"Too stubborn to ever be governed by enforced insanity": Some therapeutic jurisprudence dilemmas in the representation of criminal defendants in incompetency and insanity cases

Little attention has been paid to the importance of the relationship between therapeutic jurisprudence (TJ) and the role of criminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices. Sanism is largely invisible and largely socially acceptable, and is based predominantly upon stereotype, myth, superstition, and deindividualization. It is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process. This paper examines the literature that seeks to apply TJ principles to the criminal law process in general, drawing mostly on the work of Professor David Wexler. It considers why the lack of attention that I have referred to already is surprising (given TJ's mandate and the fact that many TJ issues are inevitably raised in any insanity or IST case). The paper then considers why this lack of attention is not surprising, given the omnipresence of sanism. It will consider some of the actual counseling issues that might arise in these contexts, and offer some suggestions to lawyers representing clients in cases in which mental status issues may be raised. The paper concludes that we must rigorously apply therapeutic jurisprudence principles to these issues, so as to strip away sanist behavior, pretextual reasoning and teleological decision making from the criminal competency and responsibility processes, so as to enable us to confront the pretextual use of social science data in an open and meaningful way. This gambit would also allow us to address-in a more successful way than has ever yet been done-the problems raised by the omnipresence of ineffective counsel in cases involving defendants with mental disabilities.     

Quantifying the Accuracy of Forensic Examiners in the Absence of a “Gold Standard”

This study asked whether latent class modeling methods and multiple ratings of the same cases might permit quantification of the accuracy of forensic assessments. Five evaluators examined 156 redacted court reports concerning criminal defendants who had undergone hospitalization for evaluation or restoration of their adjudicative competence. Evaluators rated each defendant’s Dusky-defined competence to stand trial on a five-point scale as well as each defendant’s understanding of, appreciation of, and reasoning about criminal proceedings. Having multiple ratings per defendant made it possible to estimate accuracy parameters using maximum likelihood and Bayesian approaches, despite the absence of any “gold standard” for the defendants’ true competence status. Evaluators appeared to be very accurate, though this finding should be viewed with caution.     

Why Evolutionary Biology Is (So Far) Irrelevant To Legal Regulation

Evolutionary biology – or, more precisely, two (purported) applications of Darwin’s theory of evolution by natural selection, namely, evolutionary psychology and what has been called human behavioral biology – is on the cusp of becoming the new rage among legal scholars looking for interdisciplinary insights into the law. We argue that as the actual science stands today, evolutionary biology offers nothing to help with questions about legal regulation of behavior. Only systematic misrepresentations or lack of understanding of the relevant biology, together with far-reaching analytical and philosophical confusions, have led anyone to think otherwise. Evolutionary accounts are etiological accounts of how a trait evolved. We argue that an account of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on questions of development (what we call the Environmental Gap Objection). We then show that the accounts of causal etiology that might be relevant are not remotely well-confirmed by scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important. We also note that no response to the Environmental Gap Objection has been proffered. In the concluding section of the article, we turn directly to the work of Owen Jones, a leading proponent of the relevance of evolutionary biology to law, and show that he does not come to terms with any of the fundamental problems identified in this article.     

EU update

This is the latest edition of Baker &; McKenzie's column on developments in EU law relating to IP, IT and telecommunications. This article summarises recent developments that are considered important for practitioners, students and academics in a wide range of information technology, e-commerce, telecommunications and intellectual property areas. It cannot be exhaustive but intends to address the important points. This is a hard copy reference guide, but links to outside web sites are included where possible. No responsibility is assumed for the accuracy of information contained in these links.     

Five-year accuracy of assessments of high risk for sexual recidivism of adolescents

This study looked at 12 juveniles in Wisconsin who were recommended by experts for commitment under Chapter 980, known as the Sexually Violent Person Commitments Act, but who ultimately were not committed. The purpose was to determine the accuracy of these assessments and risk for sexual reoffending for juvenile sexual offenders. The results found a rate of 42% sexual recidivism among these individuals, with a 5-year at-risk period. This figure is in contrast to the low rates of sexual recidivism reported in the general juvenile sexual research. This provides evidence that the capability to assess the risk in juvenile sexual re-offending may at times be higher than previously estimated. Implications of these unusual results are discussed.     

Economic impact of Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497

In Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497 the High Court of Australia held that, among other things, plaintiffs (who establish that they suffer a recognised psychiatric illness as a result of the breach of duty of care owed to them by the defendant under s 32 of the Civil Liability Act 2002 (NSW)) are entitled to recover damages for pure mental harm under s 30 if their psychiatric injury arose "wholly or partly from" a "series of shocking experiences" in the form of "a sudden and disturbing impression on the mind and feelings" in connection with witnessing at the scene "another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant". The High Court construed the phrase "being ... injured or put in peril" to include plaintiffs who suffer pure mental harm by witnessing at the scene another person being injured through the process of suffering pure mental harm in the form of psychiatric injury occasioned by the defendant's negligent act or omission. The Wicks decision raises the question whether the expanded liability of defendants for pure mental harm is economically sustainable.     

REPRESENTATION DISPARITIES AND IMPARTIALITY: AN EMPIRICAL ANALYSIS OF PARTY PERCEPTION OF FEAR,PREPARATION, AND SATISFACTION IN DIVORCE MEDIATION WHEN ONLY ONE PARTY HAS COUNSEL

While other authors have regarded both the presence and the absence of attorneys in family law mediation as cause for concern, little attention has been given to the questions raised when one party is represented and the other is pro se. This article presents data on mediating parties' premediation concerns, fears, and feelings of preparedness, as well as their postmediation satisfaction with the mediation process. The mediating parties are grouped based on each couple's representation status, for example, both represented by attorneys, both pro se, or one attorney‐represented party and one pro se party (mixed representation cases). The data show that mixed representation cases are the most likely to report concern, fear, and unpreparedness. Mixed‐representation cases also reported the lowest levels of satisfaction after the mediation. Some implications for mediation practice are discussed, as are suggestions for future research.     

Validity and Determinants of Clinicians’ Return to Work Judgments for Individuals Following Whiplash Injury

Rehabilitation clinicians routinely make judgments about the capacity of individuals to return to work following whiplash injury, which can have serious implications for individuals’ continued access to salary indemnity benefits. The present study examined the validity and determinants of these judgments. During a standardized rehabilitation intervention, data regarding demographic factors, crash characteristics, pain severity, range of motion, pain-related psychological functioning, as well as change in the latter three factors over the course of treatment were collected for 104 whiplash-injured individuals (73 women, 31 men). Upon completion of the intervention, clinicians rated the number of hours each individual was capable of working per day. Follow-up data regarding the actual number of hours worked were collected 1 year later. Hierarchical regression analyses revealed that clinicians’ judgments added significant unique variance to the return to work prediction beyond other predictive factors, and that clinicians were particularly influenced by patients’ pain severity and treatment-related change in pain severity in making these judgments. Although clinicians were significantly able to predict return to work, the limited variance accounted for by their judgments (12%) warrants caution in the use of these judgments in decisions related to access to services or indemnity. Factors predictive of clinician judgment and actual return to work are compared, and recommendations to enhance the utility of these judgments are made.     

Differences in Neuropsychological Functioning Between Homicidal and Nonviolent Schizophrenia Samples

Few studies have compared performance on neurocognitive measures between violent and nonviolent schizophrenia samples. A better understanding of neurocognitive dysfunction in violent individuals with schizophrenia could increase the efficacy of violence reduction strategies and aid in risk assessment and adjudication processes. This study aimed to compare neuropsychological performance between 25 homicide offenders with schizophrenia and 25 nonviolent schizophrenia controls. The groups were matched for age, race, sex, and handedness. Independent t‐tests and Mann–Whitney U‐tests were used to compare the schizophrenia groups’ performance on measures of cognition, including composite scores assessing domain level functioning and individual neuropsychological tests. Results indicated the violent schizophrenia group performed worse on measures of memory and executive functioning, and the Intellectual Functioning composite score, when compared to the nonviolent schizophrenia sample. These findings replicate previous research documenting neuropsychological deficits specific to violent individuals with schizophrenia and support research implicating fronto‐limbic dysfunction among violent offenders with schizophrenia.