

were preceded and complemented by a careful the same in 1988 as it was at the time of the

study of 12,000 pages of documents during the bombing 7 years later. Test results from the Armed

prosecution of Timothy McVeigh), I also down- Services Vocational Aptitude Battery indicate

loaded and read the entire trial transcript in the Mr. Nichols produced scores that were at least

case of U.S. v. Terry Nichols from November 3, one, and in some cases close to two, standard de-

1997, to January 7, 1998. The trial included the viations above the average of his entire unit’s

testimony of approximately 85 prosecution and score. This means that on all of the subtests, he

94 defense witnesses, many of whom knew Terry scored better than most of the men who joined

Nichols personally, and was able to shed further the army at that time, and this vocational battery

light on his personality, behavior, history, and mo- roughly corresponds to IQ. I conclude that Mr.

tivations. I was unable, however, to interview Mr. Nichols’s IQ is in the superior range.

Nichols directly, and my findings and opinions 3. I agree with Dr. Fleming that Mr. Nichols

should be viewed with this limitation in mind. formed very close attachments to his family members, his ex-spouse, and his children, includ-

FINDINGS AND OPINIONS ing children that were not his biological offspring. There is no question that this is a positive attri-1. I agree with Dr. Fleming’s opinion that Mr.

Nichols is a very quiet, private, and self-reliant bute, and Dr. Fleming emphasizes Nichols’s loy-

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132 • Forensic Mental Health Assessment

alty to these people and the similarity between 4. Terrorist bombing is a political act that in- volves meticulous planning and preparation. Inhis relations with his co-defendant and his two

wives and mother (p. 4). One of the very stable the case of the Oklahoma City bombing, Mr. Nichols was the strategist. Throughout the rec-characteristics attributed to Mr. Nichols by many

different people who have known him is his de- ords there are numerous descriptions of Mr. Nichols’s ability to carefully plan, consider hisvotion to others (and eventually to a political be-

lief that no entity, including local, state, and fed- options carefully, focus on details, and as Dr. Fleming writes, “think(ing) things through on hiseral government, had jurisdiction over him), and

his caretaking of his children as best he could. own” (p. 2). There was also little risk that he would reveal the bomb-making plans to others,In many ways Dr. Fleming is describing an in-

dividual with many dependent personality charac- given his privacy and secrecy, a finding confirmed in the testimony of Concita Nichols at trial (testi-teristics. Mr. Nichols, when he does attach to

others, forms very close attachments, will remain mony Dec. 11, 1997). He was part of what mili- tia researchers have described for several years asloyal to them, and will actively participate in the

relationship. A dependent personality is very ac- “a leaderless cell”: no identified leader, no formal association with a hierarchy, and lethally mobile.tive and is not passive.4 This is a central aspect of

Mr. Nichols that goes to the heart of his active Mr. Nichols provided the long distance, stable an- chor for the conspiracy to unfold.participation in the bombing of the Murrah

building. Individuals with dependent personali- 5. Although Dr. Fleming did not comment on this specifically, it is my opinion that Mr. Nich-ties are fearful of the loss of their few relation-

ships and will go to great lengths to never express ols’s absence from Oklahoma City on the day of the bombing is exactly what we would expecthostility or anger, a normal emotion felt in all re-

lationships at times, directly toward the other from an individual who avoids conflict, has done so all his life, yet is intensely loyal to ideas andperson. This absence of anger or hostility in his

personal relationships is a stable and robust finding close relationships. This illustrates another cen- tral characteristic in Mr. Nichols that alsothroughout Mr. Nichols’s life. In fact, I could find

virtually no incident in the entire body of evi- emerges from the bombing research: Most bomb- ers are passive-aggressive and do not express theirdence I reviewed where Mr. Nichols expressed

anger directly and openly toward someone about hostility, anger, and alienation in a direct manner. Bombing (along with firesetting) is the quintes-whom he cared.

What Mr. Nichols did, instead, was to shift his sential passive-aggressive criminal act: the perpe- trator does not have to be there, no actual vio-anger, hostility, and frustration onto other people

and entities with whom he did not have a per- lence is directly witnessed, no empathic feelings for the victims will get in the way, yet the ide-sonal relationship. The first recorded event of this

pattern occurred when he renounced his voter ational and emotional gratification is enormous. Killing from a great distance is efficient, effective,registration card in February 1992, in Evergreen

Township, and proceeded through a series of ju- low risk, and especially palatable to an individual who has avoided direct conflict all his life.risdictional renunciations and declarations that he

was an “expatriate absolute,” including his renun- 6. It appears from the records that Mr. Nich- ols’s alienation from the government had a vari-ciation of his U.S. citizenship 2 years later. Mr.

Nichols ranted against authority because he could ety of causes, including his experiences with other farmers in the Decker, Michigan, area, hisnot risk expressing anger in his personal life. The

most striking illustration of this absence of anger experience in the army, and his association with his brother, James, and his co-defendant. It is im-was his welcoming of his second wife, Concita,

into the United States after she informed him portant to note, however, that the first evidence of his renunciation of legal authority over him,that she had been impregnated by her former

boyfriend while she remained in the Philippines February 25, 1992, pre-dates both Ruby Ridge and Waco. It appears that Mr. Nichols’s alien-after their marriage. The most striking illustration

of his hostility against people and entities he did ation and hostility, again only expressed toward people and objects he does not personally know,not personally know was the bombing of the

Murrah building. was deep and profound. Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2021-02-07 21:13:36.

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Criminal Sentencing • 133

7. Dr. Fleming talks extensively about the de- attempted to conceal evidence (of which there are ample) would contradict Dr. Fleming’s theory.fense of “denial” in Mr. Nichols. I don’t quite un-

derstand his thinking, other than to conclude that 8. Mr. Nichols is a true believer. He believes that all the frustrations and disappointments inDr. Fleming somehow believes that Mr. Nichols

was not consciously aware of his activity and its his life are caused by others. He believes that there is only hope in loyalty to close friends andpurpose from September 1994 until April 1995.

Denial is an important psychological defense, family, and that all government is fundamentally corrupt. Unfortunately and tragically, his true be-most apparent in young children, and Dr. Flem-

ing attempts to link it to Mr. Nichols by address- liefs were not without hope for sudden, radical change, and they found expression in a terribleing denial and its use among alcoholics (Mr.

Nichols’s mother was arguably alcoholic). For act. As Eric Hoffer wrote in The True Believer in 1951: “For there is often a monstrous incongruityseveral reasons, I find his argument fundamen-

tally flawed. First, denial as a psychological de- between the hopes, however noble and tender, and the action which follows them. It is as if iviedfense is impossible to infer without a clinical in-

terview, and Dr. Fleming does not indicate he maidens and garlanded youths were to herald the four horsemen of the apocalypse” (p. 11).ever interviewed Mr. Nichols. Second, denial is

very difficult to measure from a scientific per- Thank you for your time and attention. spective. Third, it is a changeable, dynamic state, rather than an enduring trait. Finally, any data in Sincerely,

J. Reid Meloy, Ph.D., ABPPthis case suggesting that Mr. Nichols intentionally

Teaching Point: Role of history in sentencing in forensic mental

health assessment

The criminal law has a rich history of considering the mental status of the offender in determining criminal responsibility and appropriate sentencing. The role of punishment in the criminal justice system supports leniency for criminal offenders suffering from mental illness and/or diminished mental ca- pacity. Specifically, two theories of criminal punishment, culpability and deter- rence, support leniency when the defendant’s volitional conduct is affected by mental illness and/or diminished mental capacity. Generally, in both capital and noncapital cases, federal and state jurisdictions consider the impact of mental illness and/or mental retardation on sentencing and penal sanctions, and the presence of serious mental illness or retardation is usually considered a mitigating factor (Criminal Justice Mental Health Standards, Standard 7-9.3; ALI Model Penal Code § 210.6[4][c], ABA, 1999). For example, the U.S. Sentencing Guidelines provide for downward departure due to diminished mental capacity (United States Sentencing Guidelines § 5k2.13). In the state of Pennsylvania, the presence of extreme mental or emotional disturbance is a potential mitigating factor in capital sentencing cases (42 Pa. C.S.A. § 9711 [a][2]).

Given the importance and complicated nature of the issue, forensic clini- cians are frequently called on to address sentencing issues as they relate to mentally ill defendants. Typically, sentencing evaluations fall into three broad categories: (1) treatment needs and amenability; (2) information bearing on

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134 • Forensic Mental Health Assessment

the offender’s culpability; and (3) future dangerousness (Melton et al., 1997). Historical information obtained through FMHA is one important component that can be used to address both the broad and specific issues involved in these aspects of sentencing. In an assessment addressing treatment needs and amena- bility, historical information can be useful in identifying the success of past treatment attempts and the deficits that should be targeted for intervention. For example, academic records and a detailed employment history provide the basis for identifying deficits in formal education and vocational training. Simi- larly, numerous relapses and unsuccessful interventions might lead to different treatment recommendations for a chronic substance abuser. In an evaluation of the offender’s criminal culpability, psychiatric records might provide a his- torical perspective on the development of symptoms and presenting problems associated with mental illness. Finally, factors such as social history, psychiatric hospitalization history, and arrest history are essential components for the as- sessment of risk for violence. Accordingly, historical information plays an im- portant role in FMHA sentencing evaluations. By gathering historical informa- tion related to the relevant functional capacities and deficits, the forensic clinician can address the impact of mental health issues on a variety of sentenc- ing issues.

Case 3

Principle: Decline referral when impartiality is unlikely

Because this principle is discussed in Chapter 4, we now demonstrate how the present report illustrates the application of this principle. The present case provides an illustration of the importance of declining a referral when impar- tiality is unlikely. The forensic clinician in this case was retained at the request of defense counsel regarding mitigation of the death penalty; he had previously evaluated Mr. R to assess his mental status at the time of the offense. Early in the report, the forensic clinician describes the circumstances of the original evaluation and notes that testimony was not given in the case, so the jury did not consider the results of the evaluation in their deliberations regarding the death penalty. This disclosure is important because it clarifies that the forensic clinician did not play a dual role in this case.

Although retained by the defense, the forensic clinician was still acting in a role in which impartiality is important to accurate and informed legal decision making. Accordingly, the forensic clinician had to keep personal values or the circumstances of the case from adversely affecting his impartial stance.

The defendant, Mr. R, was sentenced to death for committing two mur- ders. The Supreme Court of New Jersey set aside the death penalty and or-

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Criminal Sentencing • 135

dered a new penalty phase because the original jury had been defectively charged on the aggravating factor involving torture or aggravated battery. The current evaluation was conducted to evaluate Mr. R for potential mitigating factors that might be presented at new penalty phase of the trial.

Evaluator bias can arise in cases like this. The forensic clinician must be aware of the influences that can create such bias and decline the referral if impartiality cannot be maintained. As noted earlier, one kind of bias could result from characteristics or beliefs of the evaluator that may significantly in- fluence the evaluator (e.g., vehement opposition to or strong support of capital punishment). The second kind of bias could be created by situational factors that may influence an evaluator in the direction of a given finding (e.g., a pre- existing personal or professional relationship with the litigant). There are a number of situational factors that might influence the impartiality of the foren- sic clinician in this case. For example, the facts surrounding the murders sug- gested that Mr. R also engaged in torture that had a sexual component. The heinous nature of these offenses might create a predisposition toward a certain finding in this case. However, strong opposition to the death penalty might influ- ence the forensic clinician toward a recommendation in the opposite direction.

ALAN M. GOLDSTEIN, PH.D. Human Figure Drawings Three WishesN.Y.S. Certified Psychologist, P.C.

Ct. Licensed Psychologist MMPI (Independently scored and interpreted) Rogers Criminal Responsibility Assessment ScaleDiplomate in Forensic Psychology

American Board of Professional Psychology Hare Psychopathy Checklist

Steven R Jr., a 35-year-old African AmericanPRIVILEGED AND CONFIDENTIAL male, was initially referred for a forensic psycho-FORENSIC PSYCHOLOGICAL logical evaluation in January 1985 by his attor-EVALUATION neys, Carl Brine and Michael Philby, Office of the Public Defender of the Croton Adult Region. Mr.

Defendant: Steven R., Jr. R has been charged in a 13-count indictment

Date of Birth: 9/10/56 with crimes allegedly committed on 7/19/84.

Age at Initial Evaluation: 28 years Specifically, he was charged with having pur-

Dates Evaluated: 2/9/85, 2/22/85, 3/1/86, posely or knowingly murdered Walter Jamison

9/3/91, 10/18/94 and Maria Jamison, two counts of felony murder,

Date of Report: 1/13/93 two counts of burglary in the third degree, unlaw- ful possession of a weapon, unlawful possession

Tests Administered of weapon with a purpose to use it unlawfully against another person, obstruction of justice, at- tempted murder of Ginny Calones, aggravatedWAIS-III

TAT arson or arson in the third degree, sexual assault, and assault. I was asked to evaluate Mr. R’s men-Rorschach

Rotter Incomplete Sentences Blank (Adult tal state at the time of the offenses, addressing state statutes 2C:4-1 and 2C: 11-3.Form)

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136 • Forensic Mental Health Assessment

On the basis of my evaluation of Mr. R, a re- DISCOVERY MATERIAL RELATED TO THIS OFFENSEport was prepared at the request of his attorneys.

Reference is made to this report (2/21/85), a copy of which has been provided to both defense Arrest Reports (9/20/84) counsel and to Mr. Steven Stanton, Assistant Police Accident Report (7/24/84) Prosecutor for the State. I was not asked to pro- Police Investigation Report (9/20/84, North vide testimony in this case, nor was my report Patterson) considered by the jury. The jury found Mr. R

Prosecutor’s Office Preliminary Report guilty of purposeful or knowing murder, felony (9/20/84) murder, burglary, and hindering prosecution. He

Medical Examiner’s Report of Autopsy was found not guilty of aggravated arson. During

(9/19/84) of Walter Jamison the penalty phase of this trial, the State con-

Medical Examiner’s Report of Autopsy tended that: Mr. R’s conduct was outrageously or

(9/19/84) of Maria Jamison wantonly vile, horrible, or inhumane and in-

Police Report (8/19/84) listing evidencevolved torture, depravity of mind, or aggravated taken

battery to the victims; he committed these mur- State Police Evidence Log (9/19/84)ders to escape detection of a previous crime; and Defendant’s Record of Prior Arrests and Dis-these crimes were committed while he was en- positionsgaged in the commission of felony. Defense coun-

sel argued for the presence of three mitigating Transcript of Grand Jury Proceedings (10/14/84)factors: Mr. R’s actions occurred while under the

influence of extreme mental or emotional distur- Supreme Court Decision (State v. R) bance; that his capacity to appreciate the wrong- Interview of William Eislin by Carl Brine, fulness of his conduct or to conform his behavior Esq. (10/25/84) to the requirements of the law was significantly impaired as the result of mental disease or defect

STATEMENTSor intoxication; and that the defendant’s charac- ter or record of the circumstances of the offense

Voluntary Statement of Shirley R (9/10/84)were relevant factors to be considered in mitiga- tion of the death penalty. The jury found all three Voluntary Statement of Ginny Calones aggravating factors and the mitigating factors of (9/19/84) “extreme emotional disturbance” and the “charac- Voluntary Statement of Mary Wells ter” factor. In addition, they found that two of the (9/19/84) aggravating factors individually outweighed the Signed Miranda Rights Waiver of Defendant mitigating factors, and, accordingly, Mr. R was (9/20/84) sentenced to death. Voluntary Statement of Defendant (9/20/84) The Supreme Court of New Jersey set aside the

Voluntary Statement of Sara Calones death penalty and ordered a new penalty phase of

(9/20/84) this trial. Specifically, the Court opined that the

Voluntary Statement of Lisa Paul (9/24/84)jury had been defectively charged on the aggravat- Voluntary Statement of Douglas Pauling factor involving torture or aggravating battery. (9/24/84)I was contacted on 6/12/91, by Ms. Lisa Ben-

nett, Esq., and Steven Rosen, Esq., of Bennett and Rosen, Mr. R’s present counsel. I was asked

FIRE DEPARTMENT RECORDS to reevaluate Mr. R with regard to the presence of mitigating factors as they might relate to the

Administrative Submission (9/21/84) penalty phase of his trial.

Fire Department Fire Record Card (9/18/84)Prior to the preparation of this report, I re- Division Report (8/18/84)viewed copies of the following documents pro-

vided to me by his attorneys: Emergency Police Call (9/19/84)

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Criminal Sentencing • 137

CROTON COUNTY JAIL RECORDS In addition to my review of the above documents, I also conducted the following interviews:REGARDING THIS INCIDENT

Ms. Shirley R (2/22/86 and 3/1/86)Sheriff’s Department Form (9/21/84) Ms. Christine Canton (2/20/86)Clinic Appointment—College Hospital

(4/3/85) Donald Billington (5/1/86) Medical Department Memo (3/18/85)

It should be noted that I first attempted to re- interview Mr. R at the request of his attorney on

SCHOOL AND PSYCHIATRIC RECORDS 2/17/92 at Owens State Prison. Mr. R refused to leave his cell block and declined to be inter-

Board of Education, Division of Child Guid- viewed at the time. ance Records: At the start of each evaluation session, I ex- Psychological Report (6/27/69) plained thoroughly to Mr. R that I am a psycholo- Referral to Psychiatrist (6/11/73)

gist whose services were retained through the of- Learning Disabilities Teacher—Consultant

fices of his attorney. I indicated my role in hisReport (5/4/73) case and the lack of confidentiality that would ex-Consulting Psychiatrist’s Report (6/14/73) ist if I were requested to prepare a written reportPsychological Test Report of Robert Clark, and/or testify. He was aware that a second pen-Ph.D. (2/28/86) alty phase had been ordered and that he was enti-Psychological Report of Lawrence Miller,

Ph.D. (3/6/85) tled to present mitigating factors at that time. Mr. R was told that I am a Diplomate in Forensic Psy- chology of the American Board of Professional

MISCELLANEOUS RECORDS Psychology, that I would make notes based on his answers to my questions during the interview,

Military Records (3/20/74–2/2/78) and that his responses would be used, in part, in

Prior Incident, Continuation, and Arrest Re- the formation of an opinion. He was further in- ports (9/15/78–8/30/84) formed that I would, at his attorney’s request, Sheriff’s Department Forms (10/15/78, prepare a thorough, balanced report that might 12/30/80, and 1/28/84) contain information detrimental to his case. My

nonadvocacy role was explained to him, and he acknowledged that he understood the lack of

MEDICAL RECORDS OF GINNY confidentially involved in this evaluation. Thus,

CALONES the evaluation was conducted with Mr. R’s in- formed consent. At the time of preparation ofLaboratory Report (5/11/84) this report, I have spent approximately 20 hours

Walk-in Clinic—University Hospital Report with Mr. R.

(5/11/84) General Pediatrics Records (5/11/84 and 5/16/84) SUMMARY OF ABOVE DOCUMENTS

I have reviewed copies of the documents cited 1972–3/85 DEFENDANT’S MEDICAL above, and, because of their extensive nature, RECORDS they will not be summarized in detail. The excep-

tion is those documents that relate directly to Mr. Hospital Records—Emergency Department R’s actions and the events leading to these actions Records (10/4/72–5/11/73) of 9/19/84.

According to the Board of Education records,Hospital Records—Admissions/Discharge Record (7/8/73–8/14/73) Mr. R attended Allen Avenue School and was re-

ferred for Psychological Evaluation on 2/27/69.University Hospital Admissions Record (3/28/85) At that time, Mr. R was approximately 121⁄2 years

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138 • Forensic Mental Health Assessment

of age. He was referred for evaluation because of door, but she refused to sign a complaint. On 7/18/84, the Police Incident Report indicates thataggression to his peers. It is reported that his

mother had come to school and physically pun- Ms. Brennan had slapped her daughter, at which time Mr. R again kicked in her door and “punchedished him in front of others. Mr. R was found to

be “anxious all the time” and demonstrated signs complainant repeatedly in her face.” Ms. Jamison indicated that she believed Mr. R to be the fatherof anxiety, instability, and insecurity.

Mr. R was again referred for psychiatric/psy- of her daughter’s unborn child. Again, Ms. Jami- son refused to sign a complaint against Mr. R. Achological evaluation when he was approximately

age 161⁄2. According to the records (6/11/73), review of the medical records of Ginny Calones (5/11/84) indicates that although Mr. Jamison be-Mr. R was found to be fighting, hostile to girls,

belligerent, and having a severe stutter as a child. lieved her daughter to be pregnant, she was deter- mined not to be pregnant on medical examination.It is reported that he had been raised by his

grandmother in North Carolina. According to the According to Police Department arrest reports (9/20/84), Mr. R was placed under arrest at ap-Psychiatric Report (6/14/73), Mrs. R indicated

that she had no relationship with her son, claim- proximately 3:40 a.m. for a crime he committed at approximately 2 a.m on 9/19/84. The victimsing that they rarely spoke. She described him as

being moody and a loner, and reported that her were found dead in their apartment, and Mr. R was initially charged with homicide and burglary.common-law husband had unexpectedly left

their home to marry another woman. Mr. R indi- The records also indicate that he had committed the crime of arson of 9/18/84 at approximatelycated that he found girls “ugly by the way they

act.” He was diagnosed as being “an emotionally 11:30 p.m. Prior to this date (8/24/84), the Po- lice Accident report indicates that a car driven bydisturbed child.”

Mr. R entered the United States Marine Corps Mr. R had jumped the sidewalk and sideswiped a building, causing extensive damage to both theon 3/25/74, and was officially separated from the

service on 11/13/77 under Honorable Condi- car and the building. The driver had fled the scene of the incident.tions. The records indicate that he received the

Good Conduct Medal and the National Defense The Police Department Continuation Report (9/20/84) indicates that the front door of theService Medal. While stationed in Japan, Mr. R

was convicted by Japanese civil authorities for at- Jamison’s apartment had been forced open. A 2- year old baby was found unharmed on the bed.tempted rape in the course of a robbery and sen-

tenced to 41⁄2 years. A review of the records indi- Walter Jamison’s body was found in the kitchen, and Maria Jamison’s body was found in the bed-cates that it was the opinion of the U.S. military

that it was, “not clear as to efforts put forth to room. Both had been beaten and stabbed and their throats cut. A baseball bat was found par-verify or research claims of respondent.” State-

ments made by the victim and key witnesses were tially inserted in Maria Jamison’s vagina. It is re- ported that Ginny Calones, the 13-year oldfound to “appear suspect.”

Prior to 9/19/91, Mr. R had been involved in daughter of the victims, had indicated that her “parents had several disputes with her formera number of incidents that led to arrests. For the

most part, allegations focused on loss of control boyfriend, one Steven R. . . . he was a [sic] adult and she was a juvenile and they didn’t like theof his temper resulting in verbal outbursts or

throwing objects. On 9/9/78, Mr. R had been ac- idea of him seeing her.” This report indicates that a male had called the police indicating that hecused of forcing a mentally retarded girl to have

sexual intercourse with him, allegations that Mr. had killed two people and that a baby was alive in the apartment. This report also indicates thatR denied. Other incidents involved verbal threats,

fighting, and criminal mischief, possession of mari- a fire had been discovered in the defendant’s apartment on August 18 and that Mr. R’s motherjuana, possession of a knife, threatening another

individual, and driving his automobile into a ditch indicated that her son had told her of the arson and the killings.filled with water.

On 7/10/84, Maria Jamison indicated to the The report of the medical examiner found that Walter Jamison’s injuries indicated stabpolice that Mr. R had broken down her front

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Criminal Sentencing • 139

wounds to the chest and abdomen, assault to the asking him, “Why was they trying to hurt me. . . . I only tried to help you.” He recalled that hehead with a blunt instrument, lacerations of the

head, fractured skull, hematoma, contusions of hit Mr. Jamison across the throat, stabbed him, and then hit him with a baseball bat. He thenthe brain, and internal hemorrhage. Maria Jami-

son was found to have been assaulted by a blunt went into the bedroom of Maria Jamison but could hear Keena hitting Mr. Jamison with ainstrument and had a fractured skull, a massive

contusion of the brain, and slash injuries to the baseball bat. According to Mr. R, Keena entered the bedroom with a baseball bat and Mr. Rneck.

According to the Voluntary Statement of Ms. moved the baby, who had been sleeping in the bed with Ms. Jamison, out of the way. Keena hitShirley R (9/19/87), she last saw her son at 3:30

a.m. on that date but had spoken to him three Ms. Jamison with a bat, and Mr. R hit her with a cinderblock, then with a baseball bat. He insertedtimes since then. She indicated that her son said

that he had killed the Jamisons. Ms. R recalled the bat into Ms. Jamison’s vagina, stating, “That’s for having Ginny.” He then went to his mother’sthat he was accompanied by a friend, “Keena,”

who also indicated that she had been involved in house and later notified the police about the baby who had been left on the bed. He also indicatedthe killings. Mr. R allegedly told his mother that

Maria Jamison had pressed rape charges against to the police that he had started a fire in his apartment on 9/18/84 because, “I was trying tohim and that he had set his apartment on fire be-

cause his wife had left with their baby son, Ginny burn up all the memories in the house.” He fur- ther indicated that he had wanted to kill Ginnyhad been taken from him, he would have to go

to jail, and “his life was over.” He indicated in a and his wife’s (Betty’s) parents. He blamed Ginny for the fact that Betty left with his infantseries of approximately 12 telephone calls that he

was going to kill three other individuals as well. son and blamed Betty’s parents because they had reportedly talked his wife into leaving him.According to the Voluntary Statement of

Ginny Calones (9/19/84), Mr. R had been her Ginny Calones gave a Voluntary Statement on 10/7/84. She claimed to have had an abortion inboyfriend; she had known him for over 2 years

and he had argued with her parents beginning in June, when she was 4 months pregnant. When Mr. R learned about the abortion, she said, he hitJune. She indicated that she had gotten an abor-

tion in July. She had refused to go out with him her in the mouth, and they broke up 2 weeks later. She recalled four altercations between Mr.and he had hit her because of this. The Voluntary

Statement taken from Ms. Mary Wells (9/illegi- R and her parents. During the last incident, he said to them before he left, “I’ll get you and Mariable/84) indicates that Ms. Wells is a Special Po-

lice Officer with the Police Department. She had one way or another.” Ms. Calones recalled that her mother had told Mr. R about filing a com-seen Mr. R and a younger girl at approximately

3:00 a.m. on 9/19/87; at that time, Mr. R indi- plaint of statutory rape. Fire Department records (9/18/84) indicatecated that he had killed two people. He told her

that his mother was upset because he had told they responded to a call of a fire at Mr. R’s resi- dence. The fire had been confined to a bed andher about this, and he asked Ms. Wells to talk to

her to calm her down. He also indicated to her the immediate surrounding area. According to the report, men’s clothing, papers, and baby bot-that he would be dead within a week. Ms. Wells

did not file a report with the police because she tles were in the vicinity of the fire. According to the Grand Jury proceedingsdid not believe Mr. R. She recalled that earlier in

the week, the defendant’s mother indicated that (10/14/84), Detective John Beverly testified that a call was received from an unidentified male in-her son had wanted to take Ms. Wells’s service

revolver. dicating that he had killed two people and that a baby would be found alive in the Jamison’s apart-I reviewed Mr. R’s signed waiver of Miranda

rights (9/28/84) and his statement to the police ment. The voice was identified by Ginny Calones as Mr. R’s.(9/20/84). He indicated that he kicked the door

to the Jamison’s apartment open at approxi- A review of the County Jail record indicates that Mellaril had been prescribed for Mr. Rmately 2:00 a.m. He grabbed Walter Jamison,

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140 • Forensic Mental Health Assessment

(3/21/85). He was described in a memo as “upset July 1984, having lived with him since August 1983. He told her that the Jamisons threatenedand acting strangely.” Mr. R reported that he had

taken 60 pills in a suicide attempt. Records (Uni- to press charges of statutory rape of their daugh- ter against him. Her husband drank with Jamison,versity Hospital 3/28/85–4/3/85) indicate that

Mr. R was found unconscious, apparently having and she recalled that he indicated that he fought with them previously because of the possibility oftaken a number of pills following an argument

with another inmate. He was brought comatose pending charges. According to a friend, Mr. R had driven histo the hospital. He was discharged and returned

to the County Jail on 4/3/85. car at a high rate of speed into a wall sometime in July 1984. He indicated to him that, “Damn it,A social worker at the Billington Mental

Health Center was interviewed by an investigator I can’t even kill myself.” According to the testi- mony of Ms. Carol Crescent, a social worker atfrom the Office of the Public Defender on 10/7/

84. According to the records, Mr. R voluntarily Croton Medical Center, she met the defendant in May 1984 when his son was born 91⁄2 weekscame to the Center seeking treatment. He spoke

to the worker in the waiting room for approxi- premature. She indicated that Mr. R was appropri- ately anxious, concerned, and supportive of hismately 5 minutes, and she recalled that Mr. R in-

dicated that he “was tired of trying to kill him- wife. Mr. R appeared to “bond” with the baby and was very caring in his relationship with his son.self.” He reported that he had crashed his car into

a brick wall in an attempt to take his life. She Shirley R testified as to her son’s early history. She reported that she had brought him to Northdirected him to the first floor where an appoint-

ment could be made; she did not know whether Carolina to live with her mother and sister. She had argued with her sister, who later placed a hothe followed through in establishing an appoint-

ment. No record was found of Mr. R seeking plate on her son’s face. Later, his aunt cut Ms. R’s 2-year-old son’s face with a razor blade. Shetreatment.

According to an interview conducted with left the defendant to live with her mother and returned 2 years later, bringing her son back toWilliam Easley (10/25/84), he is 20 years older

than Ms. R and had been her common-law hus- Newark. At the time, Ms. R was living with Wil- liam Easley. She reports that Mr. Easley wouldband and had “acted as a father” to Mr. R. He

indicated that Shirley R “was a hooker,” whom he beat her son and at times would beat her, fre- quently in the presence of her children. Ms. Rmet when she was working at a bar. After she

brought her children to live in New Jersey from recalled that while attending school, her son tried to jump off the roof of Madison Street School,North Carolina, he recalled that she continued to

work as a prostitute. He believed that Mr. R and and an appointment was made to see a psychia- trist or psychologist at Central Hospital. Herhis brother had seen their mother bringing men

to their apartment. “I was mostly her protector. I other son, Scott, was thrown to his death off the Garden State Parkway approximately 3 years be-didn’t let anyone bother her. . . .” He then added

spontaneously, “I was not like a pimp or anything fore the trial, reporting that “Steve was broken up” over this.of that sort. . . .” About the time Mr. R started

to attend Jay Street School, Mr. Easley left his Ms. R recalled that her son was very upset when his son was born weighing three pounds,common-law wife and her children, indicating, “I

found myself another gal and I liked her a little indicating that Mr. R would cry about the baby. On one occasion, he brought a music box to thebetter and I just left the house.” He indicated that

following this, he did not see Mr. R on a regular hospital for his baby to hear “so he wouldn’t hear the machines.” She described her son’s concernbasis.

I have reviewed the initial transcript, a copy of of having to tell Betty about Ginny’s pregnancy and the possibility of a rape charge being broughtwhich was provided to me by Ms. Bennett. Ginny

Calones testified that Mr. R had gotten along well against him. When his wife left him, “he let himself go—crying, calling, . . . he couldn’t be still. Like awith her parents and that they had been friends.

Ms. Betty R testified that she left Mr. R in early wind-up—talks, rattling about something else.”

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Criminal Sentencing • 141

She indicated that her son went to the mental had driven his car into a wall, stating, “I feel like killing myself.” “He started to act strange,” ahealth clinic seeking treatment because, “he said

he thought he was losing his mind.” Although change noted when Mr. R claimed that Betty’s “mother and father sent my wife away from meMr. R expressed a desire to admit himself to a

psychiatric hospital, she advised him against it be- to South Carolina.” She believed that Mr. R at- tempted to send money to her to pay for her re-cause “they never let you out.” Instead, Ms. R tes-

tified that she brought her son to a “root doctor” turn to New Jersey, but “they [her parents] wouldn’t give him the address. He was going towho “works magic.” Her son was given oils, can-

dles, pills, told to recite the Twenty-Third Psalm, kill himself and would say, ‘Nobody had ever liked me.’ ” According to Ms. Canton, “Steve re-and to place oil on Betty’s clothing. She indicated

that Mr. R was unable to sleep, having lost Betty, ally was cracking up.” Prior to his automobile ac- cident, “he was depressed . . . he’d get goofierGinny, and his brother. She recalled her son stat-

ing, “I have nothing to live for.” On the night of when was more depressed. He drove his car into a wall, talked of jumping off the roof, burningSeptember 18, he and Keena indicated that they

burned his apartment. Later, they indicated that himself up. He got real serious.” Because of the deterioration in his behavior, Ms. Canton “toldthey killed the Jamisons and needed $40 for a

place to sleep. Both were “high.” She reported him a couple times to see a psychiatrist.” She told him this on at least two occasions; she first madethat her son was both frightened and anxious

about the Jamison’s accusations of statutory rape. the suggestion when Mr. R spoke about “running his car into a wall.”On cross-examination, Ms. R indicated that she

had not told the police or the Grand Jury that Shirley R, the defendant’s mother, was inter- viewed by me on two occasions, both at the Of-her son appeared high. She said that her son

stated that he would, “not go to jail for some rape fice of the Public Defender. These interviews oc- curred on 3/22/86 and 4/1/86. According to Ms.because he didn’t rape anyone.” Later, she ex-

plained that he had burned his apartment be- R, her son was “a happy baby.” She left her son in North Carolina with her mother when he wascause he was “burned memories.”

According to David Walters, he observed Mr. approximately 3 years of age, and she returned to New Jersey. When her son was ready to attendR in his apartment in early September 1984 on

two occasions. He found the apartment to be school at age 5, she returned to her home state with him. She recalled that at the time, “He knewblack, candles were burning, and Mr. R was chant-

ing. He recalled that Mr. R had received “some- who I was, but he called my mama Mama.” Her sister had been angry at her and “she put a hotthing from a witch doctor” and had kicked in the

screen of his television set. Mr. R was found star- plate on him. I beat my sister up and she [my mother] put me out for about 2 weeks.” On an-ing at his son’s empty crib. other occasion, her sister, “cut him with a razor. . . . She loved him to death.” On yet another oc-

INTERVIEWS OF OTHER PARTIES casion, Ms. R recalled, she and her sister “got in another argument and she grabbed my baby. IMs. Christine Canton was interviewed by me at

the Office of the Public Defender on 2/20/86. walked to her and she cut him on the face. My mother put me out again.”She described Mr. R as a man who would “flirt

with other girls in front of his wife,” yet he did Ms. R indicated that her son attended Madi- son Street School. On one occasion, she recalled,not want her to leave. The defendant “was a

good-hearted person inside. He would go to the “girls one day put lipstick and rouge all over his face. The kids would always chase him home, andstore for me . . . he’d offer me money.” She de-

scribed Mr. R as a person whose “feelings would Bill and I went downstairs and we made Steven fight. I was always at the school; he was alwaysbe hurt quickly . . . he was like a kid. He’d be-

come sad, not angry. He would just walk away doing something. I was told he was overactive and was given a prescription for pills to keep himlike a kid. He would do anything for you if you

need it.” She recalled Mr. R telling her that he down a little. It made him very tired.” At this

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142 • Forensic Mental Health Assessment

home. Steve seen Bill beat me a number ofschool, she indicated, her son “went up on the times with a belt because I didn’t want to goroof. Someone did something to him and he went out on the corner . . . the boys saw it.on the roof and was going jump off the roof. I

took him to a psychiatrist for a few months and we talked together. . . . ”

INTERVIEWS WITH DEFENDANT When questioned closely about her prior ac-

tivities as a prostitute, Ms. R expressed extreme Mr. R was evaluated by me on four occasions while incarcerated in the County Jail (2/9/85,resistance at revealing this in Court. She stated,

“There’s the fear of bringing up my being a pros- 2/22/86, 3/1/86, and 10/17/94) and once while awaiting a retrial on the penalty phase at Statetitute. I’m worried about losing my job; I work

around kids in a cafeteria in school. I had to do Prison (9/3/91). According to Mr. R, he met his father on one or two occasions. He described himit; Bill did shit—I had to put money in their little

pockets. I never left them; I had to keep them as an alcoholic who died of cancer. At the time he was conceived, “my mother was in a youthclean; I had nothing left. The friend I lived with

would throw me out.” She stated, “I’ll do any- house and met my father there. She got pregnant just to get out of the Youth House. She was a kidthing for Steve,” although her refusal to discuss

her past in Court is inconsistent with this state- having a kid. She told me that when I was little. . . . I remember everything derogatory she toldment.

Ms. R recalled that her son “came to me after me when I was little.” He stated, “When I was little, she was a prostitute. She would bring cli-[the crime]. He was hyped up, like a wild person.

It was around two o’clock in the morning and he ents home. . . . we didn’t say anything, but the other kids knew [about it].” He described hislooked scared. He called me first and told me, but

I didn’t believe it until Keena said, ‘I got my first mother as a person who, “did what she had to do; whatever we needed, we got.” However, hebody.’ ” Ms. R spontaneously remembered that

her son would say, “Mama, why can’t I hold on added, “I paid a mental price. Everyone knew what she was doing.”to nobody?”

When interviewed on 4/1/86, Ms. R remem- According to Mr. R, Bill Easley moved in with his mother and was both her lover and her pimp.bered her apartment on Main Street, her resi-

dence when she returned from North Carolina Mr. Easley was “all right; he didn’t care for me. He didn’t like me. I was the kid who stayed inwith her son. There was a “coal stove; addicts

moved in, women had track marks and were sell- trouble, played hooky. He raised us and didn’t realize things were wrong.” Mr. R indicated thating drugs, and there were prostitutes. There was

drinking in the street and addicts came into the on one occasion, “he tried to kill me. I hit him with a mop, and he tried to stab me in the chest.”building and started fires in the hallway, shoot-

ing-up, and Steve would see women with differ- He continued, “He treated me like I wouldn’t amount to shit. . . . If not for him, my motherent men and inviting men in.” Ms. R stated wouldn’t be turning fucking tricks. . . . He shit on the family, screwing my mother’s best friend.” Heprostitutes would bring clients to my house.

Steven and his brother were home, and I indicated that, “I got to love him; but he was would charge each [prostitute] two dollars piece of shit.” According to Mr. R, he discovered for the room. It was a different part of my that Mr. Easley “was married when he took us to house, and there would be four different his house. It was a big pretty, white house, and girls, seven days week; I only used it on Fri- he brought me there to mow the grass.” day night and sometimes Saturday. Bill was

Mr. R stated that he spent his initial years there as the “protector” for the other girls,

raised by his grandmother in North Carolina. He too. There were fights a couple of times as he

remained there until he was approximately age 5threw out customers. I had a gun in the or 6. He stated, “I thought she [my grandmother]house and Bill would be in the closet. Once, was my mother.” He said that he was surpriseda guy put a knife around my neck. Bill threw to discover that wasn’t true when his mother re-someone down the stairs. He wouldn’t let me

go out of the room. The boys would be turned to pick him up, “she told us she was our

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Criminal Sentencing • 143

mother. I said, ‘No, she wasn’t.’ She got my attempted rape in the course of committing a robbery: “I didn’t understand too much of it; itbrother and bribed us into the car with a cookie.

My grandmother told us to go.” When he re- was in a Japanese court.” According to Mr. R, he and Betty lived to-turned home, he recalled, he felt like “an outside

kid. I talked country and there was teasing.” He gether for approximately 2 years. “She used to leave when she felt like leaving; her family didn’twas beaten by his mother and Mr. Easley “because

I wouldn’t fight back [when teased]. I’d be beaten care for me.” He indicated that his son was born in May 1984. At the time, he “weighed 2with belts, once with an extension cord. My

mother would throw plates.” Mr. R remembered pounds.” Mr. R remembered that, “I was upset and would stay all night at the hospital.” His sonan incident while in junior high school in which his

parents “got rid of my dog. He was gone when I was discharged from the hospital in July 1984. When he brought his son home, “I felt proud . . .got home [from school].” He was told that the dog

was “kicked out on the turnpike. It was the only he was in the hospital until he weighed about 5 pounds.” He believed that Betty’s attitude towardway she [my mother] could get to me.” He also

recalled an incident in which a group of girls teased her son was “she didn’t give a shit. I stopped go- ing to work when the baby was discharged.him, applying lipstick and rouge to his face. On

another occasion, Mr. R recalled, he went to the . . . I stayed home with the baby for fear she’d take the baby.”roof of his school building wanting to commit sui-

cide because he had been harassed by other chil- According to Mr. R, he told Betty of Ginny’s suspected pregnancy. “I tried to clean up my mis-dren. He indicated that the school principal found

him there and notified his mother. takes. I told her I messed up and I needed help. I trusted her . . . I wanted her to know . . . thereMr. R recalled his days in North Carolina.

When he was approximately 2 or 3 years old, he was nothing to hide.” He describe his distraught state when his wife left. He telephoned her onsaid, his mother’s sister “went to cut me with a

straight razor. She put her arm back and cut me numerous occasions but said that her parents would not permit him to speak with her. He alsoin the face. I never forgot it.” On another occa-

sion, he recalled, “I was under a chair; she came “threw out all of her clothing and shit. She left behind my son’s birth certificate, a check, and Iin and saw me playing. She put a hot plate on

top; I looked up and she put it right on my face. burned up the stuff.” Although Mr. R claims to have 10 children, he viewed this child as “spe-She dropped the hot plate.” He recalled that his

mother beat up his aunt for cutting him with a cial.” He indicated, “the mothers had kids, and then they just vanished with them.” Again, herazor and that his aunt “burned me to get even.”

When Mr. R returned to Warren, he attended emphasized that “the baby almost died. I was the only one there; no one there; no one gave a shitthe Madison Street School and later, Foster Place

Junior High School. He described himself as hav- [about him] but me.” About his other children, Mr. R indicated, “I fed them, clothed them, anding been “an odd kid. They could do things to me,

and I wouldn’t talk to you. I was different; I was then they vanished on me. I was left with nothing.” Mr. R recalled meeting the Jamisons in Janu-scared of people. I didn’t belong, couldn’t belong,

and couldn’t approach people.” ary 1984. He indicated that he met them through a neighbor in their building. “No one wanted toUntil December 1973, Mr. R worked for a

roofing company. Following his military service, help them. I helped them—bought them a TV, towels, house stuff; that’s the way I am. They ap-he held a position driving a sanitation truck in the

evenings. Prior to this, he had held position as a preciated it. . . . I fed them for a month.” He de- scribed his relationship with Maria as “fine.” Hewelder.

Mr. R indicated that he enlisted in the U.S. saw the Jamisons as people who were “both on welfare and just didn’t care about nothing; as longMarine Corps in February 1974. He stated that

he was discharged in December 1977 with “an as they got something to drink, they were satis- fied.” He recalled that there was a fire in theirHonorable Discharge.” He denied that any condi-

tions were attached to his discharge. He stated apartment, and in July 1984, “they moved out with their family, and I took them to find anotherthat while in Japan, he was tried on charges of

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144 • Forensic Mental Health Assessment

apartment and gave him money for a cab when the side crushed in and bounced off the wall.” He indicated that he left before the police arrived.he had to work.”

He described their daughter, Ginny, as some- Mr. R stated that he felt his emotional state was deteriorating and had asked his mother toone who “was screwing everything that walked

and had a penis. She accused me of being the fa- take him to the County Mental Hospital a week prior to the crime, “because I was getting high.ther [of her child] and they made her get an abor-

tion. They found out she was messing with all the They said they didn’t take walk-in cases.” He then indicated that, “Mama got off work. She took meother little boys. She burned me.” Mr. R indi-

cated, with some indignation, that “I caught crabs to see a voodoo doctor. She could see that some- thing was wrong with me . . . she [the “root doc-from her—not from a 13-year-old girl; I’m not

dirty. I was shocked—a 13-year-old. She was tell- tor”] gave me candles and pills, but it didn’t help. I did it, stuff with Satan, Bibles, and pills. Also,ing everyone she was pregnant by me. She told

my girlfriend who was pregnant and my wife who the Twenty-Third Psalm—the Lord is my Shep- herd—seven times, and the candles seven times,was pregnant. She wrote letters, telling everyone.

I told my wife about her.” He described his rela- and powered incense.” Mr. R described a gradual deterioration in histionship with Ginny as “something stupid; it was

over and goodbye. That was it.” He had indicated emotional state, beginning with his wife’s deci- sion to leave him, taking their son with her.to her that “I’d take care of it [the baby].” He

claimed that her parents knew that he had been When she left, “I had a lot of phone bills to get her back. I lived on the phone.” He indicated, “Isexually involved with her and “they condoned it.

They knew it because I was in her room and Mr. started getting high when Betty left in August, not before. I went to my mom for money for aJamison told her that I couldn’t spend the night

in his house.” He described two episodes in which ticket to get her back. She made you owe her if she gave you something and my mom didn’t carehe was involved in verbal and physical alterca-

tions with both Walter and Maria. On one occa- about her; she didn’t give me the money; I didn’t have a picture of my own damn son.” On onesion, he recalled, “I kicked in the door because

she was hollering. There was no reason for her occasion, “I tore up my mother’s room after they left in August. She said she wasn’t coming backbeing beaten. I took her to her father’s.” He indi-

cated that on a prior occasion, the Jamisons had and I stopped doing everything . . . my mom didn’t care. She hoped I’d die because I tore upcalled the police; he recalled that he “hit him, not

hard, I tapped him on the leg. They’d run off at her room. I was getting high then—on dust; it was the first time [I ever tried it]. Coke-basing,the mouth when they were drunk.”

Mr. R indicated that the Jamisons had threat- all shit I didn’t do; crack. . . . ” He indicated that he also had been drinking “every day for a month.ened him with statutory rape. “They were mad

because their booze supply was cut off.” He I borrowed money for it; I sold my TV and stereo and tools.”claimed to have ended his relationship with

Ginny and “stayed away for about 11⁄2 months.” Mr. R reported that he placed his son’s birth certificate and a check in a frying pan, burningNonetheless, he would see the Jamisons “because

I play basketball. I didn’t speak to them.” When them “to give up the memories.” He left and called the Fire Department. In another interview,asked about having threatened them, Mr. R indi-

cated, “You say stupid shit when you’re angry. It Mr. R indicated that “I set the crib on fire and Keena set the bed on fire. . . . I was burning upwas no more than that. I might have said it, but

I don’t remember. When you’re mad and angry, memories in the house, in the crib.” Mr. R was questioned in detail during each in-you can say anything.”

Mr. R reported that on one occasion, 2 weeks terview about the events on 9/19/84. On 2/9/85, he stated that he initially had been going to visitbefore the crime, he attempted to “kill myself.”

He recalls driving his car into a wall, but “there is his mother with Keena because “I needed money and maybe I was a little high [to buy] coke.” Hea very high side walk and it hit it. I was doing

about 80 mph; the car hit the curb, and it flew recalled that on that day, “I had been drinking heavily—vodka and beer; I was drinking beforeand slammed into the side. The car just spun, and

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Criminal Sentencing • 145

this, 40-ounces of Old English 800 malt liquor. I At times, feelings of despair and hopelessness would be expressed. There were times when Mr.was smoking reefers all day and dust at 7:00 p.m.

I had mescaline earlier, about 3:00 p.m.” When R was unable or refused to elaborate, but this oc- curred with respect to exploring his feelingsasked how this affected him, Mr. R stated, “The

honest truth, I can’t tell you. I don’t know. I may rather than revealing details about his criminal acts. He sometimes appeared to be overly con-have been high but I didn’t realize it. I can’t ex-

plain how I felt. I wanted more and I didn’t want cerned about what I thought of him and what others would think about him should they learnto stop.”

He stated of the details of his life. He appeared to be highly sensitive to even subtle cues that would indicate to him that he was, in some way, being “judged.”we passed Ginny’s house and I saw Walter in

the bedroom window, and he saw me. Wal- His marked ambivalence about important people ter and I were talking, we both were high, in his life was apparent in each evaluation session. and words passed about a fire in the house Similarly, he demonstrated changes of mood they used to live in. I said I’d kick his ass. I throughout each session. He consistently ex- went in the hallway and kicked down the pressed his disappointment in people, feeling let door. I was between knowing it was wrong

down and abandoned. At other times he was re- and not caring it was wrong; I guess I knew it

sistant to acknowledging negative feelings, espe-was wrong, but I said to myself, I didn’t care. cially toward his mother. Although no evidenceKeena kept saying, “go ahead, go ahead.” I for an active thought disorder was found duringkicked it open and ran in at Walter, wrestled the interviews, he would sometimes ramble in aand fighting on the floor. He fell back; by this somewhat disjointed fashion. His level of insighttime, I didn’t know what was going on. I was

tired. She handed me the knife. appeared to be poor, and his understanding of his motives, thoughts, and feelings somewhat super- ficial.He stated, “I was out of it. I can’t explain it. I

heard her say something to Walter.” He indicated that, “he [Walter] was on top of me. Blood started falling . . . I had the knife and blood was

RESULTS OF PSYCHOLOGICAL on it. She said, ‘Wipe the blood on the bed. . . .’ ”

TESTING Mr. R stated that he then went into the hallway, and he heard Keena “call me and told me he was Mr. R is functioning within the Low Average

range of intelligence on the WAIS-III. His Full-dead. He wasn’t dead before I walked out. I was out of it. I was gone. . . . ” He then indicated he Scale I.Q. of 87 falls at approximately the 19th

percentile. His Verbal I.Q. of 85 falls within theheard a sound coming from the bedroom, and “Keena was cutting the woman’s throat. . . . I Low Average category. His Performance I.Q. of

94 falls within the Average range. On the subtestswent in to pick up Mike on the bed and said to myself, ‘No.’ ” Regarding the bat, Mr. R claimed, that comprise the WAIS-III, Mr. R’s scores range

from Low Average to High Average; most cluster“I didn’t know about the bat. I had no knowledge of it. I just saw her cutting her throat.” around the Low Average range. Only one score

falls within the High Average category. Mr. R in-When Mr. R left the Jamison’s apartment, he indicated that he called the police because “I dicated that he had been administered a battery

of psychological tests, including the WAIS-III, 1thought about Michael.” He stated, “I called 911, and she connected me . . . a cop came on the week before my initial appointment with him.

Since practice effects on these tests are signifi-phone and said who he was and I said two people are dead. I killed them and a baby is in the cant, primarily affecting scores on the Perfor-

mance section of the WAIS-III, it is not surprisinghouse.” Throughout all interviews, Mr. R remained re- that he obtained his highest score on a subtest

most susceptible to the effects of practice. Whensistant to describing and revealing his inner thoughts and feelings. He was consistently mildly considering the effects of practice, it is most likely

that his “true” Performance I.Q. falls closer to hisdepressed, indirectly expressing suicidal ideation.

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146 • Forensic Mental Health Assessment

Verbal I.Q. than was indicated on the day of test- when taken in conjunction with other responses during the evaluation.ing by me.

The most noteworthy feature of his WAIS-III Mr. R’s overall judgment or common sense falls within the Average range. Again, however,test record is the degree of intratest variability ob-

served. Since each subtest is arranged in order of there is considerable variability in his level of re- sponse. In a non-test situation, the degree toincreasing difficulty, those without an active

thought disorder tend to respond correctly to which his behavior or responses would be appro- priate and focused remains unpredictable. If theeasy test items and give incorrect responses to

move difficult questions. To a moderate degree, situation proves to be emotionally charged for him, his thinking may tend to deteriorate, and hisMr. R’s answers to test questions appeared to be

somewhat unrelated to their degree of difficulty. responses would lack focus and would be incon- sistent with general, everyday behavior.Thus, he might give an incorrect response to an

easy test item while responding correctly to a An analysis of his Performance subtests score does not suggest the presence of a central nervousconsiderably more difficult question. While on

some subtests this pattern may represent an un- system dysfunction. It is likely that a number of subtests were artificially inflated due to practiceevenness in intellectual development, the nature

of his responses, both correct and incorrect, and effects. He had considerable difficultly in perceiv- ing cause-and-effect relationships. Mr. R found ithis answers on other subtests suggest the presence

of a thought disorder. Mr. R tends to fade in and difficult to focus on cues that would allow him to establish a temporal sequence. He became con-out of awareness. There is a lack of predictability

in his overall judgment and cognitive skills. For fused but remained relatively unaware of such confusion, responding at a relatively low level in-the most part, he can focus in on the tasks at

hand and weigh what he sees and hears in arriving consistent with his overall functioning. Mr. R’s self-image is a poor one. He is preoc-at a judgment or answer that is expressed clearly

and precisely. However, at other times he be- cupied with feelings of inadequacy. While his present situation may serve to exacerbate thesecomes confused. His indecisiveness and lack of

focus were most apparent on the Picture Ar- feelings, his responses to the tests suggest that his overall lack of confidence is longstanding. Mr. Rrangement subtest. This subtest requires the ex-

aminee to rearrange a series of pictures so that is unsure of himself, indecisive, and lacking a sense of direction. Life has been unrewarding andthey tell a sensible story in chronological se-

quence. Mr. R thought aloud as he rearranged the empty for him. Such feelings appear to have their basis in reality. His life is marked by lack of com-pictures. He was unable to focus on the cues

present, which would have assisted him in estab- pletion: his failure to complete school on sched- ule; his failure in the military; his inability to holdlishing cause-and-effect relationships. Rather, he

showed considerable indecisiveness, changing his a job; his incomplete college career; and the ab- sence of a long-term heterosexual relationship.mind, finding it very difficult to establish a tem-

poral sequence. He was seemingly unaware of Consequently, Mr. R’s needs for love, belonging, and respect remain unmet, and he anticipatesthis difficulty, responding incorrectly to relatively

easy test items and at other times, demonstrating failure at every turn. Perhaps the one area of his life in which hethe ability to focus, analyze, and react appropri-

ately. The considerable variation in his level of presents a façade of “success” is his relationship with many women. As a result, he tends to feelthinking was apparent on the following compre-

hension test question: “Why do people who are comfortable in their presence. Yet even these feeling are accompanied by self-doubts. Beneathborn deaf have trouble learning to talk?” He re-

sponded to this question as follows: “They can’t this superficial, narrow front, Mr. R anticipates rejection. In a sense, he believes that no onesee so they can’t hear. They have to adjust men-

tally. No. The mind has to be in contrast to the needs him and that his life serves no purpose. His tendencies to anticipate rejection in all situationsvoice; they read lips.” Such variability in his

thinking suggests an underlying thought disorder lead him to feel easily hurt and unappreciated.

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Criminal Sentencing • 147

He is overly sensitive to signs that others have emotional inappropriateness or flatness along with looseness of associations. Patients with afound his faults and would reject him for them.

In fact, Mr. R may encourage others to reject similar patterns have often expressed feeling of unreality, and they have shown unusual thoughthim, in a sense serving to confirm his worst fears.

Mr. R has yet to resolve his strong needs for processes, emotional flatness, and apathy and, in a few cases, delusions or hallucinations. In addi-love and acceptance from his mother who, ac-

cording to the tests administered to him, is seen tion, feelings of hopelessness are suggested. His general level of ego strength and self-sufficiencyas an unforgiving, rejecting, non-nurturing per-

son. Mr. R hungers for her affection but receives appears very poor and seriously diminished. Chron- ic dependency on alcohol or drugs is suggested onvirtually none. Consequently, he has a strong

sense of deprivation, feeling ignored as a child the basis of this evaluation. Mr. R’s responses to the MMPI and his pattern of scores has been asso-and unappreciated as an adult. Early feelings and

thoughts of family focus on the lack of support ciated with the diagnoses of borderline psychotic state and with incipient and overtly schizophrenicor encouragement he received. Such feelings have

been generalized to a hypersensitivity to rejection reaction. A history of mood fluctuations is also suggested by this profile.by all women. Mr. R sees women as insincere,

unworthy of trust, and out for themselves only, a Based on Mr. R’s background history, his be- havior during the interviews, and on the tests ad-generalization of feelings toward his mother. He

is, therefore, quick to feel jealous or rejected. ministered, and also on my review of the records cited in this report, the diagnostic impression isSuch feelings exacerbate this underlying rage and

are likely to take over his behavior so that he is of Borderline Personality Disorder (301.83). At times, when Mr. R feels threatened, his tenuousprone to act in an impulsive, vague, poorly orga-

nized, detached manner. Affect may be lacking controls fail him and his behavior may deterio- rate, resulting in Brief Reactive Psychosis (298.80).when his anger is vented. Feelings toward his fa-

ther are equally ambivalent. Anger toward his fa- ther is generalized to other adults who were seen

SUMMARY AND FORENSIC OPINION as being in a superior position to him. When feel- ings of being unappreciated, slighted, hurt, or re- Mr. R relates as an insecure individual filled with

feelings of inadequacy. He is overly concerned asjected are touched on, Mr. R may become more likely to act out these feelings in an explosive yet to the impression he makes on others, quick to

feel he is being judged poorly or that he is beingdetached manner. Under such circumstances, his indecisiveness and ambivalence increases. His think- criticized. His strong need for acceptance and the

mood swings he demonstrated through the ses-ing is likely to become disorganized, while his af- fect becomes more detached. His behavior tends to sions are consistent with the diagnosis of Border-

line Personality Disorder. Affect tended to belack a sense of planning, focus, or direction. On the MMPI, questions are raised regarding blunt, and at times, his thoughts would ramble.

On the WAIS-R, his demonstrated considerablethe possibility that his profile may be invalid be- cause of some combination of overstatement of variability within a number of subtests suggests a

cognitive process in which he tends to fade in andsymptoms due to panic, intentional exaggeration, difficulties in reading or comprehending the items, out of awareness. In addition, some confusion

was evidenced in his thinking, as well as withcarelessness, or errors in entering his responses on the answer sheet. A serious vulnerability to a psy- Mr. R’s tendency to misinterpret cues and to re-

spond in an unpredictable, inconsistent fashion.chotic decompensation is indicated. Anger may be expressed through both irritability and passiv- His thinking tends to affect his overall judgment,

such that his inner emotion may substantiallyity, with unexpected outbursts alternating with absence of involvement. Distrust and emotional impair his cognitive controls and his ability to

reason. He tests as being somewhat socially shy,estrangement from his family and friends are likely to be major, current difficulties for him if reflecting his underlying feeling of inadequacy.

Mr. R’s only source of positive identification isnot chronic problems. Mr. R may demonstrate

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148 • Forensic Mental Health Assessment

in his sexuality, feeling comfortable in relating to Upon returning to Croton, Mr. R developed a self-image of being an outsider. He spoke with awomen on a sexual, albeit superficial level. He

tests as being hyperalert to criticism and to signs strong southern drawl, which served to separate him for his peers. In addition, records indicatethat he may be rejected or betrayed. He possesses

extremely strong needs for love, belonging, re- that he also demonstrated a very severe stutter. Serving to further diminish his self-image and tospect, and acceptance, and when these needs are

not met, feelings of emptiness and panic may separate him from his peers, was his knowledge that his mother was employed as a prostitute—aoverwhelm him. His level of insight into these

dynamics is extremely poor. His responses to the fact that Mr. R claims to have been known throughout his neighborhood. Furthermore, histests suggest that under such circumstances, he is

likely to experience a sense of disorganization and mother would bring clients home on a regular ba- sis, engaging in sexual activity in the family’sa decompensation. On such occasions, his con-

trols are likely to fail him, and the deterioration apartment, an activity acknowledged by his mother who stated that she did so only 2 days ain his judgment and in his ability to modify his

behavior may result in a psychotic deterioration week. In addition, his mother indicated that she regularly rented rooms to at least four other pros-consistent with a Brief Reactive Psychosis. The

ingestion of alcohol and drugs is likely to further titutes for $2 a client, 7 days a week. Ms. R began to live with her common-lawloosen his sense of controls. On the MMPI, his

responses indicate high levels of fear and anxiety, husband, a man who resided in the family’s apart- ment for 10 years. Mr. R’s relationship with himwith marked tendencies to be overwhelmed by

his ruminations over such fears. The report indi- was ambivalent. This man functioned as Ms. R’s “protector,” defensively stating, “I’m not pimp orcates a serious vulnerability to psychotic decom-

pensation and unusual thought process, as well as anything.” Both Mr. R and his mother indicated that Mr. Easley would hide in a closet with a gunthe likelihood of a loss of control over his actions.

The diagnosis of both Borderline Personality Dis- while his mother and the other women serviced their clients. At times, Mr. R witnessed Mr. Eas-order and Schizophrenic Disorder are possible

based on this profile. ley physically attack clients, and at other times Mr. Easley would act out his rage against Mr. R.A review of Mr. R’s life history suggests the

roots of his personality disorder, as well as his In addition, Mr. R would witness Mr. Easley physically beat his mother.marked tendencies to quickly feel betrayed and

abandoned. His self-image is based on his percep- At school Mr. R’s hyperactivity resulted in the need for psychotropic medication. On one occa-tion that his birth was merely a ticket for his

mother to be discharged from youth house where sion he was attacked by a group of young girls who applied rouge and lipstick to his face. Onshe had been remanded by the Court. At an early

age, he was brought to North Carolina by her and another occasion, following a disagreement with another student, he went to the roof of the schoolleft there to be raised by his grandmother and

aunt. Ms. R’s lack of concern regarding her son’s building where he was found by his principal, who notified his mother and referred him to awelfare (including his physical well-being) is evi-

denced by the fact that she willingly left him fol- psychologist or psychiatrist. Mr. R was evaluated by the Board of Education at age 121⁄2. At thelowing episodes in which her sister burned her

son’s face with a hot plate and slashed him in the time, signs of instability were noted. An evalua- tion performed at age 161⁄2 by the Board of Edu-face with a razor. Rather than leaving with her

son, Ms. R physically attacked her sister, resulting cation found Mr. R to be an “emotionally dis- turbed child.” Mr. R’s reluctance to defendin being expelled from her mother’s home. Ms. R

returned to her mother’s house when she be- himself in the face of teasing and physical beat- ings by his peers would result in physical beatingslieved it was time for her son to go to school. His

memories of leaving are marked by the image of administered by Mr. Easley and his mother. When Mr. R was 15, Mr. Easley abandoned hisunwillingly being enticed into her car by the

promise of a cookie. At the time, Mr. R indicated, “family,” deserting them when he “found a gal I liked better.” Mr. R recalled learning about Mr.he believed his grandmother to be his “mama.”

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Criminal Sentencing • 149

Easley’s “other family” when he brought Mr. R to Betty’s parents in an attempt to entice her to re- turn. She refused to accept his collect calls. Ac-his other home to mow the lawn. Mr. R’s rela-

tionship to his brother was also marked by con- cording to his mother, Betty’s parents could be heard laughing at him on the telephone. They re-siderable ambivalence, feelings that intensified

upon Scott’s death. fused to give him information and threatened to physically harm him should he appear at theirIn the weeks preceding the crimes of which

Mr. R was convicted, a marked deterioration is home. Mr. R began to drink and abuse drugs, in- cluding cocaine, crack, and angel dust, in a des-noted in his level of functioning. Sources for this

deterioration are readily apparent and numerous. perate attempt to self-medicate. Mr. R, in an un- focused frenzy, destroyed his mother’s apartment.They serve to build upon his defective personality

structure, leading to a significant breakdown in Consequently, his mother refused to talk to him, withdrawing what little emotional and financialhis controls. He experienced considerable resent-

ment and anger at Ginny Calones for a variety of support she had given him. This further rejection served to increase his sense of abandonment andreasons. These include her telling others about

her pregnancy, her reputation for sexual involve- panic, leading to increased confusion and disorga- nization.ment with “little boys,” her unilateral decision to

have an abortion, his belief that she exposed him On 8/24/84, Mr. R indicated, he drove his car into a wall in an attempt to end his life. His fail-to “the crabs,” and her role in ending his marriage

to Betty. Mr. R had enjoyed what he believed to ure to succeed ironically resulted in increased feelings of ineptitude. Mr. R sought help at abe a highly positive, close relationship with Wal-

ter and Maria Jamison. He had attempted to in- community mental hospital, but his lack of pa- tience to wait for an appointment made his ef-gratiate himself to them, a common pattern in his

life, by loaning them money, helping them move forts futile. As he deteriorated further, he pos- sessed some awareness of his decreased ability towhen their apartment was burned, and driving

them in his car when they needed to go shopping. control his behavior and act in a focused, rational fashion. Mr. R asked his mother to take him to aCharacteristic of Mr. R’s Borderline Personality

Disorder, he was quick to feel unappreciated and mental hospital, but the records indicate that his mother discouraged him, expressing the beliefinsulted by them. He experienced an intense

sense of betrayal regarding the Jamisons’ threats that one is never discharged from a mental hospi- tal. Rather than seeking professional help for herto file a complaint of statutory rape against him.

Mr. R appeared to have been appropriately son, she brought him a “root doctor.” Treatment for Mr. R’s mental problems consisted of lightingconcerned over the premature birth of his son.

Records indicate the he had “bonded” with his candles, taking “pills,” sitting in darkness, and chanting the Twenty-Third Psalm in front of hisson, spending a considerable period of time with

him in the hospital. Mr. R identified with this son’s empty crib. In addition, he was advised to place oils on his wife’s clothing. When efforts didweak, small, different child, a child whose

mother, in Mr. R’s eyes, did not care about him. not work, he was again advised to return to the root doctor for a follow-up appointment. My in-After his son’s discharge from the hospital, Mr. R

anticipated that his wife would leave with their terview with a friend of Mr. R, as well as sworn testimony, confirms Mr. R’s efforts to follow theson, resulting in Mr. R’s decision to remain home

from work to prevent this from occurring. On prescribed treatment plan. Mr. R’s emotional deterioration is docu-8/6/84, Betty did, in fact, leave him, taking their

son with her. Mr. R was quick to feel a sense of mented in my interview with Christine Canton. She described him as a person who was easilyabandonment, emptiness, and panic over this “de-

sertion.” In part, he felt that his life had ended hurt and offended. She clearly reported a mental deterioration consistent with a brief reactive psy-because of the loss of his son.

This began a noticeable, marked deterioration chosis. She described Mr. R as initially depressed, withdrawn, and “acting strange.” As his behaviorin Mr. R’s mental state. His sense of abandon-

ment and emptiness, as well as his sense of loss, deteriorated, his unkempt appearance reflected his decompensation. On four occasions prior toresulted in a large number of desperate calls to

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the murders of the Jamisons, he told her that he focused, frenzied acting out of his underlying would set himself on fire. She described him as sense of range and betrayal. A significant impair- “cracking up” and “acting looser.” His disturbed ment existed in both his judgment and in his im- behavior led her to recommend on at least three pulse controls, his actions representing a culmina- different occasions that he see a psychiatrist. tion of feeling directed at all those who have Prior to the crimes, Mr. R had told both Ms. abandoned him and betrayed him in the past. His

Canton, as well as his mother, of his thoughts of ability to reason, judge, and modify his behavior killing “five people.” According to his mother, her was overwhelmed by his underlying feelings, such son’s “mind was racing.” He had also indicated to that a significant impairment occurred in his abil- his mother his desire to steal the weapon of Spe- ity to control his conduct. Mr. R’s ability to focus cial Police Officer Wells. his thoughts and attentions on the nature of the On 9/18/84, Mr. R, in a disorganized, idiosyn- injuries he inflicted on his victims was severely

cratic, purposeless action, burned his son’s birth impaired. His emotional state was such that he certificate and other documents, including a was cognitively unaware of the severity of the check. He did so to “get rid of the memories.” He pain he was inflicting on the Jamisons. In addi- then called the Fire Department to report the tion, his loss of control of his inner rage was such fire. Shortly after this act, Mr. R and Keena ar- that his ability to control his actions was signifi- rived at the Jamisons’ apartment, and he commit- cantly impaired. Similarly, the alleged postdeath ted acts that resulted in the deaths of Walter and mutilation that occurred to the body of Maria Maria Jamison. Jamison reflects his brief reactive psychosis and is Based on my extensive interviews with Mr. R, a product of his mental disturbance. His actions

his responses to a comprehensive battery of psy- lacked focus and reflect an acting out of his emo- chological tests, my interviews of others who tions rather than of his thoughts and intentions. were familiar with Mr. R at the time of the crime, His mental state was such that it is reasonable to and my review of the documents cited in this re- conclude that Mr. R lacked the ability to recog- port, it is my opinion that on 9/19/84, Mr. R’s nize both the pain he was inflicting on her, as criminal actions were a product of his underlying well as to note the fact that she had died. emotional disturbance. His actions at the time re- flection a brief reactive psychosis in an individual Alan M. Goldstein, Ph.D., P.C. with a Borderline Personality Disorder. His ac- New York State Certified Psychologist tions are marked by a significant loss of control of Diplomate in Forensic Psychology – his impulses, resulting in a disorganized, poorly American Board of Professional Psychology

Teaching Point: What kinds of cases do you avoid accepting because they

would make it too difficult for you to remain impartial?

In this case, the crime was particularly brutal. Two people were killed, the means of death allegedly involved torture that took place over an extended period of time and the insertion of a baseball bat into the vagina of one of the victims. This alleged behavior was heinous. Yet I believed that I could conduct an objective assessment of the defendant, free from the effects of interference from the repulsive details of this capital crime. Why did I believe this?

When I was contacted by the first attorney in this case, the aggravating factor of torture and depraved indifference to human life were claims of the

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prosecution and not “facts” established by the jury. Mr. R was entitled to the presumption that these aggravating factors did not exist. In addition, he (and all defendants) should have access to experienced experts who do not judge, but rather assess. My personal views on capital punishment, which fluctuate somewhat over time, are such that they would not interfere with my perform- ing an objective assessment in capital cases. If the U.S. Supreme Court finds execution for a capital crime constitutional, I believe that there are, indeed, individual cases that call for the death penalty. (I do have questions about the means by which capital cases are identified by prosecutors, the “luck of the draw” as to the experience and dedication of the attorneys in the case, the composition of the jury, and the availability of experienced experts in all fields.) Yet I have testified for the defense in at least one case in which I person- ally believed that the aggravating factors outweighed the mitigating factors (de- spite the jury’s view to the contrary following deliberations). I have also con- ducted assessments in which I could not find mitigating factors—a reality check on the evaluator’s impartiality over a number of cases.

Would I evaluate a defendant in a capital case for the prosecution or con- duct a competency to waive the penalty phase or competence to be executed assessment? Although I have not done so, I believe that I would participate in such assessments. Regardless of who retains the expert, the findings should be identical. It is my view that the defendant would have an honest chance at an impartial, objective opinion, independent of the side that retained my services. However, since I have not conducted such assessments to date, I cannot con- clude that if my testimony had been part of the information considered by the judge or jury that led to the execution of a defendant, I would continue to participate in such evaluations with emotional detachment.

Several years ago, within a period of 2 months, I conducted three indepen- dent sentencing evaluations of men accused of molesting young children. By the end of the third evaluation, I began to feel anger and disgust over what appeared to be their consistent attempts to rationalize their actions and blame their young victims (statements consistent with research on this topic). In light of my feelings about these crimes, I decided to take a “sabbatical” from cases involving sexual abuse of children. I believed that I could no longer remain emotionally detached from what was told to me by such defendants. I questioned my ability to conduct these evaluations in an unbiased manner. Only within the last year have I re- sumed evaluating defendants accused of such crimes, believing that the cumula- tive effects of these three cases having significantly diminished.

Experts should never conduct assessments when dual relationships exist. Any prior contact with the defendant, victim, or others related to the defen- dant or involved in the case should remove the expert for participating. By chance, I had learned that a friend’s child had been a student of a murdered fifth grade teacher. When the prosecutor contacted me to conduct an assess- ment of the defendant’s mental state at the time of the crime, I declined to do so. My awareness of how the victim’s death had effected the children in her

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class, and this child in particular, led me to conclude that my ability to remain objective had been contaminated.

I have turned down other cases for reasons other than issues related to objectivity. For example, in one case I was asked to evaluate a defendant ac- cused of terrorist activities. It was my belief that I had been chosen, in part, because I am Jewish and that perhaps a jury would be more likely to see me as credible should I offer testimony favorable to the defendant. In a sense, I felt the lawyer was using me for reasons unrelated to my expertise. In another case, it became apparent to me that my involvement, ostensibly to assess issues related to insanity, was requested in order to have me introduce evidence (in the form of data I had relied on) to the jury that they otherwise would not have heard. In another, although my opinion was only tangentially related to the proposed defense, it was the lawyer’s hope that I would present the defen- dant’s version of the crime to the jury without exposing the defendant to the cross-examination he would have faced had he testified.

Experts must be sensitive to a wide range of situations in which their im- partiality may likely be impaired or questioned. In addition, if the proposed testimony appear to be “off topic,” experts must question whether their involvement serves some motive other than to educate the trier-of-fact as to the forensic issues in the case.

Case 4

Principle: Obtain relevant historical information

This principle has been discussed in detail earlier in this chapter. Therefore, we will move directly to demonstrating how the present report illustrates the application of this principle. The current report provides a good example of what constitutes relevant historical information and how to obtain it in the context of a capital mitigation evaluation. The “Dates and Techniques of Eval- uation” and “Records Reviewed” sections of the report describe the sources of information used in this evaluation. Relevant historical information was col- lected from a variety of sources, including clinical interviews, collateral inter- views, and self-report. Historical information covering a variety of relevant do- mains, such as the social, medical, mental health, and family history of the individual being evaluated, is presented. Because this is a capital mitigation evaluation, it was also important to obtain detailed information about domains specifically related to statutorily defined mitigation factors.

The first section of the report identifies the mitigating factors in this juris- diction as follows: (1) formative events or experiences that adversely affected

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the defendant’s emotional welfare, moral development, socialization, judg- ment, impulse control, substance abuse vulnerability, and other developmental and/or psychological processes; (2) positive characteristics, relationships, and behaviors displayed by the defendant (in spite of these adverse experiences); and (3) effects of the defendant’s execution on his children (if any). Although information addressing these factors might be uncovered through a broader history, the nature of the legal decision in this case clearly underscores the importance of these specific historical components. Based on current risk-rele- vant literature, the first section identifies a broad range of risk and protective factors that bear on the issue of mitigation. With these factors identified, the clinician can then describe relevant historical information that specifically ad- dresses each factor.

For example, the first risk factor discussed is “multigenerational family sys- tem dysfunction and corruptive influence.” In this section, there is extensive historical information, derived from a number of sources, that directly ad- dresses the dysfunctional environment in which the defendant was raised. A similar pattern is seen in the next section, “paternal corruptive influence and abandonment.” Because the issue involves family relationships, the clinician collected historical information from the defendant and from collateral inter- views with other family members. Later in the report, when the clinician ad- dressed “untreated Attention Deficit Hyperactivity Disorder,” the clinician used collateral interviews of former teachers to gather relevant historical infor- mation.

By integrating self-report with information obtained from collateral sources, the forensic clinician was able to provide historical information in the areas specifically relevant to the legal question. This approach to gathering historical information can be seen throughout the report, which consistently integrates information obtained from collateral sources with self-report. Fi- nally, using this approach allowed the clinician to address a relatively broad forensic issue in an organized and easily comprehensible manner.

CAPITAL SENTENCING EVALUATION 6-4-00 Clinical and forensic interview of JJ, 320 minutes

Re: People v. JJ 6-4-00 Interview of JA (ex-girlfriend, have Defendant: JJ a daughter together)

6-4-00 Interview of FJ (cousin)Defendant’s Date of Birth: 10-4-81 6-8-00 Interview of WJJ (older brother)Date of Report: 7-25-00 6-8-00 Interview of SN (maternal aunt by

marriage)DATES AND TECHNIQUES 6-8-00 Interview of WWOF EVALUATION 6-9-00 Interview of LJ (aunt by marriage) 6-9-00 Interview of DJ (mother)6-3-00 Clinical and forensic interview of JJ,

273 minutes 9-9-00 Interview of WA (father)

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154 • Forensic Mental Health Assessment

6-9-00 Interview of SW (younger half- ogy expert on capital sentencing determination is- sister) sues. At the outset of the evaluation, JJ was

6-9-00 Interview of JAJ (paternal cousin) advised that while retained as an agent of the de- 6-10-00 Interview of SA (older half-sister) fense, I remained an independent evaluator. Ac- 6-11-00 Interview of DW

cordingly, my findings might not prove favorable 6-11-00 Interview of WW (maternal aunt)

to him. He was further advised that any informa- 6-22-00 Interview of FJ (3rd grade teacher)

tion he provided to me, as well as my findings6-22-00 Interview of SAA (4th grade and conclusions regarding my review of recordsteacher) and interviews of third parties, would remain6-24-00 Interview of MW (neighbor) within the attorney-client privilege until my re-6-28-00 JA (Captain at County Jail)

6-28-00 GM (Correctional Officer at County port was released by the defense or I was called Jail) by the defense to testify. At that point, any infor-

6-28-00 WH (Correctional Officer at mation I had obtained from any source, as well as County Jail) any opinions or conclusions based on that infor-

6-28-00 SS (Correctional Officer at County mation, could be subject to release to the State Jail)

or testimony in open court. Defense counsel was 7-14-00 Interview of WA, Jr. (brother) in

present while these provisions were explained, U.S.P. Beaumont

and counsel advised JJ not to respond to any questions about the time period of the alleged

RECORDS REVIEWED capital offense or about any past unadjudicated offenses. JJ executed a release of information andCharity Hospital records of DJ dated 2-6-78 informed consent to evaluation based on thethrough 12-11-93 above provisions.Community Hospital records of DJ dated The following sections detail historical infor-7-30-91 through 12-4-92

mation regarding JJ’s life history, psychological Birth records regarding JJ

research references, and associated psychological Charity Hospital records regarding JJ conceptualizations relevant to capital mitigation. Social Service records regarding JJ Section 1 outlines aspects of JJ’s history, charac- School records regarding JJ ter, and background that may be important with

respect to mitigation. Each factor is accompaniedJuvenile detention records regarding JJ by a discussion of the mitigating implications ofState Death Penalty Statute the factor and, in many cases, associated research.

Discovery regarding pending capital charges Section 2 reviews the violence risk assessment (fu-including police reports, statements, autopsy ture dangerousness appraisal), which details essen-reports, and crime scene photographs tial violence risk-assessment methodology and

County Jail Rules and Regulations for In- data that should be presented to the jury to re-mates duce the likelihood of error in their determina-

County Sheriff’s Department Initial Classifi- tion.

cation Assessment of JJ of 12-18-99

Summary of Disciplinary Violations at SECTION 1: MITIGATING FACTORSCounty Jail

For purposes of this evaluation, mitigating factors CAPITAL OFFENSE are considered to be:

JJ and two co-defendants are charged with two • Formative events or experiences that ad- gang-related capital murders on 12-13-99. versely affected the defendant’s emotional

welfare, moral development, socialization, judgment, impulse control, substanceREFERRAL abuse vulnerability, and other develop-

I was contacted by defense counsel for JJ regard- mental and/or psychological processes; • Positive characteristics, relationships, anding my willingness to serve as a forensic psychol-

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Criminal Sentencing • 155

behaviors displayed by the defendant (in netic, neurological, and physical vulnerabili- ties, troubled interpersonal relationships,spite of these adverse experiences); and

• Effects of the defendant’s execution on his accidents of the environment); and • Protective factors (secure attachments in in-children (if any). fancy and early childhood, supportive rela-

The experience of being adversely shaped or tionships, awareness of childhood pain, sup- portive confidant).limited by forces not personally chosen, or chosen

as a minor, is critical to considerations of moral culpability—a concept at the heart of mitigation. The analysis of risk, vulnerabilities, and pro- To this end, it is important to differentiate miti- tective factors in the etiology of criminal violence gation (the primary psycholegal issue at the sen- is quite similar to explanations of who gets can- tencing phase) from criminal responsibility (a pri- cer—that is, carcinogen exposure, predisposing mary psycholegal issue at the guilt phase)—that factors, and protective factors. All of the children is, moral culpability (choices shaped by forces he growing up in a neighborhood built on top of a did not choose) vs. criminal responsibility (wrong- toxic waste dump do not get cancer; rather these ful awareness/absence of compulsion). In other children as a group experience a markedly in- words, the choices exercised by a defendant in an creased incidence of cancer as compared with alleged capital offense may have been shaped by children from more benign settings. Similarly, a the formative influences of multiple profoundly history of profoundly adverse developmental expe- adverse developmental experiences. riences does not invariably result in a criminally vi- Presented in the following sections are adverse olent outcome, only an increased likelihood of such

developmental factors identified through an in- an outcome. Everyone need not totally succumb to terview with JJ, interviews of family members the toxic exposure for it to be implicated. and other third parties, a review of records, and a Research sponsored by the U.S. Department review of relevant research. These sources and of Justice regarding the precursors of serious and types of data are reasonably relied on by clinical chronic delinquency, as well as youth violence, and forensic psychologists in coming to conclu- identified the following risk factors (odds ratios in sions on relevant issues in this area. parentheses) and protective factors: The necessity of separately delineating the

various adverse developmental factors and their Individual Factors impacts rests on two premises. First, it is unlikely that a lay population, such as a jury, would be

• Hyperactivity, concentration problems, aware of the individual and combined effects of restlessness, and risk taking (× 2–5) these adverse developmental factors. Unless in- • Aggressiveness (× .5–6) formed by broad and comprehensive expert testi- • Early initiation of violent behavior (× 6) mony about these factors, the jury lacks a sound • Involvement in other forms of antisocial basis for giving them weight as mitigators. Sec- behavior

• Beliefs and attitudes favorable to deviant orond, the risk of violent criminal outcome in- antisocial behavior.creases as the number of adverse life factors in-

creases. Thus, the cumulative saturation of risk factors can be critical to the outcome. Family Factors In addition to cumulative saturation, the re-

search literature identifies that outcome is a func- • Parental criminality (× 0–3.8) tion of the interaction of risk, vulnerabilities, and • Child maltreatment protective factors. Research describes the broad in- • Poor family management practices (× 2)

• Low levels of parental involvementteraction of risk and protective factors in terms of • Poor family bonding and family conflictthe following: • Residential mobility (±) • Parental attitudes favorable to substance• Trauma (sexual, physical, psychological, ne-

glect); abuse and violence (× 2) • Parent–child separation• Predisposing and contextual factors (ge-

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156 • Forensic Mental Health Assessment

School Factors of the protective factors that have been identified in this research. JJ experienced the following ad-

• Academic failure verse developmental experiences: • Low bonding to school • Truancy and dropping out of school 1. Multigenerational family system dysfunc- • Frequent school transitions tion and corruptive influence • High delinquency rate schools 2. Paternal corruptive influence and aban-

donment Peer-Related Factors 3. Maternal neglect, emotional abuse, and

corruptive influences 4. Home instability and frequent reloca-• Delinquent siblings tions• Delinquent peers

5. Inadequate supervision• Gang membership (× 3–4) 6. Sexual abuse 7. Family violence and physical abuse

Community and Neighborhood Factors 8. Observed community violence 9. Family victimization

• Poverty (× 2) 10. Gang socialization • Community disorganization (crime, drug 11. Untreated Attention Deficit Hyperactiv- selling, gangs, poor housing) ity Disorder

• Availability of drugs and firearms 12. Learning disability and academic failure • Neighborhood adults involved in crime 13. Neuropsychological deficits • Exposure to violence and racial prejudice 14. Predisposition to alcohol and drug abuse

15. Immaturity Situational Factors

MULTIGENERATIONAL FAMILYProtective Factors SYSTEM DYSFUNCTION AND CORRUPTIVE INFLUENCEIndividual Characteristics

Both of JJ’s parents were damaged themselves. • Female gender WA, father of JJ, was abandoned by his own • Intelligence

mother while he was in diapers. He subsequently • Positive social orientation

saw her three times during his childhood. WA’s• Resilient temperament father was irresponsible and unstable. He married at least six times. When the children were in his

Social Bonding to Positive Role Models care, he moved frequently, often leaving the chil- dren in the care of others. WA recalled being

• Family members placed in four different foster homes and the• Teachers County Home, as well as residing with three dif-• Coaches ferent aunts and his paternal grandparents for pe-• Youth leaders riods of time. WA noted that he went out on his• Friends own at age 12. He reported involvement in the criminal justice system from age 9. As a youth,Other Protective Factors he was affiliated with a street gang and was ar- rested for burglary and armed robbery. He was• Healthy beliefs and clear standards for be- confined to juvenile institutions four times, in-havior, including those that promote nonvi- cluding one lasting for 1 year. WA reported con-olence and abstinence from drugs. tinued fights, drug dealing, and other criminal ac-• Effective early interventions tivity across his adulthood. WA subsequently had 13 children by 5 or more women. He abandonedAs will be demonstrated in the discussion that

follows, JJ had many of the risk factors and none JJ and his siblings for years, despite knowledge of

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Criminal Sentencing • 157

the profound neglect by their mother and insta- heavily identified with gang activities. She first became pregnant at age 14, and she had threebility of their foster placements.

DJ, mother of JJ, is one of 12 children born to children by age 17. SA has been treated in drug rehabilitation and is currently in recovery.her parents. Her father was a physically and ver-

bally abusive alcoholic. DJ displayed marked psy- chological instability and behavior problems from

Implications Family history is critically impor- childhood. DJ repeatedly ran away. She was

tant to character and background. There are sev- placed in foster care at age 11, as her parents

eral reasons for this. Some personality character- could not control her. She spent much of her

istics, behavior patterns, and social vulnerabilities school years in various state schools and girls’

are genetically transmitted. Of specific relevance, homes. At age 16, she was found to be a delin-

there is evidence of genetic predisposition to anti- quent ward of the State. DJ began drinking alco-

social personality traits and substance depen- hol at age 17 or 18, and she subsequently main-

dence. tained a pattern of severe alcohol dependence

Other characteristics and behaviors are gener- across her adulthood. She lived a transient life-

ationally transmitted by family scripts. Family style and recurrently supported herself through

scripts are broad outlines of behavior and life se- prostitution. There is an extensive history of alco-

quence that are conveyed both verbally and, holism in her extended family system. DJ has had

more importantly, by example in the lives of par- six children by five different partners.

ents, grandparents, siblings, and extended family. JJ intermittently spent time during his child-

School dropout, early pregnancy, early marriage, hood living with his maternal grandparents. SA,

criminal activity, gang involvement, domestic JJ’s older sister, described their grandfather as

abuse, substance abuse, and many other maladap- “wild,” “crazy,” and frequently drunk.

tive behaviors may be extensively represented in Most of JJ’s uncles and cousins were gang

a family system from one generation to the next. members and involved in criminal activity. JAJ,

In JJ’s childhood, adverse family modeling in- JJ’s paternal cousin, stated: “Most of the males in

cluded gang involvement, criminal activity, gun our family are either dead or in prison. My father

possession, irresponsibility, rejection, anger, vio- is in prison, along with my cousins. . . . My uncle

lence, perverse sexuality, and substance abuse. was murdered on the street, along with one of my

Other maladaptive behaviors, including crimi- cousins.”

nal activity and violence, may be the result of se- WA Jr. noted that at least one of JJ’s uncles

quential emotional damage. In other words, indi- had been a high-ranking gang member until his

viduals who have been significantly emotionally death. One uncle was described as a having a

damaged in childhood come into adulthood with leadership position in the Vice-Lords. JJ reported

limited emotional resources and, as a result, may having been quite close to this uncle because they

not parent their own children humanely or effec- had spent much time together, and JJ perceived

tively. The children may be emotionally damaged him as looking out for him and helping him. The

themselves and thus at a greater risk for adverse uncle was reportedly shot to death when JJ was

adult outcomes, including substance dependence, 11 or 12. SN, part of JJ’s extended family net-

criminal activity, and violence. work, confirmed these events, stating that the un- cle had been abducted and executed by other young men who were supposed to be his friends.

PATERNAL CORRUPTIVE INFLUENCE His body was found in a car that had been set

AND ABANDONMENT afire behind a nearby housing project. All four of JJ’s brothers have had substance JJ is the product of a relationship between his fa-

ther, WA, and DJ, who never married but cohab-dependence problems, gang involvement, and criminal outcomes. Three of his brothers are cur- itated until JJ was approximately age 5. JJ is the

fourth of six children of his mother, but only herently in prison on charges ranging from drug dis- tribution to attempted murder. JJ’s older sister, and his older brother, WA Jr., share the same fa-

ther. LJ, JJ’s aunt by marriage, noted that WASA, does not have a criminal record but has been

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158 • Forensic Mental Health Assessment

occasionally attempted to deny that JJ and WA suicide, poor educational performance, teen preg- nancy, and criminality.Jr. were his children. She stated that “DJ would

have to find WA and argue with him to come see the boys.”

MATERNAL NEGLECT, WA and DJ were described by multiple family

EMOTIONAL ABUSE members as selling marijuana out of the house. JJ

AND CORRUPTIVE INFLUENCES was approximately age 5 when WA was arrested and subsequently imprisoned on drug charges. JJ JJ’s mother, DJ, was described as never working

and instead relying on prostitution, public assis-was described as having been quite disturbed by the incarceration of his father, and he reportedly tance, other family members, a series of men, or

her children for financial support. She lived withrefused to visit WA while he was incarcerated. WA subsequently moved to another state and did a series of alcohol- and drug-abusing men, includ-

ing JJ’s father. It is unclear whether she was abus-not maintain visitation or financial support of the children. LJ described WA’s departure as affect- ing alcohol or drugs during her pregnancy with JJ.

Family members noted that, at the very least, DJing JJ very negatively: “He never mentioned his father after he left, and seemed angry and was abusing drugs within months after JJ was born.

WA Jr. stated that there were times whenhurt—as if he had been abandoned.” public aid was cut off and they might go without food for 1 or 2 days. DJ was described by otherImplications of Paternal Corruptive Influences and

Abandonment Parental criminality and parental family members as being emotionally neglectful as well, extending little time or attention towardattitudes favorable to substance abuse and vio-

lence are significant risk factors in the develop- the children. DJ repeatedly left the children in the care of her parents or siblings for months at ament of serious youth delinquency and violence.

This makes intuitive sense. The value systems and time. DJ reported that much of this neglect was as-behavior patterns of children are strongly im-

pacted by the behaviors and attitudes of family sociated with being addicted to alcohol and co- caine until August 1997. There is some externalmembers, particularly older males and/or father

figures who represent role models to them. corroboration of her substance abuse problem. Notes from the Charity Hospital emergencyDevelopmental research literature identifies

father absence as a potentially substantial devel- room dated 9-18-91 described DJ as “heavily in- toxicated” on her presentation to the emergencyopmental hazard. Fatherless children are much

more likely to grow up in poverty. Fifty-seven room after being hit by a car while crossing the street. Even following the purported cessation ofpercent of African-American children living with

only mother are in poverty, compared with 15% substance abuse, DJ continued to display a tenu- ous emotional equilibrium, including attemptingliving with married parents. The low supervision

of adolescents frequently found in father-absent suicide on several occasions. The most recent sui- cide attempt occurred several days before the al-homes, though, was more often the cause of de-

linquency than poverty. Boys from father-absent leged capital offense, and it represented a sub- stantial source of instability and turmoil for JJ.homes are more likely to commit a school crime.

The likelihood that a young male will engage in criminal activity doubles if he is raised without a Implications of Maternal Neglect, Emotional Abuse,

and Corruptive Influences JJ’s childhood was char-father and triples if he lives in a neighborhood with a high concentration of single-parent fami- acterized by a chronically unstable attachment

to his mother. DJ repeatedly abandoned JJ, onlylies. Seventy percent of the juveniles in state re- form institutions grew up in single- or no-parent to return for varying intervals when she at-

tempted to reassert parental relationship. Thesesituations. Seventy-two percent of adolescent murderers grew up without fathers. In summary, physical abandonments were only a part of the

attachment instability of this mother–child rela-fatherless children are at a dramatically greater risk for drug and alcohol abuse, mental illness, tionship. DJ’s cocaine dependence almost cer-

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Criminal Sentencing • 159

tainly resulted in erratic and unpredictable behav- Implications of Residential Instability and Mobility Residential mobility is one of the delinquencyioral responses, as well as emotional detachment.

These markedly interfered with her capacity to risk factors identified by Department of Justice research. This is not surprising. Household insta-provide a maternal relationship when she was

present. DJ’s cohabitation with drug-abusing bility has a destabilizing impact on a child’s life. Because children require structure and stabilitymen added a further element of instability to par-

enting interactions with JJ. for healthy emotional and social development, residential instability and mobility may under-Psychological research unequivocally demon-

strates that normal child development depends mine this basic need. This is particularly salient in a family setting such as that of JJ’s childhood,on a stable relationship with a caring adult. A se-

cure attachment to a parental figure is crucial to which was chaotic and internally destabilized by substance abuse, neglect, and violence. Residen-healthy psychological development. Because chil-

dren are more vulnerable than adults to changes tial instability would also interfere with stable peer relationships and school stability, whichin their environment, relationship continuity and

structure are quite important. Traumatic disrup- could undermine the child’s attempts to establish islands of security in these arenas.tions in the parent-child relationship may cause

immediate emotional distress and bewilderment, as well as severe lasting psychological harm. Ad-

INADEQUATE PARENTAL verse impacts of disruptions in the emotional

SUPERVISION bonds of a child with a parent or other primary attachment figures include damage to identity, As described previously, JJ’s father was minimally

involved with him in early childhood and left al-lowered self-esteem, psychological disorders, in- tellectual and academic deficits, impaired capac- together when JJ was age 5. His mother was re-

peatedly absent and his care was abdicated toity to trust and care for others, and deficient iden- tification with social ideals. Any of these effects others. Across JJ’s childhood, his mother was al-

cohol- and substance-dependent. DJ was de-may lead to behavior problems. This nexus of disordered family and violent of- scribed as exhibiting an attitude that, by age 12,

the boys were grown and required no ongoingfending is not a matter of personal conjecture. Career investigators from the Behavioral Science support or supervision. SN, part of JJ’s extended

family network, stated: “When JJ was around 11Unit of the FBI have asserted that the quality of the attachment to parents and other members of or 12, DJ asked me to take JJ and let him live

with me. I told her that I was too busy with mythe family during childhood is central to how the child will relate to and value other members of own children. She told me, ‘JJ ain’t no child. He

is grown.’ ” DJ’s attempts at disciplining JJ weresociety as an adult. inconsistent and frequently abusive. She made no attempts to supervise or set limits on him while

INSTABILITY OF HOUSEHOLD AND he was an adolescent.

FREQUENT RELOCATIONS

As a result of DJ’s irresponsibility and chaotic Implications of Inadequate Parental Figure Supervi- sion and Structure Healthy child developmentlifestyle, the children endured frequent reloca-

tions of residence and living circumstance. These requires not only a stable and secure relationship with a parent, but also limit setting and guidancemoves were between JJ’s maternal grandparents,

maternal relatives, men DJ was involved with, through discipline. In the absence of either of these fundamental parenting factors, there is ahousing projects, and various apartments. JJ ex-

plained that they often moved because of prob- grave risk to psychological health and positive so- cialization. Quite simply, lack of parental disci-lems with the rent, the place “might not be right,”

or they were just staying with people for a few pline contributes to aggressiveness and predis- poses an individual to violence in the community.days or weeks. SN stated that “DJ was a drifter

and moved around a lot.” While JJ’s physical needs were attended to, he

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160 • Forensic Mental Health Assessment

otherwise raised himself as a child of the streets sult in continuing feelings of incompetence, depression, anxiety, and adult victimization orwithout guidance, supervision, or discipline. DW

was too ineffectual to exercise these functions, domination. The sexually abused child may expe- rience a significant sense of stigmatization as bad-and CJ was too drug-dependent to structure her

own life, much less JJ’s life. ness, shame, and guilt become incorporated into the child’s self-image. This may result in low self- esteem, anticipation of rejection, poor relation-

SEXUAL ABUSE ship choices, or promiscuity. Other sexual expo- sures during childhood that are psychologicallyWhile JJ denied being sexually abused, his sister,

SA, stated that both she and JJ had been sexually damaging include precocious exposure to adult sexual exchange, perverse family atmosphere,abused in each other’s presence by one of their

mother’s live-in boyfriends across a 6-month pe- perverse and/or promiscuous parental sexuality, inappropriately sexualized relationships, observedriod of time when JJ was approximately age 6.

WA Jr. independently confirmed that he had sexual abuse of another, and premature sexual- ization.been aware of this abuse, but felt helpless to pre-

vent it. JJ reported that when he was 8 years old, A history of childhood sexual victimization appears to be associated with equal levels of latera 16-year-old female cousin exposed herself to

him and engaged him in mutual fondling on a psychological dysfunction in both male and fe- male clinical subjects. These psychological dys-number of occasions over a 3-month period. He

reported that this sexual contact progressed to functions include dissociation, anxiety, depres- sion, anger, sleep disturbance, and post-sexualmutual oral-genital stimulation and simulated in-

tercourse. JJ also reported that his mother was abuse trauma. Interestingly, males displayed as much psychological disturbance as females, thoughindiscrete in her sexual liaisons with men, so that

he was disturbed by the noises of her sexual en- reporting less extensive and less extended abuse. This suggests one of two hypotheses: (1) there iscounters in the next room. JJ stated that his older

brothers kept sexually explicit videos in the an equivalent impact of sexual abuse for males or females regardless of any differences in its sever-home, which he surreptitiously watched with

neighborhood peers. Other family members veri- ity or duration between the sexes, or (2) sexual abuse is more traumatic for males since lowerfied the presence of these sexually explicit videos.

JJ reported that when he was selling drugs at age male abuse levels were associated with symptoms that were equal to that of more severely abused12 and 13, women who were over age 30 would

interact sexually with him in exchange for drugs. females. A number of factors may negatively affect theEven though these experiences had a seemingly

consensual quality, they were not developmen- recovery of males from sexual abuse, including reluctance to seek treatment, minimizing the ex-tally benign. perience of victimization, difficulty accepting shame and guilt, exaggerated efforts to reassertImplications and Relevant Research Regarding Sex-

ual Abuse Research has identified four broad masculinity, difficulties with male intimacy, confusion about sexual identity, power/controltraumatic impacts of being sexually abused as a

child. Traumatic sexualization may occur as the behavior patterns, externalization of feelings, vul- nerability to compulsive behaviors, greater diffi-child’s sexuality is inappropriately shaped by the

abuse experience. Being sexually abused repre- culty in adjusting to stress, and difficulty in ex- pressing and communicating affect.sents a profound betrayal, because the perpetra-

tor is often someone the child was dependent on. Sexual abuse creates unique disclosure prob- lems for male victims. In other words, males tendThis may subsequently be associated with rela-

tionship distrust, feeling unlovable, interpersonal not to disclose their complaint about the sex- ual abuse experiences as readily as females. Boysdependency, and retaliatory aggression. The child

experiences a profound sense of powerlessness in are sexualized with a male ethic of self-reliance, which inhibits disclosure of the victimization.the face of sexual abuse, because his will and

sense of control are overwhelmed. This may re- Disclosing same-sex abuse to peers or parents

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Criminal Sentencing • 161

might threaten a boy’s developing masculinity or notable that JJ experienced extensive parental ne- glect in addition to the abuse he experienced.pose a risk of being labeled a homosexual. Addi-

tionally, disclosure may result in a loss or curtail- Abused children may show a variety of initial and long-term psychological, emotional, physical, andment of the boy’s greater independence and

freedom. cognitive effects, including low self-esteem, de- pression, anger, exaggerated fears, suicidal feel-Initial effects on males following sexual abuse

usually involve behavioral disturbances, including ings, poor concentration, eating disorders, ex- cessive compliance, regressive behavior, healthaggression, delinquency, and non-compliance.

Other problematic initial effects may include problems, withdrawal, poor peer relations, acting out, anxiety disorders, sleep disturbance, lack ofemotional distress; displays of guilt, shame, and

negative self-concept; psychosomatic symptoms; trust, secretive behavior, excessively rebellious behavior, and drug or alcohol problems. In addi-confusion regarding sexual identify and sexual

preference; problematic sexual behaviors; and tion, research suggests the following broad con- clusions:vulnerability to juvenile sexual offenses. Long-

term effects of sexual abuse include increased risk 1. Child abuse and neglect can seriously af-for depression, somatic disturbance, and self-es- fect a person’s physical and intellectual de-teem deficits; difficulty maintaining intimate rela- velopment and can lead to difficulty intionships; problems with sexual adjustment; alco- self-control.

hol and substance abuse; and sexual offending. 2. Abused and untreated children are more likely than non-abused children to be ar- rested for delinquency, adult criminal be-FAMILY VIOLENCE AND havior, and violent criminal behavior.PHYSICAL ABUSE

3. When abused children are not given appro- As discussed previously, JJ’s maternal grandfather priate treatment for the effects of the

abuse, the lifetime cost to society for anwas prone to outbursts of physical abuse when abused child is very high.drinking. WA, JJ’s father, was described as being

4. Children who are exposed to parental vio-prone to fits of rage. JJ’s clearest recollection of lence, even if they are not targets of thisdomestic violence involved his mother’s boy- violence, have reactions similar to those offriend/common-law husband who resided with children exposed to other forms of child

them for a period of time. JJ reported that WA maltreatment.

and DJ fought frequently. JJ also reported seeing his mother with black eyes, and he stated that

OBSERVED COMMUNITY VIOLENCEWA “messed up one of her legs real bad jumping on her.”

The inner-city neighborhood where JJ grew up DJ was abusive in her discipline of the chil-

was characterized by drug dealing, gang activity, dren. WA Jr. stated that his “[m]other would

and extensive violence. JJ and his family de- whip us with an extension cord that had knots

scribed hearing gunfire occurring in the surround- tied into it. You would be beaten if you messed

ing community almost nightly. JJ reported that in up—this could be as often as every day or not

his neighborhood, many of his peers carried so often—it depended on how often you ‘messed

handguns. He noted that when they played bas- up.’ ” JJ reported that his mother disciplined

ketball, several of the youths would lay their guns them with a belt or an extension cord when they

down beside the basketball court. At other times, were younger but that after age 11 or 12, his

he would observe handguns in waistbands. LJ, mother would discipline them by hitting them

widow of JJ’s uncle, described the southside area with her fist in the chest or arm.

where JJ grew up as follows:

Implications and Relevant Research Regarding This community has nothing to offer. It is a Abuse in Childhood JJ’s history included routine dangerous place to live. People in the neigh- physical abuse at the hands of his mother and pe- borhood shoot at each other, and you cannot

sit on the porch at night because there is al-riodic abuse from his maternal grandfather. It is

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162 • Forensic Mental Health Assessment

ways something going on. I was terrified to ects when he was approximately age 7. He de- walk around the neighborhood and would scribed playing in a playground area characterized never walk to DJ’s house after dark because by benches and a little grass. He stated that one she lived near the underpass, which was con- man got into an argument with a second man sidered an especially dangerous area. The

who was sitting on a bench. The man left, but neighborhood was violent at the time JJ was

soon returned and began shooting at the second growing up. I never liked going over into that

man at close range. JJ reported that the victimarea because someone was always getting tried to run and fell over the bench. JJ stated thatshot. he observed this scene from approximately 15 feet away. He recalled the victim bleeding and hisSN stated own sense of shock.

I usually had no qualms about riding the bus The second shooting JJ observed in childhood to get around the city, but I refused to ride occurred when a fight broke out while a group the bus to the southside projects because it of older boys were playing ball. He described the just was not safe . . . the projects were a very

assailant as shooting the victim, who reportedly dangerous place, and there was a murder

kept running and trying to get away. At age 9, hethere almost every day when JJ and his fam- observed his cousin being pistol whipped after JJily lived there . . . JJ liked coming to my had been ordered off the building steps by a men-house because I lived in a safer community, tally disturbed neighbor and his cousin attemptedand he could play outside and just act like a to intervene.child and not have to worry about the danger-

ous elements that infested the Roosevelt JJ reported that when he was 11 years old, he Project. looked out the window to observe someone on

the porch below being shot repeatedly while beg- JAJ, JJ’s first cousin, stated: “I know the southside ging the assailant to stop. At age 12 he heard gun- was a dangerous place. It was too dangerous for shots in the hallway and found two bodies on top me to walk alone in certain areas, especially near of each other. At age 13 he observed a young the underpass. As children we learned that we man get beat with bats and then shot in the stom- had to be extremely cautious or we could get ach with a .22. The young man lay bleeding hurt. We were taught at school to never walk against the side of a building until an ambulance alone.” arrived. Regarding the southside housing projects, WA Jr. stated that at age 15, he and JJ were

WW reported talking to an acquaintance when an ex-boyfriend assaulted her, chased her down, and shot her six

JJ’s family lived in the southside projects for times. JJ subsequently held her as she lay dying,several years. Their apartment was in a tall, while WA Jr. called for an ambulance. When JJovercrowded building about 14 stories high. was age 16, a longstanding adult friend of hisEach floor had a long ramp area that looked mother’s was shot outside an adjacent building.like a cage, because there was a railing and a

high fence to keep residents from falling over JJ stated that he observed her lying in a pool of the edge. The elevators did not work at least blood from 15–20 feet away. half of the time, and JJ’s family lived on the JJ reported other instances of seeing females 12th floor. This meant not only hiking up 12 fighting with each other and, on several occa- flights of stairs, this also meant entering a dan- sions, seeing one stab the other. He described an ger zone every time you went to and from

instance of observing one girl bite a piece of an- the home. You had to be on guard because

other girl’s ear off in a fight. He stated that he the stairwells and elevators could be danger-

observed men fighting and one hitting anotherous. People were robbed, raped, and beaten with a baseball bat.in these common areas. JJ described that women were routinely raped

in the elevators or stairwells of various buildingsJJ reported that one of his early recollections of observed community violence was not long making up the Roosevelt projects. He described

hearing reports of rapes at a frequency of aboutafter they moved to the southside housing proj-

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Criminal Sentencing • 163

twice weekly. JJ and his older sister described an whole. More than half the murders and aggra- vated assaults in the entire city took place in ainstance of a woman being raped outside of their

apartment door. They did not go to her aid be- few high crime “war zones.” The experiences of American children growing up in these highcause they feared what would happen to them if

they opened the door. crime housing projects has been compared by re- searchers with those of children growing up inJJ reported that on approximately 10 occa-

sions, he heard shots in the courtyard and found the war zones of Mozambique, Cambodia, and the Middle East.a crowd gathered around a body. He had been

acquainted with some of the victims. JJ reported Grief and loss reactions in response to chronic violence exposure may be particularly problem-that following a shooting, the coroner’s office

would pick “stuff off the ground that looked like atic, and the violent death of a parent or other significant caretaker is most devastating. As pre-macaroni [brains] and putting it in a sack.”

Further, both JJ and his family described a viously discussed, when JJ was approximately age 11, his uncle, who he had looked up to as a fathernumber of his peers who had been well known to

the family who became casualties of gun-related figure, was murdered by gunshot. Research sug- gests that the accompanying grief of children mayviolence.

Statistical data provide additional support for not be resolved and may be complicated by rage and retaliation. Sustained disruption in their ex-JJ’s childhood experience of traumatic violence

exposure. For example, of 22-25 local municipal perience of trust, predictability, safety, and com- petence may occur. In addition, children who ex-districts, from 1987 to 1994, JJ’s neighborhood

ranked 8th–12th in population, but 2nd–5th in perience or witness life-threatening situations may develop serious difficulties in concentrationviolent criminal offenses. In 1994, when the

southside area ranked 12th among the districts in and performance in school. Moreover, exposure to chronic violence dur-population, it was 2nd in number of reported

rapes. The direct contrast with other neighbor- ing childhood negatively impacts on moral de- velopment. Associated stunting of moral devel-hoods in the city is perhaps more illustrative. In

1994, when JJ’s neighborhood suffered 40 homi- opment may include inadequate self-control, reduced regard for self or others, perceptions ofcides per 100,000 population, Highland Park ex-

perienced .5 homicides per 100,000 popula- others as hostile, deficient moral reasoning, atti- tudes that view aggression as normal and ap-tion—an 80-fold difference in their respective

murder rates. propriate, development of a distorted view of maleness, and reduced sense of community iden-JJ’s mother and older sister, SA, described him

as initially disturbed by the violence he observed. tification. Chronic exposure to violence may re- sult in an unhealthy adaptation to this violence.They reported that he exhibited nervousness and

restlessness, intrusive memories of and preoccu- In addition, chronic exposure to violence may re- sult in an increased risk to defend against the anx-pation with the shootings, feelings of personal

vulnerability that this “could happen to me,” iety of this experience by employing “identifica- tion with the aggressor” as a psychological survivalsleep disturbance, and trouble concentrating. In

time, however, they noted that he seemed hard- mechanism. Simply stated, the frightened child feels safer when he imitates and identifies himselfened to this experience and even seemed to delib-

erately place himself in danger. with those who created the danger. JJ’s offenses of incarceration are reenactments of the violence he observed, which often occurred to membersImplications and Relevant Research Regarding

Chronic Violence Exposure During Childhood Re- of his family. Finally, witnessing recurrent vio- lence may result in Posttraumatic Stress Disordersearch has been conducted on inner-city high-

density public housing project zones similar to (PTSD), emotional distress and behavioral prob- lems, increased fighting, weapons carrying, gangthe one JJ grew up in. For example, during the

1980s, Chicago’s largest public housing project— involvement, school failure, school suspension, and substance abuse. Again, a number of theseRobert Taylor Homes—had a rate of murder and

aggravated assault 20 times that of the city as a are evident in JJ’s behavior pattern.

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164 • Forensic Mental Health Assessment

FAMILY VICTIMIZATION about the future that could have a profound in- fluence on current and future behavior. In addi-

JJ’s cousin was shot and killed by a gang in the tion, experiencing severe stress in childhood is as-

neighborhood. WA Jr. stated: “The guys who sociated with the later development of PTSD.

shot him also shot up the family cars and house. Factors that appear to guard against PTSD and

Shootings also took place in and around our shorten its course include a rapid engagement of

grandparents house on 46th and Greely. Gang the victim in treatment with the active sharing of

members would come by and shoot up the house. emotions, early and ongoing social support, rees-

I really did not feel safe anywhere, because there tablishment of a sense of community and safety,

was always somebody shooting.” involvement in a therapeutic setting with others

JJ reported other instances of family victimiza- who have been equally traumatized, avoidance of

tion. His older sister, SA, was robbed and car- retraumatization, and avoidance of activities that

jacked at gunpoint, and his mother was struck in prevent or interrupt treatment. JJ received none

the head with a 2 × 4 in a purse snatching, while of these ameliorating experiences.

standing at a phone booth on the next block. JJ also reported experiences of being person-

ally victimized. For example, he stated that he GANG SOCIALIZATION was beaten and robbed of his jacket at age 15 by

JJ reported being involved in a gang throughout a group of 10 teenage males only two blocks from

his entire life. He also reported that most of his his house. JJ recalled multiple incidents of being

family—brothers, cousins, uncles—were involved present with a group of peers when a car would

in a gang. Gang membership and/or affiliation drive by and someone inside would open fire. He

was pervasive in JJ’s extended family. Early in his described observing sparks as the bullets rico-

childhood, before being formally initiated into cheted off the pavement. At age 14, the ex-boy-

the gang, JJ described receiving some protection friend of a girl that he was seeing pointed a hand-

from gang members who would not let older kids gun at him in a threatening fashion. On two

meddle with him. This protective action, com- occasions, he experienced superficial gunshot

bined with his hunger for older male role models, wounds, one creasing his shoulder and another

significantly increased his identification with the hitting his calf.

gang. JAJ stated that “Gangs were a part of every- day life in the Englewood community. The younger kids looked up to the older gang mem-Relevant Research Regarding the Effects of Child-

hood Psychological Trauma JJ’s life history is bers as role models.” JJ described looking up to his uncles, characterizing them as “strong” and re-characterized by traumatic experiences from

multiple sectors of his life. These include precipi- specting them because they “took care of them- selves and their family.” He described beginningtous paternal abandonment, maternal abuse and

neglect, observed domestic violence, physical to throw up gang signs at age 8 or 9. JJ stated that if any member of the family were in a fight andabuse, sexual abuse, observed community vio-

lence, and family and personal victimization. he was out there, then he was involved and thus indirectly associated with the gang. JJ describedThese traumatic experiences can be expected to

have long-term effects. Traumatic stress in child- being “jumped” in the Vice-Lords at age 13. Prac- tical survival seemed to be an element in JJ’s earlyhood is widely described in the literature as being

central to the development of a spectrum of sub- gang affiliation, as well. SN stated that “Gangs are prevalent in the southside area. If you are not insequent psychological disorders. In addition, trau-

matic childhood experiences can skew expecta- a gang, you are harassed by the gang members. You cannot live safely in this neighborhood un-tions about the world, the safety and insecurity

of interpersonal life, and the child’s sense of per- less you are in a gang.” With JJ’s gang affiliation came drug traffick-sonal integrity. These altered expectancies in turn

alter the child’s inner plans of the world, shape ing. He stated that he started selling drugs at age 12 or 13 for an older gang member. He reportedconcepts of self and others, and lead to forecasts

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Criminal Sentencing • 165

that as this trafficking developed and grew, his reciprocal obligation was incurred to the gang and its members. Specifically, he stated that wheneconomic capability, self-respect, and social

standing all increased. He explained that in “you’re in a gang, if another guy gets jumped on, you are obligated to assist them or you are at riskschool, the teachers already had an attitude to-

ward him because his family name was known from the gang.” He described this obligation as being enforced whether on the street or incarcer-and “labeled.” Additionally, he reported that he

did not have the “right clothes” to wear to school ated. JJ’s alleged capital offense quite obviously involved a gang-motivated response to perceivedand felt humiliated at having to go to school to

eat breakfast. He described the household insta- aggressive act by another gang. bility and chaotic violence-filled neighborhood as making it difficult to focus on school. He re-

UNTREATED ATTENTION DEFICIT ported that he did not have the feeling of “being

HYPERACTIVITY DISORDER (ADHD) somebody” at school. JJ indicated that when he began selling drugs he felt like he was somebody. ADHD is characterized by a triad of symptoms:

excessive motor activity, inattention, and impul-He stated that he could then help his mother. He no longer had to worry about what they were go- sivity. The disorder is thought to be the result of

insufficient activity of inhibitory or “braking” neu-ing to eat the next day. He could buy clothes for his siblings. He could take his auntie shopping. rons in the brain. JJ was described as exhibiting a

high degree of motor activity and physical rest-He could take care of his cousins. He could buy food and distribute it to other gang members or lessness as a child. He was noted to be extremely

fidgety and constantly on the go throughout hiskids in the neighborhood whose mothers were on drugs. Women became interested in him because childhood. Between the ages of 5 and 7, he was

unable to sit still for more than 5 minutes, evenhe had a car, clothes, and money. JJ reported that most of the males from his when watching television. School records indi-

cate that he was constantly out of his seat. Heneighborhood were in the Vice-Lords and that most of these young men are “locked up or dead.” could rarely be persuaded to sit through supper.

Consistent with the excessive motor activity thatHe reported that he now perceives that higher gang members use the younger ones. He ex- is characteristic of ADHD, he had much diffi-

culty in falling asleep at night. Distractibility wasplained that the younger ones take the risk and sell the drugs, while the higher ups “sit back” and evident at both home and school. At home he

quickly lost interest in toys. At school he was de-“have a life for their family.” When questioned about why he didn’t leave the gang, or perma- scribed as highly distracted by other students and

extraneous noises. JJ was further described asnently run and begin another life somewhere else, he responded with a surprising degree of insight. having difficulty completing assignments unless

given one-on-one support. Some indication ofHe stated: “Where are you going to run to? You never been anywhere. You are uneducated. It was impulsiveness was evident in minor behavior

problems in elementary school. Impulsivity wasnot until I came to jail that I started reading books. You don’t know how to survive out there. certainly evident in early adolescent misconduct

at school and in the community. There were sus-You don’t have any skills to get a job. You’re not allowed to leave if you’re high enough to know picions that he suffered from ADHD (interview

of FJ, third grade teacher; interview of SAA,things. If you’re too young you know nothing else.” fourth grade teacher). Despite these suspicions

and strong evidence of ADHD, JJ was not for- mally assessed or treated for this disorder.Implications of Gang Socialization JJ also re-

ported that the gang provides a sense of collective security. He described gang members assisting Implications of Untreated ADHD Untreated,

ADHD is a broad risk factor for disturbed peereach other with food, clothing, and financial sup- port, as well as providing a collective response to relationships, academic failure, juvenile delin-

quency, alcohol and drug abuse, and adult crimi-external aggression. He stated, however, that a

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166 • Forensic Mental Health Assessment

nal activity. JJ received neither counseling nor cess to these services was compromised by re- peated school transfers secondary to residentialmedication for his symptoms. By early adolescence,

JJ was failing in school, experiencing repeated moves. School records indicate that JJ received special education programming for reading andschool suspensions for misconduct, abusing sub-

stances, making negative peer identifications, and math in fifth grade. In sixth grade, JJ was in a special class for students who were overage, slowbeginning to engage in illegal activity. All of these

were precursors of the capital offense, which it- learners, or were repeating a grade. Later testing in 1993, during seventh grade, revealed broad ac-self appears to have been quite impulsive and

poorly conceived in planning, execution, and af- ademic deficits reflected by the following grade level scores: Vocabulary 4.3, Reading Compre-termath. Testimony at the sentencing phase iden-

tifying this disorder and describing JJ’s symptoms hension 3.5, Spelling 3.2, Capitalization 3.8, and Punctuation 3.1 (described in P.S. 113 records).across childhood and adolescence, had obvious

mitigating significance—particularly as an addi- That same year, JJ failed the reading and writing portions of the Literacy Passport Test. JJ’s sev-tional bridge tying school misconduct and failure,

drug abuse, delinquency, and other impulsive enth grade teacher at P.S. 113 reported that JJ’s academic difficulties were not the result of lackacts to the capital offense. Quite commonly,

there is the comorbid presence of a behavior dis- of effort. She noted that in spite of his difficulties, JJ tried very hard and was pleased when he wasorder, such as Oppositional Defiant Disorder or

Conduct Disorder. Academic difficulties are also able to accomplish something. This is consistent with most evaluations of JJ’s conduct across hiscommon among children with ADHD. Finally,

ADHD teens are at an increased risk for behav- elementary years, as reflected in the limited re- trievable educational records. JJ’s behavior deteri-ioral problems in school.

When hyperactivity is combined with Con- orated as the academic demands of his curricu- lum increased. The response of the school systemduct Disorder, the risk for substance abuse in-

creases substantially. Adults with a history of involved limited special education instruction in elementary school and limited special educationADHD are more likely to develop conduct disor-

ders, alcoholism, and sociopathy. Relatives of in- services in seventh grade. Thereafter no remedial services were offered, and the focus was on JJ’sdividuals with ADHD are more likely to suffer

ADHD, antisocial behaviors, and mood disorders. truancy and school misconduct—principally through suspensions.Individuals with a history of childhood hyperac-

tivity are 7 times more likely to suffer from an antisocial personality disorder or drug abuse Implications of Learning Disability and Academic

Failure The chronic frustration and failure asso-problem. Childhood hyperactivity has a signifi- cant relationship with alcohol problems and vio- ciated with learning disabilities result in these

deficits being a strong risk factor for disruptivelent offending. The combination of ADHD and Conduct Disorder was a strong risk factor for school behavior and eventual dropout. It is not

terribly surprising that with academic capabilitiesadult criminality. A childhood history of ADHD and/or conduct disorder is commonly observed three grades or more below grade placement, JJ

lost motivation, became truant and disruptive inamong male prison inmates. his school behavior, and subsequently dropped out. This sequence also propelled him toward

LEARNING DISABILITY AND identification with marginal peers as he was out

ACADEMIC FAILURE of the structure of a school setting and on the streets. While the school system was obviously at-JJ exhibited marked deficiency in academic prog-

ress and achievement prior to the onset of tru- tempting to maintain order through the suspen- sions of JJ, they responded to a minor who didancy and behavioral difficulties. Both his third

and fourth grade teachers reported that JJ had not have the skills to structure himself by remov- ing him from the only real structure of his life—been identified as learning disabled. They noted,

however, that only very limited special education school. The structure of the streets filled the vacuum.services were available in the school system. Ac-

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Criminal Sentencing • 167

NEUROPSYCHOLOGICAL DEFICITS EEG testing and neurological evaluation are pending.

JJ experienced a number of neurologically sig- nificant events. At 11 months he was treated for Implications and Relevant Research Regarding Neu-

ropsychological Deficits and Aggression The pres-a fever of 105.4 degrees. There was ongoing con- sideration across JJ’s early adolescence regarding ence of brain dysfunction is a risk factor for mul-

tiple adverse outcomes that may increase thewhether he suffered from a psychomotor seizure disorder. EEG testing on 2-18-93 indicated the likelihood of criminal conduct or violent offense.

These adverse effects include academic frustra-following: “Mildly abnormal awake record with excessive posterior slowing, slightly more on the tion and failure, impulsivity, judgment deficits,

emotional dyscontrol, and behavioral distur-right. No clear focal abnormalities or epileptiform activity seen.” A repeat EEG that was sleep de- bance. There is a growing body of psychologi-

cal, psychiatric, and neurological literature thatprived on 3-10-93 described an impression of “[m]oderately abnormal record with possible left reports that brain damage is present in dispro-

portionately high amounts among violent of-mesial temporal spike activity.” For a period of time, JJ was treated with phenobarbital and/or fenders. Dilantin, but this was administered inconsistently by his mother. Multiple head injuries are also re-

PREDISPOSITION TO ALCOHOL flected in JJ’s medical records. Seizure activity in

AND DRUG ABUSE JJ was additionally described by his sister, SA, who reported that his body would seize up and Alcohol and substance abuse were reported to be

rampant in JJ’s extended family. Family membersget rigid. JJ would spit or drool and get a thick foamy mucus at his mouth. He would drop to the who were alcohol or substance dependent in-

cluded his father, mother, brother, paternal un-ground, if not in bed, and would bite his lip. DJ also reported that JJ would get blinding head- cles, and maternal grandfather. Additionally, there

was extensive modeling of substance abuse inaches accompanied by nausea. Additionally, JJ was described as exhibiting front of JJ by family members, community mem-

bers, and peers. JAJ, first cousin of JJ, stated thatperiodic outbursts of rage, which were out of pro- portion to the provoking stimulus. While it is “JJ grew up watching many of our relatives abuse

drugs and alcohol, including JJ’s mother.” JJ re-conceivable that these emotional outbursts may have been in response to the chaotic family and ported that he began to abuse alcohol at age 13,

with rapid escalation to getting drunk two nightslife context that JJ experienced, these responses may also have reflected central nervous system each weekend. By age 15, he was drinking regu-

larly through the week, as well as heavy con-dysfunction. Neuropsychological consultation, including sumption on weekends. He described alcohol-

related blackouts and increased tolerance. Hemedical records review and evaluation, was per- formed in February 2000. The report stated that stated that he began to use marijuana at age 12,

smoking one joint twice weekly. Between theJJ exhibited multiple risk factors for organic im- pairment, including possible prenatal exposure to ages of 14 and 18, his marijuana use escalated to

smoking heavily on a daily basis.alcohol and drugs, spiked fevers in excess of 105 degrees at a young age, abnormal EEG findings on occasion, seizures and treatment with anticon- Implications Primary risk factors for alcohol and/

or drug dependence include genetic predisposi-vulsants, alcohol and drug abuse, and repeated head injuries with loss of consciousness. On neu- tion, modeling of substance abuse, and develop-

mental trauma. All of these risk factors are pres-ropsychological testing, JJ demonstrated mild deficits with respect to attention, naming, and ex- ent in JJ’s history.

First, JJ’s inheritance of a predisposition forecutive functions/reasoning. The evaluator con- cluded that these impairments likely reflected the substance dependence is consistent with research.

Second, alcohol and drug dependence were mod-effect of cumulative head injury and that his findings were suggestive of organic impairment. eled by other family members, gang associates,

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168 • Forensic Mental Health Assessment

and peers. Finally, the third risk factor for sub- Implications of Immaturity Brain development of the frontal lobes continues to age 25. Executivestance dependence of developmental trauma is

evidenced by JJ’s history of multiple traumatic functions associated with frontal lobe functioning include insight, judgment, impulse control, frus-stressors. Among individuals with histories of

developmental trauma, substance abuse can be tration tolerance, and recognition of conse- quences. Significant age-related growth in theseconceptualized as an attempt at analgesic self-

medication of the associated anxiety spectrum capabilities, conventionally referred to as “matur- ing” or “growing up,” occurs between the ages ofsymptoms.

In addition to these risk factors for alcohol and 18 and 25 in all individuals. All 18-year-olds are thus “immature” in brain development and psy-substance abuse, JJ’s ADHD was another risk fac-

tor for substance dependence, because research chological functioning. There is reason to believe that JJ was some-points to an increased incidence of substance de-

pendence among adolescents and young adults what more immature at age 18 than most other 18-year-olds. Symptoms of ADHD suggest addi-with ADHD. There is also evidence in the school

records and teacher interviews that JJ suffered tional mild nervous system immaturity or defi- ciency in attention and impulse control processes.from learning disabilities. Academic frustration

and failure contribute to early school dropout and His intellectual capability as measured in 1989 was Low Average at best—Full-Scale IQ = 83,negative peer affiliations, which are additional risk

factors for substance abuse in adolescence. The ab- which indicates that 87% of same age peers had greater intellectual capability. When the errorsence of effective parental supervision or limit set-

ting across adolescence was a further risk factor for range of the WAIS-R is considered (Standard Er- ror of Measurement, 95% confidence level = ±6),substance dependence. With all three primary

substance abuse risk factors present, as well as his true IQ score could fall into the Borderline range of intellectual functioning, or as low as theADHD, learning disabilities, and inadequate su-

pervision, JJ was at markedly increased risk to initi- sixth percentile. As the limit-setting, discipline, guidance, and modeling functions of parentingate a pattern of alcohol and substance dependence

in early adolescence. Substance dependence in ad- are integrally related to the development of moral reasoning, social judgment, and impulse control,olescence significantly disrupts and blocks the de-

velopmental tasks of this stage, including growth the marked neglect of JJ’s mother could be ex- pected to result in general immaturity in social-in maturity and coping capabilities, adaptive so-

cialization, and responsible achievement. ization. As described above, adolescent drug de- pendence also acts as a strong impediment toOf critical importance, substance dependence

and intoxication are risk factors for violence in psychological and social maturity. All of these factors point to JJ at age 18 as being less maturethe community and thus have a direct nexus to

JJ’s alleged involvement in the capital offense of than his age mates. In addition, there is a clear association be-conviction, as he is described as having consumed

over 17 beers in the 2 hours prior to the offense. tween youthfulness and violence risk. The associ- ation of youthfulness with violence risk likely im-A number of research studies identify a frequent

intersection of alcohol/substance abuse and crim- plicates immaturity, impulsivity, poor judgment, peer and gang susceptibility, poorly establishedinal violence. JJ was thus affected by redundant

substance-dependence risk factors in early adoles- male identity, and other developmental vulnera- bilities of adolescence. JJ’s age, when combinedcence that subsequently disrupted a healthy de-

velopmental trajectory and markedly increased with his multiple risk vulnerabilities, was an obvi- ous factor in his criminal aggression.his risk of criminal violence, including the alleged

capital offense.

CONCLUSION IMMATURITY

JJ’s experience was part of a family system that normalized gang activity, drug trafficking, gunIt is significant to note in mitigation that JJ was

only 18 when arrested on the capital case. carrying, and violent aggression, encouraged aber-

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Criminal Sentencing • 169

rant social attitudes, propelled him toward crimi- leged capital offense. As described above, these developmentally adverse experiences include:nal activity and gang involvement, created a

harsh, hostile, violent view of the world, and 1. Multigenerational family system dysfunc-placed him at gravely higher risk to perpetrate or tion and corruptive influencebecome a victim of violent homicide. The sur-

2. Paternal corruptive influence and aban-rounding marginal community had an additional donment

corruptive influence and also worked to instill 3. Maternal neglect, emotional abuse, and

gang activity and violence as a way of life. His corruptive influences experience of rejection and parental neglect 4. Home instability and frequent reloca- within his immediate family can be identified as tions markedly increasing his vulnerability for psycho- 5. Inadequate supervision logical disorder, delinquency, and sense of be- 6. Sexual abuse

7. Family violence and physical abuselonging provided by a gang. His recurrent trau- 8. Observed community violencematic experience of physical and sexual abuse 9. Family victimizationappears to have additionally propelled him to- 10. Gang socializationward interpersonal distrust, anger, and aggression. 11. Untreated ADHDIt is likely that these experiences of neglect and 12. Learning disability and academic failure

abuse resulted in significant unresolved trauma 13. Neuropsychological deficits

responses and rage. 14. Predisposition to alcohol and drug abuse JJ’s experiences of recurrent relocation and 15. Immaturity

chaotic living situation are likely to have under- mined opportunities for corrective emotional ex- Analyzing JJ’s development as outlined through periences that might otherwise have occurred the above mitigating experiences finds many risk through stability or fortuitous positive mentoring factors for delinquency. Below is a list of relevant from the community. JJ’s exposure to domestic risk factors (the risk factors that are present in JJ’s violence served to reinforce models of aggression development are in italics): as well as prompt additional trauma responses. His extensive observation of community violence Conception to Age 6 was a profoundly traumatic and injurious life ex-

• Perinatal difficultiesperience with multiple adverse impacts on his ad- • Minor physical abnormalitiesjustment and, combined with other influences, • Brain damageplaced him at marked increased likelihood of sig- • Abuse and maltreatment

nificant aggression in the community. Given the • Family history of criminal behavior and sub-

instability of his home, the multigenerational cor- stance abuse ruptive influence of family, and dangers of his • Family management problems neighborhood, it is not surprising that JJ identi- • Family conflict fied with a gang as a mechanism to secure belong- • Parental attitudes favorable toward, and pa- ing and to ensure practical survival, however rental involvement in, crime and substance

abuseshort term. The presence of neuropsychological • Early antisocial behaviordeficits and/or seizure disorder would have repre- • Academic failuresented an additional impediment to academic

progress in childhood and adolescence and likely Age 6 to Adolescencewould have acted as an underlying disinhibiting

factor in aggressive responses. • Extreme economic deprivation

Multiple significant adverse developmental • Community disorganization and low neigh- events are evident in JJ’s history, which both sep- borhood attachment arately and, more importantly, collectively pro- • Transitions and mobility vide some explanation of the defendant’s involve- • Availability of firearms ment in gang activity, his associated weapons • Media portrayals of violence

• Family management problemscarrying, and life trajectory culminating in the al-

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170 • Forensic Mental Health Assessment

• Family conflict 3. Severity of offense is not a good predictor of prison adjustment.• Parental attitudes favorable toward, and pa-

rental involvement in, crime and substance abuse Similarly, JJ’s history of antisocial behavior

• Early and persistent antisocial behavior and attitudes in the community is not considered • Academic failure to be informative regarding his risk of violence • Lack of commitment to school in prison. Neither Antisocial Personality Disorder • Alienation and rebelliousness

(APD) nor psychopathy (as measured by the • Association with peers who engage in delin-

PCL-R) has been demonstrated as predictive ofquency and violence violence in prison. This is likely a function of• Favorable attitudes toward delinquency both base rates (75% of prison inmates can be• Early initiation of delinquent and violent diagnosed with APD) and the different contin-behaviors gency structure of prison. It is also important to• Constitutional factors (e.g., low intelli-

gence, hyperactivity, and attention-deficit dis- note that the rate of inmate violence falls rather orders) dramatically as the seriousness of that violence in-

creases. Moreover, and particularly relevant to The redundancy of risk factors was in the simul- JJ’s risk of serious violence in prison across his taneous absence of any of the protective factors lifespan, there is a good deal of research indicat- that might have inhibited the development of de- ing that rates of disciplinary infractions and vio- linquency: lence tend to decline with age in both the com-

munity and prison. • Individual characteristics (female gender,

Based on this research, there is a 20–30% like- intelligence, positive social orientation, and

lihood that a capital offender would commit anresilient temperament). act of violence at some time during his capital• Social bonding to individuals (prosocial prison term. The likelihood that he would seri-family members, teachers, coaches, youth ously injure another inmate is substantially lower,leaders, and friends) and institutions and the likelihood of seriously injuring a staff(schools and youth organizations).

• Healthy beliefs and clear standards for be- member is quite remote. The probability of his havior, including those that promote nonvi- killing another inmate is at 1% or less. Assuming olence and abstinence from drugs. a 40-year life expectancy, the probability of his

killing a staff member is well below .0001. There is an approximately 8–10% likelihood that heSECTION 2: VIOLENCE would present a more chronic violence problem,RISK ASSESSMENT although it should be noted that chronic violence

There is conceptual and research literature re- could be contained by administrative segregation/ garding assessment of violence risk. Research lit- detention or supermaximum forms of custody. erature describes actuarial (group statistical) and In particularizing a violence risk estimate to JJ, anamnestic (past pattern of behavior) approaches there are a number of factors that would serve to as being most reliable in assessing likelihood of modestly increase his risk above the group base violent behavior. Multiple actuarial studies indi- rates: cate that the majority of individuals convicted of capital murder will not represent a disproportion- • JJ will be 19 at entrance to a capital life ate risk of violence while confined in prison. In prison sentence.

• JJ has a history of juvenile detention andaddition, research suggests the following: jail misconduct, including activities that might give rise to inmate violence such as1. Past community violence is not strongly or

consistently associated with prison vio- gambling and drug use. • JJ was repeatedly cited in past incarcera-lence

2. Current offense, prior convictions, and es- tions for making threatening statements to staff when angry, as well as being intimidat-cape history are only weakly associated

with prison misconduct. ing to other inmates.

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Criminal Sentencing • 171

• JJ has a long-term personal and family affil- 3. limited duration and severely curtailed ac- tivity for out-of-cell recreation, either indi-iation with a street gang that also functions

as a prison gang. He has held a position of vidually or in small groups; 4. severely limited (or no) inmate telephoneleadership in that street gang. access;

5. no contact visits;Violence Risk Management/Prevention Measures 6. shackling before removal from cell and

Violence risk is virtually always a function of con- double staff escorts; and

text. Therefore, a risk assessment should include 7. other security provisions, such as con-

an evaluation of what risk management variables sumption of meals in the cell and the care- and what contextual factors might be modified to ful monitoring of mail. reduce the likelihood of violence. In other words,

Therefore, the Super-Max facility would provideif JJ were identified as representing a serious and removal and isolation of the most difficult todisproportionate risk of assaultive violence in manage inmates, rehabilitation of the institu-prison, could that risk be reduced by any modifi- tional behavior of many of these disruptive in-cations in the context of his prison custody? The mates, and deterrence for the entire inmate pop-answer is an unequivocal yes. The Department of ulation.Corrections has policies, procedures, and facilities Higher violence risk inmates can thus be con-for reducing opportunities that predatory inmates

trolled by associated increased restriction, super-or gang leaders might otherwise have to behave vision, and isolation, so that any opportunity theyin a violent or assaultive manner or to disrupt the might have to be assaultively aggressive is sub-orderly operation of the prison system. These stantially negated, resulting in a subsequentmechanisms include single celling, segregation, marked decline in base rates of serious institu-administrative segregation (some with steel doors tional violence and death system wide. If JJ wereand/or steel-plated walls), and lockdown, as well identified as a substantial risk of violence inas Super-Max confinement. The Department of prison, administrative segregation or Super-MaxCorrections maintains a 400-bed Super-Max fa- confinement would result in substantially re-cility. duced opportunities to cause injury to others.Standard Super-Max protocols at the most re-

strictive level involve the following: Respectfully submitted, Mark D. Cunningham, Ph.D.1. confinement to a single cell for most of Clinical and Forensic Psychologisteach 24-hour period; Diplomate in Forensic Psychology2. sharply limited contact with both staff

and other inmates; American Board of Professional Psychology

Teaching Point: How do you evaluate the accuracy of different sources of third-

party information?

Forensic mental health professionals have an ethical and professional obligation to base their findings on data that is as reliable as possible (see Specialty Guide- lines of Forensic Psychologists (1991) VI.F.1, 3). This necessarily entails consider- ation of the accuracy of third-party reports. While there is no simple answer to this question, analysis of the credibility of third-party information in a foren- sic mental health assessment can be assisted by considering several issues.

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172 • Forensic Mental Health Assessment

1. To what extent is the report independently corroborated? The more individuals who have independently described observing the same history or events, the stronger the likelihood of credibility and accuracy. For this reason, extensive record review and interview of multiple third parties is typically un- dertaken in forensic mental health assessments. It is preferable to interview third parties individually and separately to increase the independence of their reports.

2. What motivation might the third party have to misrepresent a report? Reports from education, social service, and medical sources are given greater credibility, as these observers have the least personal investment in the out- come of the forensic mental health evaluation. Reports that predated the in- stant litigation are less likely to biased by it. Neighbors and co-workers repre- sent a somewhat more invested position, but are still relatively detached. Former in-laws and ex-spouses are also less likely to give overly positive re- ports. Law enforcement and/or correctional personnel are ideally independent, but can have a punitive personal bias or can experience pressure from co- workers or supervisors to favor the prosecution.

The potential bias of friends and family members is more problematic. Because of their attachment to the individual being evaluated, they under- standably have some investment in the disposition. At the same time, they may be the only observers of certain aspects of history and behavior—such as personal or parental substance abuse, family violence, sexual abuse, or other traumatic experience. Also, even when the stakes for the defendant are very high (e.g., potential death sentence), reluctance to acknowledge having perpe- trated maltreatment and/or taboos against disclosure of “family secrets” may be more powerful than their desire to spare their loved one. Indeed, it has been my routine experience in capital sentencing evaluations that some or most family members deny dysfunctional behavior in the family, even in cases where the abuse/neglect are confirmed in social service records.

3. Is the report consistent with known patterns of behavior or verifiable aspects of the historical context? This question involves placing the specific report in a larger context. For example, when parental alcoholism has been confirmed, reports of associated parental inconsistency, neglect, or abuse be- come more credible. When repeated observation of community violence is de- scribed, the confirmed residence of the defendant in an inner-city public hous- ing project across childhood markedly increases the credibility of the report. When a third party describes her own experience of maltreatment at the hands of a given perpetrator, reports that the defendant experienced similar abuse at the hands of the same perpetrator are more credible.

4. Is the report in personal terminology and accompanied by congruent affect? Descriptions that are consistent with the speech and developmental/ social perspective of the individual making the report are more likely to repre- sent an independent recollection. The presence of emotional discomfort in de- scribing painful events also contributes to source credibility.

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Criminal Sentencing • 173

With these considerations in mind, it is important to underscore that a forensic mental health assessment involves the communication and analysis of data, not determinations of fact. In other words, the obligation of the forensic mental health professional is to comprehensively collect and analyze the data. That includes presentation and analysis of discrepant or inconsistent data, dis- cussion of alternative hypotheses, and rationale for credibility considerations. It is for the trier of fact to make the final accuracy determination and apply that determination to the ultimate issue.

Notes

1. There may be other reasons to obtain informed consent in some court-ordered evaluations, however. See the Teaching Point for Case 1, Chapter 11 for a discussion.

2. The ethical demand in therapeutic assessment for an explanation of results after completion of the evaluation, as expressed in this standard, does not necessarily apply in forensic assessment. See Standard 2.09 (APA, 1992).

3. Legal support relevant to informed consent and notification of purpose for FMHA may also be contained in the statutes and administrative code of a given jurisdic- tion, which should be consulted for jurisdiction-specific guidance.

4. In one study conducted by the FBI and published in September 1992, the sec- ond most frequent personality disorder in a sample of offenders who had murdered law enforcement officers was dependent personality disorder (23%; Pinizzotta & Davis, 1992).

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