Posted: October 27th, 2022

SOCW 6135

 

Learning Resources

Required Readings

Bartol, C. R., & Bartol, A. (2017). Criminal behavior: A psychological approach. (11th ed.). Upper Saddle River, NJ: Pearson Prentice Hall.
Chapter 1, “Introduction to Criminal Behavior” (pp. 1–26)
Chapter 2, “Origins of Criminal Behavior: Developmental Risk Factors” (pp. 28–56)
Bureau of Justice Statistics. (2013a). Retrieved from http://www.bjs.gov/
Federal Bureau of Investigation. (n.d.). Uniform Crime Reporting (UCR) program. Retrieved November 27, 2019,  from https://www.fbi.gov/services/cjis/ucr
Lundman, R. J., & Kaufman, R. L. (2003). Driving while black: Effects of race, ethnicity, and gender on citizen self reports of traffic stops and police actions. Criminology, 41(1), 195–220.
Document: Final Project Guidelines (PDF)
Bartol, C. R., & Bartol, A. (2017). Criminal behavior: A psychological approach (11th ed.). Upper Saddle River, NJ: Pearson Prentice Hall.
Chapter 3, “Origins of Criminal Behavior: Biological Factors” (pp. 59-81)
Burkhead, M. D. (2006). The search for the causes of crime: A history of theory in criminology. Jefferson, NC: McFarland. (click underlined link above for access)
From The Search for the Causes of Crime: A History of Theory in Criminology © 2006 Michael Dow Burkhead by permission of McFarland & Company, Inc., Box 611, Jefferson NC 28640. www.mcfarlandpub.com
Chapter 1, “Setting the Stage” (pp. 9–35)
Review the case scenario about Gary F. (pp. 23–27)
  
Learning Resources
Required Readings
Heilbrun, K., Marczyk, G. R., & DeMatteo, D. (2002). Forensic mental health assessment: A casebook. New York, NY: Oxford University Press.
Bartol, C. R., & Bartol, A. (2017). Criminal behavior: A psychological approach (11th ed.). Upper Saddle River, NJ: Pearson Prentice Hall.
Chapter 11, “Psychology of Terrorism” (pp. 323-346)
Chapter 14, “Burglary, Home Invasions, Thefts, and “White-Collar” Offenses” (pp. 417-420, 427-435)
Chapter 15, “Violent Economic Crime and Crimes of Intimidation” (pp. 437-465)

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Required Media

Laureate Education (Producer). (2014f). Types of offenders III [Video file]. Retrieved from https://class.waldenu.edu
Dr. Scott Duncan discusses the similarities and differences among offender groups. Think about the characteristics of these types of offenders.

Note:  The approximate length of this media piece is 9 minutes.

Accessible player –Downloads–Download Video w/CCDownload AudioDownload Transcript
 

STAT200 : Introduction to Statistics Final Examination, Fall 2013 OL1

Page 1 of 5

STAT 200
OL1 / US1 Sections
Final Exam
Fall 2013

The final exam will be posted in the Conference at 12:01 am on
October 11, and it is due at 11:59 pm on October 13, 2013.
Eastern Time is our reference time.

Honor Pledge for this exam:

After you have finished the exam, copy the following statement
and sign it electronically.

I promise that I did not discuss any aspect of this exam with
anyone other than my instructor. I further promise that I neither
gave nor received any unauthorized assistance on this exam, and
that the work presented herein is entirely my own.

______________________________________
(Please sign above electronically.)

STAT200 : Introduction to Statistics Final Examination, Fall 2013 OL1 Page 2 of 5

Answer all 30 questions. Make sure your answers are as complete as possible.
Show all of your work and reasoning. In particular, when there are
calculations involved, you must show how you come up with your answers
with critical work and/or necessary tables. Answers that come straight from
programs or software packages will not be accepted.

This exam has 300 total points.

You must include the Honor Pledge on the title page of your submitted final
exam. Exams submitted without the Honor Pledge will not be accepted.

Refer to the following frequency distribution for Questions 1, 2, 3, and 4.

The frequency distribution below shows the distribution for checkout time (in minutes) in
UMUC MiniMart between 3:00 and 4:00 PM on a Friday afternoon.

Checkout Time (in minutes) Frequency

1.0 – 1.9 5

2.0 – 2.9 6

3.0 – 3.9 4

4.0 – 4.9 3

5.0 – 5.9 2

1. What percentage of the checkout times was less than 3 minutes? (5 pts)
2. Calculate the mean of this frequency distribution. (10 pts)
3. In what class interval must the median lie? Explain your answer. (You don’t have to

find the median) (5 pts)
4. Assume that the largest observation in this dataset is 5.8 minutes. Suppose this

observation were incorrectly recorded as 58 instead of 5.8. Will the mean increase,
decrease, or remain the same? Will the median increase, decrease or remain the same?
Explain your answers.

(5 pts)

Refer to the following information for Questions 5 and 6.

A 6-faced die is rolled two times. Let A be the event that the outcome of the first roll is a 6. Let B be
the event that the outcome of second roll is an odd number.

5. What is the probability that the outcome of the second roll is an odd number, given that the first
roll is a 6? (10 pts)
6. Are A and B independent? Why or why not? (5 pts)

STAT200 : Introduction to Statistics Final Examination, Fall 2013 OL1 Page 3 of 5

Refer to the following data to answer questions 7 and 8. Show all work. Just the answer, without
supporting work, will receive no credit.

A random sample of STAT200 weekly study times in hours is as follows:

11 14 15 17 20

7. Find the standard deviation. (10 pts)
8. Are any of these study times considered unusual in the sense of our textbook? Explain.

Does this differ with your intuition? Explain. (5 pts)

Refer to the following situation for Questions 9, 10, and 11.

The five-number summary below shows the grade distribution of two STAT 200 quizzes.

Minimum Q1 Median Q3 Maximum

Quiz 1 12 40 60 95 100

Quiz 2 20 35 50 80 100

For each question, give your answer as one of the following: (a) Quiz 1; (b) Quiz 2; (c) Both quizzes
have the same value requested; (d) It is impossible to tell using only the given information. Then
explain your answer in each case. (5 pts each)

9. Which quiz has greater interquartile range in grade distribution?
10. Which quiz has the greater percentage of students with grades 80 and over?
11. Which quiz has a greater percentage of students with grades less than 60?

12. A random sample of 225 SAT scores has a mean of 1522. Assume that SAT scores have a

population standard deviation of 300. Construct a 95% confidence interval estimate of the mean
SAT scores. (15 pts)

Refer to the following information for Questions 13 and 14.

There are 1000 students in the senior class at a certain high school. The high school offers
two Advanced Placement math / stat classes to seniors only: AP Calculus and AP Statistics.
The roster of the Calculus class shows 95 people; the roster of the Statistics class shows 86
people. There are 43 overachieving seniors on both rosters.

13. What is the probability that a randomly selected senior is in exactly one of the two classes

(but not both)? (10 pts)
14. If the student is in the Calculus class, what is the probability the student is also in the

Statistics class? (10 pts)

STAT200 : Introduction to Statistics Final Examination, Fall 2013 OL1 Page 4 of 5

Refer to the following information for Questions 15, 16, and 17.

A box contains 5 chips. The chips are numbered 1 through 5. Otherwise, the chips are identical.
From this box, we draw one chip at random, and record its value. We then put the chip back in the
box. We repeat this process two more times, making three draws in all from this box.

15. How many elements are in the sample space of this experiment? (5 pts)
16. What is the probability that the three numbers drawn are all different? (10 pts)
17. What is the probability that the three numbers drawn are all odd numbers? (10 pts)

Questions 18 and 19 involve the random variable x with probability distribution given below.

x 2 3 4 5 10
( )P x 0.1 0.2 0.4 0.1 0.2

18. Determine the expected value of x. (10 pts)
19. Determine the standard deviation of x. (10 pts)

Consider the following situation for Questions 20 and 21.

Airline overbooking is a common practice. Due to uncertain plans, many people cancel at the last
minute or simply fail to show up. Capital Air is a small commuter airline. Its past records indicate
that 85% of the people who make a reservation will show up for the flight. The other 15% do not
show up. Capital Air decided to book 11 people for today’s flight. Today’s flight has just 10 seats.

20. Find the probability that there are enough seats for all the passengers who show up. (Hint: Find

the probability that in 11 people, 10 or less show up.) (10 pts)
21. How many passengers are expected to show up? (5 pts)

22. Given a sample size of 64, with sample mean 730 and sample standard deviation 80, we

perform the following hypothesis test.
0 : 750H µ =

1 : 750H µ < What is the conclusion of the test at the 0.05α = level? Explain your answer. (20 pts)

Refer to the following information for Questions 23, 24, and 25.

The IQ scores are normally distributed with a mean of 100 and a standard deviation of 15.

23. What is the probability that a randomly person has an IQ between 85 and 115? (10 pts)
24. Find the 90th percentile of the IQ distribution. (5 pts)
25. If a random sample of 100 people is selected, what is the standard deviation of the sample mean?
(5 pts)

STAT200 : Introduction to Statistics Final Examination, Fall 2013 OL1 Page 5 of 5

26. Consider the hypothesis test given by

0
1

: 530
: 530.

H
H

µ
µ
=

In a random sample of 81 subjects, the sample mean is found to be 524.x = Also, the
population standard deviation is 27.σ =

Determine the P-value for this test. Is there sufficient evidence to justify the rejection of

0H at the 0.01α = level? Explain. (20 pts)

27. A certain researcher thinks that the proportion of women who say that the earth is getting
warmer is greater than the proportion of men.

In a random sample of 250 women, 70% said that the earth is getting warmer.
In a random sample of 220 men, 67% said that the earth is getting warmer.

At the 0.05 significance level, is there sufficient evidence to support the claim that the
proportion of women saying the earth is getting warmer is higher than the proportion of
men saying the earth is getting warmer? Show all work and justify your answer.
(25 pts)

Refer to the following data for Questions 28 and 29.
:

x 0 – 1 1 2 3
y 3 – 2 6 4 7

28. Is there a linear correlation between x and y at the 0.05 significance level? Justify your

answer. (10 pts)
29. Find an equation of the least squares regression line. Show all work; writing the correct

equation, without supporting work, will receive no credit. (15 pts)

30. The UMUC Daily News reported that the color distribution for plain M&M’s was: 40%

brown, 20% yellow, 20% orange, 10% green, and 10% tan. Each piece of candy in a
random sample of 100 plain M&M’s was classified according to color, and the results are
listed below. Use a 0.05 significance level to test the claim that the published color
distribution is correct. Show all work and justify your answer. (25 pts)

Color Brown Yellow Orange Green Tan

Number 42 21 12 7 18
________________________________________________________________________

Chapter 13

Sex Offender Sentencing

This chapter focuses on considerations in the sentencing of adult sexual offend-
ers

.

The principle preceding the first case addresses the importance of consider-
ing both relevance and scientific validity in considering how to seek informa-
tion and select data sources in forensic assessment. The teaching point in the
first case discusses the strengths and weaknesses of classification systems for sex
offenders. The principle associated with the second case in this chapter—use
scientific reasoning in assessing the causal connection between clinical condi-
tion and functional abilities—discusses the importance of hypothesis formula-
tion, testing, falsifiability, parsimony in interpretation, awareness of the limits
on accuracy, and the applicability of nomothetic research to forensic mental
health assessment. Finally, the teaching point for the second case includes a
discussion of the development and empirical underpinnings of taxonomic sex
offender typologies and their limitations.

Case 1

Principle: Use relevance and reliability (validity) as guides for seeking

information and selecting data sources

This principle is discussed in some detail in Chapter 9. Therefore, we move
directly to address how the present report illustrates the application of this
principle.

The first report in this chapter provides a good example of the application
of relevance and reliability to the selection of data sources in a FMHA. The
purpose of the evaluation was to determine: (1) whether the individual being
assessed could be classified as “repetitive and compulsive,” which would place
him under the New Jersey Sex Offender Act (making him eligible for special-
ized treatment services and subject to increased community notification re-
quirements); (2) what risk the individual being assessed presented to the com-
munity; and (3) a suitable treatment plan. Generally, statutes such as the New
Jersey Sex Offender Act (1997) require that (1) the offense be sexual (usually

259

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.
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260 • Forensic Mental Health Assessment

involving force, aggression, or minors), (2) the conduct be repetitive (actual
demonstration of specific past offenses is not always required—repetition may
be satisfied by the prediction of future conduct), (3) there is a mental illness
(broadly defined), and (4) a treatment plan is needed (Melton et al., 1997). In
this case, relevance and reliability served as guides for determining which
sources of information should be considered in addressing the requirements of
the New Jersey Sex Offender Act.

We noted earlier that relevance in a forensic context can be considered by
describing the logical basis for a connection between a mental health construct
and the relevant forensic issue(s). In this case, the forensic clinician was asked
to provide a risk assessment and to determine if the individual being assessed
was “repetitive and compulsive” in his behavior. There are a variety of mental
health constructs and historical data that might be relevant to these forensic
issues, with some data sources more relevant than others when the forensic
issues are considered.

For example, in this report, the forensic clinician chose historical and psy-
chometric data sources that are directly relevant to the forensic issues being
considered. Specifically, the New Jersey Sex Offender Act requires repetitive
and compulsive behavior and the presence of a mental illness, broadly defined.
Relevant historical information was obtained through a collateral document
review and a clinical interview. These sources of information revealed a pattern
of sexual offending over a period of years, and a history of recurrent behavior
in both sexual and nonsexual areas that might be relevant to the forensic issue
of repetitive and compulsive. The personality characteristics suggested by his-
tory relevant to this forensic characteristic were measured, in part, using psy-
chological testing. Specifically, the Million Clinical Multiaxial Inventory-III
(MCMI-III; Millon, 1994)—a measure designed to assess personality style, the
presence of specific symptom patterns, and the presence of severe mental dis-
orders—suggested paraphilias focusing on child molestation, sexual coercion,
and exhibitionism. In addition to verifying the self-report of the individual, the
MCMI-III suggested the presence of a DSM-IV disorder (paraphilia), which is
required under the New Jersey Sex Offender Act. The use of the MCMI-III
also provided some empirical evidence about the strength of the relationship
between such profiles and paraphilia, based on the empirical data used to vali-
date the instrument.

Additional examples of empirically relevant measures can be found in the
risk assessment section of the report. The Multiphasic Sex Inventory (Nich-
ols & Molinder, 1984) was used to describe the individual’s static and dynamic
risk factors for sexual reoffending. This tool was constructed after review of
available empirical studies on sex offender characteristics and recidivism rates.
It is not supported by empirical research performed specifically with using the
MSI and validated against the outcome of sexual reoffending with large sam-
ples across multiple studies. However, it does use risk factors that are com-
monly cited in the literature, allowing a better description of empirically rele-
vant (as opposed to empirically validated) risk factors.

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.
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Sex Offender Sentencing • 261

PSYCHOLOGICAL REPORT • Registrant Risk Assessment Scale
The RRAS is an instrument developed
by the New Jersey Attorney General’sName: John J
Office to evaluate and place sex offend-Age: 45 years
ers in risk tiers. It evaluates seriousnessDate(s) of Examination: 9/8/98
of the offense, characteristics of the of-Examiner: Philip Witt, Ph.D.
fender, characteristics of the offense,
and community support.

REASON FOR REFERRAL

REVIEW OF DISCOVERY MATERIALSMr. J was referred for a psychological evaluation
by his attorney, Robert Singleton, Esq., after hav- The records indicate that Mr. J has been charged
ing been charged with sexually abusing a 9-year- with one instance of fondling the vaginal area of
old girl. Mr. Singleton requested opinions as to: a 9-year-old girl; the girl reported digital penetra-

tion during this offense. He has two prior sexual1. whether Mr. J is repetitive and compul-
charges for exposing himself to teenage girls.sive, which would place him under the
These prior charges resulted in probation in mu-purview of the New Jersey Sex Offender
nicipal court.Act, thus making him eligible for the spe-

cialized treatment services (and increased
community notification requirements) as- INTERVIEW OF JOHN J
sociated with such a finding,

Mr. J presented as a tall, thin white male who2. what risk Mr. J presents to the commu-
appeared his stated age. He was oriented to time,nity, and

3. what treatment plan would be suitable for place, and person. His thought processes, as as-
Mr. J? sessed through the interview, were relevant and

coherent. There were no signs of hallucinations
or delusional thinking, or of suicidal thoughts orSOURCES OF INFORMATION
intent. In summary, there was no evidence of a

1. Individual interview of John J. thought disorder.
2. Review of Discovery materials. Throughout the interview, Mr. J was open,
3. Psychological assessment instruments: verbal, and cooperative. He answered all ques-

• Millon Clinical Multiaxial Inventory-III tions and provided information spontaneously, of
(MCMI) his own accord. In fact, he readily recounted his
The MCMI is a 175 true-false objective

life history in detail, requiring very little prompt-personality test designed to assess per-
ing. Included in this life history were a variety ofsonality style, presence of specific symp-
actions that cast him in a non-flattering light, sug-tom patterns, and the presence of se-
gesting a high level of candor. He showed pres-vere mental disorders. The MCMI also
sured speech; it was difficult to get a word inhas validity scales that evaluate the atti-

tude with which the individual an- edgewise once he began his account of his life.
swered the test questions. In his junior year in high school, he began a

• Multiphasic Sex Inventory (MSI) romantic relationship with a female high school
The MSI is a 300-item objective person- classmate with whom he had sexual intercourse.
ality test specifically standardized on a By his senior year, however, he was dating four
sex offender population. Its scales mea- or five different high school girls, and had sexual
sure qualities of relevance in assessing

intercourse with two or three. He hid all of thesesex offenders, such as extent of justifi-
relationships from his then-girlfriend. During col-cations of deviant sexual practices, de-
lege, Mr. J became, by his own description, evengree and type of deviant sexual fantasies
more sexually promiscuous. He had sexual rela-and deviant sexual behavior, presence
tions with scores of age-appropriate women, onof specific fetishes, presence of sexual

dysfunctions, and sexual history. more than one occasion contracting sexually trans-
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 21:13:04.

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262 • Forensic Mental Health Assessment

mitted diseases. Throughout college, he ostensi- while high school girls were walking home from
school. In 1993, he was arrested for exposingbly had a steady girlfriend, but without her knowl-

edge, he was having sexual relations with a vari- himself while in his car to teenage girls near a
high school. This led to a charge for exhibition-ety of other women. He also began frequenting

massage parlors for casual sexual encounters with ism, eventually pled down to municipal disor-
derly persons charges.prostitutes.

During high school, he began to engage in He then began psychiatric treatment with
Martin Clark, M.D., who prescribed Prozac. Hesports betting. By college, he was heavily in debt

because of his betting, and his father settled his also began attending Gamblers Anonymous meet-
ings, but has had a number of gambling relapses.debts on more than one occasion. His involve-

ment with gambling has continued intermittently Unfortunately, Mr. J has had a serious relapse
with regard to deviant sexuality. This year he fon-to the present. He described times when he would

be obsessed with sports betting, on the phone dled the genitals of a 9-year-old girl under her
bathing suit in his swimming pool. He acknowl-continually with bookies and forever looking for

a big win that would recover his losses. edged digitally penetrating the girl during this in-
cident. At the time he was experiencing strongMr. J reported that since his early teens, he

has felt sexually attracted toward younger girls. pedophilic urges, and he impulsively put his hand
under the girl’s bathing suit.On one occasion in his teens, he slept at his cous-

in’s home, and he went into a younger cousin’s Mr. J expressed distress regarding his actions.
He considers himself to have a serious sicknessbedroom and masturbated in her presence.

After graduating college, Mr. J attended op- and appears highly motivated to do whatever
necessary to prevent any recurrences.tometry school; during optometry school, he vis-

ited massage parlors approximately every other
week. At the same time, he dated age-appropriate

PSYCHOLOGICAL TEST RESULTS
women. He eventually married his then-girlfriend.
During his marriage, Mr. J increased his gambling On the MCMI-III, Mr. J presented himself in a

negative manner. His self-esteem is low. He viewsand frequented massage parlors more often,
sometimes as often as four times per week. He himself as having done many reprehensible things

in his life and berates himself as a result. He is athen began masturbating while driving in his car.
He would cover his penis with a map or newspa- depressive, pessimistic man who has a bleak, neg-

ative view of himself, his life, and the future.per, pull over, and ask teenage girls directions
while sexually aroused. He occasionally exposed These characteristics were evident in his re-

sponses of “true” to: “I’ve had sad thoughts muchhimself to adult women as well; once he drove
completely naked on the NJ Turnpike, obtaining of my life since I was a child”; “I’ve always had a

hard time stopping myself from feeling blue andchange for his toll from a startled female toll-
taker. He convinced himself that he wasn’t harm- unhappy”; “I’ve never been able to shake the feel-

ing that I’m worthless to others”; and “Even ining anyone (other than himself), so he continued
this activity throughout his first marriage. good times, I’ve always been afraid that things

would soon go bad.”During 1990, his sexual compulsivity led to
serious consequences: He was arrested for lewd- His MCMI results indicate that he has a deep

self-defeating streak. He acts impulsively, causingness. He had masturbated in his car while watch-
ing two teenage girls rollerskating. One of the disruptions in his life and the lives of his loved

ones. He finds it difficult to control his rash, reck-girls felt threatened, and she notified the police.
He received probation on the condition that he less acts, after which he experiences deep guilt

and contrition. His moods can fluctuate wildlyenter psychotherapy; unfortunately, he did not
discuss his pedophilic sexual urges openly while depending on whether he has recently experi-

enced some unpleasant consequence of his im-in treatment. Rather, he convinced his therapist
that he was guilty only of poor judgment—having pulsive actions.

On the MSI, Mr. J displays a high level of sex-been inadvertently seen masturbating in his car.
Through the 1990s, Mr. J frequented streets ual drive and interests; he appears preoccupied

with sex and acknowledges significant difficultynear local high schools, masturbating in his car
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 21:13:04.

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Sex Offender Sentencing • 263

controlling his sexual urges. He also reports a petitive; these acts have continued despite legal
consequences and Mr. J’s best efforts to cease.variety of thoughts and urges regarding serious

paraphilias, focusing on child molestation, sexual Moreover, he has a history of compulsive sexual-
ity in a variety of areas. Consequently, in mycoercion, and exhibitionism. He reports interest

in a variety of lower level paraphilias as well, in- opinion Mr. J is repetitive and compulsive.
cluding voyeurism, obscene phone calls, and bond-

What risk does Mr. J present to the community?age and discipline. His MSI in general indicates
On both risk assessment scales, Mr. J scores ina high level of paraphilic interest and substantial

the moderate risk range. He receives a score ofdifficulty managing his urges.
72 points on the RRAS, and a score of 9 points
on the ASORAS. His risk total is higher than that

RISK ASSESSMENT of the typical probationer, more similar to that of
an individual incarcerated at New Jersey’s spe-On the RRAS, Mr. J receives a score of 72, plac-
cialized sex offender treatment facility, the Adulting him at the upper limit of the moderate risk
Diagnostic and Treatment Center. His illegal sex-range (37 to 73 points). He receives many points
ual acts have escalated from his exposing himselffor seriousness of offense, involving digital pene-
to minor females to his present hands-on offense.tration of a young victim, and the extensiveness

and duration of his illegal sexual activity, involv-
What treatment plan would be suitable for Mr. J?ing years of gradually escalating exhibitionistic ac-
It is my opinion that Mr. J requires intensive,tivity focused on teenage girls and culminating in

long-term, sex-offender-specific treatment. I rec-the instant offense with a prepubescent girl.
ommend the following treatment plan:

1. Relapse prevention training: Mr. J shouldINTEGRATION OF FINDINGS
complete relapse prevention exercises de-AND RECOMMENDATIONS
signed to increase his awareness of the in-

John J is a 45-year-old optometrist presently ternal (emotional) and external (situa-
charged with sexually abusing a 9-year-old girl. tional) risk factors that led to his deviant
Mr. J has a long history of sexual interest in minor sexual behavior. Presently, he has little

awareness of these factors, particularly offemales, which has resulted in two prior charges
the internal factors.for exposing himself to teenage girls. He has

2. Victim empathy: Mr. J should completestruggled to manage his urges toward young fe-
victim empathy exercises. Such exercisesmales for many years. Unfortunately, his behavior
are designed to raise the awareness of therecently escalated to an offense involving physical
patient to the negative emotional conse-contact with a young victim.
quences that his actions have had on the

Mr. J also has a long history of compulsive victim.
gambling. During high school, he began sports 3. Sexual reconditioning exercises: Conserva-
betting, and by college, his father had to settle his tive treatment would require that he com-
gambling debts on more than one occasion. He plete sexual reconditioning exercises de-
had to take a loan from his father 10 years ago to signed to help him disrupt and moderate

any deviant sexual arousal that might besettle additional gambling debts. He has managed
present. Mr. J reports strong pedophilicto avoid heavy gambling debts since then, al-
urges, and he lacks the skills to effectivelythough he still has difficulty with strong impulses
disrupt such urges.to gamble.

4. Sex offender treatment group: Involve-I will address the referral questions in turn.
ment in a sex offenders treatment group
would have a variety of benefits for Mr. J.

Is Mr. J repetitive and compulsive? First, he would have a support group to
Mr. J’s pattern of illegal sexual behavior ex- whom he could talk openly regarding his

tends over a period of years and has escalated in offense, a support group that he would
his current offense. On the sexual preoccupation feel would not reject him for having com-
factor of one risk assessment scale, he scored mitted an illegal sexual act. Second, he

would be able to receive feedback fromquite high. His illegal sexual acts are clearly re-
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.
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264 • Forensic Mental Health Assessment

other offenders regarding his rationaliza- ated for a mood-stabilizing agent—such as
lithium—as well. His pressured speech intions and justifications for having commit-

ted the deviant sexual acts. Frequently, the interview and his history of impulsive,
excitement-seeking behavior and sexualsuch feedback has more impact from

other offenders than from a treating pro- compulsivity suggest the possibility of hy-
pomania, so a mood-stabilizing agent mayfessional.

5. Individual psychotherapy: Mr. J requires be helpful.
7. Continued involvement in Gamblersindividual treatment focused on broader

personality issues, such as his reckless, Anonymous: Mr. J has a longstanding gam-
bling problem. He has been productivelystimulation-seeking interpersonal style,

which may be related to his offenses. His involved in Gamblers Anonymous, and he
needs to maintain his involvement in acompulsive gambling is one indicator of

this problem and would need to be ad- gambling-related support group.
dressed in treatment as well.

6. Medication review: Mr. J is presently be-
Philip Witt, Ph.D.ing prescribed Prozac, an antidepressant. I

suggest that he be psychiatrically evalu- Diplomate in Forensic Psychology, ABPP

Teaching Point: Strengths and weaknesses of classification systems

Classification systems for sex offenders were in existence in the 1960s. How-
ever, current classification systems owe much of their development to the sem-
inal work of Nicholas Groth (Groth & Birnbaum, 1979), who proposed that
child molesters could be considered either fixated or regressed, with fixated
offenders having sexual interest patterns focused entirely on children and re-
gressed offenders having adult-oriented sexual interest patterns, but lapsing
back under stress to earlier sexual attachment figures. Rapists, in Groth’s
framework, were motivated by power, anger, or sadism. While intuitively ap-
pealing, Groth’s child molester and rapist taxonomy systems remained specula-
tive, with no empirical support.

While many sex offender taxonomy systems exist, most lack empirical sup-
port, as does Groth’s. As a consequence, in the 1980s, Knight and Prentky
(Knight, 1988, 1989; Knight & Prentky, 1987) empirically validated a sex of-
fender taxonomy system, perhaps the best validated system to date. Knight
and Prentky’s child molester typology system involved two decision trees. The
first decision tree, or axis, had decisions for level of sexual fixation on children
and level of social competence. The second decision tree had decisions for
amount of contact with children, extent of physical injury, meaning of the
sexual contact (purely exploitive or interpersonal), and sadistic or nonsadistic
motivation. Knight and Prentky’s rapist taxonomy focused on the motivation
of the rapist—opportunistic, pervasively angry, sexual, or vindictive—with
high and low social competence decisions within most of these motivational
types.

Such taxonomies can serve a number of purposes. First, they can help
clinicians and researchers think clearly about sex offenders by carefully examin-

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.
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Sex Offender Sentencing • 265

ing the characteristics of the individual offender under consideration. Second,
taxonomy systems are useful for treatment planning, allowing treatment needs
to be clarified. For example, a sex offender with a high degree of pedophilic
sexual fixation and drive might be suitable for sexual reconditioning exercises
or medication to dampen sex drive. Third, a taxonomy can guide research.
Different subgroups might have different recidivism rates or respond differen-
tially to treatment interventions.

Although initially promising, taxonomy systems have generated relatively
little discussion or research in recent years. More effort has been devoted to
developing sex offender risk assessment scales, such as the Mn-SOST-R (Ep-
person, Kaul, & Hesselton, 1998), Static-99 (Hanson, 2000), HCR-20 (Web-
ster, Douglas, Eaves, & Hart, 1997), and RRAS (Witt, DelRusso, Oppen-
heim, & Ferguson, 1996; Ferguson, Eidelson, & Witt, 1998). Such tools are
used in different jurisdictions to place sex offenders in risk tiers, which are
then used in accord with community notification and civil commitment stat-
utes. Much of the same information can be gathered from a risk assessment
instrument, which systematically samples criteria empirically associated with
relapse. Not surprisingly, factor analytic studies of these instruments show two
stable predictive factors: a psychopathic, antisocial personality or lifestyle, and
a paraphilia (Witt et al., 1996).

Case 2

Principle: Use scientific reasoning in assessing the causal connection between

clinical condition and functional abilities

This principle describes the importance of using scientific reasoning in FMHA.
Several aspects of scientific reasoning are particularly relevant to this principle.
These include hypothesis formulation and testing, falsifiability, parsimony in
interpretation, and awareness of the limits on accuracy. These in turn affect
the applicability of nomothetic research to the immediate case.

In any FMHA, there may be several competing explanations for the clinical
symptoms or personality characteristics, deficits in relevant legal capacities, and
causal relationship between the two. An important goal in FMHA is to test
these competing “hypotheses” to determine which is best supported by the
available data. For such hypothesis testing to be meaningful, however, the
hypotheses must be evaluated in a way that allows them to be fairly tested,
and rejected when they are not supported.

Sources of ethics authority in psychology provide direct support for the
application of several kinds of scientific reasoning in FMHA, including hypoth-
esis testing, the application (and misapplication) of psychological assessment

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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266 • Forensic Mental Health Assessment

procedures, and the parsimonious interpretation of psychological test results.
The Ethical Principles of Psychologists and Code of Conduct (APA, 1992) con-
tains several sections relevant to this principle. Appropriate operationalization
depends, to some extent, on selecting procedures that have been developed for
a purpose comparable to the purpose of the evaluation: “Psychologists who
develop, administer, score, interpret, or use psychological assessment tech-
niques, interviews, tests, or instruments do so in a manner and for purposes
that are appropriate in light of the research on or the evidence of the usefulness
and proper application of the techniques” (APA, 1992, p. 1603). Selecting
inappropriate procedures can adversely affect the successful operationalization
of variables. This error would limit the overall accuracy of the findings and the
extent to which nomothetic results would be applicable:

Psychologists refrain from misuse of assessment techniques, interventions, results,
and interpretations. . . . Psychologists do not base their assessment of intervention
decisions or recommendations on data or test results that are outmoded for the cur-
rent purpose. . . . Similarly, psychologists do not base such decisions or recommen-
dations on tests and measures that are obsolete and not useful for the current pur-
pose. (p. 1603)

The Ethics Code also addresses the importance of personal contact with
the individual being evaluated: “Except as noted . . . , psychologists provide
written or oral forensic reports or testimony of the psychological characteristics
of an individual only after they have conducted an examination of the individ-
ual adequate to support their statements or conclusions” (1992, p. 1610). In
this context, personal contact is important because it can facilitate hypothesis
formulation and testing. When personal contact is not possible, hypothesis test-
ing is considerably more difficult, as the evaluator cannot observe the reaction
of the individual to specific questions or procedures.

When, despite reasonable efforts, such an examination is not feasible, psy-
chologists “clarify the impact of their limited information on the reliability and
validity of their reports and testimony, and they appropriately limit the nature
and extent of their conclusions or recommendations” (APA, 1992, p. 1610).
Finally, the Ethics Code addresses the interpretation of FMHA results in two
ways. The first involves the applicability of validation research for a test or
procedure used with an individual:

Psychologists attempt to identify situations in which particular interventions or as-
sessment techniques may not be applicable or may require adjustment in administra-
tion or interpretation because of such factors as individuals’ gender, age, race, ethnic-
ity, national origin, religion, sexual orientation, disability, language, or socioeconomic
status. (p. 1603)

Second, the Ethics Code addresses the interpretation of FMHA test results:

Psychologists recognize limits to the certainty with which diagnoses, judgments, or
predictions can be made about individuals. . . . When interpreting assessment results

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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Sex Offender Sentencing • 267

. . . psychologists take into account the various test factors and characteristics of the
person being assessed that might affect psychologists’ judgments or reduce the accu-
racy of their interpretations. (p. 1603)

Support for the use of scientific reasoning in FMHA, particularly hypothe-
sis testing, can also be found in the ethical guidelines for both forensic psychol-
ogy and psychiatry. The Specialty Guidelines for Forensic Psychologists (Commit-
tee on Ethical Guidelines for Forensic Psychologists, 1991) emphasizes the
value of hypothesis testing:

In providing forensic psychological services, forensic psychologists take special care
to avoid undue influence upon their methods, procedures, and products, such as
might emanate from the party to a legal proceeding by financial compensation or
other gains. As an expert conducting an evaluation, treatment, consultation, or
scholarly/empirical investigation, the forensic psychologist maintains professional in-
tegrity by examining the issue at hand from all reasonable perspectives, actively seek-
ing information that will differentially test plausible rival hypotheses. (p. 661)

Similarly, the Ethical Guidelines for the Practice of Forensic Psychiatry (AAPL,
1995) indirectly supports hypothesis testing by emphasizing the distinction
between “verified” and “unverified” information.

Legal support can also be found for this principle. Both the U.S. Supreme
Court’s decision in Daubert (1993) and the Federal Rules of Evidence under-
score the importance of reasoning in cases involving scientific evidence.1 In
Daubert, the Supreme Court, in dicta, used the phrase “reasoning or methodol-
ogy” in outlining the criteria that might be used to determine the scientific
validity of the evidence. The Daubert opinion also suggested that the Supreme
Court took a broad view of “science,” with both data and reasoning considered
as expert evidence.

Rule 703 of the Federal Rules of Evidence provides some role for reasoning
in FMHA: “The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to the
expert at or before the hearing.” The nature of this reasoning is elaborated in
Rule 702: “If scientific, technical, or other specialized knowledge will the assist
the trier of fact to understand the evidence or determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or edu-
cation, may testify thereto in the form of an opinion or otherwise.”

There is relatively little empirical evidence regarding the role of scientific
reasoning in FMHA. However, one recent study involving forensic psycholo-
gists and psychiatrists examined the perceived desirability of various elements
of FMHA, including elements that are clearly relevant to reasoning (Borum &
Grisso, 1996). In rating the value of providing a “mental illness rationale” that
describes how the examiner reached an opinion about the presence/absence
and degree of mental illness, the majority of responding psychologists and psy-
chiatrists rated this rationale as either essential or recommended. Other ele-
ments of FMHA relevant to reasoning were also strongly endorsed, with more

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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268 • Forensic Mental Health Assessment

than 75% of responding psychiatrists and psychologists rating each as either
essential or recommended (Borum & Grisso, 1996).

Heilbrun (1992) stressed the importance of reasoning in FMHA, particu-
larly in the context of hypothesis formulation, testing, and test interpretation.
He compared the process of FMHA to a scientific experiment:

Following the formulation of falsifiable hypotheses, the verification process can pro-
ceed much as it would in a scientific experiment. Does the defendant exhibit behav-
ior consistent with the presence of the hypothesized psychological characteristic? (A
researcher might call this construct validity.) Does the defendant show the absence
of behaviors that are not consistent with the presence of the hypothesized construct?
(We could analogize this to discriminant validity.) The remaining task is then to
offer conclusions in terms that reflect the consistency of support for the hypothesis
that was framed in psychological rather than legal terms (e.g., psychosis, cognitive
awareness and volition rather than insanity). (p. 269)

The present report provides a good illustration of this principle. The evalu-
ation was conducted to determine the individual’s risk to others and treatment
needs and amenability in the context of a specialized sentencing evaluation.
The evaluator demonstrates the applicability of scientific reasoning in the oper-
ationalization of variables (through the selection of appropriate and relevant
testing procedures), hypothesis formulation and testing, parsimonious interpre-
tation, and an awareness of the limits on accuracy.

The evaluator selected psychological tests that were relevant to the pur-
pose of the evaluation. For example, because the individual presented with a
history of sadistic sexual fantasies, the evaluator selected tests that would pro-
vide information in this area. Hypothesis formulation and testing was facili-
tated through the evaluator’s personal contact with the individual, which al-
lowed the evaluator to observe the reactions of the individual to specific lines
of questioning. These observations were subsequently integrated into the
“Clinical Impressions” section of the report.

The evaluator also used scientific reasoning in the interpretation of the
psychological test results and considered the characteristics of the individual
that could potentially affect the accuracy of interpretation of test results. For
example, the evaluator considered conflicting data from the clinical interview
when interpreting test results. This facilitated a parsimonious, “best” explana-
tion for the existing clinical symptoms and relevant personality characteristics.

The evaluator supported his conclusion about the individual’s level of risk
by referring to data gathered throughout the evaluation. Specifically, the evalu-
ator indicated that the level of risk for violence toward self or others was based
on factors such as the individual’s history of violence and violent fantasies,
feelings of anger and low threshold for insults, history of alcohol and drug
abuse, lack of compliance with medication, and blurring of fantasy and reality.

Finally, the evaluator recognized the limits on the accuracy of his data,
reasoning, and conclusions. In making a prediction about the individual’s future
behavior, the evaluator clearly specified the behavior being predicted. For ex-

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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Sex Offender Sentencing • 269

ample, the evaluator stated that the individual “is at very high risk to engage
in acts of extreme interpersonal violence” (emphasis added). This specification
of outcome limits the scope of the prediction being made, and facilitates the
communication of a particular conclusion. The information obtained in this
evaluation did not allow a conclusion regarding the likelihood of success in
therapeutic intervention, however, as the evaluator conveyed the limits on ap-
plicability of these FMHA data.

FORENSIC EVALUATION be designated as a sexual predator, defined as
“any person convicted of a sexually violent act

March 31, 1999 under Section 9793 (B) and who suffers from a
Re: John D. mental abnormality, or personality disorder which

makes that person likely to engage in predatory
violent offenses.”REASON FOR REFERRAL

John is a 24-year-old Caucasian male who was FOCUS AND CONDUCT
convicted of Sexual Battery, which occurred on OF THE EVALUATION
2-10-98, and is awaiting sentencing. A forensic

The evaluation took place over an 8-hour periodpsychological evaluation was ordered pursuant to
on March 15–16, 1999. The evaluation included42 Pa. Con. Stat. § 9794, as amended in 1996, to
a 5-hour interview with John, 2 hours of psycho-be conducted by a member of the Sexual Of-
logical testing, and a 1-hour psychiatric consulta-fender Assessment Board to provide the sentenc-
tion regarding medication. He was informed prioring court with the following information:
to the beginning of the evaluation that it was be-

• age of the offender ing conducted to assist the court at sentencing,
• offender’s prior criminal record, sexual of- that a report would be written describing the
fenses as well as other offenses findings of the evaluation, and that testimony of

• age of victim the undersigned at sentencing was also possible.
• whether the offense involved multiple vic- The interview with John included inquiry into
tims

his family, developmental, victimization, educa-• use of illegal drugs by the offender
tional, social, sexual, vocational, and psychiatric• whether the offender completed any prior
history. In addition to gathering historical infor-sentence and whether the offender partici-
mation that might shed light on his current levelpated in available programs for sexual of-
of functioning, we focused on his understandingfenders

• any mental illness or mental disability of of the sadistic fantasies and behavior associated
the offender with his recent conviction.

• the nature of the sexual contact with the Psychological testing included the administra-
victim and whether the sexual contact was tion of the Millon Clinical Multiaxial Inventory-
part of a demonstrated pattern of abuse III (MCMI), a widely used standardized personal-

• whether the offense included a display of ity test that examines distinctive, longstanding
unusual cruelty by the offender during the

features of personality, such as depression, anxi-commission of the crime, and
ety, social discomfort, passivity, dependence, self-• any behavioral characteristics that contrib-
confidence, and aggression, as well as acute symp-ute to the offender’s conduct.
toms; Briere’s Trauma Symptom Inventory (TSI);
Putnam’s Dissociative Experiences Scale (DES);This information is to be provided to assist the

court in determining whether the defendant shall Speilberger’s State Trait Anger Expression Inven-

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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270 • Forensic Mental Health Assessment

tory (STAXI); the Beck Depression Inventory in Hell. During one visit to California to see his
stepfather, he (stepfather) arranged a surprise re-(BDI); and Davis’s Interpersonal Reactivity Index

(IRI), a multidimensional measure of empathy. ligious ceremony that was intended to rid John of
homosexuality.Because of his high level of distress after com-

pleting the above-mentioned tests, I decided not John stated that he loved his mother and
hated her at the same time. He described beingto have him complete the two remaining compo-

nents of the battery that focus on sexual fantasies enmeshed with his mother and that he continues,
to this day, to be enmeshed with her. He re-and behavior (New England Sexual Compulsive

Disorder scale and the Multidimensional Assess- marked that he loved her because she could be
fun to be with, and she was proud of him. Whenment of Sex and Aggression).
asked why he hated her, he stated that he was
always receiving confusing and disturbing mes-
sages from her. At times she could be very fair in

FAMILY AND VICTIMIZATION
her treatment of him, and at other times she

HISTORY
would lash out at him in a loud angry voice and
smack him in the face. He said that, “this was herJohn stated that he was an only child born to un-

wed parents on February 9, 1975. He reported rage,” commenting that his mother would fre-
quently give him the silent treatment, whichthat his home environment was unstable, and

that his father was a drug addict who was not would make him feel, “Like I had no ID. I felt
like nothing.” He also reported that his motherinvolved with his care. During his childhood, he

lived in many places with his mother and her nu- had improper physical boundaries. He stated
that, “When she hugged me, it was too close, toomerous boyfriends. He recalled no memories of

his father prior to the age of 8. He stated that his hard, long and lingering.” He noted that he often
felt like a surrogate husband to his mother, be-mother told him that his father would visit him,

but he has no recollection of these visits. At age cause whenever it was time to kiss her goodnight,
she would stick her tongue out. He also recalled8, he recalled playing with and smelling some-

one’s feet. He recalled that it was dark, he was slow dancing with his mother at parties. Al-
though he has vague memories of sleeping withscared, and that there were other people there.

He further recalled that, “Something really bad his mother, he did not recall being sexual with
her. He denied, moreover, ever being sexuallyhappened. I don’t know why, but it scares me

when I think about it.” He reported a fragment aroused by his mother. Although John recalled
these behaviors when he was as young as 6 yearsof another memory in which his father’s hands

were pulling his knees apart. He stated, “I wanted old, it seemed to get worse after his father died.
John was 8 years old at the time, and he remem-to be asleep. I remember looking down like I was

on the ceiling, sort of floating.” He reported being bered that his mother started calling him “Daddy.”
He stated that her inappropriate behavior alwaysvery scared of men and feeling particularly vul-

nerable at night. made him feel “silly and uncomfortable.”
He reported that because of his mother’s fre-John reported that his father died when John

was 9 years old. His mother married after his quent moves, he spent a considerable time living
with his maternal grandparents. He stated thatdeath, and John attempted to get close to his

stepfather. He stated that these attempts always his grandmother was frequently intrusive and had
very improper boundaries. He reported that sheended in failure, and that he was estranged from

his stepfather for many years. At the age of 20, would walk in on him when he was changing his
underwear and would always find an excuse towhen he was a college student, he initiated con-

tact with his stepfather. He always had “bad feel- come into the bathroom and wipe him after he
made a bowel movement. He never questionedings” about these meetings. Despite his attempts

to gloss over his stepfather’s neglect, he could his grandmother’s intrusive behavior, stating that
“I felt it was necessary.” John added that he didn’tnever forgive him. His stepfather could not ac-

cept his homosexuality, stating that he (step- realize his grandmother’s behavior was inappro-
priate until later.father) told him that he (John) was going to burn

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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Sex Offender Sentencing • 271

PSYCHIATRIC HISTORY summer after high school when he began drink-
ing beer more frequently and started drinking

John has an extensive psychiatric history, which
hard liquor. He also reported that he began

is briefly reviewed below.
smoking marijuana during the summer after high
school. He stated that he drank at least three bot-

1992 [age17]: inpatient psychiatric commit-
tles of beer daily while in college, and that he

ment for sexually assaulting a 13-year-old.
smoked marijuana four times per week. He beganJohn strangled the victim and fantasized that
to cut classes in order to get high and often drankhe would render him unconscious and play
until he blacked out. He admitted that he triedwith his feet
cocaine, crack, and amphetamines. He stated that1994 [age 19]: inpatient psychiatric stay. He
his more recent use of alcohol and drug was tosigned himself in because he feared hurting
avoid painful memories and to bring back his sexsomeone.
drive, which the Provera dampens.1995 [age 20]: drug rehabilitation.
He reported that he has had several periods of

1996 [age 21]: suicide attempt (liquor and an-
sobriety since he joined AA in 1994. His longest

tidepressants).
period of sobriety was for 3 years. His last re-

1997 [age 22]: inpatient psychiatric commit- ported use of alcohol was February 7, 1999. His
ment for depression and fear of violent fanta-

last reported use of marijuana was February 11,
sies.

1999.
1998 [age 23]: inpatient psychiatric commit-
ment for depression and suicidal ideation.

1999 January [age 23]: inpatient psychiatric
EDUCATION AND SOCIALIZATIONcommitment for suicidal ideation. He stated
HISTORYthat, “I was feeling real bad over not feeling

anything about strangling my friend’s friend. I
John stated that school was his lifesaver. He at-was still masturbating over the strangulation
tended high school in a suburb of Boston, MA.incident.”
He stated that he was an A student. He reported
that he had several friends, but he would not callWhen asked about his history of suicidality,
them close friends. He had one best male friendJohn reported that most of his suicide attempts
in high school, with whom he was infatuated. Heresulted from his “disgust” with his homicidal fan-
stated that his friend was never aware of his infat-tasies and impulses. He reported that his most re-
uation.cent psychiatric hospitalization was because he
He reported that he attended college for awas despondent over breaking up with his boy-

year, then dropped out during the first semesterfriend and feeling “unworthy.”
of his sophomore year due to drug and alcohol
abuse. He stated that he was “an emotional
wreck” during this time period. He told peopleCURRENT MEDICATION
that he had Huntington’s Disease so that people
would feel sorry for him and hug him. WhenProvera, 20 mg q A.M.
questioned further about this, he stated that, “It’sFluoxetine, 20 mg, IV tab Q.D.
a great cop out. If you can’t handle somebody

Trazodone, 100 mg, I tab q hs
feeling angry with you, you try to get them to feel

Depakote, 250 mg, II caps q A.M., II caps q sorry for you.” During this time period, his favor-
eve, I cap q noon ite television shows were Batman and The Wild

Wild West, because they played out his fantasy of
one male getting hurt while the other male rushes

SUBSTANCE ABUSE HISTORY
in to comfort him. He stated that, “In movies, the
man had to be dying to be held.”John reported that he started drinking in high

school, mostly beer on weekends. He reported He called himself a “chameleon,” because
while in college he associated with many differentthat his alcohol consumption escalated during the

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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272 • Forensic Mental Health Assessment

types of people such as “jocks, band members, victims, he hasn’t always been sure that his victim
was alive when he left. He reported that the lastand nerds.” He reported that he had a girlfriend

in college, but he could only get aroused by her time that he acted on his fantasies was in October
1997, when he attacked and strangled a youngif he fantasized about his male roommate.

He reported having had approximately 10 man that he picked up in a bar and brought
home. He stated that he was about to drown hismale sex partners since leaving college in 1995.

He described these relationships as “healthy, with victim in a trash can when the victim became
semiconscious and pleaded for his life. He re-lots of touching, kissing, and hugging.” John re-

ported that he had no violent fantasies in these ported that he remembers thinking at the time,
“If I keep going, he will die. If I stop, he will live.”relationships. He stated that his last male lover

lasted approximately 6 months. The relationship He further stated that, “The fantasy was that I
could get away with it and hide the body.” Hisended in December 1998 because his lover

wouldn’t commit to him. He said that he felt fantasized victims are mostly white, slim, emo-
tionally unavailable men.“unworthy” and began having increasingly intense

suicidal and homicidal fantasies. His drug use in-
creased in response to distress from the fantasies.

RESULT OF PSYCHOLOGICAL
He was hospitalized approximately 1 month later.

TESTING

John’s score on the Beck Depression Inventory
SEXUAL AND HOMICIDAL FANTASIES

places him in the severe range, indicating the
presence of clinical depression. John’s responsesJohn recalled that the first time he fantasized

about playing with feet was when he was 4 years on the Interpersonal Reactivity Index were in the
average range for Empathic Concern, an affectiveold, and he wanted to play with his friend’s feet.

He stated that the first time he acted on this fan- measure of the ability to feel compassion for
those in distress, but about 2 standard deviationstasy was when he was about 12 or 13 years old.

He stated that he hit a friend over the head with below average in Perspective Taking, a cognitive
measure of the ability to appreciate other peo-a shovel, knocked him out, and played with his

feet. He reported having his first wet dream when ple’s point of view. The most noteworthy scale
score, however, was on Personal Distress, a mea-he was 16 years old. He dreamed about knocking

out his friend and playing with his feet. He stated sure of the extent to which an individual is ca-
pable of sharing the distress that other are experi-that in his homicidal fantasies, “I’m drowning

them [his victims] in a trash can. I reach a climax encing. John’s score on this scale was 1.5 standard
deviations above the mean. Since a low score onwhen I’m holding their legs and they stop strug-

gling.” He also reported fantasizing about putting this scale often reflects one’s inability to tolerate
or cope with their own distress, we may infer thathis victims in a trance or drugging them so that

they don’t remember anything and then “I can do Mr. D is aware that he is coping with a very high
level of distress.what I want with their body.” He acknowledged

frequently masturbating to these violent fanta- John’s responses on the STAXI reveal fre-
quent, very intense angry feelings. His scores onsies. He also indicated that the fantasies and sub-

sequent masturbation were soothing and helped two scales, reflecting both the suppression of
angry feelings and the behavioral expression ofhim cope with his anger. He stated that he was

preoccupied with these violent fantasies “25 out anger were well above the 90th percentile. John’s
anger appears to be chronic, rather than situa-of 30 days.” He reported that his medication de-

creases the amount and the intensity of the fan- tionally determined. He is highly sensitive to crit-
icism, perceived insults, and negative or devalu-tasies. John further remarked that, “The line

between fantasy and reality has always been a ing remarks and is likely to experience anger in
those situations. John does not appear, however,problem for me.”

He admitted to acting on his fantasies at least to be quick tempered and implusive in the ex-
pression of anger. He is more likely to brood forfive times. He stated that although he thought he

has been able to stop himself short of killing his some time before expressing his anger.

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.
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Sex Offender Sentencing • 273

John’s response on the MCMI-III provide no provides an unclear symptom picture with regard
to dissociation. Although John endorsed manyevidence of psychosis (i.e., Thought Disorder or

Delusional Disorder). John scored very high on a items, the frequency with which he has these ex-
periences is highly variable (4 of the items lessnumber of Clinical Syndromes, however, includ-

ing Anxiety, Dysthymia, Alcohol Dependence, than 10% of the time, and 12 of the items less
than 20% of the time).and Drug Dependence. There is evidence, more-

over, of longstanding and pervasive character
pathology, most notably Borderline Personality

CLINICAL IMPRESSIONS
Disorder. Consistent with this, John has shown
evidence of impulsive and volatile outbursts, John presented as a pleasant, cooperative 24-

year-old Caucasian male, who was mildly anx-markedly labile mood with shifts from normality
to extended periods of depression interspersed ious. He was fully oriented. In the early part of

the interview, he made frequent use of humor.with anger and anxiety, rapid fluctuations in
thoughts and perception about life about events, Although self-disclosing, his facial expression

was tense, and he appeared to choose his wordsand a highly confused, wavering sense of identity.
In addition to this constellation of traits associ- carefully. His speech appeared to be without

pressure. He often spoke in great detail, thoughated with Borderline Personality Disorder, there
also is evidence of egotistic self-involvement, as seemingly without circumstantiality, looseness

of association, or flight of ideas. He frequentlyindicated by his interpersonally exploitative style
and features of personality that would be associ- displayed poor eye contact, particularly when he

appeared to be daydreaming with the imagery ofated with Passive Aggressive (or Negativistic)
Personality Disorder. Not surprisingly, John also these events that he was reporting. His respira-

tion appeared rapid at times, and the interviewscored in the “trait range” for Aggressive/Sadistic
Personality. was stopped on several occasions due to the

acute distress that he exhibited (e.g., reachingJohn’s scores on all 10 of the Trauma Symp-
tom Inventory scales were above the 90th percen- up and grabbing his hair). He often grew agi-

tated, and on several occasions he became visiblytile. His scores on seven of those scales were at
99th percentile. Overall, his responses reflect a upset about a particular topic, stating, “I don’t

want to say anything more about that.” Short-very high degree of trauma-related symptomatol-
ogy. This profile indicates a high level of sexual term memory was instant. Long-term memory

was roughly intact. Both insight and judgmentdistress and dysfunctional sexual behavior, chronic
depression, and constant, vigilant attempts to were poor.

There was no evidence of auditory or visualavoid extreme internal (often posttraumatic) dis-
tress. His high score on Tension Reduction Be- hallucinations or delusions. He acknowledged

having extremely vivid, intrusive fantasies, whichhavior reflects the frequency with which he en-
gages in behaviors intended to interrupt, discharge, he often finds disturbing as well as arousing. These

fantasies have both an obsessive-compulsive qual-or attenuate negative or aversive feelings. His
high score on Dissociation suggests a high fre- ity to them (i.e., he experiences acute distress, if

he can’t act on them). He has a long history ofquency of avoidance responses to overwhelming
emotional distress. These responses may include substance abuse, primarily ETOH and marijuana.

He has a long history of both suicidal and homi-cognitive disengagement, depersonalization and
derealization, and emotional numbing. Given his cidal ideation, which he has acted on in the past.

He denied any current suicidal or homicidal ide-high score on the DIS scale, I administered the
Dissociative Experience Scale (DES). John en- ation.
dorsed 19 of the DES items, slightly below the
median of 22 for people with Post Traumatic

DIAGNOSTIC IMPRESSIONS
Stress Disorder (PTSD). His median score for
those 19 items, however, was 18, which is sub- Based on historical, clinical, and psychometric

data, the following DSM-IV classifications wouldstantially lower than the median score of 39
found among people with PTSD. Thus, the DES be appropriate:

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.
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274 • Forensic Mental Health Assessment

Axis I: Major Depression in partial remission, tionnaires that, in reality, were quite be-
nign (i.e., they did not inquire about anysevere, recurrent (296.35), Dysthymia

(300.4), Alcohol Dependence (303.90), Can- potentially “high voltage” subjects such as
childhood abuse or sexual behavior,nabis Dependence (304.30), and Sexual Sa-

dism (302.84); thoughts, or fantasies);
5. He has a long history of chronic relapsingAxis II: Borderline Personality Disorder
to use of alcohol and drugs, undoubtedly(301.83).
for purpose of self-medication. His reli-
ance on substances fulfills the criteria for
dependence;RISK ASSESSMENT

6. He acknowledged intentional lack of com-
pliance with medication in order to inten-John should be regarded as being at very high risk
sify his sexual fantasies and sexual drive.of violence toward self or others. This conclusion
He reports that masturbation to these sex-is based on consideration of the following factors:
ual fantasies are “soothing” and attenuate
feelings of intense anger;

1. He has a long history of acting on his fanta- 7. Lastly, it should be noted that he often expe-
sies. He reported having at least five vic- riences a blurring of fantasy and reality. As he
tims of strangulation; commented, “The line between fantasy and

2. He reported clear evidence of planning in reality has always been a problem for me.”
these offences, including the use of manip-
ulation and subterfuge. In his October
1997 offense, for example, he brought to

CONCLUSIONShis apartment a young man that he picked
up in a bar under the pretext of “getting

Based on all of the above, we would recommendhigh.” Once high, he rendered his victim
that the court consider the following in determin-unconscious;
ing whether John D should be classified as a sex-3. He reported active, intrusive, at time pre-
ual predator. He appears to have serious psychiat-occupying fantasies of strangulation and
ric difficulties in the form of sexual sadism andpostmortem sexual acts that consume him

80% of the time. When he does not act on borderline personality disorder that would in-
these fantasies, he feels “intense frustra- crease his risk of further sexual offending. He also
tion,” as well as “extreme disgust” due to has a substantial history of intrusive and violent
his enjoyment and lack of remorse over sexual fantasies and a tendency to act on these
his homicidal fantasies. His recent hospital- fantasies. The nature of past sexual conduct in
ization in January 1999 for suicidal ide- this area suggests a consistent pattern of abuse
ation was precipitated by constant preoc-

and cruelty to his victims. John also appears to becupation with highly arousing sexual
an individual with a number of other active riskfantasies about a prior (October 1997) of-
factors associated with interpersonal aggressionfense and consequent “self-loathing” be-
toward others, namely substance abuse, sporadiccause of these fantasies;
medication compliance, poor anger and impulse4. He lives, on a daily basis, with very in-

tense angry feelings, and he possesses a control, a history of trauma, and poor judgment.
very low threshold for experiencing what Accordingly, his current risk factors would seem
he perceives to be insults and abuse from to increase the risk for reoffending in both a sex-
others. His controls, even in the presence ual and nonsexual context.
of medication, are fragile. He was unable, John should be closely monitored and stabi-
for example, to complete the battery of in- lized on medication, with consideration to fur-
ventories and questionnaires for this evalu-

ther reduction in the intensity of his sexual andation, because he found them to be too
violent fantasies. In this regard, I would recom-upsetting. Indeed, he reported in the be-
mend a combination of an antiandrogen and anginning of a second session that he had a
SSRI. His lack of compliance with medication“bad weekend” because he had been con-
must be addressed and appropriate means of moni-sumed by anger. What prompted all of his

anger was several general personality ques- toring compliance instituted. Following stabiliza-

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.
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Sex Offender Sentencing • 275

tion, he should be treated for symptoms of Post trauma therapy before he can effectively work on
his own victimization of others.Traumatic Stress Disorder, followed by cognitive-

behavioral treatment for his cycle of sexualized If I can clarify any aspects of this report or
provide any further assistance to you on this mat-violence (including substance abuse) and aversive

counterconditioning to decrease arousal associ- ter, please feel free to call.
ated with his violent fantasies. John’s own victim-
ization history, the precise nature of which is un- Yours sincerely,

Robert A. Prentky, Ph.D.clear at this point, may have to be addressed in

Teaching Point: Sex offender typologies in sentencing

Science has traditionally proceeded by simplifying complex, diverse domains
of information. Simplification is typically achieved through a methodical pro-
cess of assigning members of a large heterogeneous group to subgroups that
possess common characteristics, thereby bringing some degree of order to di-
versity. The process of classification (“taxonomy”) is fundamental to all science.
The task is to uncover the laws and principles that underlie the optimal differ-
entiation of a domain into subgroups that have theoretically important similari-
ties. The resulting subgroups or subtypes are not simply notational; they con-
nect the content of science to the real world. In fact, one might argue that
classification reflects a normal cognitive process of integration and reduction.
Through such a process of classification we make sense of our experiences. The
process that helps us to apprehend our world at a sensory level is the same
process that scientists use to order and simplify their world at an empirical
level.

Over the past 40 years, classification systems have been designed, imple-
mented, and tested on virtually every aspect of human behavior. The profusion
of these systems during the past several decades resulted from the proliferation
of clinical data and the need for an organized approach to complex and diverse
behavioral domains. One area that certainly has been the beneficiary of classi-
ficatory efforts has been depression. We have witnessed something of a revolu-
tion in the treatment of depression and anxiety-related disorders through the
identification of increasingly homogeneous subgroups. The clinical literature
clearly indicates that valid classification models lead to more informed deci-
sions.

In general, the more heterogeneous the area of inquiry, the more critical
is classification. One of the few indisputable conclusions about sexual offenders
is that they constitute a markedly heterogeneous group (Knight, Rosenberg, &
Schneider, 1985). The childhood and developmental histories, adult compe-
tencies, and criminal histories of sexual offenders differ considerably. The mo-
tives and patterns that characterize their criminal offenses differ considerably.
Sex offenders can, quite literally, come from any walk of life and present with
any composite or profile of attributes. As such, reliable and valid classification

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.
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276 • Forensic Mental Health Assessment

of sexual offenders is, arguably, more important than for any other group of
criminals. Although sexual offenders have been the subject of intense clinical
interest and speculation for at least 50 years, it is only within the past 20
years that progress has been made on the development of empirically validated
systems for classifying this population (Prentky & Burgess, 2000). Indeed, clas-
sification research reveals that rapists and child molesters are each very hetero-
geneous and that each offender group may include a half dozen to a dozen
discrete subtypes (Knight & Prentky, 1990).

Classification systems do not serve all purposes. Classification research typ-
ically begins by pinpointing the purpose that the resulting model is intended
to serve. For example, a taxonomy may be designed to classify the structural,
biochemical, or reproductive characteristics of a particular genus or species of
plant or animal. In the case of criminal offenders, the same principle holds. A
classification system that is intended to assist with treatment planning and clini-
cal decision making may look quite different from a classification system that
is intended to inform forensic decision making (e.g., risk).

In the criminology domain, the clear purpose of most taxonomic efforts
has been to inform discretionary decisions about offenders, and to assist with
decisions about dangerousness or reoffense risk. However, because sex offend-
ers are often placed in treatment programs, voluntarily as well as involuntarily,
the need for assisting with more informed treatment-related decisions has also
been a high priority.

A valid classification system can inform and improve the discretionary and
dispositional decisions made by the criminal justice system. These decisions
include reoffense risk, risk of violence, appropriateness for probation, custody
level (i.e., security risk), parole risk, and discharge from community-based
treatment or other conditions of parole. This clearly is an area where classifica-
tion can serve a very useful purpose. Although there has been relatively little
research on validating a classification system specifically for this purpose, recent
validity studies on several empirically derived taxonomies are promising.

In one 25-year follow-up study of 111 child molesters, for example, the
predictive efficacy of several critical dimensions of an empirically derived clas-
sification system for child molesters (MTC:CM3; Knight & Prentky, 1990) was
examined. It was found that Fixation (degree of sexual preoccupation with
children) and number of Prior Sexual Offenses were significantly related to
sexual recidivism, while Amount of Contact with Children was significantly
related to nonsexual, victim-involved, and violent recidivism (Prentky, Knight,
& Lee, 1997). In that study, it was evident that classification as high in Fixation
on Axis I and low in amount of Contact with Children on Axis II were associ-
ated with increased risk of recidivism.

Similarly, in a 25-year follow-up of 106 rapists released from a maximum-
security treatment facility, Prentky, Knight, Lee, and Cerce (1995) examined
impulsivity, a dimension critical to the classification of rapists (MTC:R3;
Knight & Prentky, 1990). We found that the hazard rate for the high impulsiv-

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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Sex Offender Sentencing • 277

ity rapists was at least twice as great as the hazard rate for the low impulsivity
rapists, across all domains of criminal behavior. In fact, the hazard rate for
committing a new sexual offense was almost three times greater for the high
impulsivity rapists. For nonsexual, victimless offenses, the hazard rate was al-
most four times greater for the high impulsivity rapists. In other words, the
simple construct of lifestyle impulsivity was a powerful predictor of those who
reoffended, even in a sample comprised entirely of “hard core” offenders classi-
fied as “sexual psychopaths.”

A second possible benefit of classification would be to inform treatment
planning and clinical decision making. To the extent that rehabilitation within
the criminal justice system remains a viable goal and to the extent that limited
resources require prudent allocation, classification systems that shed light on
optimal interventions for different types of offenders are very important. This
is not a novel application of classification. Over 25 years ago, Quay (1975)
remarked, “This question of the match between offender characteristics and
treatment modalities, i.e., differential classification and treatment, remains per-
haps the most important problem for research in applied corrections” (p. 412).

Using the MTC:R3 taxonomic system for rapists, John was easily classified
as a Type 4 (Overt Sadism). In John’s case, his report of a long history of
fantasy and behavior consumed by sexual sadism was ample evidence for this
classification. Using the component rating sheet for the MTC:R3, four of the
eight Category A criteria for sadism were coded as present. Only one Category
A criterion is required for Type 4 classification. The Type 4 offender is charac-
terized by the following: (1) a high level of aggression and gratuitous violence,
typically in sexual offenses; (2) a history of pervasive (undifferentiated) anger
may be present; (3) sexual offenses evidence a fusion of aggression with sexual
arousal; (4) a moderate history of impulsive, antisocial behavior in adolescence
and adulthood is often present; (5) a history of other paraphilias is often pres-
ent; and (6) offense planning and premeditation are evident.

John’s treatment needs are numerous, including trauma therapy for a his-
tory of victimization, anger dyscontrol, impulse dyscontrol, and highly intru-
sive and repetitive sexual fantasy that is dominated by sexual sadism. Because
of the high potential for dangerous behavior inflicted against self or others, I
emphasized that such treatment should be provided in a secure, specialized
setting, and that John be stabilized on medication prior to treatment. Although
John had been on the anti-androgen Provera for a brief time, he was essentially
noncompliant by using alcohol and street drugs to restore his sexual drive.
Thus, ensuring compliance should also be a focus in the beginning of treat-
ment. I recommended, in this regard, consideration of a GnRH medication
(gonadotrophin releasing hormone) such as Lupron, which can drop testoster-
one down to castrate levels. I further recommended that trauma therapy pre-
cede offender therapy, because of the overwhelming influence of the distal
effects of trauma on his life, most notably extreme anger and depression, and
intrusive memories.

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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278 • Forensic Mental Health Assessment

Because of the very nature of its use by the criminal justice system, classi-
fication systems must be applied with utmost care and caution. When applied
properly, classification can inform and increase the accuracy of difficult deci-
sions made by the criminal justice system. When applied improperly or mis-
used, classification can lead to erroneous decisions that can adversely affect
individual liberty interests. In an article three decades old on the “care and
feeding of typologies,” Toch (1970) warned that, “Classifying people in life is
a grim business which channelizes destinies and determines fate. A man be-
comes a category, is processed as a category, plays his assigned role, and lives
up to the implications. Labeled irrational, he acts crazy. Catalogued dangerous,
he becomes dangerous, or he stays behind bars” (p. 15). Hans Toch, who has
spent much of his professional life attempting to classify violent people, re-
minds us that, “Individuals can be jailed as representatives of a probable cate-
gory” (p. 18).

Toch’s message, which is as true today as it was 30 years ago, is a sobering
one. Although we should not reject the benefits afforded by classification be-
cause of the potential for misuse, we must adhere to scientific rigor in the
development and validation of classification systems and employ utmost care
in the application of those systems. Casual or careless assignment of individuals
to categories is far worse than no assignment at all, and improper use of a
classification system is far worse than no use at all.

Note

1. Because the U.S. Supreme Court has also decided (in Kumho v. Carmichael,
1999) that expert evidence that is “technical” or “other specialized knowledge” may be
scrutinized in the same way as “scientific” evidence under Daubert, it is clear that Dau-
bert may be applied to FMHA regardless of whether the latter is considered to be scien-
tific, technical, or other specialized knowledge.

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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

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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.
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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)

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.
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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

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.
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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-

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.
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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.

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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 uments, 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.

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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-

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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-

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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;

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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-

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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-

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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Criminal Sentencing • 131

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-

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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,
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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

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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-

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.
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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)

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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)

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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,

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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.”

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.
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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

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.
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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

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.
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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

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.
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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

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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.

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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.

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.
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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

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.
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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.”

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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150 • Forensic Mental Health Assessment

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

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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Criminal Sentencing • 151

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

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.
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152 • Forensic Mental Health Assessment

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

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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Criminal Sentencing • 153

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)

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.
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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-

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.
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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-

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.
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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

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.
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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

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.
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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-

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.
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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

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.
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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

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.
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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

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.
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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-

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.
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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.

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.
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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

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.
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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

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.
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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-

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.
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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,

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.
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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-

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.
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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-

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.
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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.

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.
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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.

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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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.

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.
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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).

Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central,
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Chapter 2

Miranda Rights Waiver

The competence of adult defendants to waive Miranda rights (Miranda v

.

Ari-
zona, 1966) is the focus of the two case reports in this chapter. The principle
applied to the first case concerns the value of nomothetic data, derived from
groups and applied through general laws, to forensic assessment. The teaching
point in this case will address the value of forensic assessment instruments
(FAIs; Grisso, 1986) that have been developed and validated for a specific
kind of forensic assessment. This will serve to highlight one of the important
differences between the methodology of behavioral science and that of law:
While science emphasizes nomothetic approaches, the law is inclined toward
idiographic procedures focused on understanding a particular individual or
event. The principle associated with the second case in this chapter—use idio-
graphic evidence in forensic assessment—addresses how the forensic assessment
process can also be improved through the use of case-specific information. The
teaching point for the second case includes a discussion of the limits on the
applicability of FAIs in some cases and of alternatives to using an FAI when
such an instrument is not available or applicable.

Case 1

Principle: Use nomothetic evidence in assessing causal connection between

clinical condition and functional abilities

This principle concerns the value of applying scientific data gathered with
groups to the assessment of domains that are relevant in FMHA. Researchers
have gathered scientific data in several areas that are particularly applicable to
FMHA. First, studies have provided data on the reliability and validity of vari-
ous psychological measures, such as psychological tests, structured interviews,
and specialized tools, used in FMHA. Second, scientific data provide an esti-
mate of the base rates of relevant behavior (e.g., crime and violence) and the
outcomes (e.g., legal decisions on child custody). Such data can be used by
evaluators to make empirically grounded judgments regarding the relationship

17

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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18 • Forensic Mental Health Assessment

between capacities, behavior, and legal status. Third, the use of measures with
known reliability and validity, and the incorporation of empirically derived
base rates, can allow the forensic clinician to generate hypotheses that could
help answer questions arising in the case being evaluated.

Support for the application of nomothetic data to FMHA can be found in
several authoritative sources. In psychology, the Ethical Principles of Psycholo-
gists and Code of Conduct (Ethics Code), published by the American Psychologi-
cal Association (APA, 1992), contains several sections that are relevant. The
Ethics Code emphasizes the value of scientifically derived knowledge: “Psychol-
ogists rely on scientifically and professionally derived knowledge when making
scientific or professional judgments or when engaging in scholarly or profes-
sional endeavors” (p. 1600). The Ethics Code also emphasizes the importance
of research on the applications of various tests or instruments, and it notes that
the interpretation of psychological assessment results should be guided by re-
search on the reliability and validity of the procedures used in the assessment
(APA, 1992). Additional support for this principle can be found in the Spe-
cialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for
Forensic Psychologists, 1991). The Specialty Guidelines provides less detailed
support for this principle than the Ethics Code, but it emphasizes the impor-
tance of current scientific information and applying such information to the
selection of methods and procedures that are used in FMHA.

Legal support for the use of nomothetic data in FMHA can be found in
several important cases. In Daubert v. Merrell Dow Pharmaceuticals (1993), the
U.S. Supreme Court held that the Federal Rules of Evidence are applicable to
scientific testimony. In its analysis, the Court’s opinion included dicta that of-
fered criteria that could be used at the trial court level to decide whether
the “reasoning or methodology underlying the testimony is scientifically valid”
(Daubert v. Merrell Dow Pharmaceuticals, p. 592) and immediately applicable.
These criteria include whether the basis for the opinion is testable, whether it
has been tested, the known error rate, and other criteria such as level of general
acceptance and indices of peer review. Subsequently, in Kumho Tire Co. v.
Carmichael (1999), the U.S. Supreme Court held that a Daubert-like analysis
may also be applied to evaluating experts who testify on the basis of technical
or other specialized knowledge (rather than scientific expertise) regarding a
matter before the court.

Because accuracy is important in FMHA, the forensic clinician should be
able to describe the degree of empirical scientific support that has been demon-
strated for a particular FMHA procedure. Accordingly, a forensic practitioner
should consider procedures that have an established empirical base. Heilbrun
(1992) has offered guidelines on the use of psychological tests in FMHA that
underscore the importance of such empirical support. Relevant guidelines in-
clude: (1) the test is commercially available and has a manual documenting its
psychometric properties, (2) tests with a reliability coefficient of less than .80
would require explicit justification explaining why they are used, (3) the test’s
relevance to the legal issue or an underlying psychological construct should be

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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Miranda Rights Waiver • 19

supported by validation research, and (4) objective tests and actuarial data
combination are preferable when there are appropriate outcome data and a
formula exists. Others (Greenberg & Brodsky, in press) have proposed guide-
lines emphasizing that instruments used in FMHA should be reliable and valid
to an extent adequate to the scope of the asserted statements, opinions, and
conclusions.

The present case report provides a good example of the application of this
principle. The purpose of the evaluation was to assess the individual’s ability
to make a knowing, intelligent, and voluntary waiver of his Miranda rights
following his arrest for robbery. The forensic clinician employed several differ-
ent psychological tools that have an established empirical base. Consequently,
the evaluator could describe the degree of empirical support for each of these
FMHA procedures if this question arose during testimony.

The tests administered in the present evaluation included a standard intel-
ligence test (Wechsler Adult Intelligence Scale, 3rd edition; WAIS-III), a test
of basic academic abilities (Wide Range Achievement Test, 3rd edition;
WRAT-3), a test relevant to neuropsychological functioning (Bender Visual
Motor Gestalt Test; Bender Gestalt), and a projective personality test (The-
matic Apperception Test; TAT). Consistent with this principle, the WAIS-III
and the WRAT-3 have established levels of reliability and validity. The reliabil-
ity and validity of the WAIS-III is firmly established in the field (see, e.g., Kauf-
man & Lichtenberger, 1999). Similarly, the WRAT-3 has been extensively vali-
dated (Wilkinson, 1993), and the Bender Gestalt has a reasonable research base.
The TAT, while generally not scored and therefore not measured with respect
to reliability, is a test for which a reasonable justification for use could be made
on the basis that it can potentially provide information that cannot be obtained
from the other tests, interview, or third party information. The use of these
tests therefore appears consistent with the guidelines suggested by Heilbrun
(1992) regarding the selection and use of psychological tests in FMHA.

Another important aspect of the psychological tests used in the present
case concerns their relationship to psychological constructs that are relevant to
the forensic issues being addressed. Tests of intelligence (WAIS-III) and basic
skills in reading (WRAT-3) have clear relevance to the capacity for making a
knowing, intelligent, and voluntary waiver of Miranda rights, particularly in
their measurement of the individual’s ability to read and comprehend written
material and understand oral material.

The forensic clinician also administered specialized measures that were
specifically designed to assess the capacity of a defendant to make a knowing
and intelligent waiver of Miranda rights. Specifically, the evaluator adminis-
tered the Comprehension of Miranda Rights (CMR), the Comprehension of
Miranda Rights-Recognition (CMR-R), and the Comprehension of Miranda
Rights-Vocabulary (CMR-V; Grisso, 1998b). Because these measures have an
established empirical base (Grisso, 1981, 1998b), the evaluator was able to
compare the defendant’s scores on these tests with the data obtained as part
of the test validation process.

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20 • Forensic Mental Health Assessment

Another important aspect of the forensic clinician’s use of the CMR,
CMR-R, and the CMR-V is their specificity; these tools were developed to
measure the functional abilities relevant to the forensic issues included in Mi-
randa waiver. The use of psychological tests and specialized forensic tools with
an established empirical base, which assess both clinical condition and relevant
functional abilities, allowed the use of nomothetic evidence in assessing the
causal connection between the individual’s clinical condition and his functional
abilities related to the waiver of his Miranda rights. The use of these empiri-
cally supported tools can inform the evaluator’s judgment about whether cer-
tain kinds of psychopathology or functional deficits are related to the individu-
al’s ability to make a knowing, intelligent, and voluntary waiver of hisMiranda
rights. In this case, based partly on the individual’s scores on the tests specifi-
cally designed to assess his overall comprehension of his Miranda rights, the
forensic clinician concluded that the individual lacked sufficient understanding
of several of his Miranda rights.

to read and write and has a longstanding diagnosisAlan M Goldstein, Ph.D.
N.Y.S. Certified Psychologist, P.C. of Fetal-Alcohol Syndrome. Based on her obser-

vations of her client and his reported level of in-CT. Licensed Psychologist
Diplomate in Forensic Psychology tellectual impairment, she asked that I assess his

ability to make a knowing, intelligent waiver ofAmerican Board of Professional Psychology
his Miranda rights.
The opinions presumed in this report are

PRIVILEGED AND CONFIDENTIAL
based on two evaluation sessions conducted with

FORENSIC PSYCHOLOGICAL
Mr. W at Beekman Correctional Center. During

EVALUATION
8 hours of face-to-face contact, I interviewed Mr.
W regarding his history and background as well
as his recollections of the events that transpiredDefendant: Aaron W
immediately before and during his interrogationD.O.B.: 12/12/78
by the Westchester County Police Department. IAge: 19 years
also administered a battery of psychological testsDate of Report: 6/12/99
to him. Testing consisted of the following instru-Indictment No.: 5697/98
ments:Case No.: 586592

Dates Evaluated: 10/14/98, 11/4/98

• Wechsler Adult Intelligence Scale-III
(WAIS-III)Aaron W was referred by his attorney, Susan B,

• Wide Range Achievement Test-3Esq., on 9/28/98. At that time, I was informed
(WRAT-3)that her client had been charged with Robbery in

• Bender-Gestalt
the First and Second Degrees related to an inci- • Symbol Digit Modalities Test
dent that occurred on 8/16/98. Mr. W was ar- • Rey’s 15-Item Memorization Test
rested approximately 1 month following the al- • Thematic Apperception Test
leged offense. According to his attorney, Mr. W • Comprehension of Miranda Rights (CMR)
had been in special education classes throughout • Comprehension of Miranda Rights-Recogni-

tion (CMR-R)his school career. She stated that Mr. W is unable

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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Miranda Rights Waiver • 21

• Comprehension of Miranda Rights-Vocabu- In Mr. W’s handwritten statement (it is noted
lary (CMR-V) that while the statement is written in script, the

• Function of Rights in Interrogation (FRI) signature line contains a simple, somewhat shaky
printed “signature”), he indicated that he had

In addition to the above, my opinion is based been asked by his co-defendant to serve as a
on my review of copies of the following docu- “watch out” because “Frank was going to yoke the
ments provided to me by Mr. W’s attorney: old lady.” He reported that his co-defendant

threw the woman to the ground, took her bag,• Indictment
and that both he and his co-defendant ran from• Felony Complaint
the scene. According to Mr. W, he took two• Defendant’s Prior Record of Disposition of
credit cards from the victim’s pocketbook.Arrests and Dispositions
A review of Mr. W’s school records reflects his• State’s Voluntary Disclosure Form

• Defendant’s handwritten statement long history of learning disability and intellectual
• School records impairment. In the second grade, he was classi-
• Office of Family and Children’s Services fied as mentally retarded and placed in special ed-
records ucation classes. He was held back in the second

• Home Assistance report and fifth grades. According to the school records,
• Personal Information form

“When given step-by-step directions for simple• Mental Health Crisis Team Intervention
tasks, Aaron doesn’t remember how to proceed.”Report
A psychological evaluation conducted when he• Trial Competency Evaluation Reports
was age fourteen reports a Stanford Binet IQ of(11/5/98 & 11/12/98)
57 and Vineland Adaptive Behavioral Scale
scores ranging from 46 to 54. According to thisIn addition, I interviewed the defendant’s fa-
report, “Aaron can take advantage of situationsther by telephone on 11/1/98.
and manipulate people.” He was found to be,
“highly distracted, immature, and he had diffi-

SUMMARY OF RECORDS REVIEWED
culty in focusing his attention.” Furthermore, the
report states that he “lacks the ability to workAccording to the Felony Complaint, Mr. W has

been charged with Robbery in the First Degree, with what he has learned and to apply what he
has learned to new problems and situations. AaronRobbery in the Second Degree, and Criminal

Possession of Stolen Property. It is specifically has difficulty processing language inherent in such
problems.”charged that at the time of the crime, he forcibly

stole property and in the course of commission of A psychological evaluation conducted the
next year recommended that he “be placed in athis act caused serious physical injury to another

person. It is alleged that the defendant was aided highly protective, structured environment de-
signed to deal with his pronounced intellectualby another person and that Mr. W knowingly

possessed a stolen credit card with intent to bene- deficits.” An educational evaluation conducted at
the same time reported Verbal Reasoning skills,fit from its use. The indictment indicates that Mr.

W and his co-defendant choked a seventy-four Auditory Memory abilities, Oral Reading and Lis-
tening Comprehension scores ranging from theyear-old woman while she was returning home

from shopping. It is alleged that the co-defendant low first grade to the low second grade levels.
At age seventeen, Mr. W was evaluated throughknocked this woman to the ground and stole her

purse, and the victim suffered a featured hip re- the Office of Family and Children’s Services. At
that time, the evaluation reported his “severequiring hospitalization.

Prior to this charge, Mr. W had been con- problems with word recognition, sight vocabu-
lary, as well as his literal comprehension of con-victed of Theft of Services by a plea of guilty (11/

20/97). In addition, he plead guilty to a charge text.” The report reflects his lack of critical think-
ing skills as well as the need for special educationalof Menacing in the Second Degree and Criminal

Possession of a Weapon for which he received a services to improve his receptive language abilities.
Consistent with other records, he was classifiedConditional Discharge based on a plea of guilty.

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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22 • Forensic Mental Health Assessment

as mentally retarded. In addition, diagnoses of tained by his attorney. Using simple language, I
explained to him that the purpose of this evalua-Organic Personality Syndrome and Fetal Alcohol

Syndrome were reported. tion was to acquire information regarding the de-
tails surrounding his questioning by the police. IRecords from Office of Family and Children’s

Services indicate that both Aaron’s mother and indicated to him that if I were asked to write a
report and/or testify, all information he providedfather “are substance abusers and, according to his

mother, she regularly ingested alcohol throughout to me, as well as any other information I learned
about him, might be contained in my report and/her pregnancy.” A home assessment report con-

ducted when he was age seventeen found him to or in my testimony. I explained that my notes
would be given to his attorney, and under suchbe “low functioning and barely able to read and

count his change.” At that time, records indicate circumstances his attorney would, under law, be
required to turn these notes over to the Office ofthat Mr. W had been placed on Ritalin in an

attempt to control his difficulties with concen- the Prosecutor. Mr. W was unable to paraphrase
this information, stating simply, “You’re seeingtration, attention, and what was viewed as a Con-

duct Disorder. The report also states that he me to hear what happened.” When I again ex-
plained this information to him, he stated, “You“fluctuates from being passively compliant to be-

having in an irrational, non-logical fashion.” want to know what took place in the subway.”
Further attempts to clarify the nature and pur-Mr. W was interviewed by the Intake Social

Worker from the Office of the Public Defender. pose of this assessment proved to be relatively un-
successful. Mr. W acknowledged that he under-According to his observations, “Aaron was non-

communicative and did not appear to understand stood that, “You’re going to write this down.” In
addition, he stated, “Your job is to go to courtthe questions posed to him. To those questions

which he was able to give answers, Aaron re- and you may write it all down.” This evaluation
proceeded with authorization from his attorney.sponded with simple ‘yes’ or ‘no.’” When seen by

the Mental Health Crisis Team (approximately 2 At the start of the second evaluation session,
Mr. W was unable to recall my name although heweeks before the alleged offense), it was reported

that his “Cognitive limitations appear to be con- stated that, “I remember you. You’re a lawyer,
right?” I again indicated the nature of the evalua-siderable, although Aaron could answer simple

questions and generate coherent responses.” tion and the lack of confidentiality that would ex-
ist should I write a report and/or offer testimony.Trial competency assessments conducted by

two psychiatrists found the defendant to be com- Again, Mr. W was unable to provide informed
consent, and the session continued with authori-petent to stand trial. One report states that Mr.

W “had difficulty performing all but the simplest zation from his attorney.
of calculations and demonstrated poor recogni-
tion of letters.” Another evaluation indicated that Background and History The information pro-

vided by Mr. W during the interviews is relativelyhe “has difficulty recognizing letters and reading
and performing simple calculations. He has a lim- consistent with the records I reviewed. Although

he had a difficult time sequencing events in hisited fund of general information. However, Aaron
understands things generally when they are ex- life and there was some confusion regarding de-

tails, he did not present information that ap-plained in simple, uncomplicated terms.” Both
psychiatrists found Mr. W to be “borderline re- peared to be designed to portray himself in an

inaccurate light.tarded.”
Mr. W could not differentiate between his bio-

logical parents and his stepparents despite numer-
INTERVIEWS OF DEFENDANT

ous attempts on my part to clarify this issue. He
reported that his mother died “of drinking” whenPrior to the start of my initial evaluation gesta-

tion, I explained to Mr. W, in the presence of he was age 14. According to Mr. W, he has lived
with his biological father and stepmother since hehis attorney, that I am a Diplomate in Forensic

Psychology of the American Board of Professional was age 7. He could not explain what his father
did to earn a living, stating only, “He sells stuff.”Psychology and that my services had been re-

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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Miranda Rights Waiver • 23

Mr. W believed that he attended private want you to ask them no questions, and they want
you to be quiet and say nothing and to just sitschool for the earliest grades in his school career.

However, he could not recall the names of these down until they’re ready for you.” As for the use
of his statements in court, he stated, “Anythingschools. He reported that he has been in special

education from the start of his school career. that you say, the lawyer writes it down and he’ll
tell the judge.” When questioned about his right toWhen asked to explain why this was the case, he

stated, “I was roaming the streets too much.” Mr. have an attorney present during interrogation, he
stated, “I don’t know what that means. It meansW left school in the eighth grade. He recalled that

prior to this, he had been “left back one or two that you talk to your lawyer and tell him what hap-
pened, or you tell the police what happened. Thentimes because I was slow.” He described his read-

ing as “not that good” and his writing as “so so.” my lawyer goes to court and he tells the judge
what I said or when he calls him on the phone.”Mr. W reported that he has never been em-

ployed. He explained, “I can’t fill out an applica- His right to have an attorney if he could not afford
one on his own, Mr. W explained, meant that “If Ition. I never picked up a book and learned how

to read.” He reported no history of seizures (it can’t pay for one, somebody will be your lawyer to
help you with your case and help you out. Thewas necessary to explain to him what a “seizure”

is). He minimized his use of alcohol and denied judge gets you a lawyer to talk about your case.”
Later during the evaluation session, when asked ifuse of controlled substances at anytime in his life.

“It’s because of my mother. I mean my step- he could have an attorney present during interroga-
tion, he stated, “No, I don’t have that kind ofmother; she didn’t let me.” Mr. W recalled that at

one point in his life, his mother obtained a PINS money. I get one in court.”
Throughout the evaluation session, Mr. W pre-petition (Person In Need of Supervision) because,

“I was running from group homes.” However, he sented his view that, “The police are there to help
you. They talk to you and they tell the judge soclaimed he had never heard the term “PINS peti-

tion” before. they could put you on the right track.” Similarly,
he consistently expressed the opinion that his
lawyer will communicate directly with the judge,Recollection of Miranda Rights Waiver According

to Mr. W, he was arrested on the night of the failing to recognize the existence of privilege that
exists between attorney and client. In this regard,crime. However, records show that he was ar-

rested approximately one month later. According he failed to distinguish between the role of the
police and the role of his attorney in terms of theto Mr. W, he was approached by the police in the

subway. He explained that he initially spoke to legal representation that would be provided to
him. Similarly, throughout the evaluation ses-the police because “They scared me. They ac-

cused me that I robbed her. They also showed a sions, Mr. W did not appear to grasp the concept
that the right to remain silent meant anythinglot of pictures of me and they said that I robbed

other people, too.” more than remaining quiet until the police were
ready to speak with him.When asked what rights he had been provided

he stated, “They didn’t give me none.” When
asked what rights he should have been provided,

OBSERVATIONS OF BEHAVIOR
Mr. W stated, “the line-up.” On closer question-
ing, Mr. W claimed that, “I don’t know about the Throughout both evaluation sessions, Mr. W ap-

peared to be cooperative. He was friendly, polite,rights.” When pressured he stated, “I’m trying to
think. It means to stay out of trouble? Something and although he quickly tired, he appeared to al-

most force himself to remain attentive. Despitelike that.” When asked what the police say on
television when someone is arrested, he replied, these efforts, Mr. W was easily distracted by out-

side movement and noises. He appeared to be“You’re going to jail.” He was unable to spontane-
ously offer any of the Miranda rights. highly anxious and agitated.

No evidence of an underlying thought dis-Mr. W was read the waiver upon which he had
printed his name. When asked about the right to turbance was observed during either evaluation

session. Mr. W’s lack of vocabulary was readily inremain silent, he stated, “It means the police don’t

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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24 • Forensic Mental Health Assessment

evidence. In addition to being unable to provide are simple, childlike, and reflect his low level of
vocabulary as well as his tendency toward con-informed consent despite numerous attempts at

explaining and reexplaining the nature and purpose crete thinking. His stories were often no more
than mere descriptions of the pictures shown toof this assessment, Mr. W’s thinking was highly

concrete and simplistic. He frequently missed the him. They reflect his narrow view of the world
and his tendency to be puzzled by unfamiliar sit-essential nature and purpose of the questions put

to him. He had difficulty in presenting a logical uations.
Mr. W was administered a number of testssequence of events in his life, and details he did

provide were frequently incorrect or incomplete. specifically designed to objectively evaluate the
ability of a defendant to make a knowing, intelli-Rather than attempting to exaggerate the nature

of his retardation, the history he provided tended gent waiver of Miranda rights. While this test
consists of the rights as expressed in the St. Louisto underestimate the levels of impairment as re-

ported in the records. County, MO, version of Miranda rights, his per-
formance is consistent with scores obtained by
those with similar levels of intellectual function-
ing. In addition, his responses to these instru-

RESULTS OF TESTING
ments are similar to his comprehension of the
rights read to him in Westchester County. On anOn WAIS-III, Mr. W obtained Verbal and Perfor-

mance IQs of 63 and 59, respectively. These instrument requiring Mr. W to paraphrase each
right (CMR), he obtained a score of 1 out of ascores fall at or below the first percentile and

within the mildly mentally retarded range. His possible 8. On an instrument designed to evaluate
his understanding the vocabulary contained in theoverall or Full Scale IQ of 58 also falls at the first

percentile. On the sections that comprise the St. Louis version of Miranda rights (CMR-V;
only four of the words are similar to those con-WAIS-III, Mr. W obtained a Verbal Comprehen-

sion Index of 68, a Perceptual Organization Index tained in the Westchester version of Miranda
rights), he obtained a score of 2 out of a possibleof 64, a Working Memory Index of 57, and a Pro-

cessing Speed Index of 68. These scores are con- 12. On an instrument evaluating his ability to
recognize the similarity between each right andsistent with each other and reflect the generalized

impairments found across a wide range of intel- three sentences read to him related to these rights
(CMR-R), he obtained a score of 8 out of 10. Onlectual abilities. Mr. W’s vocabulary, his common

sense or judgment, and his general fund of infor- another instrument in which he is shown pictures
and asked a series of questions designed to elicitmation fell between the first and second percen-

tiles. Similarly, his attention span fell at the sec- his understanding of what is occurring (FRI), Mr.
W obtained a score of 19 out of a possible 30.ond percentile. He had difficulty defining even

simple words such as “penny” (“It is brown”). With the exception of the test designed to evalu-
ate his recognition of rights, his scores fall signifi-Mr. W’s scores on the WRAT-3 are consistent

with his scores on the WAIS-III. He obtained cantly below the mean. His scores reflect his lack
of comprehension of the right to remain silent, asReading, Spelling, and Arithmetic grade-equiva-

lent scores falling within the first grade and below well as his lack of understanding that he can have
a lawyer present during interrogation. In addition,the first percentile. On the Bender-Gestalt, Mr.

W made nine errors that could be scored under Mr. W did not appear to grasp the concept that
what he told the police might be used against himthe Hutt and Briskin scoring system. A score of

five errors or more is generally taken to indicate in court. Further, Mr. W did not appear to under-
stand the confidential nature that exists betweenthe possibility of organic impairment. On the

Symbol Digit Modalities Test, Mr. W completed the communication that occurs between he and
his attorney. Although Mr. W stated that he un-22 items. The completion of 38 items or less for

a person his age would strongly suggest the pres- derstood a lawyer could be appointed if he did
not have money to hire one on his own, whenence of a chronic brain lesion.

Mr. W’s TAT stories are consistent with his questioned later he stated, “I don’t have that kind
of money [to get a lawyer during interrogation].”low level of intellectual functioning. His stories

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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Miranda Rights Waiver • 25

OPINION remain silent. He does not comprehend that he
could have an attorney present during interroga-

Based on my interviews with Mr. W, his re-
tion, believing that he would be provided one

sponses to the tests administered, my interview
only when he appears in court. Although he grasps

with his father, and my review of the records pro-
the concept that an attorney would be appointed

vided to me, it is clear that the defendant is a
if he did not have the money to pay for one, later

mildly mentally retarded, learning disabled indi-
questioning revealed his belief that as an indigent

vidual. Significant impairments are noted in his
individual, he would only be provided with an at-

vocabulary, his ability to express himself, and his
torney at such time as he appears in court. In addi-

overall judgment and reasoning. He has difficulty
tion, Mr. W does not appear to understand the ad-

concentrating and focusing attention. Consistent
versarial nature of the interrogation process.

with his history, screening tests for neurological
Rather, he believes that the police are “interested

impairment strongly suggest the presence of an
in you and want to help put you on the right path.”

underlying central nervous system dysfunction.
It is Mr. W’s belief that both the police and his

Further neuropsychological/neurological testing
attorney will report his statements directly to the

is necessary to determine the exact nature of this
judge. Consequently, questions are raised as to the

condition.
impact of his lack of understanding of the confi-

Mr. W’s responses to questions regarding his
dential nature of attorney and client on his ability

comprehension of the Westchester County Mi-
to comprehend his Miranda rights.

randa rights as well as his scores on tests designed
to objectively evaluate his overall comprehension
of Miranda rights, indicate his understanding of a Alan M. Goldstein, Ph.D.

Diplomate in Forensic Psychologynumber of these rights is lacking. Specifically, Mr.
W does not understand the nature of the right to American Board of Professional Psychology

Teaching Point: What is the value of specialized forensic assessment

instruments in forensic mental health assessment?

Forensic assessment instruments, such as the Miranda tools developed by
Grisso that were used in this evaluation, are never the sole basis for an opinion.
However, such tools provide significant information for a forensic expert to
consider in reaching conclusions. In a sense, FAIs contribute to the expert’s
determination of the “what” regarding the legal competence question (Is the
defendant competent or not competent?), while traditional clinical tests con-
tribute to the expert’s understanding of the “why” or the reason for the impair-
ment in competency.

In reading this report, imagine if Grisso’s forensic assessment instruments
had not been administered to Mr. W. What if only traditional clinical tests,
such as the WAIS-III, WRAT-3, Bender Gestalt, Symbol Digit Modalities Test,
and the TAT, were given? (Tests such as the MMPI-2 could not be given be-
cause of his inability to read.) What effect would this omission have on the
opinions reached in this report?

Grisso’sMiranda instruments are based on the St. Louis County, Missouri,
version of theMiranda rights. AlthoughMiranda v. Arizona (1966) established
the content of the warnings to be administered at the time of arrest, the actual

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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26 • Forensic Mental Health Assessment

wording (vocabulary, reading level, length of sentences, and number of warn-
ings) varies across jurisdictions. It is highly unlikely that the defendant you are
assessing would have been administered this version of the warning. However,
the inclusion of Grisso’s measures adds very significant and relevant informa-
tion that would otherwise be lacking.

First, these instruments offer a standardized method to assess comprehen-
sion of theMiranda warnings. The administration of these measures is carefully
described in the manual that accompanies these FAIs. Scoring criterion are
clearly indicated (along with prompts to clarify unclear or borderline answers).
Performance can be expressed in numerical terms. Norms allow comparison of
the defendant’s scores on various measures with the scores of the norming
groups; norms also relate such scores to age, intelligence, and (for adults) of-
fender versus non-offender status. This is valuable information because it pro-
vides a base-rate or anchor to which the defendant’s scores can be compared.
If only an interview were conducted, asking the defendant about comprehen-
sion of the rights that were read, there would be no standard to judge whether
his or her comprehension is greater than, equal to, or less than those in his
demographic category.

Second, data allow examiners to assess consistency across instruments.
Scores on Grisso’s four measures can be compared with one another. They can
also be compared to the defendant’s IQ, obtained from an independent mea-
sure of his functioning. This information contributes to the assessment of ma-
lingering because consistency of performance on independent measures is, in
part, one of the criteria used by forensic psychologists in assessing malingering.

Third, by comparing performance on three or four independent instru-
ments of comprehension of each Miranda warning, the examiner not only can
check for consistency (and therefore malingering) but can also obtain useful
information about the specific right or rights the defendant has difficulty grasp-
ing. Such information may be valuable to the judge in making a determination
of whether the defendant understood each right that was waived.

Fourth, the manual provides a list of court decisions relevant to the admissi-
bility of expert testimony incorporating Grisso’s instruments. Opinions and testi-
mony that include data based on objective instruments are likely to be viewed as
more credible than those based solely on experience or clinical judgment.

Case 2

Principle: Use case-specific (idiographic) evidence in assessing causal

connection between clinical condition and functional abilities

There are a number of important sources of scientific and empirical evidence
that can be used to provide relevant information to a variety of legal decision
makers. Although reliable and valid empirical evidence is important in FMHA,

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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Miranda Rights Waiver • 27

such evidence should be used in conjunction with scientific reasoning. Such
reasoning is particularly important when using an idiographic approach, em-
ploying case-specific information, and interpreting it using scientific reasoning
(comparable to the single case study design).

Idiographic information is particularly important in assessing relevant do-
mains in FMHA for two reasons. First, an idiographic approach can contribute
significantly to the overall accuracy of the FMHA, and accurate information is
critical to hypothesis development, testing, and verification. Second, the use of
idiographic data enhances the face validity and relevance of the FMHA because
of its specificity and applicability to the particular case, making the FMHA
more credible to legal decision makers. In addition to enhancing face validity
(a particularly important concern in FMHA; see, e.g., Grisso, 1986), the use of
idiographic data is important because standards of practice and ethics authority
strongly suggest that FMHA should be based on information and techniques
that are sufficient to support the conclusions reached in FMHA. Typically, this
is accomplished through direct contact with the individual(s) being assessed
and the gathering of case-specific information for hypothesis formation and
testing. There is also a strong legal justification for using an idiographic ap-
proach in FMHA; the enhanced relevance that results from including idio-
graphic data is directly applicable to the admissibility of expert evidence under
Daubert, Kuhmo, and the Federal Rules of Evidence.

The present case provides a good example of the use of idiographic evi-
dence in hypothesis formation and testing. This defendant was evaluated to
provide his attorney with information relevant to his competence to waive
Miranda rights. The case provides an example of the relationship between for-
mally measured intellectual functioning and specific competencies. The idio-
graphic data, obtained through interview and review of case-specific docu-
ments, were applied toward describing actual and potential functioning in a
variety of domains relevant to the competence to waive Miranda rights.

Miranda warnings were designed to protect a defendant’s right against self-
incrimination under the Fifth Amendment. UnderMiranda, a defendant enjoys
the protections of several rights (the right to remain silent, the right to an
attorney, and the right to have an attorney provided if the defendant cannot
afford one) and must also show an awareness of the consequences of waiving
these rights (the knowledge that any statements made can be used against him
or her in a court of law). A defendant must be able to waive these Miranda
rights in a “knowing, intelligent, and voluntary” manner. Accordingly, the
FMHA must consider the specific capacities relevant to a “knowing,” “intelli-
gent,” and “voluntary” waiver. Further, the primary focus is on the capacities
for knowing and intelligent waiver, as a number of courts (e.g., Miller v. State,
1986; Rhode Island v. Innis, 1980; United States v. Velasquez, 1989) have held
that the kind of coercion that would typically be evaluated by a mental health
professional (e.g., presenting an individual with “hard choices,” implying that
a sentence will be more severe if the defendant does not waiveMiranda rights)
does not rise to the level of making a waiver involuntary in this context.

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28 • Forensic Mental Health Assessment

The FMHA is primarily concerned with the capacities involved in making
such a waiver. The clinical symptoms and cognitive deficits that could limit
such capacities, either temporarily (as in acute intoxication) or more perma-
nently (as in severe mental retardation), are also relevant for this assessment.
As with other legal questions, the presence of such clinical or cognitive deficits
might be described as a necessary but not sufficient basis for a legal decision
maker to conclude that waiver was not competently made. The relationship
between the clinical or cognitive deficits and the specific relevant capacity must
be established. An idiographic approach to this assessment issue would have
the evaluator seek to determine what the defendant understood about his or
her Miranda rights at the time of the confession, how the defendant reasoned
in waiving these rights, and whether these capacities for understanding and
reasoning were more impaired at the time of the waiver than they are currently.

In the present case, the process of assessing the relevant capacities began
with a detailed interview that included a psychosocial history. Relevant idio-
graphic information was obtained when the defendant was informed of the
evaluation and the associated limits on confidentiality. Although the defendant,
Mr. Doe, appeared to understand the basic purpose of the evaluation, he had
some difficulty recalling details related to the evaluation, and he needed to
have several parts of the notification repeated. This was the first indication that
he might have some deficits in his understanding or recall of information pro-
vided to him orally.

Incorporating self-report and collateral interviews, the psychosocial history
provided important idiographic information that was relevant to the compe-
tencies in question. For example, questioning about Mr. Doe’s family history
revealed that he had always lived at home with his mother and continued to
do so, although he was 41 years old. This suggested that Mr. Doe might not
have the skills necessary to live independently, which could suggest deficits in
a variety of relevant areas. Similarly, in response to questions about his educa-
tional history, he said that he completed fifth grade before dropping out of school
at the age of 16, and that he could barely read or write. While both statements
required further assessment through independent history-gathering and psycho-
logical testing, they were relevant in the present case because of the claim that
Mr. Doe had read and understood a standard written Miranda waiver.

The psychosocial history also revealed that Mr. Doe was unemployed at
the time of the alleged offense and had only held one job in his life—a job
changing tires that was given to him by his stepfather. Mr. Doe described his
inability to read and write as the primary reason for his limited job history. His
difficulty in finding employment and the simple nature of his only job are
consistent with cognitive deficits that might be related to his capacities relevant
to waivingMiranda rights. Mr. Doe did not appear to have a significant mental
or medical health history, nor did there appear to be a history of mental illness
in his immediate family. Also, Mr. Doe described a substantial history of sub-
stance abuse, which included daily use of alcohol. This information was rele-
vant because if Mr. Doe had been intoxicated when he was asked to sign the

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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Miranda Rights Waiver • 29

Miranda rights waiver, this could have had a significant impact on his ability
to waive these rights in a knowing and intelligent fashion.

The interview also yielded information about possible mental illness that
could have had adversely affected his relevant capacities. There were no indica-
tions, either from the observations of Mr. Doe or from the information he
provided, that he suffers from a serious mental illness. However, other impor-
tant idiographic information was obtained through the clinical interview. For
example, Mr. Doe did not respond at length to most questions asked of him
without encouragement and further questioning. Also, his responses frequently
did not address the question, and he tended to talk about unrelated matters.

Mr. Doe also appeared to give up easily on tasks requiring cognitive effort,
a tendency that was particularly apparent during intellectual and academic
achievement testing. Mr. Doe was administered the WAIS-R and the WRAT-3
to measure his functioning in these areas. His basic academic skills, as mea-
sured by the WRAT-3, showed severe deficits in all three academic areas:
Reading and Spelling were measured at a first-grade level, while Arithmetic
was measured at a second-grade level. Mr. Doe’s performance on the WAIS-R
suggested that he would fall in the Borderline Range of intellectual functioning
(VIQ = 72, PIQ = 77, FSIQ = 73). These results suggested that Mr. Doe’s un-
derstanding of written material was limited and provided relevant information
in considering the hypothesis that Mr. Doe had reading and understanding
deficits, particularly with written material.

Considering this possibility, the evaluators assessed the impact of these
deficits on Mr. Doe’s specific capacities to knowingly, intelligently, and volun-
tarily waive his Miranda rights. Mr. Doe was asked about each component of
his Miranda rights. He was also asked to explain his understanding of the
meaning and implications of each right. Mr. Doe had difficulty with these re-
quests from the beginning. He said that he did not know “for sure” what a
Miranda right was, and he had similar difficulty describing the purposes of
these rights. Mr. Doe’s responses to further questioning suggested that al-
though he had a basic understanding of certain Miranda rights, his ability to
reason about the advantages and disadvantages of either waiving or refusing to
waive such rights was very limited. His knowledge about his Miranda rights
was superficial, and he quickly became confused in trying to weigh his alterna-
tives. Given his overall level of intellectual functioning as measured by the
WAIS-R and his level of reading as measured by the WRAT-3, it seemed likely
that his conceptual and verbal skills would not allow him to reason about and
communicate material relevant to Miranda rights in a meaningful way. This
would be particularly applicable if he were presented with Miranda rights in
written form.

Considering this, it appeared that Mr. Doe could possibly have given a
“knowing” waiver of his rights, considered in a very basic sense. However, his
capacity to provide an “intelligent” waiver was more limited. The use of vari-
ous kinds of idiographic information (collateral interviews and records, psy-
chosocial history, clinical interview, and Miranda rights vignettes) supple-

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30 • Forensic Mental Health Assessment

mented the nomothetic information obtained through standardized psycholog-
ical tests.

How useful would information comparing Mr. Doe’s Miranda-relevant ca-
pacities1 with those of other criminal defendants have been? What if research
allowed us to measure accurately Mr. Doe’s “knowledge,” “intelligence,” or
“voluntariness” and assign a percentile value (relative to other criminal defen-
dants) to each measurement? Certainly that would have been helpful in this
case. Indeed, the accurate measurement of relevant capacities is one of the
strongest arguments for using a good FAI (discussed further in the Teaching
Point in this case). Even when such capacities are measured with an FAI, there
are important questions that can be addressed by obtaining case-specific infor-
mation. Are the observed deficits genuine? If so, they should be reflected in
other domains, as seen in the defendant’s history. How do these deficits affect
the defendant’s ability to understand, weigh, and communicate information?
In this case, because the defendant was reportedly informed of his Miranda
rights both orally and in writing, and signed a written form indicating his
waiver, we assessed both his oral comprehension and his reading skills. Can
the observed deficits be managed so that the defendant is able to understand
and weigh information meaningfully despite such deficits? In Mr. Doe’s case,
it was clear that he had extremely limited reading ability, and limited capacity
for understanding orally communicated material as well. By using simple lan-
guage that is repeated and rehearsed, it is possible to improve such capacities
somewhat. The question of how much improvement has resulted can be con-
veyed through descriptive language and quoting the defendant. Whether such
interventions were used by interrogating officers can be assessed if there is a
transcript or, even better, a videotape of the waiver and confession. Each of
these questions can be addressed, at least in part, by idiographic information.
Such information clearly makes the assessment results more credible and de-
fensible, both important considerations in FMHA.

FORENSIC EVALUATION with information relevant to Mr. Doe’s compe-
tence to waive Miranda rights, and treatment
needs and amenability in the context of publicJanuary 26, 1998

Re: John Doe safety, was made by Mr. Doe’s attorney.
MC# 1234-5678-09
PP# 123456

PROCEDURES

Mr. Doe was evaluated for a total of approxi-
REFERRAL

mately seven hours on 1-23-98 and 1-26-98 at
the Philadelphia City Jail, where he is currentlyJohn Doe is a 38-year-old African American male

who is currently charged with Attempted Mur- incarcerated. In addition to a clinical interview,
Mr. Doe was administered a standard screeningder, Aggravated Assault, Rape, Kidnapping, False

Imprisonment, and related charges. A request for instrument for symptoms of mental and emo-
tional disorder (the Brief Symptom Inventory, ora mental health evaluation to provide the defense

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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Miranda Rights Waiver • 31

BSI), a standard test of current functioning in rel- ried in either 1981 or 1983. Marie Doe indicated
that Mr. Doe was very close to his stepfather andevant academic areas (the Wide Range Achieve-

ment Test, 3rd edition, or WRAT-3), and a test was devastated when he died approximately 10
years ago. Joan Doe confirmed that Mr. Doe hadof current intellectual functioning (the Wechsler

Intelligence Scale for Adults, revised edition, or an excellent relationship with his stepfather and
added that the family is “very close.” Mr. Doe in-WAIS-R). In addition, Mr. Doe’s mother, Marie

Doe, and sister, Joan Doe, were interviewed by dicated that he has always lived with his mother.
He further indicated that he has two sisters, whotelephone on 1-23-98 and 1-25-98, respectively,

regarding Mr. Doe’s current and past functioning. also live with his mother, and a half-sister, who
currently resides in New Jersey with her boyfriendThe following documents, obtained from Mr.

Doe’s attorney, were reviewed prior to the evalu- and two children. Marie Doe confirmed the com-
position of the family. Mr. Doe also stated thatation:
he has two children of his own by two different

1. Preliminary Hearing Summary (7-16-97), women. Mr. Doe also indicated that he has two
2. Trial Transcript, Commonwealth v. John male grandchildren, ages 2 and 14 months. Mr.
Doe, Doe indicated that he has regular contact with his

3. Philadelphia Police Department Investiga- children and grandchildren. He also reported that
tion Interview Records (7-11-97),

one of the mothers of his children has a problem4. Statement of John Doe (7-11-97, Sex
with substance abuse and cut him with a brokenCrimes Unit), and
bottle during an argument over the care of his5. Miranda Rights Waiver, John Doe
daughter. Mr. Doe stated that the argument was(7-11-97).
due to the fact that the mother in question is
“never home to take care of things.” Marie DoePrior to the evaluation, Mr. Doe was notified

about the purpose of the evaluation and the asso- and Joan Doe confirmed that Mr. Doe has two
children and two grandchildren. They also indi-ciated limits on confidentiality. He appeared to

adequately understand the basic purpose of the cated that he sees them on a regular basis and is
actively involved in their lives. Mr. Doe deniedevaluation, although he had some difficulty re-

calling details related to the evaluation and all forms of abuse at the hands of family mem-
bers. Marie and Joan Doe also indicated that theyneeded to have several parts of the notification

repeated to him. Mr. Doe reported back his un- were not aware of any kind of abuse that Mr. Doe
had suffered from family members.derstanding that he would be evaluated and that

a written report would be submitted to his attor- Mr. Doe apparently has a limited educational
history. Mr. Doe reported that he has only com-ney. He further understood that the report could

be used in his hearing and, if it were, copies pleted the fifth grade, and that he was a constant
behavioral problem in school and was “thrownwould be provided to the prosecution and the

court. out of school for fighting.” Marie and Joan Doe
indicated that this is accurate. Additionally, Mr.
Doe indicated that after he had been expelled

RELEVANT HISTORY
from elementary school, he attended the Canto
School for approximately 2 years. As describedHistorical information was obtained from the col-

lateral sources described above, as well as from by Mr. Doe and Marie Doe, the Canto School is
for children with academic and behavioral diffi-Mr. Doe himself. In addition, historical informa-

tion was obtained from interviews with Mr. Doe’s culties. Mr. Doe reported that he dropped out of
school at the age of 16. He was unable to describemother (Marie Doe) and sister (Joan Doe).

John Doe was born on September 26, 1956, his educational activities from approximately
fifth grade until his official withdrawal from theto Marie Doe and John Doe Sr. According to Mr.

Doe, his mother and father separated and di- educational system. Marie Doe was also unclear
on this issue, but did indicate that Mr. Doe didvorced approximately 30 years ago. Mr. Doe indi-

cated that he has not seen his father in a very long not attend school during this time; rather, he was
working in his stepfather’s automotive business.time. This is consistent with information pro-

vided by Marie Doe, who added that she remar- Mr. Doe denied all special education involve-
Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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32 • Forensic Mental Health Assessment

ment. Marie Doe confirmed this but also stated In addition, Mr. Doe stated that he served 41⁄2
years in Bordentown for robbery, one year inthat Mr. Doe can barely read or write.

Marie Doe reported that Mr. Doe does not Jamesburg for stealing cars, and 51⁄2 months in An-
nadale for theft. He was unable to give exact dates.have any significant medical problems and has

never been hospitalized for anything more serious As mentioned previously, Mr. Doe stated that he
committed the majority of these offenses in orderthan a broken wrist. Mr. Doe confirmed that he

broke his wrist in a moped accident and denied to supply his drug habit. Mr. Doe also stated that
he stole his first car at approximately age 14. Theall other medical problems. Marie Doe also indi-

cated that no one in the family has a serious men- trial transcript reflects a total of 11 arrests outside
of this jurisdiction, primarily in New Jersey.tal disorder and that Mr. Doe has never received

treatment (including medication) for any type of
mental health problem. Joan Doe responded to

CURRENT CLINICAL CONDITION
the question regarding her brother’s mental health
history by stating “my brother is not crazy.” Mr. Mr. Doe presented as an African American male

of below average height with a stocky build, whoDoe initially denied all involvement with the
mental health system, but later in the interview appeared younger than his stated age. He was

dressed in prison garb and was well-groomedindicated that he had seen a psychiatrist twice
when he was approximately 17 years old. He when seen for evaluation on 1-23-98 and 1-26-98

at the City Jail, where he is currently incarcer-could not remember why he was taken to see a
psychiatrist. ated. Initially, he was cooperative and polite, al-

though somewhat reserved. He remained cooper-Mr. Doe reported an extensive history of drug
abuse. Specifically, Mr. Doe reported that he has ative and polite throughout the entire evaluation.

His speech was clear, coherent, and relevant, al-used marijuana, cocaine, syrup, LSD, unspecified
prescription drugs, and alcohol in the past. Mr. though somewhat sparse, and he did not respond

at length to most questions without encourage-Doe also indicated that he no longer abuses
drugs, claiming to have stopped sometime in ment and further questioning. Frequently, his re-

sponses did not address the question asked, and1987. Inconsistent with this, however, he also re-
ported that he still drinks alcohol daily. He also he was inclined to talk about unrelated issues. As

a result, questions had to be repeated on a regularstated that he has committed many of his past
offenses to secure money to buy drugs. Although basis. He appeared to give reasonable effort to the

most of the tasks involved, although he gave upMarie and Joan Doe were aware of Mr. Doe’s
drug use, they could not supply further details. almost immediately on tasks requiring cognitive

demands (such as the WRAT-3 and the WAIS-R).Mr. Doe indicated that he is currently unem-
ployed and has only held one job in his life. He When asked about these apparent difficulties, Mr.

Doe frequently responded by saying “I don’tindicated that he worked with his stepfather
changing tires for approximately 16 years. Mr. know.” His capacity for attention and concentra-

tion appeared adequate, and he was able to focusDoe was unsure of the dates, but indicated that
he began working for his stepfather when he was reasonably well on a series of tasks during the 7-

hour evaluation (over 2 days) without becomingabout 16 or 17 years old. Marie Doe also reported
this, as well as stating that Mr. Doe has tried to visibly distracted. Therefore, it would appear that

this evaluation provides a fairly representative es-get a job, but has had difficulty doing so because
he can barely read and write. Mr. Doe did not timate of Mr. Doe’s current functioning. His

mood throughout the evaluation was largely sub-have any clear vocational interests or goals. He
indicated that he would “do anything . . . and dued and neutral, and he showed little emotional

variability. Mr. Doe was correctly oriented towould like to help” his mother.
An official arrest history was not available at time, place, and person. Mr. Doe’s basic aca-

demic skills, as measured by the WRAT-3,the time this report was written; however, Mr.
Doe indicated that he has an extensive criminal showed severe deficits in all three academic areas:

Reading (first-grade equivalent), Spelling (first-history. Specifically, he reported that he has been
arrested in New Jersey approximately 35 times. grade equivalent), and Arithmetic (second-grade

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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Miranda Rights Waiver • 33

equivalent). Each of these areas should be consid- asked if the police could beat him up to make
him talk. He replied “yes, they do what they wantered in need of remediation. Overall level of in-

tellectual functioning was formally measured with to do.” Similarly, when Mr. Doe was asked if it
was legal for the police to beat him up to makethe WAIS-R and was found to be within the Bor-

derline range (VIQ = 72, PIQ = 77, FSIQ = 73). him talk, he replied “I don’t know . . . nobody did
anything about it . . . my momma tell it.” Mr.Individuals with such scores are below the fourth

percentile, relative to the adult population (in Doe was then asked why he had the right to re-
main silent; he replied “it’s a right ain’t it?” Heother words, functioning at a lower level than

over 96% of adults). Mr. Doe’s Verbal IQ score was asked to elaborate on this statement, and re-
sponded that it was “not for right or wrong, mysuggests that he has a very poor grasp of verbal

and academic skills. Although Mr. Doe’s WAIS-R right . . . for the court.”
Next, Mr. Doe was asked to explain his under-scores reveal few strengths, it should be noted that

Mr. Doe appeared to give up easily on numerous standing of the consequences of giving up the
right to remain silent—whether he was awareitems on all subtests of the WAIS-R. Accordingly,

Mr. Doe’s WAIS-R scores should be interpreted that, if he did so, anything he said could be used
against him in a court of law. His understandingwith some caution, as they might provide a slight

underestimate of his intellectual and cognitive of the consequences of giving up his right to re-
main silent seemed to be clearer. When asked tofunctioning.

Mr. Doe did not report experiencing any per- explain his understanding (this question had to
be clarified twice), Mr. Doe replied, “anything Iceptual disturbances (auditory or visual halluci-

nations), and his train of thought was clear and tell them they write down . . . bring it up in court
. . . bring it against me.”logical. Mr. Doe also did not report experiencing

delusions (bizarre ideas with no possible basis in Mr. Doe was then asked about his right to
have an attorney present during questioning; hereality). On a structured inventory of symptoms

of mental and emotional disorder (the Brief did not understand this question when it included
the term “interrogation.” When questioned aboutSymptom Inventory; BSI), Mr. Doe reported the

presence of various symptoms. Some of the items his understanding of this right, Mr. Doe replied,
“lawyer got to be with me, in charge or somethingendorsed by Mr. Doe involved nervousness, anxi-

ety, difficulty remembering, and symptoms of de- . . . I don’t know, never had no lawyer.” When
asked if he had ever requested a lawyer, Mr. Doepression. Mr. Doe denied the presence of suicidal

ideation. Mr. Doe indicated that his current symp- replied “No, I was guilty of my charges before in
Jersey.” Mr. Doe was then asked whether thistoms are a result of his current incarceration.
would make a difference in whether he asked for
an attorney. He replied “don’t know . . . don’t un-

COMPETENCE TO WAIVE
derstand big words.” Finally, Mr. Doe was asked

MIRANDA RIGHTS
if the police could refuse to give him a lawyer
until after they had questioned him. In responseMr. Doe was asked about each respective compo-

nent of his Miranda rights. Each was discussed, to this question, he indicated that “bulls can do
what they want . . . they didn’t give me one whenand he was asked to explain his understanding of

the meaning and implications of each right. Mr. I was there.”
Mr. Doe was next asked about his right toDoe stated that he did “not know for sure” what

a Miranda right was. When asked about the pur- have an attorney appointed for him if he could
not afford one. He said he had “no money topose of Miranda rights, he replied that “it’s your

rights, so I won’t get sued or something.” give ’em . . . PD, right?” When asked if he would
get a lawyer if he didn’t have enough money, Mr.When Mr. Doe was asked to explain the right

to remain silent (this question had to be repeated Doe replied further “I have to have a lawyer
when I go to court . . . if I got no money then Itwice), he replied that “I don’t have to say noth-

ing.” When Mr. Doe was asked about the con- don’t get one.” Mr. Doe was then asked if the
police could refuse to get him a lawyer if hesequences if he chose to remain silent, he re-

sponded “beat me up, I guess.” Mr. Doe was then didn’t have enough money. He said that he “don’t

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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34 • Forensic Mental Health Assessment

know, been locked up for 6 months, haven’t seen incorporated into such rights. He was able to in-
dicate that “I don’t have to say nothing” as a wayno one for 4 months.”

Finally, Mr. Doe was asked if he remembered of paraphrasing his right to remain silent and that
giving up that right could result in statementssigning the Miranda Rights Waiver form. He said

that the police told him “you’re not charged with that had been “written down” being “brought up
in court.” He could also state that “a lawyer gotanything . . . you’re going home.” Mr. Doe stated

that he did not remember if he was read his rights, to be with me . . . in charge, or something,” as a
way of indicating the meaning of having an attor-had given a statement, or signed any forms.

Mr. Doe did not demonstrate an “intelligent” ney present. In other responses as well, Mr. Doe
was able to demonstrate a basic familiarity withcapacity to waive his Miranda rights in the fol-

lowing sense: his knowledge was superficial, he the elements of Miranda.
quickly became confused, and he showed very
little capacity to reason about different circum- CONCLUSIONS
stances and their applicability to the waiver deci-

In the opinion of the undersigned, based on all ofsion. During the present evaluation, Mr. Doe
the above:quickly became confused, even when talking

about some of the basic aspects of these rights. Mr. Doe displayed a very superficial under-
First, it was often necessary to repeat and/or para- standing of certain basic Miranda rights, sug-
phrase questions concerning these rights. While gesting that his capacity to “know” basic infor-
Mr. Doe was able to respond on a superficial level mation was limited but possibly acceptable.

However, he quickly became confused andconcerning the most basic aspects of these rights,
displayed very limited conceptual and verbalit quickly became apparent that he had a very
abilities, which would impair his capacity tolimited awareness of the meaning of these rights.
understand anything more complex regardingGiven his low overall level of intellectual func-
these rights, to appreciate their importance,tioning as measured by the WAIS-R (VIQ = 72,
or to reason about their applicability to him-in the low Borderline range) and his extremely
self under different circumstances. Mr. Doe

low level of Reading as measured by the WRAT- showed virtually no capacity to understand
3 (Grade 1 equivalent), it seems likely that his written material. All these suggested that Mr.
conceptual and basic word skills would not allow Doe did not have the capacity to “intelli-
him to reason about and communicate material gently” waive Miranda rights at the time of
relevant to Miranda rights at more than a very his statement.
superficial level. This would be particularly appli-

Thank you for the opportunity to evaluate Johncable if he were presented with Miranda rights in
Doe.written form; his capacity to understand written

material is extremely poor. However, even his ca-
pacity to reason through verbal vignettes and hy- Kirk Heilbrun, Ph.D.
pothetical situations, and their implications for Consulting Psychologist
Miranda waiver, was very poor.

Geff Marczyk, M.A.However, Mr. Doe did seem to have some ba-
Psychology Graduate Studentsic comprehension of certain aspects of his Mi-

randa rights, in a sense roughly consistent with David DeMatteo
Psychology Graduate Studenthis knowing basic facts and procedures that are

Teaching Point: What are the limits of forensic assessment instruments?

It has been recognized that traditional psychological tests and procedures have
substantial limitations when applied in a forensic context (Grisso, 1998b; Heil-

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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Miranda Rights Waiver • 35

brun, 1992; Melton et al., 1997; Rogers, 1997). Accordingly, forensic research-
ers have developed a variety of forensic assessment instruments that focus di-
rectly on the measurement of functional capacities relevant to the larger legal
question. The strengths of such FAIs have been discussed in the previous
Teaching Point. What are their limitations?

First, the forensic clinician cannot form an opinion based solely on the
results of an FAI. Although FAIs provide useful information regarding an indi-
vidual’s legally relevant functional abilities, there remain several important
considerations: context, consistency, and communication. Context is a compo-
nent of Grisso’s (1986) model of legal competencies:

The term general environmental context refers to some class of external situations
to which a person must respond. Various legal competencies . . . specify widely dif-
fering contexts: for example, criminal proceedings (trials), police interrogations,
home life, and hospitals. (p. 18)

Context may vary even within the same kind of competence, as evidenced by
the potentially different demands on a defendant undergoing a highly publi-
cized murder trial, compared with the demands on a defendant in a routine,
minor felony trial. Some functions may become more important in certain
contexts, and it is the responsibility of the evaluator to consider this and inter-
pret the FAI results accordingly.

The second limitation of FAI data concerns the consistency of such data
with other sources of information. When the FAI provides impressions that are
inconsistent with history, direct observations, and collateral information and
observations, this suggests inaccuracy in at least one source. Further, it raises
the possibility that a defendant providing responses to an FAI measuring Mi-
randa waiver capacities, for example, may be malingering or exaggerating
deficits in knowledge or reasoning capacity. This could call for a particular
focus on the issue of malingering; if this possibility were supported, then the
results from the FAI would need to be deemphasized or even discounted.

When FAI results are not communicated effectively, then their value may
be reduced. The importance of communicating the results of forensic assess-
ment in plain language, free of jargon (Melton et al., 1997), is particularly
noteworthy with FAIs, because the obtained scores of the particular defendant
may need to be described in the context of the derivation and validation sam-
ples, with considerations such as interrater reliability, optimal cutting scores,
and the description of the characteristics of individuals falling into groups de-
fined by these cutting scores. Such statistical issues are clearly relevant to the
value of the FAI, but must be translated for consumers of the evaluation who
are not trained in statistics and research design.

A specific example in the context ofMiranda waiver is useful. Several FAIs
have been developed for specific use in the context of a FMHA that is con-
ducted to assess an individual’s competency to waive his or herMiranda rights;
one is the Comprehension of Miranda Rights (CMR; Grisso, 1981). The CMR

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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36 • Forensic Mental Health Assessment

was developed to assess an individual’s understanding ofMiranda rights as they
are usually presented in a police interrogation situation. Although the CMR is
a useful FAI with strong psychometric properties, it is important to supple-
ment CMR results with case-specific information for several reasons.

First, it is possible that the Miranda warnings presented to the defendant
differed slightly in their wording from the warnings contained in the CMR.
Accordingly, it is important to determine the precise wording of the warnings
that were presented to the defendant prior to interrogation. In this case, Mr.
Doe’s file contained a printed Miranda Rights Waiver form that had been pre-
sented to Mr. Doe when he was questioned by the police. The evaluators were
able to question Mr. Doe using the language in which his rights were presented
to him at the time he waived them (assuming that they were read verbatim
from the Waiver form, which could not be confirmed because neither video
nor audiotape of the interrogation was available). Relying on the warnings
given in the CMR or other FAI may reduce assessment accuracy somewhat if
the wording of the warnings played a role in Mr. Doe’s understanding and
subsequent waiver of his rights.

Second, the use of case-specific evidence plays an important role in hy-
pothesis formation and testing. Although the results of testing may suggest
a particular explanation or conclusion, case-specific information provides the
forensic clinician with relevant information with which to confirm or reject
such explanations or conclusions. The CMR is primarily limited to assessing
the individual’s understanding of theMiranda rights. Case-specific information
regarding Mr. Doe’s academic history, basic academic skills, level of cognitive
functioning, and mental health history provided information that allowed the
evaluators to offer reasonable explanations for the existence of such deficits.

FAIs can provide the forensic clinician with reliable and valid data on an
individual’s functional legal capacities. The use of case-specific information can
help the evaluator assess the accuracy of self-report, emphasize particularly im-
portant capacities in the context of the defendant’s circumstances, and commu-
nicate more effectively by providing a reasonable explanation for the existence
of identified deficits. Case-specific information also enhances the credibility of a
given assessment. The use of a relevant, well-validated FAI supplemented by
idiographic information from multiple sources would appear to combine the
best of both approaches to FMHA.

Note

1. Research in forensic psychology has increasingly moved toward implementing
the recommendation made by Grisso (1986) that the measurement of relevant capaci-
ties rather than ultimate legal question outcomes is the preferable research strategy for
developing and validating FAIs. The usefulness of the ultimate legal determination as
an outcome variable is limited by the absence of a “gold standard” (a reliable, valid
indicator of the “true” status of a legal competency), a problem first noted by Roesch
and Golding (1980).

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central http://ebookcentral.proquest.com
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