Minds on Trial:

Great Cases in Law and

Psychology

Charles Patrick Ewing

Joseph T. McCann

OXFORD UNIVERSITY PRESS

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minds on trial
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MINDS
ON TRIAL
G R E AT C A S E S
IN L AW AND
PSYCHOLOGY
Charles Patrick Ewing
and Joseph T. McCann
i

3
2006
3
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Library of Congress Cataloging-in-Publication Data
Ewing, Charles Patrick, 1949–
Minds on trial : great cases in law and psychology /
Charles Patrick Ewing and Joseph T. McCann.
p. cm.
Includes bibliographical references.
ISBN-13 978-0-19-518176-0
ISBN 0-19-518176-X
1. Forensic psychology—United States—Cases. 2. Forensic
psychiatry—United States—Cases. 3. Insanity—Jurisprudence—
United States—Cases. I. McCann, Joseph T. II. Title.
KF8965.A7E95 2006
614'.15—dc22 2005020568

9 8 7 6 5 4 3 2 1
Printed in the United States of America
on acid-free paper
To Angelica:

“. . . happily I pass the while,

thinking of your lovely smile.”

(J. T. M.)

To Sharon:

With love and gratitude

from the rock.

(C. P. E.)
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preface

s forensic psychologists with combined careers in law and psychology

A spanning nearly half a century, we have been involved in several thou-
sand cases in which we have been asked, in one form or another, to “get inside
the head of” a person who was (or might soon become) a litigant. In virtu-
ally all of these cases, the determining legal issue was the individual’s state of
mind at the time of—or as a result of—the event(s) that led the case to court.
In many of these cases, our assessments have played a major role in shaping
the legal outcome.
Of course we are far from alone in the influence our forensic work has
had upon the legal system. Our cases have been little more than the pro-
verbial grain of sand on the vast beach of law and psychology. Every day,
in courtrooms everywhere, people’s lives are touched and shaped by judg-
ments and verdicts influenced if not dictated by the findings of psychologists
and other mental health experts. Our assessments, whether conveyed to the
courts through reports or testimony, help determine who is competent, guilty,
blameworthy, dangerous, entitled to compensation, fit to be a parent, and so
forth. Outside the courtroom, our judgments about the mental functioning of
others have assisted the police, the military, and other governmental agencies
charged with maintaining public safety and security.
In our own professional work we have been blessed and burdened with
unparalleled access to the minds of some of life’s most fascinating and tragic
pr efac e

figures. Having learned so much from the intensive study of these individuals
and their predicaments, we hoped to produce a book that would give others a
similar, albeit much more limited, “inside” look at “minds on trial.”
While many of our own cases have been both fascinating and high profile,
for a variety of reasons we chose not to discuss our own work in this volume.
In many of our cases our role and opinions are a matter of public knowledge
because we have testified in open court, but in most the details remain con-
fidential and privileged. Moreover, it is often difficult to be objective and dis-
passionate in discussing one’s own work. Thus, instead of focusing on some
of the more interesting and notorious cases in which we have played a promi-
nent role, we decided to take a more objective look at the work of some of our
colleagues over the past fifty years. Beginning with a collection of one hun-
dred cases, we narrowed our focus to a list of what we consider to be “twenty
great cases in law and psychology,” cases in which we are able to take readers
“behind the scenes” and explain what led these people to the attention of the
legal system and how psychological professionals, the courts, and the law have
dealt with them.
The protagonists in these cases range from household names such as Lee
Harvey Oswald, Woody Allen, Mike Tyson, Jeffrey Dahmer, Patty Hearst, and
John W. Hinckley, Jr., to others whose brief brushes with celebrity have long
been forgotten. But, regardless of notoriety or celebrity status, each of these
carefully selected cases teaches important lessons about the role that psychol-
ogy and the other behavioral sciences plays in our legal system.

Charles Patrick Ewing, J.D., Ph.D.

Joseph T. McCann, Psy.D., J.D.

viii
p
contents

INTRODUCTION 3

1 GEORGE METESKY Profiling the “Mad Bomber” 7

2 LEE HARVEY OSWALD The Formative Years of an Assassin 19

3 PATRICIA HEARST Uncommon Victim or Common Criminal? 31

4 THE GUILDFORD FOUR “You Did It, So Why Not Confess?” 45

5 PROSENJIT PODDAR AND TATIANA TARASOFF Where

the Public Peril Begins 57

6 DAN WHITE The Myth of the Twinkie Defense 69

7 CAMERON HOOKER Judging the Experts? 81

8 JOHN W. HINCKLEY, JR. Shooting for the Stars 91

9 JUDAS PRIEST A Message in the Music 103

10 JOHN DEMJANJUK Is He “Ivan the Terrible”? 115

11 THE USS IOWA Equivocating on Death 129

12 JEFFREY DAHMER Serial Murder, Necrophilia, and Cannibalism 141

c ontent s

13 WOODY ALLEN AND MIA FARROW A Swing of King

Solomon’s Sword 153

14 GARY AND HOLLY RAMONA Recovered Memories

or False Allegations? 165

15 COLIN FERGUSON A Fool for a Client? 177

16 RALPH TORTORICI A Question of Competence 191

17 MIKE TYSON Predicting the Violence of a Professional Fighter 205

18 DARYL ATKINS Mental Retardation, Decency, and

the Death Penalty 217

19 ANDREA YATES An American Tragedy 229

20 MICHAEL KANTARAS What Makes a Man a Man? 241

EPILOGUE 253

NOTES 257

INDEX 283

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minds on trial
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INTRODUCTION

ver the past fifty years American society has been blessed (or burdened,
O depending on your point of view) with a steady stream of high-profile
legal cases that offer both intrigue and entertainment. Looking back over the
last several years, for example, the O. J. Simpson, Scott Peterson, and D.C.
sniper murder trials and the Michael Jackson child molestation case have
dominated the media from television and radio talk shows to newspapers
from the New York Times to the National Enquirer. Much of the coverage
and commentary is pure entertainment, with the public viewing the inves-
tigations and trials as ongoing soap operas. Still, some of these high-profile
trials have been not only informative but also educational. Whether viewers
follow the proceedings gavel-to-gavel or simply tune in to learn the latest
developments, they often come away with a deeper appreciation of how our
legal system works and how justice or injustice is done.
Not surprisingly, what often captures the public interest in many of
these famous cases are the profound psychological questions they pose. Cases
that grab the most media attention and public fascination often deal with the
insanity defense, brainwashing or mind-control, the death penalty, confes-
sions, criminal profiling, allegations of sexual abuse, and competence to stand
trial. Another factor that seems to draw attention to some of these cases is the
horrific nature of the crime, whether it be a family homicide, mass shooting,
serial murder, school shooting, or political assassination.

3
m inds o n t r i a l

In this book, we chronicle twenty of the greatest cases of the last fifty
years involving issues at the interface between law and psychology. Our goal
is not to entertain but rather to inform and educate readers about the vital
role psychology plays in so many aspects of the American system of justice.
But if readers find the cases we have chosen to present exciting and compel-
ling, so much the better.
Many criteria could be used to distinguish cases that are great from those
that are not. Some readers may take exception to the cases we have chosen to
include and our decision to leave certain cases out. Our original plan was to
cover a range of cases that would encompass most, if not virtually all, great
cases in the history of law and psychology. The original list we developed con-
sisted of nearly a hundred cases, but the task of detailing such a large number
posed several problems. Many features of the more interesting cases could
not be covered because of space limitations. Had we covered a hundred cases
in sufficient detail, as we once thought we might, the result would have been
a multivolume encyclopedia that would be daunting to read and of limited
interest to the general public.
Instead, we chose to narrow our list to twenty cases we consider great
for a variety of reasons. Some of the cases in this book are great because
they deal with a famous person or group—like comedian Woody Allen, prize-
fighter Mike Tyson, or heavy metal rock band Judas Priest—involved in a
highly publicized case dealing with an interesting psychological issue like
child custody or the prediction and causation of violent behavior. What makes
these cases great is not the mere fact that they involve a famous person, but
rather that their status of being in the public eye often distorts—for better
or worse—how the case is handled and viewed by the public. For example,
the legal system often treats a famous person more delicately or the public
harbors stronger opinions about the guilt or culpability of a famous person,
leading to an interesting array of psychological issues. Various factors often
make it difficult for the public, and even attorneys involved in the case, to
predict the outcome.
We consider other cases to be great because they deal with extraordinary
if not bizarre circumstances that seem to defy human understanding—like the
cases of serial murderer Jeffrey Dahmer, kidnapper and sexual abuser Cameron
Hooker, “Mad Bomber” George Metesky, and family killer Andrea Yates.
A few of the cases—like alleged Nazi John Demjanjuk, the Guildford Four
who confessed to crimes they did not commit, and Patricia Hearst who went
from kidnap victim to bank robber in a matter of weeks—are considered great
because they deal with fascinating psychological issues that go to the heart of
the search for truth, like the reliability of eyewitness testimony, the validity

4
 in t ro d uct io n

of confession evidence, or the likelihood that a person could be “brainwashed”

into committing a violent crime.
Still other cases—like those of Ralph Tortorici, Daryl Atkins, and Colin
Ferguson, all hardly household names—are great because they show how
issues of mental health and mental retardation are often central to the entire
process of administering justice fairly.
We have also presented a few cases we consider great because of the ways
in which they have altered the course of political history—such as the cases of
Lee Harvey Oswald, John Hinckley, Jr., and Dan White, all political assassins.
Finally, we selected and have presented a handful of other cases deal-
ing with rather ordinary people because they demonstrate some of the best
and worst that psychology has to offer the courts and our system of jus-
tice: for example, Gary Ramona, who fought charges that he sexually abused
his daughter; Posenjit Poddar, whose rather unremarkable killing of a young
woman spurred a major change in the law governing the practice of psycho-
therapy; and Clayton Hartwig, who was blamed by a U.S. Navy “psychologi-
cal autopsy” for killing forty-seven sailors aboard the USS Iowa.
Some readers may quibble with a few of the selections we have made, but
we believe there is no denying that all of these cases are interesting and involve
important psychological questions, controversies, and unusual circumstances
that make them fascinating to study. We believe the case selection reflects a
broad range of mental health and psychological issues, not just those like the
insanity defense or criminal profiling that often receive the most attention.
The cases in this book reflect such issues as the veracity of child sexual abuse
allegations, the reliability of eyewitness testimony, the validity of confession
evidence, competence to stand trial, prediction of violent behavior, child cus-
tody, juvenile delinquency, coercion and mind control, competence to be sen-
tenced to death, and the workings of the criminal mind.
In our discussions, we also strive to give professional and lay readers alike
an appreciation for the complexity of the issues in great cases. A few of our
discussions seek to dispel lingering myths that have been repeated over the
years. Many of the cases also provide insights into what it is like to serve as an
expert witness in high-profile trials. The outcome in some cases often hinges
on expert testimony. In a few of the cases we examine, experts endured sting-
ing criticism from judges or lawyers, while in other cases the involvement of
mental health experts was embraced and appreciated because it helped juries
or judges understand complex issues that went to the heart of the conflict.
The famous American jurist Judge David L. Bazelon, a former U.S. Court
of Appeals judge known for his expertise in the area of mental health law, once
said that “challenging an expert and questioning his expertise is the lifeblood

5
m inds o n t r i a l

of our legal system. . . . It is the only way a judge or jury can decide whom to
trust.”1 Many expert witnesses in the field of psychology enter the treacher-
ous territory of the legal arena to inform judges and juries about issues that
are important in legal decision making and to help in the administration of
justice. Although some experts are “hired guns” or “whores of the court” and
sell their testimony to the side most willing to pay, these experts are often
easily spotted on cross-examination and have short careers as witnesses.2 The
cases in this book contain examples of various kinds of experts (ranging from
those who are very experienced and testify regularly in high-profile cases to
those whose involvement in a case came about by chance), as well as various
opinions about expert witnesses (ranging from experts who were held in high
esteem to those who were chided or criticized).
The relationship between psychology and the law is about more than
just expert witnesses and testimony, however. It is about the ways in which
the workings of the human mind—like memory, thinking, perception, per-
sonal decision making, free will, and other complex psychological phenom-
ena—impact important legal issues. Our hope is that the cases we discuss in
this book will provide readers with an appreciation for the seemingly endless
number of questions that can be raised in these kinds of cases and the way in
which the outcome of litigation often hinges on the expertise of psychologists
and other mental health professionals.

6
p 1
GEORGE
METESKY
Profiling the

“Mad Bomber”

n the fall of 2002, when residents of Virginia, Maryland, and Washington,

I D.C., were being terrorized by an unidentified serial sniper, law enforce-
ment agents and media pundits alike offered purported profiles of the killer.
Looking at the scant evidence then available, the “profilers” generated edu-
cated guesses regarding the gender, race, age, education, life experience, psy-
chological makeup, and motives of the killer dubbed the “D.C. sniper.”1
The speculations offered proved to be largely erroneous; to the surprise of
virtually everyone, the sniper turned out be a team of two men, a forty-one-
year-old and his seventeen-year-old accomplice. Still, the D.C. sniper profiles
highlighted for the nation a common law enforcement practice that spans half
a century: the use of crime scene evidence and other available information to
develop profiles of unknown perpetrators.
The practice of criminal profiling in the United States dates back at least
as far as 1956 to the case of George Metesky, the “Mad Bomber,” and the pio-
neering work of criminal psychiatrist Dr. James A. Brussel.2
By the time he was captured, Metesky had been planting homemade
bombs in New York City for over sixteen years. Metesky’s first bomb was left
outside the headquarters of the city’s electric power company, Consolidated
Edison, on November 16, 1940, wrapped in a note that read: “Con Edison
crooks—this is for you.”3 The crudely made device consisted of a brass pipe
packed with gunpowder, apparently removed from rifle bullets. The bomb

7
m inds o n t r i a l

did not detonate. Investigators found it curious that the bomber would have
attached a note to his device since, had the bomb gone off, the note would
most likely have been destroyed. Maybe the bomber was so disturbed that he
had not thought that far ahead, or maybe the device was meant as a threat and
not a genuine weapon.
Ten months later, in September of 1941, another unexploded bomb was
found in the street a few blocks from Consolidated Edison’s main offices. This
time there was no note accompanying the crude device. The triggering mecha-
nism was an alarm clock that had not been wound. Again police were puzzled.
Had the bomber been trying to cause damage and been frightened off at the
last minute or was his intent merely to send another message to the giant
utility company?
After examining this second device, investigators concluded that the same
person, most likely someone with a grudge against Consolidated Edison, was
responsible for both bombs. That assumption was reinforced a few months later
when the apparent perpetrator sent a letter to the police stating: “I will make no
more bomb units for the duration of the war— My patriotic feelings have made
me decide this—Later I will bring the Con Edison to justice—They will pay for
their dastardly deeds. F.P.” 4 The letter was postmarked in suburban Westches-
ter County. Over the next five years, more than a dozen other letters—speak-
ing of “dastardly deeds,” demanding justice, threatening more bombings, and
signed F.P.—were received by various New York City businesses. Just as sud-
denly as these letters had begun, so too they abruptly stopped. From 1946 until
1950, no one apparently heard anything further from the elusive F.P.
In 1950, F.P. broke his self-imposed moratorium when, on March 29, 1950,
a third bomb was found, unexploded, in New York’s Grand Central Station.
This bomb was similar in construction to the first two attributed to F.P. but was
bigger and showed somewhat greater sophistication in its design. F.P. had still
not succeeded in blowing up anything or anyone, but he was getting closer.
Authorities felt that it was just a matter of time before one of F.P.’s bombs
managed to go off and hurt or kill someone. Less than a month later, their
expectations were proven partially correct. On April 24, 1950, a bomb similar
to the first three attributed to F.P. exploded in a telephone booth at the New
York City Public Library, causing property damage but injuring no one. Four
months later, another similar bomb went off in a telephone booth in Grand
Central Station. No one was hurt in that explosion, but F.P. kept trying. Two
weeks later he mailed a bomb to Consolidated Edison. Shortly after that, he
cut open an upholstered seat in a movie theater, removed the stuffing, and
replaced it with a bomb. Neither of these latter two devices went off.

8
 ge o r g e m e te sk y: pro f i l i n g t h e “m ad bo m be r”

By then it was nearly Christmas 1950, a year in which F.P. had planted
or mailed at least eight bombs in New York City. Just prior to the end-of-the-
year holiday, F.P. sent an oddly punctuated, hand-printed letter to the New
York Herald Tribune:

To Herald Tribune Editor—Have you noticed the bombs in your

city—if you are worried, I am sorry—and also if anyone is injured,
but it cannot be helped—for justice will be served. I am not well,
and for this I will make the Con Edison sorry—Yes, they will regret
their dastardly deeds—I will bring them before the bar of justice—
public opinion will condemn them—for beware, I will place more
units under theater seats in the near future. F.P.5

A week later, F.P. followed up his letter with a call to another city newspaper,
the Journal-American, complaining that the newspapers in town (in keeping
with a request from the New York City police) would not print any of his let-
ters, and threatening more bombings to “show you how important I am.”6
For fear of encouraging copycats and hoaxes, law enforcement authori-
ties decided not to go public with their conclusion that a serial bomber was at
work. Whether that was sound policy or not, it certainly did nothing to deter
F.P. Over the next two years, F.P. planted another four increasingly sophisti-
cated and powerful bombs, all of which exploded in sites where people could
easily have been killed. Two of the bombs were detonated in movie theaters,
another in a subway locker, and a fourth in a telephone booth. By this point in
F.P.’s bombing spree, it had become apparent to both the media and the public
that the bombings were likely the work of a single deranged individual, a per-
son the media then dubbed the “Mad Bomber.”7
Though the hunt for the Mad Bomber was on, it proved futile, and like
clockwork F.P. continued his bombings, setting off four explosive devices in
1953 and another four in 1954, including one at Radio City Music Hall that
injured four people, two seriously. The following year, 1955, F.P.’s bomb-
ings went from quarterly to bi-monthly. Though two of these bombs failed
to detonate, four others did, one nearly killing a porter at Grand Central
Station.
Perhaps emboldened by his growing “success” and the failure of the
police to stop him, F.P. not only continued the bombings but also stepped up
his letter writing. In March of 1956, for example, he wrote to the New York
Herald Tribune, making clear his frustration at the limited media attention he
had received, touting the number of bombs he had already placed, and threat-
ening more of the same:

9
m inds o n t r i a l

While victims get blasted—the yellow press makes no mention of

these ghoulish acts. These same ghouls call me a psychopath—any
further reference to me as such—or the like—will be dealt with—
where ever a wire runs—gas or steam flows—from or to the Con
Edison Co.—is now a bomb target—so far 54 bombs placed—4
telephone calls made. These bombings will continue until Con Edi-
son is brought to justice—my life is dedicated to this task—expect
no calls about bombs in theaters as your actions—no longer war-
rant the effort or dime—all my sufferings—all my financial loss—
will have to be paid in full—it must alarm—anger and annoy the
N.Y. yellow press and authorities to find that any individual can
be just as mean—dirty and rotten as they are. I merely seek jus-
tice. F.P.8

True to his word, in 1956, F.P. repeatedly set bombs in public locations
around the city. One detonated in a telephone booth at Macy’s, injuring six
people. Another exploded and destroyed the kitchen of a security guard, who
found it in a phone booth at the RCA Building and, not knowing what it was,
took it home with him. Later, in December of 1956, another of “F.P’s” bombs
went off in the Paramount Theater in Brooklyn, injuring six people among
the 1,500 gathered to watch the movie War and Peace.9
The December 1956 explosion marked the beginning of the end for the
Mad Bomber. After that bombing, the New York Police Department assigned
a task force of fifty detectives to the case, the city offered a $25,000 reward
for information leading to the capture of bomber, and the police enlisted the
aid of a Greenwich Village psychiatrist, Dr. James Brussel. Brussel, a former
chief psychiatrist for the Army during World War II and the Korean War, was
initially skeptical of his own ability to offer much help. After studying police
records, however, he quickly developed both a profile and a plan to capture the
Mad Bomber.
Brussel hypothesized, among other things, that the bomber was a stocky
man in the forty to fifty age range who was paranoid, unmarried, living in
Connecticut (alone or perhaps with an older female relative), and probably an
immigrant from central or eastern Europe.
The psychiatrist’s hunch about gender was derived from the observation
that historically most bombers had been men. The diagnosis of paranoia was
supported by the feelings of persecution expressed in the bomber’s many let-
ters. The guess about age was based on that diagnosis, since it was believed
that paranoid disorders typically peaked in the early thirties and it was known
that this perpetrator had started his reign of terror sixteen years earlier.

10
 ge o r g e m e te sk y: pro f i l i n g t h e “m ad bo m be r”

Brussel’s speculation as to the bomber’s marital status flowed from his

knowledge that paranoids tend to be socially isolated loners. His assertion
regarding the bomber’s physique relied on a then-recent study of mental ill-
ness and body type that found that 85 percent of paranoid individuals were
stocky. His theory about the bomber’s home state came from the observation
that many of the letters were postmarked in Westchester County, which lies
between Connecticut and New York City. Brussel reasoned that the bomber
was bright enough not to mail the letters from the area in which he lived.
He also knew that many central and eastern European immigrants lived in
Connecticut.
Finally, the psychiatrist’s conjecture about the bomber’s nationality was
based upon the frequent use of bombs as weapons in the Slavic countries of
central and eastern Europe as well as the stiff, pretentious language used in
the bomber’s letters.
Recognizing that paranoids are often obsessively fastidious about their
appearance, Brussel also predicted that, when captured, the bomber would be
wearing a double-breasted suit, an outfit then considered to be the most prim
and proper mode of dress for men. Given the bomber’s apparent obsessive
traits, the psychiatrist told the police to also expect that the suit would be
buttoned.
In addition to offering a profile of the Mad Bomber, Brussel used that
profile to help the police develop a strategy to capture the serial offender.
Brussel told police that they should publicize the profile in an effort to draw
the bomber into communication with the authorities. The psychiatrist was
convinced that once the profile was made public, the bomber would not be
able to keep himself from responding. On December 25, 1956, the New York
newspapers published Brussel’s profile of the bomber:

Single man, between 40 and 50. A lone wolf. Introverted. Unsocial,

but not anti-social. Skilled mechanic. Immigrant, or first-generation
American. Neat with tools. Cunning. Egotistical of mechanical skill.
Contemptuous of other people. Disinterested in women. Resentful
of criticism of his work, but probably conceals resentment. Expert
in civil or military ordnance. Religious, probably a Roman Catho-
lic. Present or former employee of Consolidated Edison. Possible
motive: discharge or reprimand. Resentment kept growing. Prob-
ably a case of progressive paranoia.10

Once newspapers published the profile and encouraged the Mad Bomber
to turn himself in, he wasted no time in communicating his displeasure. The
bomber telephoned Brussel, identified himself as F.P., demanded that the psy-

11
m inds o n t r i a l

chiatrist abandon the case, and warned that he would be sorry if he failed
to do so. The bomber also wrote a series of letters in response to the public-
ity surrounding Brussel’s profile. In one letter, complaining bitterly about his
mistreatment by Consolidated Edison, the bomber wrote: “I was injured on
a job at a Consolidated Edison plant. . . . My medical bills and care have cost
thousands—I did not get a single penny for a lifetime of misery and suffer-
ing.”11 In another letter he added the date of the incident that had triggered
his resentment: September 5, 1931.
These communications spurred a renewed search of Consolidated Edi-
son’s files. Previous searches of the utility’s records—though criticized by
some as perfunctory—had resembled looking for the proverbial needle in the
haystack. Consolidated Edison had thousands of employees and many more
thousands of customers, many of whom had expressed complaints of one sort
or another over the years. But once Consolidated Edison had a date and a
likely cause for F.P.’s complaint, the search narrowed to the giant utility’s
employee compensation records for 1931.
On January 18, 1957, one of the secretaries assigned to search these files
struck pay dirt: letters from George Metesky in Waterbury, Connecticut,
ninety miles from New York City. Metesky, who had worked for one of nine-
teen smaller power companies that later merged and became Consolidated
Edison, complained that he had been injured on the job on September 5, 1931,
and was denied just compensation by his employer.
One letter blamed Consolidated Edison and threatened retaliation for
the power company’s “dastardly deeds.”12 Other records indicated Metesky
claimed to have developed tuberculosis as the result of being struck by hot
gasses from one of the company’s boilers. According to the records, Metesky
was knocked to the floor by the backfire of the boiler and had not received any
aid until he was discovered hours later. Initially, the company had placed him
on sick leave from his $37.50 a week job but soon fired him. His later worker’s
compensation claim had been denied because it lacked substantiation and had
not been filed in a timely manner.
Two days after these records were uncovered, New York City police offi-
cers went to Metesky’s home in Waterbury, Connecticut. There, much as
Brussel had predicted, they found a stocky, unmarried, fifty-four-year-old
son of Lithuanian immigrants who lived in the house with his two older
sisters. Metesky was a former member of the U.S. Marine Corps who had
learned bomb making while serving as an ordnance mechanic. In Metesky’s
basement police found an amateur bomb-making laboratory. Metesky soon
admitted he was the bomber and volunteered that his moniker F.P. stood for

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 ge o r g e m e te sk y: pro f i l i n g t h e “m ad bo m be r”

“fair play.”13 Allowed to change from his bathrobe to street clothes before
being taken into custody, Metesky opted for a double-breasted suit with the
coat buttoned.
After Metesky’s arrest, authorities learned more about the man who was
the Mad Bomber. After his mother died when he was young, Metesky gradu-
ated from high school, entered the Marines, and became a trained electrician.
After his military service, Metesky worked as a generator cleaner for about
two years for United Electric, a company that later merged with Consolidated
Edison. After the September 5, 1931, incident, Metesky was diagnosed with
tuberculosis and spent time in two TB sanitariums. Thereafter, aside from a
brief stint as a toolmaker, he was unemployed. After apparently giving up
trying to convince his former employer that he contracted tuberculosis from
his on-the-job accident and was thus entitled to disability compensation,
Metesky put his electrical and metal-working skills to use building bombs in
a small workshop in his basement. Although Metesky had earlier claimed to
have planted fifty-four bombs, only thirty-two were discovered. Twenty-two
of these bombs had detonated, injuring nearly two dozen people, but only
three seriously.
George Metesky was charged with forty-seven separate crimes, includ-
ing seven counts of attempted murder. Psychological experts found him to
be mentally ill, suffering from paranoid schizophrenia, and not competent
to stand trial. In April 1957, the Mad Bomber was adjudicated a “danger-
ous incapacitated person” and confined to Matteawan State Hospital, New
York’s psychiatric treatment center for the “criminally insane.”14 Under
New York law, Metesky could be detained in this secure hospital until he
was deemed competent, but no longer than two-thirds of the maximum
sentence for the highest felony charge he faced—in other words, sixteen
years and eight months of a possible twenty-five-year sentence. Metesky
was never found competent to stand trial, served the maximum period of
hospitalization, and was released from Matteawan in 1973. He returned to
Connecticut, lived another twenty-one years in freedom, and died at the
age of ninety.
Dr. Brussel’s role in the Mad Bomber case is often cited as the first instance
of American law enforcement’s use of psychological profiling to solve a crime.
Brussel’s profile of the Mad Bomber may well have been the first of its kind
but, for all the attention it has received over the years, like most of the profiles
it helped spawn, it really did little, if anything, to assist police in identifying
the unknown perpetrator. Indeed, as Brussel later acknowledged, his profile
may have led the authorities down several blind alleys.15

13
m inds o n t r i a l

It is often said today that psychological profiles do not identify or capture

criminals, the police do. And when they do, it is most often the result of old-
fashioned hard work and/or dumb luck.
In the case of the Mad Bomber, it was apparent from the note accom-
panying the first bomb that the perpetrator was someone with a grudge
against Consolidated Edison—most likely, the police thought, a disgruntled
employee or former employee of the utility. Although Consolidated Edison
employees had much earlier begun the job of sifting through the compa-
ny’s records, they had very little to go on until F.P.’s letter revealing the
date and nature of his gripe with the company. From that point on it was
just a matter of time and dedication before Metesky’s file would be found
and identified as that of the Mad Bomber. The real question was whether
the police and Consolidated Edison would give the matter the time and
dedication needed.
Though Dr. Brussel’s profile was uncannily correct, it was not the pro-
file, but its publication, that apparently led Metesky to respond with a letter
providing the date that led to his ultimate identification. Even that much is
uncertain, since Metesky had already been corresponding with, and had writ-
ten hundreds of letters to, the press. He may well have revealed this informa-
tion regardless of the publication of Brussel’s profile. Moreover, even with
the date known to the staff searching Consolidated Edison’s files, it was one
of the phrases often used in Metesky’s earlier notes and letters—“dastardly
deeds”—that caught the eye of the clerical worker who pulled his file and
then called the New York bomb squad.
While Brussel’s amazingly accurate profile has often been viewed as a
brilliant work of psychology and has been credited with leading the police to
Metesky, the psychiatrist’s own account of his role in the case is much more
modest. He readily acknowledged what modern profilers have long known:
(1) Criminal profiling is not a science but an art that relies as much on com-
mon sense and general knowledge as it does on psychological or psychiatric
expertise; and (2) criminal profiles sometimes create a kind of “tunnel vision”
that leads investigators to erroneous conclusions and, thus, delay rather than
advance the investigation.
In his book, Casebook of a Crime Psychiatrist, published in 1968, Brussel
explained the logic behind the deductions he made regarding the Mad Bomber
as well as his own initial skepticism as to whether his thoughts would be
of any help to the police: “Did I really know enough about criminals to say
anything sensible . . . ? I’d seen hundreds of offenders in my career, but had I
learned enough from them and about them? I’d had a few minor successes in

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 ge o r g e m e te sk y: pro f i l i n g t h e “m ad bo m be r”

psychiatric detective work, but how much of that success was due to my own
knowledge and how much to sheer blind luck?”16
Clearly most of Brussel’s profile was based upon knowledge more than
luck, but for the most part it was knowledge that was not limited to the psy-
chiatrist or to the community of mental health experts. Dr. Brussel did what
most good profilers do today; he used his own knowledge base along with
inductive reasoning to create a general portrait of the suspect. For example,
he knew that in the past most bombers had been men, that historically Slavic
people were among those most likely to use bombs as weapons, and that
most Slavs were Catholic. Based upon that knowledge he speculated—accu-
rately as it turned out—that the Mad Bomber was a Catholic male likely of
Slavic descent.
What was not publicized at the time, but what Brussel revealed in some
detail in his book, was the reasoning behind his speculations about the
bomber’s psychological makeup and motivation—the one area in which he
relied almost exclusively upon his formal training and expertise in psychol-
ogy and psychiatry. In that regard, Brussel had been most impressed by the
bomber’s handwriting and the way he slashed theater seats in planting some
of his bombs.
As Brussel saw it, twenty-five of the twenty-six letters of the alphabet
used in the Mad Bomber’s carefully hand-printed notes were perfect. Only
the letter “W” was flawed, the bottom edges rounded rather than sharp. As
Brussel later wrote, the “W” in the notes “resembled a pair of female breasts
as seen from the front [and] could also pass as a scrotum.”17 The psychiatrist
concluded that “something about sex seemed to be troubling the Bomber.”18
That “something,” Brussel thought, was also reflected in the bomber’s slash-
ing of theater seats: “Could the seat symbolize the pelvic region of the human
body? In plunging a knife upward into it, had the Bomber been symbolically
penetrating a woman? Or castrating a man? Or both?”19
Ultimately, Brussel concluded that the Mad Bomber was dealing with
sexual problems related to an unresolved Oedipal complex:

There was no other way to explain the misshapen W or the slash-

ing of the seats. . . . The Bomber obviously distrusted and despised
male authority: the police, his former employers at Con Ed. . . . To
the Bomber any form of male authority could represent his father.
. . . Why did he feel this form of antagonism . . . ? Perhaps because,
somehow, he had never progressed beyond the Oedipal stage of love
for his mother. . . .20

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m inds o n t r i a l

Such psychoanalytic abstractions may have helped Dr. Brussel formulate his
ultimate profile. But these notions do not seem to have contributed in any
significant way to identifying and capturing George Metesky.
In any event, whatever role Dr. Brussel’s psychoanalytic musings played in
the case, the psychiatrist also made it clear that his profile of the Mad Bomber
probably led the police on a number of wild goose chases, and ultimately the
case was solved not by the profile but by tedious investigative work.
For example, as Brussel notes, public presentation of his profile led to
all sorts of hoaxes: “dummy” bombs were placed around the city, mailed to
officials, and even thrown at people on the sidewalks. Bomb threats were
called into, and resulted in the closing of, local schools. At the same time,
NYPD’s bomb squad started receiving fifty to one hundred “bomb” reports
each day.21
Also, while the profile never resulted in a single report regarding George
Metesky, it did generate many reports that made other innocent parties instant
suspects. For instance, one middle-aged Polish immigrant who lived with his
elderly aunt fell under suspicion when a neighbor noticed that whenever the
aunt left home, the neighbor would hear “funny” metallic sounds emanat-
ing from the man’s apartment, sounds that would cease as soon as the aunt
returned. Careful investigation determined that the man, who fit Brussel’s
profile well, had a hobby of creating sculptures from various metal scraps, an
avocation frowned upon and mocked by his family.22
Yet another suspect generated by Brussel’s profile was a middle-aged Ger-
man, electrical engineer from Connecticut who had been treated for paranoia,
lived with his wife (who was ten years older than he) and her mother, and
was in the habit of wearing double-breasted suits. This man caught a neigh-
bor’s attention by frequently making trips to New York City carrying a small
suitcase in the trunk of his car, including one on December 2, 1956, the day
one of the Mad Bomber’s devices exploded in Brooklyn’s Paramount Theater,
injuring half a dozen people. When the man was finally confronted by the
police, they discovered the contents of his valise: a pair of high-heeled wom-
en’s boots. The suspect, it turned out, visited New York regularly to indulge a
fetish: having sex with prostitutes paid to wear these boots.23
According to Brussel’s own candid account, in the weeks after his pro-
file was published, “scores of other people” became suspects in the Mad
Bomber case as a result of tips from friends and neighbors and were need-
lessly embarrassed.24
Of course, causing needless embarrassment to many people was probably
the least of the problems created by Brussel’s profile. Even though the profile

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of the Mad Bomber was accurate, right down to the buttoned double-breasted
suit, the characteristics listed in that profile were sufficiently common and fit
so many people that, in the words of the author of a modern text on criminal
profiling, “the requesting agency became deluged with essentially worthless
tips and leads, each of which must be followed up, wasting valuable time and
resources.”25

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p 2
LEE HARVEY
OSWALD
The Formative Years

of an Assassin

he assassination of President John F. Kennedy ranks as one of the most

T controversial events in United States history. It is arguable that no other
crime has been so closely scrutinized and analyzed. Two government investi-
gative commissions delivered multivolume reports on the assassination—the
Warren Commission in 19641 and the House Select Committee on Assas-
sinations in 1979.2 Hundreds of books, as well as several hundred thousand
government documents and scholarly research articles or reports, have been
generated on the case. It is nearly impossible to cover all of the relevant mate-
rial in a single volume, let alone a brief overview of the assassin’s life.
The Warren Commission, established by President Kennedy’s successor,
Lyndon B. Johnson, to investigate the assassination, concluded that Lee Har-
vey Oswald acted alone when he killed John F. Kennedy on November 22,
1963, in Dallas, Texas.3 Some researchers question the Warren Commission
report and believe that forensic evidence supports the theory that there was
an extensive conspiracy behind the Kennedy assassination. One theory sug-
gests that a second gunman fired at the president from the grassy knoll in
front of Kennedy’s limousine. In response to nagging questions and persis-
tent controversy surrounding the Kennedy assassination, the U.S. House of
Representatives appointed a Select Committee on Assassinations that issued
a new report in 1979.4 Although the Select Committee reaffirmed the finding
by the Warren Commission that Oswald fired three shots at the president’s

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motorcade from the sixth floor of the Texas School Book Depository, it also
added that there was evidence of a conspiracy and that Oswald may not have
acted alone.
Oswald’s first shot missed Kennedy entirely. His second shot wounded
both Kennedy and Texas Governor John Connally, who was riding in the
president’s limousine; this second shot is the subject of the “single (or pris-
tine) bullet theory” and a focus of some controversy among researchers of the
assassination.5 The third shot hit Kennedy in the head and mortally wounded
him. The House Select Committee concluded that Kennedy was “probably
assassinated” as part of a conspiracy but the Committee reaffirmed that
Oswald was the identified assassin.
Many scholars who have studied the Kennedy assassination remain con-
vinced that Oswald did not act alone and that he was part of a conspiracy to
assassinate the president. Some conspiracy theorists believe that Oswald was
an operative of a formal government agency, such as the CIA, FBI, Russian
KGB, or Cuban government, while others believe that Oswald was innocent
and framed in an elaborate cover-up. A few conspiracy theorists believe that
Oswald was innocent and took the blame to conceal the identity of the true
assassin. Others who have studied the case endorse the formal conclusions of
the Warren Commission that Oswald acted alone in killing Kennedy.
All official versions of the Kennedy assassination have concluded that
Oswald assassinated Kennedy and that if Oswald had survived and been
brought to trial he would have been convicted. When Texas nightclub owner
Jack Ruby—a man with a shady background and connections to organized
crime—shot and killed Oswald on live television two days after Kennedy’s
assassination while Oswald was being transferred to the county jail, all hope
was lost of ever learning from Oswald his true motives.
In fact, Oswald’s premature death prevented a trial from being held that
would have provided an opportunity for his culpability in the assassination
to be scrutinized in front of a jury. The Warren Commission also concluded
that it was “not able to reach any definite conclusions as to whether or not
[Oswald] was ‘sane’ under prevailing legal standards”6 because he could not
be evaluated by forensic mental health experts. If Oswald’s guilt was never
formally adjudicated in a trial and his competence and sanity were never
officially examined by qualified experts, why would this case be considered a
great case in the field of forensic psychology?
Once Oswald was identified as Kennedy’s assassin, an intensive investiga-
tion into his background was undertaken that consumed a substantial portion
of the voluminous literature produced on the assassination. Several details of
Oswald’s life provide a complex portrait of an emotionally unstable man with

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a history of contradictory behaviors and activities. During his teenage years,

Oswald was adjudicated as a juvenile delinquent and underwent an extensive
mental health evaluation and treatment that provides a classic example of
how the mental health and juvenile justice systems work with one another.
Throughout the nineteenth century, parens patriae became an increas-
ingly influential principle that guided the way the legal system dealt with
juvenile delinquents and young offenders.7 The concept of parens patriae
basically means that when the natural parents of children are unwilling or
unable to provide the necessary emotional, moral, and economic support to
their children, the state can become the common guardian for the child. In
this way, he or she can continue to grow and develop during the formative
childhood years into a productive and law-abiding adult. The legal system
soon came to focus less on punishment and more on rehabilitating young
offenders. In 1899, the nation’s first specialized court devoted to juveniles was
created in Chicago, Illinois, by social worker Jane Addams and her colleagues
at Hull House.8 By the early part of the twentieth century, every state had
special laws and a unique court system for dealing with troubled children and
adolescents.9
Throughout the first half of the twentieth century, juvenile courts were
meant to operate as benign caretakers for children and teenagers whose
behavior or life circumstances brought them to the attention of the legal sys-
tem. A variety of new terms were created to describe legal issues unique to
young people, including the term “status offense” that continues to be applied
in juvenile court proceedings. Individuals under a specific age can be brought
under the jurisdiction of a juvenile court as status offenders if they fail to
conform their behavior to certain standards, such as attending school, adher-
ing to a curfew, or avoiding certain places or people. If the child or teenager
fails to abide by rules imposed by a judge, he or she can be ruled a person or
child in need of supervision and the judge can then decide whether to keep
the youngster in the community or place him or her in a facility for young
offenders. The concept of status offense is central to the role of juvenile courts
acting as parens patriae to make sure young offenders get the services and
supports they need.
During the early part of the twentieth century, the juvenile justice sys-
tem operated under the theory that young offenders should be rehabilitated,
and juvenile courts had wide latitude in how they dealt with young offenders.
In some cases, this latitude meant that young people who found their way
into the juvenile justice system had limited rights, did not necessarily have
access to legal counsel, and were often at the mercy of the presiding judge or
magistrate. However, the juvenile justice system underwent a major change

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in the late 1960s, beginning with the U.S. Supreme Court decisions of Kent v.
United States in 1966 and In re Gault in 1967.10 These two cases introduced
the notion of due process to juvenile court proceedings in which the Supreme
Court recognized that even children and adolescents must be given notice of
the charges they face, access to legal counsel, and an opportunity to confront
witnesses who accuse them of wrongdoing.
In 1953, before the Kent and Gault Supreme Court cases, the juvenile jus-
tice system was primarily focused on rehabilitation and treatment of young
offenders. It is in this context that Lee Harvey Oswald came to the atten-
tion of the juvenile court system. Born on October 18, 1939, in New Orleans,
Louisiana, Oswald was the youngest of three children. His father died two
months before he was born, and Oswald was raised by his mother. He had
an older half-brother, who was from his mother’s first marriage, and an older
brother who had the same biological father as Oswald. Because she had to
work after the death of her second husband, Oswald’s mother tried to place
her three children in an orphanage. The two older boys were accepted, but
Oswald could not be placed until he reached the age of three. Once he was old
enough, Oswald lived for thirteen months in the orphanage and then returned
to live with his mother, who soon married her third husband. Oswald lived
with his mother and stepfather while his two brothers remained for a time in
the orphanage.
As a child, Oswald was said to be quite active and would often gain
attention from other children by telling them what to do. Among the earli-
est written documents from his childhood that were saved for the historical
record were postcards he wrote to his older half-brother who was in the Coast
Guard. These documents provide subtle hints of the selfishness and demand-
ing nature that characterized his early years: “Dear John, All I have to say is
get me some ($1.50) money. P.S. I want ($1.50). Lee.”11
His mother later divorced her third husband and was forced to raise
Oswald by herself. The loss of his stepfather, a man whom Oswald had
increasingly come to view as a father figure, was very difficult. During the
divorce proceedings, Oswald was asked to testify but he refused because he
stated that he was unable to differentiate the truth from a lie. In the wake of
the divorce, his mother would often complain openly about how difficult it
was for her to raise three children on her own; family members noticed that
Oswald appeared to be more withdrawn and kept to himself.
Oswald was very demanding and would often skip school when his
mother had to work. As a single parent, Oswald’s mother had to support the
family, and she trained him to fend for himself. Oswald was left to get him-
self to school, return home to an empty house for lunch, and stay alone after

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 l e e h a rv e y o s wa ld : th e f o r m at i v e y e ars o f an as sas s in

school until she came home from work. Oswald’s mother trained him to do
this instead of play with other children,12 which undoubtedly contributed to
his withdrawal and isolation from his peers. Another matter complicating his
academic adjustment was the fact that his mother moved frequently and he
was never able to settle in a single school. By the time he was ten years old,
Oswald had enrolled in his sixth school.
The investigation into Oswald’s life following the Kennedy assassination
revealed that neighbors who knew the family saw Oswald’s mother as over-
bearing and Oswald himself as often quick to anger. In order to get some help
in controlling Oswald’s increasingly defiant behavior, his mother moved with
him to New York City to live with Oswald’s older half-brother and family.
Soon after arriving, thirteen-year-old Oswald began arguing with his sister-
in-law over the television. During one argument, he pulled out a pocketknife
and threatened to harm her if she got in his way again. This confrontation
resulted in Oswald and his mother being asked to leave the half-brother’s
home; they subsequently found an apartment of their own. His mother mini-
mized the seriousness of this incident and even when testifying before the
Warren Commission following the assassination she continued to downplay
its significance.
Oswald and his mother moved three times within a five-month period
after they left the home of his half-brother. It was during this period, the
spring of 1953, that a series of court hearings were set to address the problem
of Oswald’s truancy. The court sent him to Youth House, a residential facil-
ity, for a psychiatric evaluation. While Oswald was at the facility, he pleaded
with his mother to get him out. On one occasion he broke down during one
of her visits and cried, saying that there were youths being housed there who
had killed people and that he wanted to get out. On the other hand, Oswald
would tell his probation officer that he did not mind Youth House, although
he missed the freedom of being able to do whatever he wanted.13
Because Oswald often skipped school and was put on probation for tru-
ancy, the court had requested a psychiatric evaluation requiring him to stay
at Youth House in New York City from April 16 until May 7, 1953.14 During
that time, a team of mental health professionals evaluated his mental state
and made a set of recommendations that had the potential to alter the course
of Oswald’s life.
Dr. Renatus Hartogs, who was both a clinical psychologist and psychia-
trist, conducted an extensive examination of Oswald, who was thirteen years
old at the time. Hartogs later testified before the Warren Commission that
he found Oswald to be an adolescent who was withdrawn and tense. During
the course of the psychiatric evaluation, Oswald did not appear to like talk-

23
m inds o n t r i a l

ing about himself or his feelings and gave the psychiatrist the impression
that he was indifferent to what other people thought of him. Hartogs con-
cluded that Oswald demonstrated a personality disorder with schizoid and
passive-aggressive features. Individuals with this disturbance are extremely
introverted and shy but are prone to intense outbursts of anger and rage.
Oswald stated during his examination with Hartogs that he did not like peo-
ple, preferred to be alone, and would occasionally hit his mother when angry.
Furthermore, Dr. Hartogs concluded that Oswald was potentially dangerous
to other people and had a propensity to act out explosively and aggressively.
Oswald was not found to be psychotic, and he was not diagnosed with a major
psychiatric disturbance such as schizophrenia. Hartogs concluded his written
report with the following:

This 13 year old well built boy has superior mental resources and
functions only slightly below his capacity level in spite of chronic
truancy from school which brought him into Youth House. No
finding of neurological impairment or Psychotic mental changes
could be made. Lee has to be diagnosed as “personality pattern dis-
turbance with schizoid features and passive-aggressive tendencies.”
Lee has to be seen as an emotionally, quite disturbed youngster who
suffers under the impact of really existing emotional isolation and
deprivation, lack of affection, absence of family life and rejection by
a self involved and conflicted mother.15

Hartogs concluded that although Oswald did not need to be institutional-

ized at the time, the troubled young man needed intensive treatment none-
theless and a recommendation was made to the court that Oswald be assigned
a probation officer and placed under the outpatient care of a psychiatrist.
The psychiatric evaluation of Oswald was supported by psychological
testing conducted by a psychologist at Youth House, Irving Sokolow. Among
the tests administered to Oswald was the Wechsler Intelligence Scale for Chil-
dren that revealed a Full Scale IQ of 118, placing him in the high average
range of measured intelligence.16 Interestingly, Oswald had been tested four
years earlier while he was at Ridglea West Elementary in Fort Worth, Texas.17
His IQ at that time was 103, revealing average intelligence. Although the dis-
crepancy between these two measurements of Oswald’s intelligence would
seem to be noteworthy, the finding is not uncommon and could be explained
by any number of factors, including the use of different intelligence tests or
the fact that Oswald may have had different levels of motivation at the time
he was tested. Nevertheless, the intelligence testing reveals that Oswald func-
tioned in the average to above average range of intelligence and serves to

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dispel any myths about him being someone of limited intellect who was inca-
pable of formulating and executing a plan to assassinate the president.
Another psychological test administered to Oswald during his evaluation
at Youth House was the human figure drawing. The test requires an individ-
ual to draw a picture of a person; features of the drawing are then evaluated
and the examiner draws conclusions about the individual’s personality. In the
1950s, when Oswald underwent his evaluation, the human figure drawing
was widely used as a personality assessment technique that operated under
the projection hypothesis. According to this hypothesis, individuals who are
given a rather ambiguous task to perform where wide latitude is permitted in
the nature of the response allowed, will introduce—or project—into the test
aspects of their personality to help them complete the task. In recent years,
the human figure drawing has been surrounded in controversy, particularly
with respect to its use in legal and forensic settings, because questions have
been raised about the reliability and validity of scoring methods used to rate
features of the drawings and inferences that psychologists make about the
person.18 While current forensic psychological practice calls for greater cau-
tion in the use of human figure drawings to evaluate individuals in legal set-
tings, Sokolow’s use of the classic projective technique was typical of practic-
ing psychologists at the time.
The conclusions Sokolow drew about Oswald’s functioning based on his
human figure drawing seem valid on their face. According to the psychologi-
cal evaluation report written by Sokolow, Oswald’s drawings were

empty, poor characterizations of persons approximately the same

age as [Oswald]. They reflect a considerable amount of impov-
erishment in the social and emotional areas. [Oswald] appears to
be a somewhat insecure youngster exhibiting much inclination
for warm and satisfying relationships to others. There is some
indication that [Oswald] may relate to men more easily than to
women in view of the more mature conceptualization. [Oswald]
appears slightly withdrawn and in view of the lack of detail within
the drawings this may assume a more significant characteristic.
[Oswald] exhibits some difficulty in relationship to the maternal
figure suggesting more anxiety in this area than in any other.19

Of course, some of these interpretations of Oswald’s drawings have intuitive

appeal, such as the notion that the lack of detail in his drawings suggested he
was socially impoverished and withdrawn. However, another equally compel-
ling conclusion is that Oswald simply was unmotivated to draw many details
and did not want to disclose much about himself because he was in the dif-

25
m inds o n t r i a l

ficult situation of having to undergo a court-ordered evaluation in an institu-

tional setting.
On the other hand, many of the conclusions rendered by Hartogs in
his report were supported by the observations of others who knew Oswald
and his family. Reports from his teachers indicated that he had very few
friends in school, and his mother often impressed those who interviewed her
as someone who was self-involved and had difficulty relating to other people
effectively.
Although the details of Oswald’s life were investigated extensively in the
wake of the Kennedy assassination, the psychiatric examination of Oswald
during adolescence stands as a portrait of his mental state during a critical
period of his development. Gerald Posner, a Kennedy assassination researcher
who supports the findings of the Warren Commission that Oswald acted
alone when he assassinated Kennedy, has stated that the findings of Hartogs’s
examination have either been ignored or misrepresented by conspiracy theo-
rists or critics of the Warren Commission.20 Posner has noted that many con-
spiracy theorists who assert that Oswald did not act alone in the Kennedy
assassination have either failed to cite Hartogs’s testimony before the Warren
Commission or have erroneously concluded that the psychiatric evaluation
failed to uncover any mental abnormality.
In fact, Hartogs concluded in his report that Oswald was quite disturbed
emotionally but the psychiatrist fell short of recommending that Oswald
be treated in an institutional setting. During his testimony before the War-
ren Commission, Hartogs stated that he had once presented Oswald’s case
at a seminar for other professionals because of the unusual nature of the
presentation:

He came to us on a charge of truancy from school, and yet when I

examined him, I found him to have definite traits of dangerousness.
In other words, this child had a potential for explosive, aggressive,
assaultive acting out which was rather unusual to find in a child
who was sent to the Youth House on such a mild charge as truancy
from school.21

Although Oswald’s potential for violence was not analyzed in detail in

Hartogs’s report, he later stated that he believed the risk for violence was clear
from his diagnosis of passive-aggressive personality tendencies. Whether this
later testimony is prone to hindsight bias—given that the psychiatric evalua-
tion was being evaluated with knowledge that Oswald was Kennedy’s accused
assassin—is an issue that must be considered when evaluating Hartogs’s tes-
timony before the Warren Commission.

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Nevertheless, any propensity for violence that Oswald may have dem-
onstrated as an adolescent does not provide conclusive evidence to support
his guilt as Kennedy’s assassin. Many attempts have been made by mental
health professionals to identify common psychological features of assassins,
yet most of these efforts have met with failure. For example, one psychi-
atrist who provided a retrospective review of Oswald’s history concluded
that Kennedy’s assassin suffered from schizophrenia. In 1965, Dr. Donald
W. Hastings, who was a professor and department chair in the Department
of Psychiatry and Neurology at the University of Minnesota, wrote: “On
the basis of newspaper and magazine accounts of Oswald’s life, there is not,
in my opinion, any reasonable doubt that the assassin had paranoid schizo-
phrenia.”22 Hastings made his diagnosis without any direct examination of
Oswald and relied on unspecified journalistic accounts that cannot be eval-
uated for their accuracy. Furthermore, Hastings appears to have made an
erroneous conclusion about the evaluation conducted on Oswald by Hartogs
when Hastings wrote: “a tentative diagnosis of incipient schizophrenia had
been made years before by a New York psychiatrist.”23 In fact, Hartogs’s own
evaluation found no evidence of psychosis, and the psychiatrist did not diag-
nosis Oswald with schizophrenia. In the past, the schizoid personality traits
that Oswald presumably demonstrated were viewed by some psychiatrists
as a precursor to schizophrenia but many individuals with schizoid person-
ality do not develop schizophrenia. Hastings’s conclusion that Oswald had
schizophrenia is based on a questionable method and an erroneous reading
of Hartogs’s evaluation of the Kennedy assassin.
Other researchers have attempted to identify a “presidential assassination
syndrome” that suggests those who target U.S. presidents are inadequate, iso-
lated loners who use assassination to compensate for their own inadequacies.
Dr. David A. Rothstein, who was a staff psychiatrist at the U.S. Medical Center
for Federal Prisoners, originally proposed the notion of a presidential assassi-
nation syndrome after he studied the similarities between Oswald and a num-
ber of presidential threateners referred for psychiatric evaluation.24 Although
Rothstein recognized that his conclusions were based on a limited sample of
individuals, he concluded that presidential assassins may have schizophrenia,
severe rage toward women, confusion about their identities, and strong iden-
tifications with other assassins.
However, the presidential assassination syndrome has not held up well
to empirical testing. The most comprehensive study of assassins that has yet
been conducted dispels the notion that there is a common psychological profile
or syndrome that describes presidential assassins. In the U.S. Secret Service
Exceptional Case Study project on assassins, attackers, and people who have

27
m inds o n t r i a l

approached public figures with lethal intent, no common profile or psycho-

logical pattern emerged.25 Rather, individuals who engaged in assassination
behaviors appeared to do so for a variety of reasons, but their actions were not
the product of mental illness. Instead, assassination appeared to be due to an
identifiable pattern of thinking and behavior that led up to the attack. Results
of the Secret Service’s Exceptional Case Study suggest that even though the
psychiatric evaluation of Oswald during adolescence might have shed impor-
tant information about his personality during the formative years of his ado-
lescence, there is no specific variable or pattern of behavior back in 1953 that
could have predicted Oswald’s subsequent actions in the fateful month of
November 1963.
Oswald first tried to join the U.S. Marine Corps when he was sixteen
years old. He got his mother to make a false statement that he was older,
but he was unable to convince authorities that he was old enough to join the
military. Oswald was ultimately successful in getting into the Marines but
he also began to exhibit unusual tendencies like becoming enamored with
communism. During his enlistment with the Marine Corps, Oswald became
a self-proclaimed communist who initially professed devotion to the U.S.S.R.
during a time of intense concern in the United States that communism posed
a serious threat to national security. Oswald later moved to the Soviet Union
and attempted to become a Soviet citizen by renouncing his U.S. citizenship.
He even made a superficial suicidal gesture by slashing his wrists when he
was told after a two-year wait that his application for Soviet citizenship was
denied. Although he was ultimately permitted to remain in the Soviet Union,
Oswald soon became disillusioned with his life in the communist country.
During this period of time, he was experiencing many personal difficulties,
including conflicts with his wife. His disillusionment with the Soviet Union
ultimately led him to return to the United States. Nevertheless, Oswald’s
thinking and behavior were inconsistent and ambivalent. While remaining
in the United States, he continued to proclaim himself a communist, made an
inquiry into the possibility of returning to the Soviet Union, and expressed an
interest in traveling to Cuba.
His mother had an interesting observation about her son’s attempt to
renounce his U.S. citizenship back in November 1959. While speaking to a
newspaper reporter from Fort Worth, Texas, about her son’s desire to defect
to the Soviet Union, Marguerite Oswald said, “He is capable of making his
own decisions. . . . It’s his privilege to make his own decisions. That’s what we
preach in the United States, isn’t it?—that people have a right to make deci-
sions. . . . I would much rather read the sort of headlines that are appearing

28
 l e e h a rv e y o s wa ld : th e f o r m at i v e y e ars o f an as sas s in

now than headlines that Lee had killed somebody or become a dope fiend or
something like that.”26
Oswald was a troubled and unstable individual throughout his life and not
the carefree, untroubled person some conspiracy theorists believe was framed
for the assassination. More important, however, is the fact that the recommen-
dations of the mental health professionals who evaluated Oswald during his
adolescence went unheeded. After the psychiatric report was submitted to the
court, Oswald was placed on probation and the court attempted to secure the
recommended treatment for him. However, his mother frequently found ways
to avoid bringing her son back to court, often refusing and claiming that he was
doing better. In reality, Oswald was continuing his behavioral decline; he did
poorly in school and was belligerent and defiant with his teachers.
In November 1953, the judge finally ordered that Oswald be placed in
a residential facility so that he could receive mandatory psychiatric care.
Oswald’s mother was apparently convinced that the court was against her
son, and she was set on making sure that he would not be placed in an institu-
tion like Youth House ever again. She left New York to avoid the jurisdiction
of the court’s order and returned to New Orleans.
Of course, it would be unfair to blame Oswald’s fate solely on the deci-
sions that his mother made with respect to the judge’s recommendations
for institutionalization during the accused assassin’s teenage years. In fact,
one psychiatrist later suggested that Oswald’s mother may have rejected the
court’s recommendations and left New York State out of frustration over the
fact that no clinic or facility in the New York City area appeared willing to
offer the services he needed.27 For nine months, Oswald’s probation officer at
Youth House, John Carro, made a number of referrals to various agencies and
clinics to see if Oswald could get the treatment he required. Oswald’s mother
might have viewed this “as a rejection of herself and her son, and her typical
reaction might well have been something in the nature of, ‘I can handle this
myself and I don’t need any help,’ so that she would appear to be the rejecting
person rather than the rejected one.”28
Carro admitted to the Warren Commission that “there was nothing that
would lead me to believe when I saw [Oswald] at the age of 12 that there
would be seeds of destruction for somebody.”29 Still, his social worker Evelyn
Siegel believed that Oswald might respond to treatment if given the chance.
Her report stated that:

Despite his withdrawal, [Oswald] gives the impression that he is

not so difficult to reach as he appears and patient, prolonged effort

29
m inds o n t r i a l

in a sustained relationship with one therapist might bring results.

There are indications that he has suffered serious personality dam-
age but if he can receive help quickly this might be repaired to some
extent.30

Therefore, when Oswald did not receive the intensive therapy that was rec-
ommended by professionals at Youth House and his mother took him back to
New Orleans, an opportunity to change the direction of his life was missed.
The fateful decision to keep Oswald out of a psychiatric institution may
very well have been one of the key events during his early years that main-
tained his life on a tragic course. One can only wonder. If Oswald had received
the psychiatric care he needed as ordered by the court, then the course of his-
tory might have been altered and his mother might have avoided reading the
headlines she did not want to read—that her son had indeed killed someone,
namely the president of the United States.

30
p 3
PATRICIA
HEARST
Uncommon Victim

or Common Criminal?

n February 4, 1974, a nineteen-year-old Berkeley sophomore was kid-

O napped at gunpoint from the off-campus home she shared with her
fiancé, a graduate student. That evening around nine o’clock, three armed
individuals (two men and a woman) shoved their way into the couple’s apart-
ment and dragged the young woman, clothed in only a bathrobe, into a nearby
car and drove away.
Had the kidnap victim been any one of the other thousands of Berkeley
students, the case might not have generated much interest outside the Bay
area of California. But the woman snatched by the three intruders was Patri-
cia Hearst. Though she kept a low profile and few knew of her background,
Patty Hearst was the daughter of Randolph Hearst, one of the wealthiest
men in America who was heir to the Hearst publishing dynasty and owner
of a national chain of newspapers and radio and television stations. As events
would soon demonstrate, she had been kidnapped for that very reason.
Three days after the kidnapping, the kidnappers, a self-styled militant
revolutionary group (who today would be regarded as domestic terrorists)
contacted the Hearst family in what they called a “communiqué.”1 Their mes-
sage to the Hearsts, accompanied by one of Patty’s credit cards, was that the
group, the Symbionese Liberation Army (SLA), was holding their daughter as
a “prisoner of war” and that she would be executed if she resisted or if anyone
else tried to interfere with the group’s activities.2 The “communiqué” added

31
m inds o n t r i a l

that this and all future communications from the SLA “MUST [sic] be pub-
lished in full in all newspapers, and all other forms of media.”3
Five days after this initial “communiqué,” the SLA contacted the Hearsts
again, this time delivering to a local radio station a recorded message from
Patty demanding a ransom of sorts. To ensure Patty’s safety, the tape said, her
parents were to immediately donate seventy dollars worth of food to every
poor person in California. The Hearsts wasted no time responding; within ten
days they had established a program called “People in Need” and begun hand-
ing out free food.4 In all, over 90,000 bags and boxes of food, valued at about
two million dollars, were given away to needy Californians.
Meanwhile, however, Patty’s kidnappers, a loosely organized band of ex-
convicts and political misfits, had no intention of releasing the heiress. Their
plan was to exploit her and the Hearst name and fortune in a way that Amer-
ica would never forget.
On April 3 the SLA issued another “communiqué,” this one including a
tape-recorded message from Hearst:

I would like to begin this statement by informing the public that

I wrote what I am about to say. It’s what I feel. I have never been
forced to say anything on any tape. Nor have I been brainwashed,
drugged, tortured, hypnotized or in any way confused. . . . I have
been given the choice of (1) being released in a safe area, or (2) join-
ing the forces of the Symbionese Liberation Army and fighting for
my freedom and the freedom of all oppressed people. I have chosen
to stay and fight. . . . I have been given the name Tania after a com-
rade who fought alongside Che in Bolivia. I embrace the name with
the determination to continue fighting with her spirit.5

The next “message” the public would receive about Patty Hearst came in
the form of a security film taken in the course of an armed robbery at a branch
of the Hibernia Bank in San Francisco on April 15, 1974. The film showed
Hearst and two members of the SLA, all brandishing guns. One of the robbers
shouted: “This is a holdup! The first motherfucker who don’t lay down on the
floor gets shot in the head.”6 Another yelled, “SLA! SLA! Get down on the
floor over there and you won’t get hurt.”7 For her part, Hearst muttered “This
is Tania . . . Patricia Hearst.”8 One person was shot and the robbers escaped
with about $10,000. The SLA took credit for the robbery in another taped
“communiqué” in which Hearst stated: “Greetings to the people, this is Tania.
On April 15 my comrades and I expropriated $10,660.02 from the Sunset
Branch of the Hibernia Bank.”9 In response, the nation’s highest-ranking law
enforcement official, U.S. Attorney General William Saxbe, told a Washing-

32
 pat r i c i a h e a rst : u n c o m m o n v i c ti m o r co m m o n crim inal ?

ton press conference that, from what he could see, Hearst “was not a reluctant
participant” in the robbery but had become a “common criminal.”10
A month later, on May 16, 1974, Hearst surfaced again, this time in Los
Angeles where, from a car parked outside a sporting goods retail outlet, she
sprayed the storefront with automatic gunfire, thereby enabling the escape
of two SLA members who were being arrested by store security for shoplift-
ing. Thus alerted to the presence of SLA members in Los Angeles, a day later
police surrounded the SLA’s hideout. After an exchange of gunfire between
police and members of the SLA, the house exploded and burned, killing six
occupants. Though police initially expected to find Hearst’s body among the
charred remains, she had not been in the house. She and the others involved
in the sporting goods store shooting had never returned. When Hearst and
her surviving SLA companions learned of the fatal fire, they fled across the
country, eventually settling for awhile in Pennsylvania before returning to
California in the fall of 1974.
Once back in California, Hearst and the others joined forces with several
new members of the SLA to rob at least two other banks. During one of these
robberies in April 1975, Hearst was the get-away driver; a woman was killed
in the bank and several other customers were stomped by Hearst’s accom-
plices. Later that year, Hearst also helped SLA members plant four bombs in
the Bay area: two destroyed police cars and one exploded at the Marin County
Civic Center.
On September 18, 1975, another group stormed the San Francisco house
where Patricia Hearst and four other SLA members were living. Hearst would
again be removed forcefully from her “home,” but this time those taking
her were FBI agents. “Freeze or I’ll blow your head off,” one of the agents
yelled.11 Hearst raised her hands in surrender. “Are you Patty Hearst?” one
agent asked.12 “Yes,” Hearst replied before being handcuffed and arrested.13 So
ended the most extensive manhunt in the history of U.S. law enforcement.
Before being booked on multiple criminal charges, Hearst offered those
around her a clenched-fist revolutionary salute. And when asked by the book-
ing officer for her usual occupation, Hearst said, “Urban guerrilla.”14
How, in a matter of months, did Patricia Hearst, who had previously led a
sheltered and affluent life, go from an apolitical college student and upstand-
ing citizen to an “urban guerrilla” and one of America’s most wanted criminal
fugitives?
The FBI and other law enforcers had a simple answer to that question.
Though no one ever denied that Hearst had initially been kidnapped and held
hostage by the SLA, those who chased her for a year and a half and ultimately
prosecuted her believed that prior to the kidnapping Hearst was already a

33
m inds o n t r i a l

“rebel in search for a cause”15 who, at some point early in her captivity, will-
ingly became a member of the SLA. For example, as U.S. Attorney James
Browning later explained: “When she was in that bank, she acted with verve
and great purpose, and she avoided apprehension for a year and a half, when
she had plenty of opportunities to walk away and come home. The fact is she
had joined them.”16
Hearst, of course, had a different explanation. From the time she was
kidnapped until fifty-seven days later, she was confined to a small dark closet,
where she was bound, blindfolded, gagged, sexually abused, raped, deprived of
sleep and proper nutrition, and threatened with death if she tried to escape or
failed to cooperate. “As a sort of tradeoff” for having her blindfold removed
and being given easier access to the toilet, Hearst later said, “I agreed to read
and study their recommended literature in the closet with the aid of a flash-
light. They provided me with a steady supply of selected reading, books by
Eldridge Cleaver, George Jackson, Marx, Engels, and others.”17 The group’s
leader regularly quizzed Hearst on her reading assignments and delighted
in answering her questions in great detail. As Hearst feigned interest and
“racked [her] brain to think up questions that would indicate [her] keen inter-
est,”18 she got closer to the group that was holding her. So close, in fact, that
one day, the leader told her:

You’re kind of like the pet chicken people have on a farm—when it

comes time to kill it for Sunday dinner, no one really wants to do
it. . . . You can join us and fight with us, and that’ll mean you can
never go home again or ever see your folks or your old friends—or
you can die. . . . You know, we’ve kind of gotten to like you, so we
really don’t want to kill you, if we don’t have to. Think about it.19

Not long after that not-so-veiled threat, the same man presented Hearst
with another “choice.” “The War Council has decided that you can join us,
if you want to,” the leader told her. “Or you can be released, and go home
again.”20 Believing that she would never be released, and that “the real choice
was . . . to join them or be executed,” Hearst replied, trying to mask her hesita-
tion: “I want to join you . . . I want to fight for the people.”21
Though Hearst felt no greater freedom or autonomy after having pledged
her allegiance to her captors, she did feel calmer and more at peace. As she
would later write, “My own course was still to live from day to day, to do
whatever they said, to play my part, and to pray that I would survive. Once I
came to accept in my own mind the stark reality of my new life—that I was
now part of the SLA—the racking turmoil within me subsided.”22

34
 pat r i c i a h e a rst : u n c o m m o n v i c ti m o r co m m o n crim inal ?

Charged first with robbing the Hibernia Bank, Hearst was initially rep-
resented by a team of lawyers whose court pleadings portended some kind of
psychiatric defense and thereby triggered an extensive psychological evalu-
ation by four court-appointed doctors, resulting in a confidential 162-page
report. The ostensible purpose of these evaluations was to determine Hearst’s
competence to stand trial, but the lawyer’s pleadings seemed to be aimed at
establishing some sort of temporary insanity. In one affidavit filed by Hearst’s
first defense team, the attorneys described the awful conditions of their cli-
ent’s early captivity and then argued that:

Under the pressure of these threats, deprivation of liberty, isola-

tion and terror, she felt her mind clouding, and everything appeared
so distorted and terrible that she believed and feared that she was
losing her sanity, and unless soon freed, would become insane. . . .
A short while before her arrest, she began to experience lucid inter-
vals in which her sanity briefly reappeared. . . . When the FBI agents
appeared, she thought that she would instantly be killed. When this
did not happen, her mind began to clear up again, but the first full
realization that she had been living in a fantasy world whose terrors
could be resolved by merely returning to her family or even con-
sulting the law officers, occurred when her mother, her father and
her sisters hugged and kissed her.23

The court-appointed team of psychologists and psychiatrists found

Patricia Hearst sane but “emotionally impaired to a significant degree” as a
result of the emotional stress of the preceding year and a half.24 Her IQ had
fallen from 130 (prior to the kidnapping) to 109. Personality testing revealed
a young woman who was “sad, hopeless, withdrawn, emotionally distressed
and expressing a cry for help.”25 The team of evaluators further concluded
that Hearst suffered from “traumatic neurosis with dissociative features”26
(a rough equivalent of today’s posttraumatic stress disorder), had been “sub-
jected to powerfully effective coercive manipulation by her captors,” and
would need several months of individual psychotherapy to enable her to be
fully competent to stand trial. In response, the judge scheduled trial for three
months later, sealed the report, and allowed Hearst to undergo psychotherapy
while jailed pending trial.
When Hearst went to trial in February 1976, she had new defense counsel
and a new defense strategy. F. Lee Bailey, Hearst’s new lead attorney—who
had earlier defended Albert DiSalvo (thought to be the Boston Strangler) and
Dr. Sam Shepard (the inspiration for the television series and movie The Fugi-

35
m inds o n t r i a l

tive) and would later help defend O. J. Simpson—rejected any traditional psy-
chiatric defense such as insanity or diminished capacity. Instead the veteran
attorney opted for a defense of duress or coercion. Under the law governing
Hearst’s trial, the fact that she was kidnapped by the SLA would, by itself,
be insufficient to exonerate her. However, if the jurors found that Hearst
had been coerced into committing the robbery at the Hibernia Bank under a
well-founded fear of death or serious bodily injury from which there was no
reasonable opportunity to escape without committing the crime, they would
have no choice but to acquit her.
Though duress is rarely raised as a defense, when lawyers raise it they
rarely rely on expert psychological or psychiatric testimony. In most such
cases, the facts speak for themselves. Though Hearst had an arguable defense
of duress, given that she was kidnapped, abused, and threatened with death
by members of the SLA, there were clearly holes in the argument that would
need to be filled before a jury could be persuaded to acquit her. She had,
after all, acknowledged joining the SLA despite being told that she would be
released if she chose to be, and she carried a weapon at the robbery, protected
her “comrades” at the sporting goods store, and willingly participated in
numerous other crimes long after being given many opportunities to escape
from her captors.
In an effort to fill those holes in the chain of reasoning needed for an
acquittal based on duress, Bailey decided to bank on the testimony of four
mental health experts, two of whom had been part of the court-appointed
team that examined Hearst regarding her competence to stand trial. As part of
Bailey’s strategy, these doctors would essentially testify that Patricia Hearst
had been brainwashed by the SLA and that this form of coercive persuasion
explained why the young kidnap victim had, in effect, joined the SLA and
become an accomplice to their crimes. Faced with what might best be called a
quasi-psychiatric defense, prosecutors hired their own team of psychiatrists
to examine Hearst and in all likelihood testify against her claim of brainwash-
ing or coercive persuasion.
The decision to forego a traditional psychiatric defense in favor of a non-
psychiatric defense supported in large measure by psychiatric testimony was
well calculated but risky. It was a strategic move that appeared to backfire in
the end, perhaps because it was not well executed and because it opened doors
for highly damaging testimony by the prosecution experts that otherwise
probably would not have been allowed.
The first expert to testify for the defense was Dr. Louis Joloyn West,
Professor and Chairman of Psychiatry at UCLA and a national authority on
coercive persuasion. For decades West had studied the behavior and adjust-

36
 pat r i c i a h e a rst : u n c o m m o n v i c ti m o r co m m o n crim inal ?

ment of repatriated prisoners of war. At Bailey’s suggestion, he had been

one of the four doctors initially appointed by the court to examine Hearst.
After describing in great detail the psychological and psychiatric literature
on coercive persuasion, often referred to in the vernacular as brainwashing,
West detailed the clinical results of his examinations of Hearst as well as
the results of the psychological tests administered by Dr. Margaret Singer, a
renowned clinical psychologist and member of the court-appointed team of
examiners.
West then likened Hearst to the many prisoners of war he had studied
and concluded that hers was a “pretty classical example actually of what we
would call coercive persuasion.”27 As West then explained:

She was persuaded to take on a certain role and she complied with
everything they told her to do. If they wanted her to clean a shot-
gun, she cleaned a shotgun. And if she took part with the group,
she just tried to blend in with the others and behave in a fashion
that she understood was expected if she was to be accepted. For her,
it was to be accepted or to be killed. . . . Cinque [the SLA’s leader]
had told her at one point, you know, you’re free to leave. You don’t
have to stay with us. But at this point she was already convinced
from things he had told her previously that he didn’t intend to let
her leave and that if she elected to leave, it would mean that she
hadn’t truly joined and therefore they’d kill her. So, she passed this
test by saying I’ll stay. For her it wasn’t a decision between staying
and leaving. For her it was a decision between living and dying. . . .
Now she still wasn’t sure that they really accepted her and so she
thought that in the bank, that one way or another she was going to
get killed. She thought that they were going to kill her in the bank
unless she did exactly what they wanted and she was so paralyzed
with fear that she didn’t even do everything they wanted. But she
did enough to suit them.28

Not surprisingly, at this point the prosecutor raised an understated, accu-

rate and compelling objection:

Excuse me, your honor. I am going to object at this point. . . .

It’s unclear whether the doctor is arguing the case to the jury or
whether or not he is making a psychiatric evaluation. The larger
portion of his testimony is that he believes the defendant and he is
arguing the facts in the case. I don’t believe we have had any psy-
chiatric testimony yet, and I object on those grounds.29

37
m inds o n t r i a l

Even under the liberal standards of expert testimony then governing the fed-
eral courts, the prosecutor was clearly correct. West was not giving an expert
opinion but a closing argument for the defense.
While the judge allowed the testimony to stand, he admonished Bailey
and West that testimony was to be given in the form of questions and answers
rather than lengthy narratives of the sort West was providing. Perhaps the
most significant impeachment of West, however, came when, on cross-exami-
nation, the prosecutor got him to acknowledge that, prior to being selected as
an examiner and potential expert witness in the case—indeed weeks prior to
Hearst’s arrest—West had written a letter to Hearst’s father, Randolph Hearst.
The letter suggested that Patricia Hearst might have been brainwashed by
her captors and that this might provide “powerful medical and legal argu-
ments . . . for her defense.”30 As one observer of the trial noted, the letter had
a “self-serving” and “almost ambulance-chasing” quality about it.31 At the
very least, exposure of this letter certainly further called into question the
expert witness’s objectivity. The value of West’s testimony was also undoubt-
edly undermined when the prosecutor asked the psychiatrist if he knew who
had once said “Perhaps the most insidious domestic threat posed by ‘brain-
washing’ is the tendency of Americans to believe in its power.”32 West imme-
diately acknowledged that those words were his and came from an article he
had published in 1963.
The next expert to testify for Hearst was Dr. Martin Orne, a psycholo-
gist and psychiatrist at the University of Pennsylvania. Like West, Orne was
a practitioner-academic, but unlike his colleague his direct involvement with
prisoners of war and the study of brainwashing was limited to being an occa-
sional consultant to the military and guest speaker for an organization of
families of POWs and MIAs. Orne’s main area of expertise was hypnosis, but
he had also testified in the past regarding lie detection and polygraph testing.
Like West, Orne likened Hearst to a prisoner of war. He also went so far
as to say that Hearst had been forced to commit the Hibernia Bank robbery.
It was, however, in regard to Hearst’s truthfulness that Orne’s testimony may
have been damaging rather than helpful to the young defendant.
On direct examination, Orne was asked by Bailey whether he had made
“efforts to determine for yourself whether anybody had been assisting her in
concocting a story that would be helpful.”33 Orne replied, “I was concerned
about that, but I didn’t ask her. Instead, I tried to use the kind of procedures
which we found effective in some of our laboratory studies and that is to try
to, in an interview, imply subtly what might be good answers which, typically,
somebody trying to play a role would pick up on because they would make

38
 pat r i c i a h e a rst : u n c o m m o n v i c ti m o r co m m o n crim inal ?

sense.”34 Based upon his use of these procedures, Orne testified, he had con-
cluded that “Miss Hearst really simply didn’t lie.”35
Orne’s pronouncement regarding Hearst’s veracity brought an immedi-
ate objection from the prosecutor, which led the judge to give the jury a spe-
cial instruction:

The witness has made an assertion that the defendant was telling
the truth. Now, the objection is that that invades your province of
determining the facts, and I am now instructing you, ladies and
gentlemen, that it is your duty to determine the facts, not from
what this witness says, but from what you know about the facts.
You may take into consideration this witness’ reasons that she may
or may not be telling the truth, but you are not bound by them
. . . you and you alone have to make this ultimate decision and no
psychiatrist, no judge, no lawyer or no one else should invade that
province. 36

On cross-examination, Orne ran into further trouble when the prosecu-

tor asked about his testimony in another case three years earlier. The pros-
ecutor asked Orne whether he recalled testifying that “Psychiatrists are not
very good at telling the truth . . . recognizing the truth.”37 Orne acknowledged
that he did recall so testifying. Confronted further, Orne did his best to put a
favorable gloss on the quote, at least as regarded his evaluation of Hearst:

What I’m trying to explain is in terms of specific lies, specific truths,

that is not what a psychiatrist is trained to examine. And I would
not choose to testify as a psychiatrist on someone’s truthfulness
on an item, or two, or three specific items. The issue here, which I
am concerned with, is whether somebody was simulating a whole
role, whether there was a consistent personality, or whether some-
body didn’t have this personality. Now, to do that, psychiatrists have
some skills.38

Finally, Orne probably further undermined his own credibility when he

acknowledged on cross-examination that while the government may have
had information regarding Hearst’s case that might have assisted him in his
analysis, he failed to seek such information because “I was really quite out-
raged by what had happened with the [prosecution experts’] examination of
Miss Hearst and I did not feel I wanted to contact the Government.”39
The final expert to testify on Hearst’s behalf was Dr. Robert Jay Lifton,
a professor of psychiatry at Yale and a renowned authority on communist

39
m inds o n t r i a l

thought reform, psychohistory, and the psychological impact of mass disas-

ters. Lifton testified that Hearst had been coerced, not converted, by the SLA
but he admitted on cross-examination that he reached this conclusion prior
to examining the evidence and documents in the case, including the bank rob-
bery films and the lengthy “communiqué” in which Heart identified herself
as Tania.40
Having given notice that he would be presenting a defense of duress
based in part upon the expert testimony of mental health experts, F. Lee Bai-
ley opened the door to having Hearst examined by experts hired by the pros-
ecution. Had these experts agreed that Hearst had acted under duress or coer-
cion when she helped rob the Hibernia Bank, her acquittal would have been
all but assured because the prosecutors would have been legally obligated to
make such exculpatory findings known to the defense.
Not surprisingly, the prosecution had no such problem. Both of the experts
selected by the government—neither of whom was an expert on brainwash-
ing or coercive persuasion—concluded that Hearst had not been acting under
duress or coercion at the time of the robbery.
Dr. Joel Fort, the prosecution’s first expert called to rebut the testimony
of Drs. West, Orne, and Lifton, was a physician, lecturer, and consultant but
not a psychiatrist, although he had given expert psychiatric testimony in over
two hundred criminal cases (including the cases of Timothy Leary and Lenny
Bruce) in twenty-two states. Fort held himself out as an expert in a number of
fields, including public health, criminology, drug abuse, and the legal system.
Fort painted Hearst as a willing convert to the SLA, even going so far
as to intimate that her sexual relations with two SLA members were con-
sensual. Describing her pre-kidnapping personality, Fort explained in a ram-
bling and disjointed sentence why he felt Hearst had been drawn into the
terrorist group:

She was a strong, willful, independent person, bored, dissatisfied, in

poor contact with her family, disliking them to some extent, dis-
satisfied with Steven Weed [her fiancé] with whom she had been
about three years at the time of the kidnapping, and the interac-
tion of that, that kind of vacuum, of something missing, a miss-
ing excitement, a missing sense of meaning or purpose in life with
what seemed on the surface to be offered by the SLAers as she got
to know them and as she became impressed, as she describes in the
Tania interview, with her commitment, and as she described to me
being impressed with their willingness to die for their beliefs, I
think that action was very important to her.41

40
 pat r i c i a h e a rst : u n c o m m o n v i c ti m o r co m m o n crim inal ?

In the guise of explaining why he felt Hearst suffered no mental illness,

Fort also managed to tell the jury his views of Hearst’s actions at the Los
Angeles sporting goods store, a month after the bank robbery for which she
was then standing trial:

I gather a picture of the defendant sitting alone in a van outside the

sporting goods store for some period of time, while the Harrises are
inside, reading a newspaper. And upon finding that the Harrises are
in the process of being arrested outside the sporting goods store,
putting down the newspaper, and picking up a gun, and shooting
in order to rescue them, and then driving away with them after
they joined her in the car. To carry out those complex acts [and] not
having taken any opportunity—the obvious opportunity to walk
away from the van or drive away with it to be free. . . . Putting all
that together, I would say it points in the opposite direction of hav-
ing any kind of mental illness, and also in the opposite direction of
being under any kind of duress.42

Though Fort’s testimony was rambling and at times probably difficult

for jurors to follow, it clearly dealt a serious blow to Hearst’s defense. Bailey’s
cross-examination of the physician was merciless and scored too many points
to mention. Among the highlights, he got Fort to admit that he had never
published anything dealing with brainwashing, coercive persuasion, attitude
change, or kidnapping; that he had approached Hearst’s parents before the
trial and asked them to settle the case and not go forward with the proceed-
ing; and that as a supposedly impartial expert he had billed the prosecution
for consulting on strategy.
In his closing statement, Bailey even went so far as to brand Fort a “liar”
and to tell the jury that he felt it was his duty “as a service to human decency . . .
to cut his legs off so that he never disgraced an American courtroom again.”43
In the final analysis, however, it can hardly be denied that Fort’s testimony,
flawed though it may have been, was devastating to Hearst’s defense.
But the prosecution did not stop with Fort. The government also pre-
sented the testimony of Dr. Harry Kozol, a psychiatrist who had dropped out
of Harvard Law School before graduating from the university’s school of med-
icine. Kozol, then director of the Massachusetts state hospital for dangerous
sex offenders, described himself as a “general practitioner in psychiatry.”44 By
way of establishing his bona fides as an expert in the Hearst prosecution, he
mentioned in passing that over the course of his lengthy career he had inter-
viewed a number of prisoners of war and concentration camp survivors who
had immigrated to the United States.

41
m inds o n t r i a l

Kozol gave perhaps the clearest and most concise testimony of any of the
experts in the Hearst case. In response to questioning from the prosecutor as
to whether Hearst voluntarily helped rob the bank, the psychiatrist told the
jury flat out that “I think she entered that bank voluntarily in order to partici-
pate in the robbing of that bank. This was an act of her own free will.”45 Kozol
added that, in his view, Hearst had voluntarily joined the SLA “some weeks
before” the robbery. For what it was worth, given his limited experience in the
field, Kozol also testified that he had never known, heard, or read of any pris-
oners of war who had “committed any violent acts against his or her former
comrades at the behest of the captors.”46
Bailey vigorously cross-examined Kozol but the Massachusetts psychia-
trist provided nowhere near the kind of inviting target Dr. Fort had. To the
extent that Bailey succeeded in impeaching the credibility of Kozol, he did so
by reference to statements Bailey claimed Kozol had made about the Hearst
family after Patricia Hearst was kidnapped but before Kozol became involved
in the case. During cross-examination, Kozol denied Bailey’s charge that the
psychiatrist had once stated to a psychologist that “The Hearsts are disgusting
and venal” and that “Mrs. Hearst [Patricia’s mother] is a whore.”47
In rebuttal, Bailey produced the psychologist in question, Dr. Nicho-
las Groth, who had no other involvement in the Hearst case. Groth, whom
Kozol had once attempted to fire, testified that Kozol had not only branded the
Hearsts “venal and disgusting people” and referred to Catherine Hearst as “a
whore” but had told Groth that “if you had grown up in a family like Patricia,
you would understand what she is rebelling against. They are pigs.”48
After deliberating less than a day, the jury convicted Patricia Hearst and
she was sentenced to seven years in prison. The Los Angeles charges against
Hearst were dropped in exchange for her cooperation with prosecutors against
other SLA members, and her prison sentence was commuted by President
Jimmy Carter after she had served just twenty-two months. The White House
press announcement of the commutation made it clear that President Carter
accepted the defense that the prosecution experts and the jury had rejected:

It is the consensus of all of those most familiar with this case that
but for the extraordinary criminal and degrading experiences that
[Hearst] suffered as a victim of the SLA she would not have become
a participant in the criminal acts for which she stands convicted and
sentenced and would not have suffered the punishment and other
consequences she has endured.49

Finally, twenty-two years later, Hearst received a full pardon from President
Bill Clinton as he was about to leave office in 2001.

42
 pat r i c i a h e a rst : u n c o m m o n v i c ti m o r co m m o n crim inal ?

Although the trial testimony of Drs. West, Orne, and Lifton may have
helped make Hearst’s case for commutation and eventual pardon, her ulti-
mate assessment of the trial, especially the role played by the mental health
experts, was harsh:

Each time any of the expert witnesses gave their opinion, the judge
would remind the jury that it was only an opinion and it was for
the jury alone to decide the key issue of my intent. It would be up
to the jury to believe Drs. West, Orne and Lifton . . . who concluded
that I was a victim, not a criminal, or to believe Drs. Fort and Kozol,
who interviewed the same defendant, read the same psychological
reports, and reached exactly the opposite conclusion.
In my estimation, the whole trial was a farce.50

While the Hearst trial was without question a spectacle and certainly
not one of the prouder moments for psychology and psychiatry in the court-
room, the expert testimony in the case, though flawed and inconsistent, may
have helped the legal system ultimately achieve at least a roughly just out-
come for society and Patricia Hearst. Taken as whole, the expert testimony
could be seen, and probably was seen by the jury, as indicating that Patricia
Hearst was both a victim and a criminal and that her acts, though perhaps
understandable and attributable to her victimization, were nevertheless not
entirely excusable.

43
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p 4
THE
GUILDFORD
FOUR
“You Did It, So Why

Not Confess?”

ne of the most controversial issues raised in the wake of the terror-

O ist attacks of September 11, 2001, was whether terrorists should ever
be tortured to obtain information about future attacks. The “ticking time
bomb scenario” is characterized as a hypothetical problem involving a terror-
ist possessing direct knowledge about the location and detonation time of a
bomb that could kill thousands of individuals. This ethical and moral problem
is often used in discussions about how to deal with terrorism. The “ticking
time bomb” question is meant to challenge people to think how far measures
should go in order to save innocent lives.1 Scholars continue to debate the
moral, ethical, and legal implications of difficult problems that we now face in
our efforts to defeat terrorism.2 If the loss of innocent lives could be prevented
by obtaining information through physical torture, could the practice ever be
legally, ethically, and morally justified?
The legal issues involved in the interrogation of criminal suspects have
long been of concern to counterterrorism experts. Although the prospect of
torturing terrorist suspects is extreme, an equally challenging question, and
more common concern, is: “Would a terrorist suspect confess to committing
an act of violence that he or she did not commit?” Most people assume that a
person would never confess to a crime that he or she did not commit. But real-
life experiences indicate that this belief is wrong, since there are several legal
cases where individuals have, in fact, confessed to a crime they did not com-

45
m inds o n t r i a l

mit. Several high-profile cases, such as the Central Park Jogger case, involved
suspects who were convicted on the basis of a confession but later exonerated
when new evidence was uncovered of actual innocence.
The criminal justice system in Great Britain is one that bears many
similarities to the United States system and provides us with one of the
most infamous cases of wrongful conviction and a gross miscarriage of jus-
tice based on false confessions in an investigation into terrorist violence.
Throughout the twentieth century, Great Britain had waged its own “war on
terrorism” against the Irish Republican Army (IRA). Since the signing of the
Anglo-Irish treaty in 1921 that partitioned Ireland into the twenty-six inde-
pendent southern counties and the six counties of Northern Ireland under
British control, the IRA has been responsible for numerous bombings and
other acts of terror aimed at trying to unify the country into a single, thirty-
two-county Republic of Ireland.3 For decades, the terrorist violence waxed
and waned. However, in the 1970s the IRA began a bombing campaign that
saw the violence move from concentrated attacks in the northern counties of
Ireland to England in an effort to force the British to confront the problem
of Irish independence.
On October 5, 1974, the IRA bombed two pubs in Guildford, England.
Both of the pubs were popular with members of the British military and
therefore the IRA viewed them as prime targets. The first of these attacks
occurred at 8:30 p.m. when an explosion ripped through the Horse and
Groom pub without any warning.4 Five people died in the attack, including
four members of the British armed forces, and several others were injured.
The explosion caused widespread panic. Thus, when the second IRA bomb
went off at the Seven Stars pub in Guildford about an hour later, no one was
injured because evacuations were initiated immediately after the Horse and
Groom bombing.
At 10:00 on the evening of November 7, 1974, another IRA bomb exploded
at the King’s Arms house in South London. Two people died and another 27
people were injured when nuts and bolts packed around two pounds of plastic
explosive ripped through the public gathering spot. A week after the King’s
Arms attack, an IRA operative by the name of James McDade was killed on
November 14, when the bomb he was trying to place in a telephone booth in
Coventry, England, accidentally detonated.5 The IRA was so angered by the
failure of their mission that they perpetrated their most serious attack. On
November 21, two bombs exploded at a pair of pubs in the city of Birming-
ham, England. One at the Tavern in the Town pub killed eleven people and the
other at the Mulberry Bush pub killed ten. Another 161 people were injured,
many seriously, in these two attacks.6

46
 t h e guil df ord f o u r : “ yo u d i d i t, s o wh y n ot co n fe s s ? ”

As commonly occurs in the wake of terrorist attacks, the widespread

fear among citizens of England quickly turned to outrage. There were acts
of retaliation against the Irish community, including attacks on a Catholic
school and pub, and fights broke out between British and Irish workers at an
automobile plant. However, the anti-Irish sentiments in Great Britain soon
prompted a formal legal response. In a rapid legislative effort, similar to pas-
sage of the U.S. Patriot Act that followed in the wake of the September 11
attacks, a bill known as the Prevention of Terrorism Act passed through both
houses of British Parliament in less than twenty-four hours. By November
29, just eight days after the Birmingham bombings, the Prevention of Terror-
ism Act was in full effect. Provisions of the law granted sweeping powers to
law enforcement officers:

The [Prevention of Terrorism Act] made membership of and sup-

port for the IRA an offense. It also introduced exclusion orders
which gave the British government powers to restrict the move-
ments of designated citizens within its own borders. Additionally,
the police were empowered to arrest without warrant anyone they
reasonably suspected of being concerned in terrorism, but against
whom they had not assembled sufficient evidence in regard to a
specific offense. Police could detain someone arrested under this
provision for forty-eight hours; but the Home Secretary could per-
mit an extension of the detention for a further five days. 7

With such broad powers being granted to law enforcement officials, concerns
about possible abuses of civil liberties and the targeting of innocent individu-
als were raised. And, in fact, the investigation into the bombings soon led to
arrests and a legal case that would span decades and result in what is often
viewed as one of the greatest miscarriages of justice in recent history.
An Irishman named Paul Hill became the first person arrested under the
provisions of the newly enacted Prevention of Terrorism Act. Given that the
legislation granted law enforcement officials a large measure of secrecy in
their efforts to combat terrorism, police officers were only required to admit
vaguely that their interest in Hill was based on information they had received.
However, the reason police focused their attention on Hill was the fact that he
had apparently been present at a Belfast, North Ireland pub on July 20, 1974,
when a former British soldier named Brian Shaw had been abducted by the
IRA and executed.8
Hill would later claim that police officers used a number of tactics to
intimidate and brutalize him during their questioning. While being trans-
ferred from one police station to another, for example, officers drove Hill past

47
m inds o n t r i a l

the Horse and Groom pub and told him they knew he had blown it up. Hill
also claimed that he was physically beaten, had a gun held to his head during
the interrogation, and was told that his girlfriend—who was pregnant with
Hill’s child at the time—would be harmed.
After being interrogated for nearly twenty-four hours, Hill provided a
full written confession to the Guildford bombings. In his statement to police,
he also implicated one of his friends named Gerry Conlon. Two days after
Hill’s arrest and interrogation, Conlon was arrested and questioned by police.
He was also subjected to the same kind of interrogation as Hill over a period
of two days. Conlon was threatened, intimidated, and warned that his father
would be arrested if he did not cooperate.
The information police obtained from the interrogation of Hill and Con-
lon provided them with a lengthy roster of friends and relatives who were
purportedly involved in the IRA and terrorist activities. Hill and Conlon each
gave police officers an address where bomb-making activities were supposed
to have occurred. However, the subsequent investigation revealed that neither
location contained any evidence of illicit activity. The address Conlon pro-
vided was where his aunt, Annie Maguire, lived and even though no evidence
of bomb-related materials were found at the address, several of Conlon’s fam-
ily members were detained and questioned.
Conlon’s interrogation yielded the names of two people who were sup-
posed to have been involved in the Guildford bombings: Paddy Armstrong and
his seventeen-year-old girlfriend Carole Richardson.9 Approximately three
days after Conlon confessed, Richardson and Armstrong were arrested and
within forty-eight hours they also admitted to being involved in the bomb-
ings. All four suspects—Hill, Conlon, Armstrong, and Richardson—came to
be known as the Guildford Four after the name of the town where the first
bombing occurred.
Several other individuals were arrested in connection with the case,
including four who were implicated in the Guildford bombings as a result of
Conlon’s coercive interrogation. Conlon’s aunt, Annie Maguire, John McGui-
ness, Brian Anderson, and Paul Colman were charged with possessing explo-
sives but none of these individuals admitted any involvement with either the
Guildford bombings or IRA activities. In fact, Maguire had an airtight alibi
for the evening of October 5: she had attended a birthday party for one of her
neighbor’s children. Moreover, despite the fact that police had charged Magu-
ire, McGuiness, Anderson, and Colman with possession of bombing materials,
there was no physical evidence uncovered in any of their homes. Macguire
was subjected to intensive and coercive questioning by police but never pro-
vided any incriminating statements. She was held for several months before

48
 t h e guil df ord f o u r : “ yo u d i d i t, s o wh y n ot co n fe s s ? ”

all criminal charges against her, McGuiness, Anderson, and Colman were dis-
missed due to a lack of evidence.
On the other hand, Hill, Conlon, Armstrong, and Richardson were tried
in September 1975 for their admitted involvement. At their trial, the prosecu-
tion alleged that all four were members of the IRA, yet no evidence was ever
introduced that proved they were members of the terrorist group. The pri-
mary evidence against each of them was their confessions and, as research has
shown, confession evidence is given the greatest weight by juries. Although
other forms of evidence are weighed heavily by juries as proof of a person’s
guilt—including eyewitness testimony and physical evidence linking a defen-
dant to the scene of the crime—it is confession evidence that juries view as the
greatest indication of a person’s guilt. After all, who would confess to a crime
that he or she did not commit?
The Guildford Four challenged the admissibility and reliability of their
confessions. They had each been denied access to an attorney during their
questioning by police, a practice that was permissible under the recently
acted Prevention of Terrorism Act. Moreover, each of the defendants provided
strong alibi witnesses who testified that they were nowhere near the bomb-
ings at the time they occurred.
Richardson had one of the strongest alibis; there was photographic evi-
dence showing she had been at a concert nearly forty miles away on the
evening of the first two bombings. Several eyewitnesses to the bombing at
the Horse and Groom, which Richardson was alleged to have helped com-
mit, failed to identify her from a police line-up.10 To make matters worse,
a witness for the defense attested to the fact that Richardson was nowhere
near the Guildford pub on the evening of the bombing. Frank Johnson, a
friend of Richardson, went to police before trial and told them they had
the wrong person because Richardson had been with him. Instead of creat-
ing doubt in the minds of police officers investigating Richardson, John-
son found himself intimidated and threatened with possible prosecution.
He later claimed that police officers had detained him on a couple of dif-
ferent occasions for questioning, had hinted that he had bomb residue on
his hands, and had threatened to push him out of a window, shoot him, and
set his handicapped mother on fire. He was ultimately coerced into provid-
ing a statement that Richardson’s alibi had been something they concocted
together. Finally, Johnson said that when he was eventually released by the
police they threatened to charge him with obstructing justice if he ended
up testifying at Richardson’s trial.11 Nevertheless, at trial he resorted to his
original claim that Richardson was with him and nowhere near Guildford at
the time of the bombings. However, the prosecution argued that Richardson

49
m inds o n t r i a l

still had enough time to leave the concert and travel to Guildford in order
to set off the first bomb.
Hill, Conlon, and Armstrong also presented evidence of an alibi at trial.
Conlon said he had been at a lodge in London and provided the names of the
people who could vouch for his whereabouts.12 Even though police officers
had a statement from a witness who confirmed Conlon’s alibi, they never
turned it over to the defense. Armstrong also provided names of witnesses
who could vouch that he was elsewhere at the time of the Guildford bomb-
ings, but police could verify only some of the details. Finally, Hill claimed that
he was in Southampton, England, with his girlfriend at the time of the bomb-
ings, but he withdrew his claim during questioning by police. Although there
was a witness who could apparently verify Hill’s alibi, the person was never
called to testify.13
In all, there were over one hundred inconsistencies between the confes-
sions of Hill, Conlon, Armstrong, and Richardson, and the manner in which
the bombings were said by the prosecution to have taken place. For example,
forensic evidence showed that the individuals responsible for the first bomb-
ing in Guildford on October 5 did not have enough time to plant the second
bomb that was detonated almost a half-hour later on the same evening. Also,
Richardson said in her confession that she had thrown one of the bombs, even
though the prosecution argued that the bombs were planted.14 In addition,
Conlon had implicated McGuiness, Anderson, Colman, and his aunt Annie
Maguire in his confession. Yet, police dropped the charges against these four
alleged accomplices, suggesting that details of Conlon’s confession could not
be proven by physical evidence. Moreover, none of the confessions provided
by the Guildford Four contained any information or details about the bomb-
ings that were unknown to the police. In short, it was quite possible that the
police merely fed details of the bombings to each of the suspects as they were
interrogated to make the confessions look authentic.
During the trial, Armstrong was given a sodium amytal interview at
the request of his attorney under the presumption that Armstrong would be
more likely to tell the truth about the circumstances surrounding his inter-
rogation by police.15 A psychiatrist from the London Hospital administered
the interview one evening after trial proceedings had ended for the day. The
results of this interview indicated that Armstrong had been coerced into con-
fessing. The use of a drug-assisted interview was apparently intended to help
Armstrong’s attorney garner more faith in his client’s claim that he had been
coerced into making a false confession. However, the validity of drug-assisted
interviews is questionable because various factors can influence the results,
including increased suggestibility of the subject and the possibility that the

50
 t h e guil df ord f o u r : “ yo u d i d i t, s o wh y n ot co n fe s s ? ”

person can make up details in their altered state of awareness.16 Therefore, the
results of Armstrong’s drug-assisted interview played no significant role in
his defense at trial.
Despite numerous inconsistencies in the confessions of the Guildford
Four and the many alibi witnesses who testified on behalf of the defendants,
Hill, Conlon, Armstrong, and Richardson were all convicted of murder and
conspiracy charges after the jury deliberated for twenty-seven hours. Since
there was no death penalty in Great Britain, none of the Guildford Four could
be sentenced to death. Although all four received a life sentence, under Brit-
ish law the presiding judge recommended a minimum term that each con-
victed terrorist would have to serve before becoming eligible for parole. Con-
lon received a recommended sentence of thirty years to life and Armstrong
was sentenced to thirty-five years to life. Due to her age, Richardson would
have to serve at least twenty years before she would be eligible for parole.
However, Judge Donaldson made it clear during his sentencing of Conlon,
Armstrong, and Richardson that the minimum term was not meant to imply
that the three would ever be released from prison. The lower terms were only
intended as an absolute minimum term in prison. He told the three that they
might never be released.17
Judge Donaldson saved his harshest words for Hill, who received a life
sentence without the possibility of parole because he was implicated in the
third bombing. The judge said at sentencing that the only hope Hill might
ever have of being released from prison was if he were extremely old or sick
and near death. The sentences received by the Guildford Four were purported
to be the longest ever in the history of the modern British courts.18
Believing an injustice had been done, several groups started to fight
for the release of the Guildford Four as they began serving their sentences.
Meanwhile, in December of 1975, four IRA members were arrested following
a high-speed car chase through the streets of London that ended with a police
raid at a house on Balcombe Street in Marylebone. The four IRA suspects,
who came to be known as the Balcombe Street four, were captured. Three
of the suspects—Joseph O’Connell, Eddie Butler, and Harry Duggan—impli-
cated another IRA suspect, Brendan Dowd, who was already in custody on
another charge.19 O’Connell and Dowd confessed to the Guildford bombings
and informed police that Armstrong, Conlon, Hill, and Richardson had noth-
ing to do with the IRA or the bombings.
Although this new evidence was presented at an appeal for the Guildford
Four, their convictions were upheld. As part of his preparation for the appeal,
Armstrong’s lawyer hired Dr. Lionel Haward, a psychologist and professor
at the University of Surrey in Guildford, to provide a hypnotically assisted

51
m inds o n t r i a l

interview in October 1977 to learn more about the terrorist bombings and
Armstrong’s police interrogation in 1974.20 Once again, the interview indi-
cated that Armstrong had confessed because of the intense anxiety and fear
that he experienced in response to pressure put on him by the police during
his interrogation. Nevertheless, the sparse experimental evidence supporting
the validity of hypnosis as an interview aid, as well as the fact that many
courts do not allow hypnotically facilitated testimony to be admitted in court,
contributed to this new piece of forensic psychological evidence having lim-
ited impact on the success of Armstrong’s appeal.
Ongoing efforts to free the Guildford Four continued over the next sev-
eral years, but it was not until 1986 that additional forensic psychological
evidence was produced. In April of that year, two well-known forensic psy-
chologists who are experts on disputed confessions, Drs. Gisli Gudjonsson and
James MacKeith, examined Carole Richardson at the request of the medical
service at the prison where she was being held.21 One of the physicians at the
prison was apparently concerned that Richardson might have been wrongly
convicted on the basis of a false confession. One of the crucial issues that arose
during this examination was the effect that certain medications Richardson
was taking had on her mental state during her interrogation in 1974.
The results of the examination by these two noted forensic psychologists
revealed that Richardson was vulnerable to interrogative pressure and that
she was prone to avoid conflict and please others when faced with social pres-
sure. Richardson’s mental state at the time of Dr. Gudjonsson’s and Dr. MacK-
eith’s evaluation was found to be “impressive,”22 but one of the things that
concerned the psychologists was Richardson’s mental state in 1974 when she
was going through drug withdrawal while being questioned by police. During
their questioning of the convicted Guildford bomber, Gudjonsson and Mac-
Keith asked difficult and challenging questions that were intended to uncover
evidence of lying or inconsistencies. However, the examiners noted that Rich-
ardson was “spontaneous” and “unguarded” in her answers to their ques-
tions.23 Both experts expressed doubts about the reliability of Richardson’s
confession to the Guildford bombings.
More specifically, a review of Richardson’s confession revealed that
she had been in the custody of police for several days and was subjected to
repeated questioning. For several months leading up to her arrest, Richard-
son had been abusing various drugs and she claimed that just prior to being
taken into police custody she had taken twenty capsules of a barbiturate that
she had been using. When questioning began by the police, Richardson was
almost certainly undergoing physiological and psychological withdrawal
from the drug. As result, she was often confused, had difficulty remember-

52
 t h e guil df ord f o u r : “ yo u d i d i t, s o wh y n ot co n fe s s ? ”

ing, and experienced heightened distress during questioning. During the first
three days of her detainment, Richardson was apparently focused on securing
her release but she found the police pressure difficult to resist. Although she
initially denied any recollection of being involved with the bombings, over a
period of several days she came to actually believe she was involved and was
blocking out the details from her memory.
Gudjonsson and MacKeith defined this process as “memory distrust syn-
drome,” where an individual comes to have little faith in his or her memory
for a crime and succumbs to police pressure by internalizing, or believing, that
he or she committed the crime despite having no recollection of the details.24
This process leads to a form of false confession that occurs when a suggestible
person is influenced by coercion exerted during intense police questioning.
Although Richardson reported that she had been hit by a woman police offi-
cer during questioning and came to realize that her interrogators were in full
control of her, she apparently realized that her only hope was to go agree with
whatever the police wanted her to say. However, Gudjonsson and MacKeith
also observed that the mental and physical effects of drug withdrawal, accom-
panied by the stress of the interrogation and the long period of time she was
subjected to intense questioning, contributed to Richardson internalizing the
belief that perhaps she had, indeed, committed the bombings. Once the police
had their confession from Richardson and the interrogative pressures relaxed,
Richardson’s confidence about her innocence returned.25
The case of the Guildford Four was re-opened in 1988. An intensive
review of the case revealed more than just the possibility that all four defen-
dants had falsely confessed to the bombings. In October of 1989, an appeals
court ruled that police had lied and fabricated evidence during the original
investigation.26 A criminal investigation was undertaken into the behavior of
five police officers who had originally worked on the Guildford bombing case.
Fourteen years had passed since the Guildford Four had been convicted and
only two of the five police officers under question were still on active duty.
Both of the officers were placed on suspension following the announcement
of the appellate court.
In addition, new evidence came to light that the prosecution had failed
to disclose the fact that a witness had been identified who could corroborate
Conlon’s alibi. As a result of the appellate court’s ruling, the convictions of
the Guildford Four were all overturned. Conlon, Armstrong, and Richardson
were released from prison immediately following the announcement by the
appellate court.27 Hill had to remain in prison while he awaited the appeal of
his conviction in the murder of Brian Shaw, the former British soldier whose
murder in Northern Ireland years earlier had led police to suspect Hill of the

53
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Guildford bombings in the first place. In 1994, Hill was cleared of any involve-
ment in Shaw’s murder and he was released from prison.28
Since the Guildford Four were released after an appellate court reviewed
their case and ordered their convictions overturned, there was no new trial at
which formal evidence was presented to prove their confessions were all false.
Still, the subsequent evaluation of Richardson by Gudjonsson and MacKeith,
and the detailed explanation of how Richardson was affected psychologically
by the intense police questioning, provides an explanation of how coercive
interrogation techniques, unique psychological vulnerabilities in a criminal
suspect, and police officers who are unwilling to consider any possibilities
other than a given suspect’s guilt can lead people to confess to a crime they
did not commit. It happened not once but four times in the case of the Guild-
ford bombings.
The case is one of the most infamous occurrences of wrongful conviction
based on a false confession and was one of the worst miscarriages of justice
in recent history. The 1994 film In the Name of the Father, starring Daniel
Day-Lewis, dramatized the plight of the Guildford Four, particularly the story
of Conlon who watched his father die in prison during his fifteen years of
wrongful imprisonment. Furthermore, Conlon detailed the “dreadful expe-
rience” that he and the others had during their years of incarceration. After
his release, Conlon said to the press: “We were sent into a prison which was
totally hostile towards us, we were being attacked by prison officers and cons,
people urinated in our food, people put glass in our food and then when we
came out onto the street there was no care from the government.”29
Each of the Guildford Four was later given monetary compensation for
their ordeal, although it took years for some of them to reach a final settle-
ment. Over twenty years passed before they were able to clear their names,
but a formal apology was issued to them by British Prime Minister Tony Blair
in June 2000. In his apology, Blair stated: “I believe that it is an indictment of
our system of justice and a matter for the greatest regret when anyone suf-
fers punishment as a result of a miscarriage of justice.”30 The Prime Minister
sent his letter of apology to Hill’s wife, Courtney Kennedy Hill, who is the
daughter of the late Robert F. Kennedy.
In looking back on the fact that each of the Guildford Four were coerced
into providing a false confession that ultimately led to their conviction, it is
interesting to note that there was no other evidence tying the suspects directly
to the bombings. Several inconsistencies existed between the confessions and
the physical evidence and testimony of several witnesses. The case raises
questions about the reliability of confession evidence and supports changes in
the way criminal suspects are interrogated and questioned by police. One of

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 t h e guil df ord f o u r : “ yo u d i d i t, s o wh y n ot co n fe s s ? ”

the best ways to preserve evidence of confession, and to ensure that police do
not use coercive tactics, is to have all interrogations videotaped so a record is
preserved of the entire process. Both true and false confessions would benefit
from this process. Factors contributing to false confessions could be identified
and studied during subsequent court proceedings. Likewise, the validity of
accurate confessions would not be undercut by false claims of police coercion
or intimidation.
Finally, it is worth reflecting back on the words of Judge Donaldson as
he passed sentence on the Guildford Four at the conclusion of their trial. The
judge noted that if capital punishment had been available in Great Britain, all
four would have received the death penalty and “you would have been exe-
cuted,” the judge told the four convicted bombers.31 If the death penalty had
been in effect and the Guildford Four had been sentenced to death, it is quite
possible that the ultimate miscarriage of justice would have been committed:
Four innocent individuals would have been executed as a result of having
falsely confessed to crimes they did not commit.

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p 5
PROSENJIT
PODDAR
AND TATIANA
TARASOFF
Where the Public

Peril Begins

hen people go to see a mental health professional for help with per-
W sonal problems, they expect that whatever is said during the course of
private conversations with a therapist will remain confidential. Privacy and
confidentiality are among the most important ethical principles of profes-
sional therapists. Of course the reason is that if people are sure that what they
say in therapy will be confidential, they will be more open and the therapist
can be more helpful.
Nevertheless, complete confidentiality is not possible in most helping
relationships. Certain situations—such as the potential abuse of a child or
when a person poses a risk of harm to themselves or others—require thera-
pists to notify others who can prevent the potential harm. Among the most
unsettling cases for therapists are those that involve a person who is at risk
of harming another person. At one time, these cases were typically managed
by having the person hospitalized—sometimes involuntarily—until effective
treatment could be provided and the danger had passed. In 1976, the Cali-
fornia Supreme Court issued a landmark ruling in Tarasoff v. Regents of the
University of California1 that added a new wrinkle to the management of
potentially violent individuals and changed forever the boundaries of confi-
dentiality in psychotherapy. This case also changed the balance between con-
fidentiality in mental health treatment and society’s need to protect citizens
from potentially lethal individuals.

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m inds o n t r i a l

Born in Bengal, India, as a member of the “untouchable” Harijan caste,

Prosenjit Poddar came to the United States in September 1967 to study naval
architecture at the University of California at Berkeley.2 Although his first
year of study apparently went well, his life took a fateful turn in the fall of
1968 when he enrolled in folk dancing classes at the university’s Interna-
tional House. While attending the classes, Poddar met an American woman by
the name of Tatiana Tarasoff. From the beginning, Poddar was smitten with
Tarasoff, and throughout the fall semester they saw each other weekly. On
New Year’s Eve, Tarasoff kissed Poddar. Although she apparently meant the
gesture as a sign of friendship, Poddar took the kiss to mean much more. He
believed that Tarasoff intended the kiss to convey deep affection and commit-
ment. When Poddar professed his love for Tarasoff, she told him that she did
not feel the same way about him, was not interested in having a committed
relationship, and was involved with other men.
Tarasoff’s rebuff caused a severe emotional crisis for Poddar.3 He became
extremely depressed, more disheveled in his appearance, withdrawn, and
neglectful of his schoolwork. At times, he would speak disjointedly. Poddar
and Tarasoff saw each other occasionally through the spring of 1969, yet he
was often tearful and could not understand why she did not return his affec-
tion. Unbeknownst to Tarasoff, Poddar would secretly tape record their con-
versations at times in order to study the possible reasons that she did not want
a relationship with him.4 His behavior showed increasing signs of obsession.
When Tarasoff went to study in Brazil for the summer, Poddar’s mental
status improved slightly and he was encouraged by a friend to seek help at
Cowell Memorial Hospital, which was a health care facility affiliated with the
University of California at Berkeley.5 The initial evaluation was conducted by
a psychiatrist, Dr. Stuart Gold, who recommended that Poddar begin psycho-
therapy with a psychologist, Dr. Lawrence Moore.
During a therapy session with Moore on August 18, 1969, Poddar said
that he planned to kill Tarasoff when she returned from Brazil. Moore believed
that Poddar was serious about his intention to kill the woman; two days later
he informed Dr. Gold and the assistant director of the clinic, Dr. Yandell, of his
concerns. Both physicians felt that Poddar should be admitted involuntarily
to the hospital’s psychiatric unit.6 Moore then called the university police to
have Poddar detained and taken to a local hospital. He told officers Atkinson
and Teel that Poddar should be taken into custody and brought to the hospital
for involuntary commitment.7 Moreover, in a letter to William Beall, chief of
campus police, Moore informed the officers that Poddar suffered from para-
noid schizophrenia and was dangerous to others, despite the fact that he could
sometimes appear rational.

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When campus police approached Poddar and interviewed him, they were
of the opinion that he was rational and stable; he even promised to stay away
from Tarasoff. Following his encounter with the university police, Poddar no
doubt came to distrust Moore and abruptly stopped his therapy. Dr. Harvey
Powelson, the director of the clinic where Moore had seen Poddar, learned of
the failed attempt to have Poddar committed involuntarily to the hospital.
According to several reports of the case, Powelson contacted the university
police and asked that they return the letter Moore had sent and also ordered
Moore to destroy his therapy notes concerning his contacts with Poddar. Fur-
thermore, Powelson ordered that no further action be taken in Poddar’s case.
Harvard law professor and psychiatrist Alan Stone, who has researched
the case, claims that Moore’s letter to police was not destroyed.8 Therefore,
Stone doubts if Powelson ever ordered Poddar’s records to be destroyed. How-
ever, one thing is sure. Poddar quit his psychotherapy with Moore and the
case proceeded along a path leading to a tragic event.
When Tarasoff returned to campus in the fall of 1969, she was unaware
of the threat that Poddar had made during his psychotherapy sessions with
Moore. The time away from Tarasoff had apparently done little to dimin-
ish Poddar’s fixation on the young woman. In fact, Poddar had managed to
convince Tarasoff’s brother to share an apartment that was only one block
from Tatiana’s home.9 On October 27, 1969, Poddar went to Tarasoff’s home
to speak with her. When she refused, he shot her with a pellet gun. Tarasoff
ran from the home, but Poddar chased after her and when he caught her he
stabbed her repeatedly. Tarasoff died as a result of her injuries. Immediately
after the stabbing, Poddar returned to Tarasoff’s home, called the police, and
waited for their arrival.
When Poddar was charged with the intentional murder of Tarasoff, he
entered a plea of not guilty by reason of insanity.10 At his trial, Poddar pre-
sented the testimony of three physicians and a psychologist who all testified
that he suffered from paranoid schizophrenia and as a result was incapable
of harboring malice aforethought at the time he killed Tarasoff. One of the
experts, Dr. Wilmer Anderson, was a neurologist who testified that various
tests, including an electroencephalogram (EEG), showed Poddar to suffer
physiological abnormalities in his brain.11 The prosecution offered the testi-
mony of a court-appointed psychiatrist who was of the opinion that Poddar
did not have schizophrenia. The psychiatrist believed that Poddar had a schiz-
oid personality but was capable of forming malice against Tarasoff that would
satisfy the requirements of either first or second-degree murder. After hear-
ing all of the evidence and expert testimony, the jury found Poddar to be sane
at the time he killed Tarasoff and convicted him of second-degree murder.

59
m inds o n t r i a l

However, the California Supreme Court found that the judge presiding
over Poddar’s trial had made a critical error in the instructions given to the
jury. Under California law, Poddar could have been convicted of either first-or
second-degree murder if his actions toward Tarasoff were done with express
or implied malice. According to the California Supreme Court:

Malice is properly implied when a killing resulting from an act

involving a high degree of probability of death is accompanied by
the requisite mental element. The process properly leading to a
finding of that element requires three specific determinations. First,
was the act or acts done for a base, antisocial purpose? Second, was
the accused aware of the duty imposed upon him not to commit acts
which involve the risk of grave injury or death? Third, if so, did he
act despite that awareness?12

The jury in Poddar’s criminal case believed that each of these questions were
answered in the affirmative—that the stabbing of Tarasoff was done in a mean
and antisocial manner, that Poddar was aware of his duty not to shoot and stab
Tarasoff, and that he acted despite his awareness of this duty.
However, the presence of diminished mental capacity can negate the
express or implied malice element of first- or second-degree murder, result-
ing in a finding of guilt on a lesser charge of manslaughter. The judge pre-
siding over Poddar’s criminal trial gave the jury a general instruction that
malice can be negated by a finding of diminished capacity, but he failed to give
an explicit instruction to the jury relating the defense of diminished capac-
ity to the implied malice instructions given at Poddar’s trial. For this reason,
the California Supreme Court held that the instructions given to the jury at
Poddar’s trial were erroneous and that the oversight was prejudicial to Pod-
dar. As a result, the court overturned Poddar’s conviction and a new trial was
ordered. For reasons that are not entirely clear, Poddar was never re-tried.
Nearly five years had lapsed between the time Tarasoff had been murdered
and Poddar was granted a new trial. Rather than attempt to track down wit-
nesses and reconstruct evidence, the state of California released Poddar from
custody with the condition that he leave the United States immediately and
return to India.13
Left with no other recourse to have someone held accountable for their
daughter’s murder, Vitaly and Lydia Tarasoff, Tatiana’s parents, filed a wrong-
ful death suit against the Regents of the University of California, the mental
health professionals responsible for Poddar’s care, and the university police
officers who were asked by Dr. Moore to detain Poddar for involuntary civil
commitment to a psychiatric hospital.

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 p ro s e n j i t po d da r a n d tat i a na ta r as o ff: p ubl ic p e ril

The case was groundbreaking in two major respects. First, the issue of a
patient’s right to confidentiality in psychotherapy was pitted against the need
of society to be protected from potentially dangerous individuals. Tarasoff’s
parents argued that the professionals responsible for Poddar’s care should
have warned their daughter directly of the threat he had made against her
life. Second, the California Supreme Court took the unusual step of re-decid-
ing the case in 1976 after it was first decided in 1974. It is unclear why the
court felt the need to issue a revised opinion in Tarasoff, but “the volume of
concern and controversy stirred up by the first decision undoubtedly pro-
duced some rethinking and consideration” by the California Supreme Court
that led to the second Tarasoff decision that has become the standard refer-
ence in the case.14
A comparison of the 1974 and 1976 Tarasoff decisions provides a use-
ful context for understanding the far-reaching implications of the case. The
second published Tarasoff decision makes no reference to the first decision.15
Although the California Supreme Court held in the first Tarasoff decision
that liability could be attributed to the campus police officers for not warning
Tatiana Tarasoff of the threat against her life, the second decision freed the
campus police from liability.16 Finally, the first Tarasoff decision held that the
doctors who took care of Poddar had a duty to warn Tarasoff of the potential
harm he posed, but the second decision revised this “duty to warn” into a
more general “duty to protect” that could include warning as one of many
alternatives to satisfying the duty.
The key holding in the final Tarasoff decision was the conclusion by the
California Supreme Court that Mr. and Mrs. Tarasoff could bring a civil cause
of action against Drs. Moore, Gold, and Powelson for negligent failure to pro-
tect Tatiana from Poddar. The basis of this potential liability was the fact that a
special relationship existed between Poddar and his treating therapists. When
such a special relationship exists, like that between a patient and a therapist,
the law imposes on the therapist “a duty to exercise reasonable care to protect
a potential victim of another’s conduct.”17 The court found that a special rela-
tionship existed between Poddar and each of the defendants; Dr. Moore was
the treating therapist, Dr. Powelson supervised the therapy, Dr. Gold person-
ally examined Poddar, and Dr. Yandell had approved Moore’s decision to con-
tact campus police and initiate commitment procedures against Poddar.
One of the most controversial aspects of the Tarasoff decision, however,
was the manner in which the California Supreme Court arrived at the con-
clusion that the therapists treating Poddar could have—and perhaps should
have—contacted Tatiana Tarasoff directly and informed her of the threat that
Poddar had made during the course of his psychotherapy with Dr. Moore. After

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m inds o n t r i a l

all, Moore had taken reasonable steps that any conscientious clinician would
have taken to ensure the safety of others. He consulted with colleagues who
were familiar with Poddar’s case, obtained consensus agreement that commit-
ment proceedings should be initiated, and contacted law enforcement officers
to have Poddar detained and hospitalized. The defendant therapists in the case
could argue that it was the campus police officers’ willingness to let Poddar go,
and not their actions, that resulted in harm being brought to Tarasoff.
The California Supreme Court relied heavily on a law review article
written by John G. Fleming and Bruce Maximov to support the notion that
“by entering into a doctor-patient relationship the therapist becomes suffi-
ciently involved to assume some responsibility for the safety, not only of the
patient himself, but also of any third person whom the doctor knows to be
threatened by the patient.”18 The law review article was published while the
Tarasoff case was on appeal, yet Justice Matthew Tobriner, who wrote both
of the Tarasoff decisions, drew heavily from the article in supporting the
groundbreaking ruling that psychotherapists may have a legal duty to warn
victims directly of threats that are made within the context of a confidential
therapeutic setting.
Law professor Alan Stone has argued that the Fleming and Maximov
article is based on legal arguments and conclusions that “rely heavily” on the
views of psychiatric critics such as Dr. Thomas Szasz and others who believe
that mental illness is a mythological concept used to control people.19 Vocal
opponents of the psychiatric profession claim that such practices as involun-
tary hospitalization and forced medication violate basic liberties and should
be abolished. Fleming and Maximov recognize that “confidentiality plays an
important role in psychotherapy” and that people who enter into a therapeu-
tic relationship may reasonably expect that what they say to a therapist will
remain confidential.20 However, Fleming and Maximov also observed that the
patient’s right to confidentiality may sometimes come into conflict with the
therapist’s duty to protect third parties. Although one way that therapists can
protect others is to have a potentially dangerous individual admitted invol-
untarily to a hospital, which is what Moore attempted to do with Poddar,
Fleming and Maximov do not appear to favor involuntary hospitalization as a
means of protecting society. In fact, their disdain for restricting the liberty of
psychiatric patients is evident in their law review article:

Whereas public exposure is involved in threats to patient’s privacy,

certain other . . . interests may suffer whether or not there is disclo-
sure. Most prominent is his interest in personal liberty which is at

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stake in any commitment proceeding, whether it ever reaches the

public ear or not.
The impact of commitment—both psychological and prac-
tical—inevitably is drastic. Persons detained in mental institu-
tions must often endure long-term separation from their families,
friends, and jobs. These effects are considerable. . . .
Emergency commitment statutes illustrate these threats to the
individual’s liberty.21

It is not surprising, then, that someone adopting Fleming and Maximov’s rea-
soning would favor a way of protecting third parties from danger that relied
on a method other than hospitalizing the potentially dangerous individual.
The most obvious alternative would be to notify the victim or police.
Professor Stone finds it unfortunate that the law review article writ-
ten by Fleming and Maximov was cited extensively throughout the Tarasoff
opinions. One of the greatest concerns raised in the wake of the California
Supreme Court’s ruling was the chilling effect that case would have on psy-
chotherapy. If people entering therapy are told that any threats made during
the course of their treatment might be disclosed not only to police but also the
victim, then there might well be a drastic reduction in the number of people
with violent thoughts or fantasies who would be willing to seek help from a
therapist. Stone argued that limiting the scope of confidentiality as outlined
in Tarasoff could very well have the opposite effect of reducing public safety
by keeping potentially violent individuals away from treatment:

The primary inadequacy of the court’s holding is not that it does

not give serious thought to protecting the public, but rather that
the duty it would impose is self-defeating, increasing, rather than
reducing, the overall risk. It is highly disruptive of the patient-
therapist relationship and a less appropriate way of protecting those
threatened by dangerous patients than the traditional alternatives
of commitment or simply informing the police.22

These concerns about people being deterred from seeking therapy were
outlined in a dissenting opinion in the Tarasoff decision by Justice Clark.
The guarantee of confidentiality was seen by Justice Clark as necessary for
allowing patients in therapy to be open about themselves, which would lead
to more effective treatment. Without this guarantee of privacy, some people
who needed treatment would avoid it and pose an increased risk of harm to
others.

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m inds o n t r i a l

In the final decision, Justice Tobriner outlined the generalized duty to

protect:

In our view, however, once a therapist does in fact determine, or

under applicable professional standards reasonably should have
determined, that a patient poses a serious danger of violence to
others, he bears a duty to exercise reasonable care to protect the
foreseeable victim of that danger. While the discharge of this duty
of due care will necessarily vary with the facts of each case, in each
instance the adequacy of the therapist’s conduct must be measured
against the traditional negligence standard of the rendition of rea-
sonable care under the circumstances.23

Despite the flexibility that this standard of care seems to give to therapists in
how they respond to threats made against third parties, the standing legacy
of the Tarasoff case is the support it lends to permitting, if not encouraging,
therapists to warn potential victims. The legacy is best summed up in what
has perhaps become the most memorable statement of the Tarasoff opinion:
“The public policy favoring protection of the confidential character of patient-
psychotherapist communications must yield to the extent to which disclosure
is essential to avert danger to others. The protective privilege ends where the
public peril begins.”24
Another lasting legacy of the Tarasoff case is the confusion and mistaken
beliefs that remain about the implications of the case. By issuing two opinions
in Tarasoff and not even mentioning the existence of the first opinion in the
text of the second opinion, the California Supreme Court created confusion
about whether the first opinion carries any weight as a legal precedent. As a
result, the Tarasoff opinion is often believed to create a “duty to warn,” when
this narrow holding of the first Tarasoff opinion was effectively refined in the
second Tarasoff opinion to create a “duty to protect” in which warning the
potential victim is only one of many ways that therapists can carry out this
legally imposed duty.
The Tarasoff case has nevertheless had a lasting effect in the field of men-
tal health treatment. It weighed the issue of patient confidentiality against the
interest society has in protecting citizens from dangerous individuals, and the
interest in protection won. “Tarasoff” has become a catchphrase in the mental
health field for various strategies that mental health professionals may need
to undertake in cases where treatment is being provided to a potentially dan-
gerous person. “Tarasoff warnings” often refer to the practice of giving noti-
fication to an identifiable victim or law enforcement officers when a patient
makes an explicit threat of harm to another person.

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Despite the fact that Tarasoff was a case dealing with state laws governing
the resolution of a civil dispute in the state of California, it had a far-reach-
ing and lasting impact on mental health law throughout the United States.
Other state and federal courts have had to confront the duty to protect in
cases where the facts were similar to those in Tarasoff and dealt with the
conflict between patient confidentiality and the protection of third parties
from danger. The result has been a lack of consistency across states and legal
jurisdictions in how they have dealt with the legally imposed duty of mental
health professionals to protect others. Some states have accepted the reason-
ing of the Tarasoff decision and held that mental health professionals may be
viewed as negligent for failure to warn a potential victim of harm committed
by patients under their care.25 In fact, a court in Vermont even extended the
Tarasoff duty to warn or protect property after a patient told a therapist that
he intended to burn down a barn belonging to another person.26 One of the
most famous post-Tarasoff cases dealing with the duty to protect involved a
civil case brought against the psychiatrist who had treated John Hinckley, Jr.,
the man who attempted to assassinate President Ronald Reagan. The suit was
brought by James Brady, Reagan’s press secretary who was severely injured in
the assassination attempt, for failure to warn the president of Hinckley’s plan
to assassinate him. The court held that the threat was too vague and specific
victims could not be identified and therefore negligence for failure to protect
could not be attributed under such circumstances.27 Other states have failed
to extend the Tarasoff ruling to other kinds of cases, such as those where
the potential victim has more knowledge about the potential threat than the
treating therapist or where a patient left treatment several months before
injuring another person.
Of course, some of the most pressing questions in the wake of the Tarasoff
ruling are, Did the decision have the chilling effect on psychotherapy that
opponents of the decision feared? Were people less likely to seek treatment
because of less confidentiality?
The Tarasoff decision paved the way for other limits on confidentiality in
therapy. Mental health professionals are now required to disclose suspected
cases of child abuse or neglect to the proper authorities, and many states
require the reporting of suspected abuse involving the elderly or incapacitated
adults. Physicians are required to report patients to the state department of
motor vehicles if patients have medical conditions like seizures, visual impair-
ment, brain damage, or severe mental illness that would render them unsafe
to operate a motor vehicle.28 Have these erosions of confidentiality and trust
in the doctor-patient and client-therapist relationship led to people avoiding
helping professionals or to less effective therapy?

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m inds o n t r i a l

Although there is no definitive scientific evidence demonstrating the

impact of Tarasoff on the effectiveness of mental health services, one thing
that is clear is that the groundbreaking case generated considerable profes-
sional and academic discussion and raised anxiety among those in the helping
professions. Some studies have shown that mental health professionals are
confused about what their duty to protect involves and whether they should
take reasonable steps, all steps possible, or only certain legally mandated steps
to protect third parties.29 In some instances, studies have shown that mental
health professionals are much more cautious about accepting potentially vio-
lent individuals into therapy because of the risks they may pose and there are
greater concerns about being sued. Even if it remains unclear whether certain
patients are reluctant to enter into therapy because of limits to confidentiality,
one effect of the Tarasoff decision appears to be less access to therapy since
many therapists are likely to balk at accepting a potentially dangerous person
into their care.
On the other hand, the Tarasoff case appears to have had some favorable
effects on how mental health services are rendered. Surveys of mental health
professionals show that they are more likely to consult with colleagues when
they have a particularly difficult or challenging case that involves Tarasoff-
related issues. Furthermore, many professional associations have offered
guidance to mental health professionals on how to deal with potentially vio-
lent individuals, which has led to greater awareness of the need to evaluate
patients for the risk of violence and to treat and manage these cases more
effectively.
It is arguable that no other civil case in the mental health field has had
as far-reaching effects on the practice of psychotherapy as the Tarasoff case.
What makes the case all the more fascinating is that it involved an inter-
pretation of California law as it applied to a civil dispute that arose within
that state, and as such the ruling was a legal precedent only for the practice
of psychiatry and psychotherapy in the state of California. Yet, the broadly
defined duty to protect outlined in the Tarasoff opinion, and the related issue
of warning third parties of harm, soon became an issue that courts across the
country confronted. Mental health professionals of various kinds, including
psychiatrists, social workers, psychologists, and counselors, are now trained
on ways to deal with the issue of “Tarasoff warnings” in cases where they
arise. Moreover, the origins of the reasoning laid out in the famous Tarasoff
case are found, in part, in a law review article that supports an approach to
dealing with the mentally ill that empowers patients and seeks to minimize
the power of mental health professionals over the liberty interests of patients.
Yet, the Tarasoff case has not eliminated the need for involuntary hospitaliza-

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tion but has eroded slightly the confidentiality patients can expect from their
therapists.
Perhaps it is not confidentiality that is the key to effective psychotherapy,
as opponents of the Tarasoff opinion have argued. Rather, it is conscientious,
caring, and competent mental health professionals who are able to foster a
trusting—if not completely confidential30—relationship with their patients.
After all, competently trained therapists know that they may be required to
notify third parties of potential danger if their patient comes to pose a risk.
Standard procedures for initiating psychotherapy now require that therapists
inform all of their new or prospective patients about the circumstances under
which a breach of confidentiality might be required. By providing patients
with this knowledge beforehand, confidentiality can be guaranteed to the
extent permitted by law and patients can be reassured that their therapist will
impose limits if the patient’s self-control fails and an open line of communica-
tion will remain between the patient and therapist. In this way, a trusting and
working relationship can be maintained.
As for the specific outcome in the Tarasoff case, the parents of Tatiana
Tarasoff were able to shape mental health law significantly with their civil
case against the Regents of the University of California. Their “win,” how-
ever, was bittersweet because even though they prevailed in their civil suit,
they lost their daughter forever and no one was ever held accountable in a
criminal court for her death. After he succeeded in his appeal to the Supreme
Court of California—the same court that issued the ruling in the civil case
brought by the parents of the slain Tatiana Tarasoff—Poddar was released
from custody and returned to India. According to law professor Alan Stone,
who reported that he had a personal communication with Tarasoff’s killer fol-
lowing Poddar’s return to India,31 the man who killed the object of his unre-
quited affections is a happily married man.

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p 6
DAN WHITE
The Myth of the

Twinkie Defense

henever news of a frivolous psychological defense reaches the media,

W reporters and other commentators almost invariably recall Dan White
and his “Twinkie defense.” For example, in one recent case a criminal defen-
dant, charged with breaking onto a neighbor’s home and chasing her with
a dagger, claimed that he was rendered temporarily insane by ingesting too
much jasmine tea. In reporting in 2003 that the charges against the man were
dropped, the Associated Press told readers across the country that:

Prosecutors likened the tea theory to the “Twinkie defense” used by

former San Francisco Supervisor Dan White, who was charged with
killing the city’s mayor and another supervisor in 1978. He avoided
a first-degree murder charge and was convicted of involuntary
manslaughter after his lawyers convinced jurors that eating junk
food had diminished White’s mental capacity.1

Even noted legal scholar, Harvard Law professor, television commentator,

and author Alan Dershowitz, in the glossary of his book The Abuse Excuse,
referenced the “Twinkie defense.” Dershowitz wrote, “This excuse was made
famous by the Dan White case. . . . The jury accepted Mr. White’s claim that he
had become mentally incapacitated at the time of the killings in part because
of his consumption of junk food.”2

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This characterization of the defense that purportedly led to the verdict in

the White case, while popular and widely recounted, is a myth. Though high
on the list of many media pundits when it comes to debunking phony excuses
for criminal behavior, the “Twinkie defense,” as described by most, was never
raised by Dan White or anyone else associated with his case.
In 1977, Dan White, a thirty-two-year old Vietnam veteran, was elected
to the Board of Supervisors in San Francisco. So, too, was Harvey Milk, the
first openly gay member of the board. Both men were elected, at least in part,
as a result of a reform under which Supervisors were elected by district rather
than from the city at large. White was elected to represent a conservative,
largely Catholic district in the southeast section of the city, where he had
grown up. Milk was elected in a district that included the hub of the city’s gay
community. Though initially allies on the board, the two newly elected super-
visors eventually found themselves at odds politically, with White opposing a
gay parade in the city and voting against a proposal to prohibit job discrimina-
tion against homosexuals.
Prior to his election to the board, White had served the city as a police offi-
cer and firefighter and been decorated for bravery in the line of duty. Within
a year of his election, however, White concluded that he could not afford to
support himself, his wife, and their newborn son on the salary he earned as a
supervisor, which was $9,600 a year. Indeed, the family was able to make ends
meet only because White’s wife Mary Ann worked long hours at a fast-food
stand that White leased when he learned that he could not be paid as both a
supervisor and a firefighter.
On November 10, 1978, depressed and frustrated, White resigned from
the Board of Supervisors. By November 13, his resignation letter had been
formally filed with the board, but a day later he had a change of heart and
asked the mayor to reappoint him to the board.
Because White’s resignation had been formally received by the board, he
could not legally rescind it. He could, however, be appointed to succeed him-
self. San Francisco Mayor George Moscone had the authority to appoint a
successor for White. Responding in part to pleas from police officers and fire-
fighters as well as pressure from members of the community, Moscone ini-
tially agreed to restore White to the position. The mayor shared this decision
with White, gave White back his letter of resignation, and even went so far as
to announce publicly that White would keep his job. While Mayor Moscone
spoke to the press, White held his own press conference and announced,
“People unknown to me plus my family and friends have come to me and
stated that they want me to stay in office. The majority of my district doesn’t

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want to have someone appointed that they didn’t elect, and I’m going to stay
in my seat.”3
That was November 15. By the next day the political pressure on Moscone
not to reappoint White was increasing. Among those who urged the mayor
not to reappoint White was Supervisor Harvey Milk, who recognized that
appointing a liberal in White’s stead would give that political faction a major-
ity on the board.
By November 18, the mayor’s press secretary was telling the media that
“the only person who has come into this office indicating that Dan White
should be reappointed is Dan White himself.”4 Meanwhile the mayor was
telling White that it might not be appropriate to reappoint him and that
White would do well to show the mayor just how much community support
he had. White and his supporters immediately began a campaign that would
collect over 1,100 signatures on a petition as well as numerous letters and
other expressions of support from his constituents.
While this drama played out at City Hall and in the neighborhoods of
San Francisco, the city’s congressman, Representative Leo Ryan, and three
reporters were shot and killed in Guyana, where Ryan had gone as part of
an investigation into the activities of the Reverend Jim Jones. Jones led the
People’s Temple, a radical cultlike congregation in Jonestown, which had ear-
lier relocated to Guyana from San Francisco. On November 18, shortly after
Ryan and his party were gunned down while boarding a private plane, over
nine hundred members of the People’s Temple followed Jones’s instructions
and committed mass suicide by drinking cyanide-laced Kool-Aid.
For a time, the Jonestown Massacre eclipsed the unfolding tale of Dan
White in the Bay area media. In any event, however, the tragedy in Jonestown
weighed heavily on the minds of many San Franciscans including the mayor,
who would soon stand for reelection. After all, the Reverend Jones had been
one of Moscone’s most ardent supporters when Moscone had run for mayor.
Indeed, just two years before the mass suicide, the mayor had toasted Jones
at a testimonial dinner and appointed him to a seat on the city’s Housing
Commission. Now, following the Jonestown Massacre, rumor had it that some
People’s Temple members had been programmed by Jones to carry out politi-
cal assassinations in the United States. These rumors led San Francisco offi-
cials to install metal detectors at City Hall in the event that Jones had some-
how targeted his former political allies there.
On November 20, the day after the deaths in Jonestown were first
reported in the media, Moscone wrote White a letter backing even further
away from his earlier promise of reappointment. After explaining that he had

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received many communications urging him not to reappoint White, Moscone

went on to say that while he would be taking a week to “review this situa-
tion, . . . I must reiterate that I have not made any commitment of any kind
to appoint you.”5
While Moscone was consulting with politicians and interviewing a pos-
sible successor to White, White’s supporters were rallying to keep him in
office and his attorneys were pressing the courts for an injunction that would
keep the Board of Supervisors from accepting White’s resignation. As for Dan
White, himself, his life appeared to be collapsing around him. He was spend-
ing more and more time alone and growing increasingly despondent.
As White’s wife would later testify:

He was just . . . very withdrawn, [he would] withdraw himself from

me, and anyone else. It would be where he would get up in the
morning and seem okay, and then all of a sudden he would just go
in his room, close the door, never come out, and if I happened to
go into the room to get something, he would never speak, and if I
spoke to him he wouldn’t answer.6

On the evening of November 26, 1978, White was called at home by a

television news reporter and asked if he had been informed that Moscone had
decided not to reappoint him and was planning to announce the appointment
of another man the following morning at 11:30. White, who had not been
made aware of the mayor’s plans, told the reporter that he had no comment
and then abruptly hung up.
Early the next morning, November 27, White learned from the mayor’s
administrative assistant, Denise Apcar, that the mayor had refused to even accept
petitions signed by over 1,100 people calling for White’s reappointment. After
the call, White gathered up a .38 caliber revolver and supply of ammunition and
asked Apcar to drive him to City Hall. White arrived there just about an hour
before the mayor was scheduled to publicly announce the name of his successor.
Though he was dropped off in front of the building at the main entrance, White
walked to the side of the building where, to avoid having to pass through metal
detectors, he entered City Hall through a basement window.
Once inside the government center, White walked up a back staircase,
went directly to Moscone’s office and shot the mayor four times at close
range, twice in the head and twice in the chest. An autopsy would later reveal
that both head wounds were inflicted at a distance of about twelve to eighteen
inches as the already wounded mayor was lying on the floor of his office.
Having shot the mayor, White ran to the other side of City Hall, used his
own key to open the door leading to the supervisors’ offices, spoke briefly to

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Supervisor (later San Francisco Mayor and U.S. Senator) Dianne Feinstein,
and paused to reload his gun. Speaking in a normal tone of voice, White then
asked to see Supervisor Harvey Milk. Less than a minute later, he shot Milk
five times in much the same manner he had shot the mayor. White fired three
shots to Milk’s body and two to the back of his head. As in the killing of the
mayor, White shot Milk in the head at close range only after the supervisor
had been knocked to the floor by the body shots.
After shooting Milk, White ran to Apcar’s office, demanded the key to
her car, and left when he got it. A short while later, White telephoned his wife
and asked her to meet him at St. Mary’s Cathedral, a Catholic church. After
the couple met and White explained what he had done, they walked to a police
station and White surrendered and gave a lengthy statement. White told the
police that he had been under tremendous economic, political, and familial
stress, and had resigned as a supervisor to reduce that stress. He also said that
his family had supported his decision to seek reappointment and that he felt
Harvey Milk had been using him as a “scapegoat.”7 In the recorded interroga-
tion just hours after the killings, White explained that:

After I [resigned], my family and friends offered their support and

said whatever it would take to allow me to go back into the office,
they would be willing to make that up. So since I felt the responsi-
bility of the people that elected me, I went to Mayor Moscone and
told him, that I had, that my situation had changed and I’d like to
be, retain my seat, to be appointed to my seat. He initially told me
that he felt that . . . I was doing an outstanding job and that if it
came to a legal ruling he would appoint me, reappoint me. . . . So,
with that in mind I tried to set my personal affairs in order, pre-
paring to take my seat. And then it came out that Supervisor Milk
and some others were working against me to get my seat back. . . .
I could see the game that was being played, they were going to use
me as a scapegoat; whether I was a good supervisor or not was not
the point.
This was a political opportunity and they were gonna deni-
grate me and my family, and the job I was trying to do, [and] more
or less hang me out to dry. And I saw more and more evidence of
this when the papers reported that, ah, someone else was going to
be appointed. I couldn’t get through to the mayor. The mayor never
called me, he told me he was gonna call me before he made the
decision, he never did that. It was only on my own initiative when
I went down today to speak with him. I was troubled, the pressures,

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my family again . . . my son’s out to a baby sitter. My wife’s got to

work, long hours, fifty and sixty hours, never see my family. . . .
And I went in to see him [and] he told me he wasn’t gonna
reappoint me and he . . . was . . . intending to tell me about it. . . . He
told me he had a press conference scheduled and he was going to
announce it at the press conference. Didn’t even have the courtesy
to call me or tell me that I wasn’t going to be reappointed. Then, ah,
I got kind of fuzzy and then, just my head didn’t feel right, and I,
then he said, let’s go in the back room [and] have a drink and talk
about it. . . .
Just all the time knowing he’s going to go out and lie and tell
them, you know, that I, I wasn’t a good supervisor and that people
didn’t want me and then that was it. Then I, I just shot him. That
was it. It was over. . . .
I left his office by one of the back doors [and] then I saw Harvey
Milk’s aide across the hall [and] then it struck me about what Harvey
had tried to do [and] I said, well I’ll go talk to him. I said, you know,
maybe he’ll at least be honest with me. He was all smiles and stuff . . .
and then he started kind of smirking because he knew, he knew, that I
wasn’t going to be reappointed. . . . I started to say you know how hard
I worked for it and what it meant to me and my family [and] then my
reputation . . . and he just kind of smirked at me as if to say too bad and
then I just got all flushed and hot and I shot him.8

As a result of the killings, Dan White was charged with two counts of pre-
meditated and deliberate murder, for which he could have faced life in prison
or the death penalty if convicted. At trial, months later, few facts were in
dispute. What was disputed was White’s state of mind before and during the
killings. White’s attorney relied on a defense that was, at the time, unusual if
not unique to California: diminished capacity.
The defense of diminished capacity was developed by the California courts
over a span of approximately thirty years from 1949 to 1978, the year Dan
White killed George Moscone and Harvey Milk. Through a series of cases,
mostly homicide prosecutions, the courts fashioned a doctrine under which
a defendant’s criminal culpability could be reduced in degree by evidence of
mental disorder short of insanity.9 For example, if an “unlawful killing of a
human being with malice aforethought” was “willful, deliberate, and premed-
itated,” the crime would be first-degree murder.10 However, such a killing that
was not “willful, deliberate, and premeditated” would be second-degree mur-
der.11 Under the doctrine of diminished capacity, if a jury found that as a result

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of a mental disorder the defendant was unable to deliberate and premeditate,

they could not convict a defendant of first-degree murder. Moreover, if the
jury found that as a result of mental illness the defendant lacked the capacity
to act with malice (“a deliberate intention unlawfully to take away the life of a
fellow creature”), they could not convict the defendant of even second-degree
murder.12
In support of the defense of diminished capacity, White’s attorneys pre-
sented the testimony of five mental health experts: four psychiatrists and one
psychologist. All five doctors agreed that White was suffering from serious
depression when he killed Moscone and Milk. Three opined that as a result
White had lacked the capacity to premeditate, one disagreed, and the other
testified only that White’s capacity for premeditation had been impaired.
Finally, one psychiatrist and one psychologist testified that White had lacked
the capacity to act with malice in the killing of his former colleagues.
Aside from the psychiatric/psychological expert testimony, White’s
defense consisted of the testimony of family, friends, and acquaintances who
attested that he was an honorable man given to frustration and depression.
White did not testify.
The prosecution countered the diminished capacity defense with a single
expert, Dr. Ronald Levy, a psychiatrist who had examined White just eight
hours after the killings. He testified that he found White moderately but not
clinically depressed at the time of the homicides. He told the jury that White
had the capacity to deliberate and premeditate and that, after reviewing the
opinions of the other five experts in the case, he had seen nothing to convince
him otherwise. On cross-examination, however, Levy conceded that he had
not done a full evaluation of Dan White because “I was not asked to do a com-
plete assessment.”13
Of all the defense experts who testified at White’s trial, Dr. Martin Blinder
gave perhaps the most compelling and certainly the most controversial tes-
timony in support of the diminished-capacity defense. It was Blinder’s tes-
timony that would eventually lead commentators to coin the sobriquet, the
“Twinkie defense.”
Blinder, a psychiatrist, testified that White had suffered from “a manic-
depressive syndrome dating back to adolescence” and that this mental ill-
ness, coupled with the life stress White was under at the time of the killings,
“circumvented the mental processes necessary for premeditation, malice and
intent.”14 Beyond that, however, in what would ultimately propel him to the
dubious status of “Twinkie shrink,”15 Blinder explained to the jury that, like
many depressed individuals, White had altered his eating habits in response
to the illness. Indeed, Blinder reported that when White experienced episodes

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of major depression he stopped his normal healthy diet, ceased his regimen
of exercise, and binged on junk food—mainly candy bars, soft drinks, and
cupcakes:

During these spells he’d become quite withdrawn, quite lethargic.

He would retreat to his room. Wouldn’t come to the door. Wouldn’t
answer the phone. Would call in sick. Wouldn’t even sleep with his
wife; would sleep alone on the couch outside.
And during these periods he found that he could not cope with
people. He would avoid them . . . because any confrontations would
cause him to kind of become argumentative. . . .
Whenever he felt things were not going right, he would aban-
don his usual program of exercise and good nutrition and start
gorging himself on junk foods: Twinkies, Coca Cola.
Mr. White has always been something of an athlete prid-
ing himself of being physically fit. But when something would go
wrong, he’d hit the high sugar stuff. He’d hit the chocolate, and the
more he consumed, the worse he’d feel, and he’d respond to his ever
going depression by consuming ever more junk food. The more
junk food he consumed, the worse he’d feel. The worse he’d feel, the
more he’d gorge himself, and so on, in a vicious circle.
Finally, after several days, he’d pull himself together, maybe
start jogging a bit, feel better, stop eating this food, feel better yet,
and then get back to his old diet and his old personality, which is
generally pretty congenial.16

Later in his testimony, Blinder told the jury that White’s consumption
of junk food was not only a symptom but also an exacerbating factor in his
depressed moods. To substantiate that point, Blinder cited studies that he said
in some cases linked the consumption of large amounts of refined sugar to
mood disturbances, including depression and violence. He did not, however,
testify that this was what had happened in White’s case or that eating junk
food caused Dan White to kill George Moscone and Harvey Milk. As one
commentator later noted: “Blinder commented that too much sugar can affect
the chemical balance in the brain and worsen depression, but didn’t blame the
crime on bad diet. Rather, he offered junk food use as proof of White’s men-
tal state—in other words, Twinkie consumption was an effect rather than the
cause of White’s problems.”17
The only other expert reference to White’s consumption of junk food
came from the prosecution’s sole expert witness, Dr. Levy, who not only

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denied that White suffered any mental illness at all, but debunked any notion
that Twinkies or any other junk food could have caused White’s homicidal
actions:

[Prosecutor]: Doctor . . . are you familiar with any studies and any
prevailing scientific bodies of thought relating to the ingestion
of sugar, foods with preservatives such as what’s commonly
known as junk foods and including, for example, chocolate
cupcakes of Twinkie variety, Coca-Cola, candy bars and potato
chips, for example, as those relate to being causative factors in
influencing anti-social or sociopathic behavior?
[Psychiatrist]: I am unaware of any prevailing psychiatric opinion
that such factors are significant in relationship to any type of
mental illness.18

So insignificant was the junk food aspect of White’s defense that his
attorney barely mentioned it in his closing argument to the jury. Douglas
Schmidt, White’s lead attorney, told the jury that White was “guilty” and that
“the only issue for you is the degree of responsibility.”19 Schmidt emphasized
that the experts had had found that White was incapable of “deliberation” and
that his judgment had been “fogged by passion, anger, rage, humiliation.”20 As
for the role, if any, played by junk food, Schmidt said:

I don’t know whether there is a relationship between sugar and

violent behavior. I don’t know. A lot of people think so, it’s hypogly-
cemia. If there is some possible relevance regarding that then I want
somebody to come in and tell me what it is. And that’s why I called
Dr. Blinder. He didn’t come in here and talk about eating Twinkies
and going crazy, but he did suggest, among other things, that a
change in diet is a symptom of depression, if nothing else. His radi-
cal changes in diet are a symptom of depression that there’s some-
thing wrong with you.
Now whether or not ingestion of foodstuff with preserva-
tives and sugar in high content causes you to alter your personal-
ity somehow, or causes you to act in an aggressive manner, I don’t
know. I’m not going to suggest to you for a minute that that occurs.
But there is a minority opinion in psychiatric fields that there is
some connection.21

As Schmidt would later explain, he considered the Twinkie defense a

“trivialization by the media.”22 As the defense attorney saw it, White’s con-

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sumption of junk food was “a minor defense argument . . . not anything that I
was buying into big time . . . a symptom of depression, like mood swings and
insomnia.”23
Had Dan White been convicted of murder, Blinder’s testimony would
have become a mere footnote in this tragedy. But, in a verdict that surprised
and outraged many, after nearly six days of sometimes-heated deliberations,
the jury concluded that in killing his colleagues, White had demonstrated nei-
ther malice nor premeditation and deliberation. Thus the jury acquitted him
of both first- and second-degree murder and found him guilty of two counts
of the much less serious crime of voluntary manslaughter. As a result, White
eluded not only the death penalty but a life sentence as well.
Even then, Blinder’s testimony might well have passed beneath the radar
of intense media scrutiny had it not been for the sentence White received and
the public response to it. For killing Mayor Moscone, Dan White was sen-
tenced to the maximum term allowed under California’s manslaughter stat-
ute, four years plus a two-year “enhancement” for having used a firearm.24
For killing Supervisor Milk, White was given a sentence of one year plus an
eight-month “enhancement” for use of a gun.25 Since the judge ordered that
the prison terms be served consecutively as opposed to concurrently, the total
sentence for the two homicides amounted to seven years and eight months
behind bars. That meant that with time off for good behavior and time served
prior to trial, White could be paroled in roughly five years.
Many people in San Francisco and elsewhere felt that this sentence added
insult to injury; not only had White been acquitted of murdering two elected
officials but he had been given a sentence that was widely regarded as a slap
on the wrist for two political assassinations. Especially outraged were mem-
bers of San Francisco’s gay community, many of whom had worked to elect
Harvey Milk and regarded him as an icon whose killing was fueled at least in
part by homophobia.
That outrage led to what came to be known as the “White Night Riot.”26
As word of White’s lenient sentence spread, within hours hundreds were
marching through the streets, burning police cars, chanting “no justice, no
peace,” and attempting to storm City Hall.27 Though only a few people were
injured and fewer than two dozen rioters were arrested, the message was loud
and clear: In the eyes of many, Dan White had gotten away with murder.
In the aftermath of the trial, verdict, and riot, many seemed convinced
that a gross injustice had been done because one of the victims had been gay
and because a gullible and perhaps homophobic jury had been unduly swayed
by a trumped-up psychiatric defense. In fact, neither of these explanations
for the verdict rings true. As one member of the jury later explained: “People

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think it was about Twinkies and gays. It wasn’t. I was born and raised in San
Francisco. I’ve never been against gay people. There may have been a couple of
jurors who were but they never told us they felt that way. . . . The prosecution
thought it was such a clear-cut case they didn’t do their job.”28 Twinkies, the
juror added, “played no part” in the jury’s decision.29
Amazingly and inexplicably, in such an important and high-profile case,
faced with a cadre of five mental health experts testifying for the defense, the
prosecution chose to rely on the expert testimony of a single rebuttal expert
who candidly admitted that he had not done a complete evaluation of the
defendant.
While the trial of Dan White concluded with the verdict and sentence, the
fallout from this case was far from over. White’s attorneys appealed his sen-
tence but a California appeals court held that “the record amply supports the
sentences imposed by the trial court.”30 As the appellate court explained, both
victims had been shot in the head “in the manner of a coup de grâce” while
lying defenseless.31 Finally, in affirming White’s sentence, the court also cited
“the planning with which the crimes were carried out, indicating premedita-
tion, prior to the actual events.”32
While White was serving roughly five years in Soledad State Prison,
in 1981 the California Legislature amended the state’s penal and evidence
laws in a clear effort to preclude jurors from reaching the kind of conclu-
sion the jury came to in White’s case.33 Not only did the legislature eliminate
the diminished-capacity defense, but it amended the rules of evidence to ban
expert testimony regarding whether or not a defendant had the mental state
required for conviction of the crime charged. Had either of these legislative
reforms been enacted prior to 1978, Dan White would almost assuredly have
been convicted of murder.
In 1984, Dan White was paroled from Soledad to the Los Angeles area,
where he remained for nearly a year before returning to San Francisco against
the expressed wishes of many, including those of then-Mayor Dianne Fein-
stein. On October 21, 1985, at his San Francisco home, White attached a gar-
den hose to the exhaust pipe of his car and sat in the running vehicle in a
closed garage until he died from carbon monoxide poisoning.
In perhaps the final bizarre twist in the case of Dan White, fifteen years
after his suicide, echoes of the Twinkie defense continued to haunt another
of the trial’s key participants. On October 6, 2002, Dr. Martin Blinder was
attacked and brutally stabbed by his former wife, who then proceeded to
kill herself. By then, Blinder had become a well-known author, novelist, and
playwright, not to mention an accomplished jazz pianist, horticulturist, and
frequent guest on TV talk shows.34 The stabbing, which Blinder survived,

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was reported internationally under headlines that included “Twinkie Shrink

Stabbed,”35 “Twinkie, A Chocolate Cake That Leaves Murder and Mayhem in
Its Wake,”36 and “Ex-Wife of Twinkie Defense Doctor Found Dead; Woman
Was Suspected of Stabbing Psychiatrist.”37 As Blinder complained, “If I found
a cure for cancer, they’d still say I was the guy who invented ‘the Twinkie
defense.’”38

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p 7
CAMERON
HOOKER
Judging the Experts?

he abduction of fifteen-year-old Elizabeth Smart from her Utah home

T on June 5, 2002, gained national attention primarily because the crime
occurred while she was at home with her sister and parents.1 Nearly nine
months after her abduction, Elizabeth Smart was found alive in March 2003
and reunited with her family. Her kidnappers were identified, but the joy
and relief over her safe return soon gave way to questions about her ordeal.2
The details of her captivity were puzzling because her captors had moved her
around the country and even took her out in public. How could they maintain
control over her while help was so near? The answer to this perplexing ques-
tion can be found, in part, in an extraordinary and horrific case of abduction,
mind control, and coercion that occurred years earlier.
On Thursday, May 19, 1977, twenty-year-old Colleen Stan left Eugene,
Oregon, and set out for Westwood, California, to visit a friend.3 Her room-
mates dropped her off near Interstate 5, and Stan planned to hitchhike the
nearly four hundred miles to her friend’s home. She got two rides that took
her into California, but she turned down her next two—one from a carload
of men and another from a couple who said they were only going a short
distance.4
Stan then accepted a ride from a young couple, Cameron and Janice
Hooker. They seemed “safe,” as the wife was holding a baby in the front seat
of the car and the man driving the car appeared to be clean-cut. Upon enter-

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ing the vehicle, Stan got into the back seat and noticed a strange wooden box
beside her.5 A couple of minor incidents at the start of the ride foreshadowed
the fact that Stan’s life was about to change dramatically. As she took a sip from
a bottle of juice she was carrying, Cameron Hooker—who had been glancing
repeatedly at Stan through the rearview mirror—sped up, causing the juice
to spill down the front of Stan’s shirt.6 She also noticed that Hooker gave his
wife a look that caused Janice Hooker to shake her head with a frown.
After about a half hour of driving, Hooker decided to stop at a gas sta-
tion. Stan went to the restroom and would later recall that she felt extremely
uneasy about the situation. “A voice told me to run and jump out a window
and never look back,” she would later say.7 Nevertheless, she ignored her con-
cerns about the situation and returned to the vehicle. Janice Hooker offered
her a candy bar as the conversation turned to the topic of ice caves. Using the
topic as a ruse, Hooker casually asked Stan if she would mind if they went to
see the caves, which he claimed were nearby.
After Hooker turned down a dirt road and parked in an isolated spot, he
confronted Stan with a knife. He ordered her to do as she was told and then
bound, gagged, and blindfolded her. He forced her head into the strange box
that had been on the back seat beside her—a “head box” that was extremely
hot, completely muffled external noises, and blocked out all light.
Stan was taken to the couple’s home and Hooker forced her into another
box in the basement that was about three feet high and just big enough to
accommodate her entire body. The head box was reattached and a variety of
sadistic restraints were also attached to her. Her arms were chained over her
head, a spiny contraption was placed between her legs, a constricting strap was
placed around her chest making it difficult to breath, and the head box made
it so she could see and hear nothing.
Hooker’s domination and control over Colleen had begun:

For the next five months, he kept her—naked, bound, blindfolded,

and gagged—in the basement. The first 7 to 10 days, Colleen was
kept naked, chained to the rack, and wearing the headbox. For the
remainder of the first five-month period, Colleen—still naked,
bound and wearing the headbox—was kept in a coffin-like box in
the basement, leaving it only once a day to eat, drink, urinate, and
defecate, always in Hooker’s presence. During this time, Hooker
regularly practiced bondage on Colleen, suspending her from
the rafters, constricting her breathing, whipping her, keeping her
head encased in the headbox, tying her to the rack, shocking her
with electrical cords, burning her pubic area with a heat lamp, and

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immersing her in the bathtub until she was unable to breathe. Col-
leen once estimated that Hooker hung her and whipped her 90 to
100 times in the first six months.8

On January 25, 1978, Hooker removed Stan from the box to present her
with a document entitled “This Indenture.” Hooker explained that an organi-
zation called “The Company” was a network of slave traders that took women
captive and sold them for profit.9 The indenture was essentially a slavery con-
tract that Hooker had read about in an underground newspaper catering to
sadomasochistic sexual practices that was part of his vast collection of por-
nography and related materials. An article in one of the newspapers included
a sample contract that Hooker copied. He rented a typewriter, had his wife
copy the text of the indenture on a clean sheet of paper, and then added the
title “This Indenture” using calligraphy stencils he bought specifically for the
purpose of giving the document an “official” appearance.10 He even added a
seal to the bottom of the page.
When Hooker presented the contract to Stan, he showed her the article
from his underground newspaper and was able to convince her that members
of the organization knew she was with him and she had to sign the contract or
face brutal consequences. Furthermore, when Hooker presented her with the
contract, it was the first time she had seen his face after being subjected to his
brutal treatment for nearly eight months. The language in the indenture was
official sounding, if not barbaric:

AND Slave does hereby irrevocably declare and acknowledge her

everlasting unconditional dedication to serving Master to His full
satisfaction; AND she ashamedly confesses that prior indulgence
of her untempered conduct by others may have permitted her to
become afflicted with inferior habits that may prove unsatisfactory
to Master, from which imperfections she implores Master to free
her by retraining with corporal punishment or any other means
which He, in His unquestionable wisdom, deems effective toward
directing her to her sole ambition and life-destiny of perfectly ful-
filling His every desire of her.11

Aside from the language of the document, even the capitalization of “His”
and the lowercase “her” was intended to convey the complete domination that
Hooker wanted to have over his victim. Given the extreme control and depri-
vation to which she had been subjected, Stan was confronted with the option
of either signing the contract or risk being taken by “The Company” and sold
into slavery. The indenture referred to Colleen as “Slave” and “Michael Pow-

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ers” (a fictitious name Hooker used with Colleen) as “Master.” The indenture
specified that Stan was to refer to Hooker only as “Sir” or “Master” and to
subjugate his victim further, he ordered that she be given a new name, the
letter “K.”
For the next several years, Colleen lived under the complete sadistic
control of Hooker. Much of the time she was confined to the box under the
couple’s bed. However, two major issues complicated the case of Colleen’s
confinement. First, there was Hooker’s wife, who facilitated her husband’s
domination of Colleen—even to the point of typing the “Indenture” for him.
Janice Hooker appeared to accept the presence of another woman in their
home because she could avoid being the subject of her husband’s sadistic sex-
ual rituals. Yet, she also recognized that the situation was both legally and
morally wrong. In addition, the Hookers’ young child grew up aware that a
woman was being held captive in their home. At the age of three, the Hookers’
daughter was confused about why “K” always had a chain around her neck
and was sometimes chained to the toilet.
The second issue complicating the case was Stan’s submissive and compli-
ant behavior toward Hooker. She would ask for permission to eat, go to the
bathroom, or perform simple tasks. Stan was gradually given greater latitude
in her movements and was often allowed to go jogging while unsupervised,
but only after asking for permission each time.
In March of 1981 the case took a remarkable turn: Hooker permitted Stan
to visit her family. He told her that if she said anything to anyone about “The
Company,” he would kill whomever she told. In light of the previous years of
intimidation and complete control that Hooker had over her, the threat was
highly effective. Stan appeared at her father’s home with a small suitcase as
Hooker drove away. Her family did not know what to make of the fact that
she was suddenly home after having completely disappeared for four years.
As Hooker demanded, she gave vague responses to the questions asked of her
and told no one about her ordeal. After a two-day visit, Hooker called and told
her he would pick her up; they drove back to the Hookers’ home.
Stan continued in her life of servitude for three more years. Following
her “year out,” she was placed back in the box and was seldom seen by any-
one but Hooker. The circumstances ultimately leading to her release were
triggered when Hooker’s wife began to experience considerable doubts and
reservations about her husband’s conduct.
In 1983, Hooker began talking about abducting another woman and cre-
ating a group of “slaves.” Janice Hooker was becoming increasingly more dis-
traught over the fact that her husband was having regular sexual relations

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with Stan and she began to take comfort in reading the Bible and attending
a local church.12 In August 1984, Janice Hooker confided in the church’s pas-
tor, Frank Dabney, and other members of the parish about a “love triangle”
without providing complete details of the kidnapping, sadistic sexual prac-
tices, and domination over Stan’s life. Nevertheless, the pastor told Hooker’s
wife that the situation was not in keeping with the church’s teaching and rec-
ommended that both she and Stan leave the home. Hooker’s wife confronted
Stan with the truth that there was no “Company” and the entire ordeal had
been arranged by her husband.
Stan was devastated by the news, but the immediate concern became
how to remove herself from the situation without provoking Hooker to kill
her. Both Stan and Janice Hooker stayed in the home that evening. After
Hooker went to work the next day, Stan called him from the bus station
and told him she was leaving. She returned to her family and told them
of the ordeal she had endured over the preceding seven years. For the next
few months, Stan had some contact with the Hookers, who were concerned
about whether she had gone to the police. Although Stan “was grateful to
have been released and wanted to forget the entire incident,” Janice Hooker
remained afraid of her husband. After a family friend contacted law enforce-
ment officials in November 1984, Hooker was arrested and charged with
kidnapping, false imprisonment, and multiple sex offenses.13
One of the key issues raised by his defense at trial was Stan’s “compli-
ance” with Hooker’s demands over the years. After all, how could a woman
be held for seven years and not make some attempt to escape? Moreover, how
could a kidnapping victim visit her family while she was unsupervised by her
captor and never disclose that she had been kidnapped? Her case calls to mind
how Elizabeth Smart, hiding out with her captors in the countryside, failed to
answer back when she heard her name shouted out by those who were search-
ing for her.
When Stan was finally liberated from Hooker’s control, many people were
puzzled by her apathy and indifferent response to her ordeal. When Stan tes-
tified at trial, the account she gave was delivered in a “flat and unemotional”
manner whereas Janice Hooker’s testimony was “punctuated by emotional
outbursts.”14 Jurors expected Hooker’s wife to be upset about the actions of
her husband and could therefore understand her emotional turmoil, but pros-
ecutors were concerned that Stan’s flat delivery might raise questions about
whether some of her actions were consensual.
There were plea negotiations that threatened to grant Hooker a limited
prison sentence, making him eligible for parole in as little as four and a half

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years. His attorney argued that even though Hooker may have kidnapped
Stan, the sexual acts were consensual and should not have been considered
criminal.
To rebut this claim, the prosecution sought the testimony of Dr. Chris
Hatcher, a forensic psychologist and an expert in terrorism, hostage nego-
tiations, brainwashing, and coercion. Hatcher had consulted on a number of
well-known cases involving allegations of brainwashing, including Jim Jones
and members of his People’s Temple, and he had consulted with a number of
law enforcement and government agencies, including the U.S. Secret Service,
Scotland Yard, and Los Angeles Police Department. His involvement in the
case was to provide valuable insights into why Stan behaved as she did both
during and after her seven-year enslavement.
Hatcher interviewed Hooker’s victim at length and provided a lengthy
written report that served as the basis of his testimony. At trial, he testified
that “brainwashing” was a rare phenomenon and occurs in very few cases. He
stated that a person’s “whole adult processes, their values, their way of look-
ing at the world is changed completely” with brainwashing and he did not feel
that the circumstances of Stan’s confinement by Hooker resulted in her being
brainwashed.15 He placed “coercion” along a continuum from simple persua-
sion on the one end, to coercion in the middle, and brainwashing at the other
extreme. The judge presiding over Hooker’s trial, Clarence B. Knight, ruled
that Hatcher’s testimony would be restricted and the prosecutor would not be
permitted to ask the expert to speculate on Hooker’s case specifically.
Hatcher characterized the hypothetical facts of kidnapping, hanging,
whipping, confinement to a box, and sensory and food deprivation—the very
things Stan endured during her captivity—as an extreme form of coercion
used by sadistic individuals to control another person. Hatcher added that
these forms of control “would be sufficient to coerce the majority of individu-
als into a desired behavior pattern and to give up any overt resistance.”16
Finally, Hatcher broke down individual forms of coercion into their
effects on a person. Eliminating daylight through sensory deprivation would
disorient a person. Controlling food, excretion, and other bodily functions
would destroy a person’s sense of privacy. A continued pattern of physical and
sexual abuse would create the belief that life had been permanently changed.
Isolating the person from contact with all other people would reinforce the
belief that the captor is the sole source of information and creates dependency
on that person. Hatcher’s testimony was offered to help the jury understand
how Stan could have acted as a profoundly compliant victim in light of her
horrific experiences.

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Before the defense countered with expert testimony of its own, the most
anticipated moment of the trial came when Hooker took the stand to testify
in his own defense. Although he admitted to kidnapping Stan, several years
had passed since the abduction itself and Hooker disputed some of the facts
of how the abduction occurred, hoping to take advantage of the statute of
limitations. Hooker attempted to lessen the severity of his actions by claim-
ing such things as not holding a knife to Stan’s throat when he kidnapped
her, avoiding intercourse with his victim in order to keep a promise to his
wife, talking to Stan in softer tones, and hanging her from ropes for less time
than the prosecution had claimed. Members of Hooker’s family were also
called to testify in an effort to humanize him and create sympathy among
the jurors.
The defense countered Hatcher’s testimony with Dr. Donald Lunde, a
forensic psychiatrist who also had experience in cases involving human cap-
tivity and coercion. Lunde was on the clinical faculty of Stanford Medical
School and had consulted on such high-profile cases as the Patty Hearst kid-
napping. Whereas Hatcher interviewed the victim prior to testifying, Lunde
interviewed Hooker as part of his preparation for trial. During his testimony,
Lunde provided a narrower definition of coercion as “a psychological phe-
nomenon that is present when someone has threatened someone else directly
with death.”17 The psychiatrist then went on the testify that “the law simply
does not allow for threats to other people” as falling within the definition of
coercion.18
Lunde’s testimony about the legal definition of coercion was apparently
intended to suggest that because Hooker threatened Colleen’s family, he had
not coerced her into withholding from her family the fact that she had been
kidnapped and enslaved by someone. However, Judge Knight interrupted
Lunde’s testimony, pointing out that the psychiatrist’s claim was not accurate.
After an objection by the prosecution that argued the testimony was prejudi-
cial, the judge concurred and ordered the jury to disregard Lunde’s definition
of coercion.
At another point during Lunde’s testimony, Judge Knight had questions
of his own about Lunde’s claim that some of the techniques Hooker used on
his victim were no different from “attention drills” used with Marine Corps
recruits in boot camp. Judge Knight decided to question Lunde himself dur-
ing the trial:

Judge Knight: Doctor, I was kind of confused by a couple of things.

Was it your testimony yesterday that it’s your understanding

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m inds o n t r i a l

that what the victim in the case was subjected to was basically
equivalent to Marine Corps boot camp training?
Dr. Lunde: That answer was in reference to questions about atten-
tion drills, coming to attention on command; and I said that
aspect, that type of drill, was reminiscent of Marine Corps boot
camp training. . . .
Judge Knight: You didn’t intend to equate what happened here to
Marine Corps boot camp training, did you?
Dr. Lunde: No. It was a specific aspect, namely, the attention drills,
being called to attention and having to hop to a stand-up-
straight position.19

The judge’s questioning of Lunde went on for some time and covered
other issues of the defense expert’s testimony, including whether it was rea-
sonable for a victim in Stan’s position to believe in the existence of “The
Company” and the possibility that Stan failed to disclose her ordeal to her
family in order to protect them from Hooker. However, Judge Knight’s ques-
tioning of Lunde would later figure prominently in Hooker’s appeal.
There were other interruptions during Dr. Lunde’s testimony, including
objections by the prosecution and admonishments from the judge that Hook-
er’s defense counsel refrain from using irrelevant or improper hypothetical
questions. Lunde offered the opinion that for coercive persuasion to occur, the
captor must have continuous physical control over the victim at all time.
The jury deliberated for three days. After seeking additional clarification
from the judge about the legal meaning of “duress” and “menace,”20 the jury
found Hooker guilty on seven of eight counts, including kidnapping (with the
aggravating factor of having used a knife) and several counts of rape. He was
sentenced to consecutive sentences for the sexual offenses and an indetermi-
nate sentence of one to twenty-five years for the kidnapping, resulting in a
total prison term of over one hundred years.
Immediately following the verdict, the presiding judge made a surprising
statement to the jury. After thanking jurors for their service, he said:

I want to particularly commend you for having the intelligence to

reject the testimony of Dr. Donald Lunde, the defense psychiatrist.
I think witnesses like that are a real menace to the criminal justice
system. They come in here posing as objective scientists, when, in
fact, they are nothing but paid advocates. . . . I’m happy that you
had the good sense to see through him, because one Dan White case
is enough.21

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Of course, Judge Knight’s comment about Dan White was a reference

to the man associated with the controversial, but misunderstood, “Twinkie
defense” case.
Hooker appealed his conviction and raised a number of issues about
the manner in which his trial was conducted and his sentence imposed. For
instance, he claimed that Judge Knight’s decision to exclude evidence of Stan’s
prior sexual conduct was improper and that the manner in which his harsh
sentence was computed erroneous. However, the most interesting issue raised
in Hooker’s appeal was his claim that Judge Knight had assumed the role of
an advocate for the prosecution by questioning Dr. Lunde in an inappropriate
manner.22
The appellate court noted that Hooker’s attorney did not object to Judge
Knight’s questioning of Lunde at trial and failed to make a motion for mistrial
at the conclusion of the trial. According to the court:

A trial judge has a statutory right to question witnesses the same as

if they had been produced by a party to an action. The parties may
object to questions asked by the judge and the evidence adduced
the same as if the witnesses were examined by an adverse party. . . .
The trial court’s discretion to invoke its statutory right will not be
disturbed on appeal unless it appears that the manner in which the
judge questioned the witness tended unduly to impress the jury
with the importance of the testimony elicited, or would be likely to
lead the jury to suppose that the judge was of the opinion that one
party rather than the other should prevail in the case.23

Of course, Judge Knight’s commendation to the jury that they were

“intelligent” enough to reject Lunde’s testimony was used by Hooker to
argue that the judge was indeed an advocate for the prosecution and not
neutral in his treatment of the defense expert. However, the appellate court
noted that Judge Knight saved his negative appraisal of Lunde’s testimony
until after the jury had rendered its verdict and that by all appearances the
judge had “conducted what could have been a highly charged proceeding in
an even-handed fashion.”24 One of the appellate court judges filed a concur-
ring opinion in which it was noted that the failure of Hooker’s attorney to
make an objection to Judge Knight’s questioning of Dr. Lunde might raise
a question about the competence of Hooker’s legal representation. On the
other hand, Hooker’s attorney may have had a strategic reason for not object-
ing to Judge Knight’s questions at the time because the jury might have had
the impression that Dr. Lunde’s comments were important and worthy of

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greater weight because the judge felt they deserved to be clarified, an effect
that might help Hooker’s defense.
Moreover, even if the judge’s questioning of Lunde had been deemed
improper, the appellate court found that the error would not have harmed
Hooker’s case since there was other substantial evidence to corroborate his
guilt. The testimony of Janice Hooker and Colleen Stan, as well as the physi-
cal evidence of the head box and Hooker’s sadomasochistic paraphernalia, was
sufficient to support a conviction. As such, Hooker’s appeal was denied and his
conviction and sentence were affirmed.
In the end, Colleen Stan survived her ordeal, but experienced significant
anxiety and fears that emerged after her trial. She became a volunteer coun-
selor for a crisis hotline that helped victims of domestic violence and sexual
assault.25 Janice Hooker divorced her husband, who is serving out his sentence
in California’s Folsom Prison.
The criminal trial of Cameron Hooker also serves as an interesting les-
son in the range of experiences that expert witnesses may encounter when
they enter the courtroom. Overall, the purpose of expert testimony is to
provide judges and jurors with technical or specialized knowledge that will
help in the process of making legal decisions. Expert witnesses are sometimes
judged by the public as “hired guns,” advocates for the side that hired them,
irrelevant or unnecessary to the administration of justice, or sometimes a
necessity to understand complicated issues. Those expert witnesses who are
familiar with courtroom procedures recognize that there are both rewards
(e.g., providing objective testimony that improves the administration of jus-
tice) and costs (e.g., harsh cross-examination) to testifying. Although a com-
mon belief has been that a “battle of the experts” often comes down to which
expert is able to sway a jury, the Hooker case illustrates that among the
many things about which judges make judgments is the credibility of the
expert witnesses themselves.

90
p 8
JOHN W.
HINCKLEY, JR.
Shooting for the Stars

Guns are Fun!

See that living legend over there?
With one little squeeze of this trigger
I can put that person at my feet
moaning and groaning and pleading with God.
This gun gives me pornographic power.
If I wish, the president will fall
and the world will look at me in disbelief, all because I own an
inexpensive gun.
Guns are lovable, Guns are fun
Are you lucky enough to own one?
—j o h n w. h i n c k l ey, j r . , circa 19811

orn in 1955, the third and youngest child of educated, well-to-do parents,
B John W. Hinckley, Jr., had every reason to believe that he would be a suc-
cess in life. Both of his siblings were popular and successful, his father was a
prosperous and powerful executive, and his mother was a stay-at-home par-
ent who devoted herself to her children, particularly her youngest. As early
as elementary school, John appeared to be following in the Hinckley family
mold. A gifted athlete and natural leader, he quarterbacked the school football

91
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team and was a standout basketball player. In junior high school, he was, for
two years, elected class president.
But Hinckley’s early successes were short-lived. As is the case with many
individuals who develop severe mental illnesses, it was not until John reached
high school that anyone might have predicted the tragic course that his life
would ultimately follow. Even then, however, no one could have predicted that
less than a decade later John W. Hinckley, Jr., would attempt to assassinate the
president of the United States and become the catalyst for the most sweeping
reform in the history of the insanity defense.
In high school, Hinckley withdrew from friends and group activities, opt-
ing for a solitary life. A devoted Beatles fan, he began playing the guitar and
spent countless hours alone in his room listening to and playing music. Date-
less, friendless, and reclusive, he was by no means the “ordinary person” or
“all-American boy”2 federal prosecutors would describe to a jury, but he was
bright and did well enough academically to graduate from high school in 1973
and get accepted to college.
Though accepted at Texas Tech, Hinckley never finished his degree.
Instead, over the next seven years he attended classes there on and off, study-
ing first business administration and then English, succeeding at neither.
Hinckley’s college years were punctuated by repeated periods in which he
dropped out of school and moved back and forth among Lubbock, the home
of Texas Tech; Colorado, where his parents had settled; and Hollywood, where
he lived for a while on two occasions, supposedly pursuing his ambition of
becoming a singer-songwriter.
From the time Hinckley graduated from high school in 1973 until his
arrest for shooting President Reagan in 1981, he spent most of his time drift-
ing along in what could perhaps be best described as a world of his own. For
example, while supposedly pursuing a career in Hollywood one summer,
Hinckley became obsessed with the film Taxi Driver, which he reportedly
watched at least fifteen times. Taxi Driver featured Robert De Niro playing
a violent and socially isolated cabbie named Travis Bickle who plots to kill a
presidential candidate to win the affection of a woman. Unable to carry out
his plot and ultimately rebuffed by the woman, Bickle turns his obsession to
rescuing a twelve-year-old prostitute, portrayed by a then fourteen-year-old
Jodie Foster. In the bloodbath that follows, Bickle shoots the girl’s pimp, one
of her customers, and the manager of the hotel where the young prostitute
does business. Drawing upon the film, Hinckley created a make-believe girl-
friend for himself and for years had his family convinced that she was real—
so convinced, in fact, that his mother was devastated when she learned that
the young woman she had heard so much about did not exist.

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Had John Hinckley’s fantasy life ended there, he never would have
become a household name. But, of course, Hinckley’s fantasies went well
beyond “Lynn Collins,” his fictitious lover. Hinckley’s passion for Taxi Driver
led first to a growing obsession with guns. In August 1979, Hinckley bought
his first firearm, a .38 caliber pistol, which he used for target shooting and
playing solo games of Russian roulette. Later he would purchase two more
handguns and two rifles.
Hinckley’s pathological fascination with Taxi Driver also appears to have
led to his obsessive fantasies about co-star Jodie Foster. In 1980, Hinckley read
in a magazine that the young actress was about to enter Yale University. From
that point on, he became fixated on the Hollywood star—an obsession that
would lead ultimately to his attempt to kill the president.
When Foster enrolled at Yale, Hinckley talked his parents into giving him
$3,600, purportedly to enable him to enroll in a writing course at the Ivy
League university. If such a course existed, Hinckley never enrolled, but he
did travel to New Haven, Connecticut, hoping to get close to the object of his
affections. Once there, Hinckley stalked Foster, tried to contact her, wrote her
letters and poems, and actually may have managed to speak to her by phone
on a couple of occasions.
When Foster did not respond favorably to Hinckley’s advances, Hinckley
took his obsession with her to another level. He decided he could gain the
actress’s attention and love by assassinating the U.S. president. Thereafter
Hinckley began stalking President Jimmy Carter, following the president’s
campaign entourage to Dayton, Ohio and Nashville, Tennessee. Indeed, Presi-
dent Carter could easily have become Hinckley’s victim. On one occasion,
Hinckley showed up at a Carter campaign rally but had left his guns in his
hotel room. On a second occasion, when Hinckley went to Nashville for a
Carter campaign appearance, he was arrested when airport security person-
nel found guns in his suitcase; the guns were seized but Hinckley was merely
fined and released.
Following the election in which Ronald Reagan defeated President Carter,
Hinckley, who had purchased new weapons, transferred his homicidal atten-
tion to the president-elect. Hinckley’s parents had no idea what he was up to,
but meanwhile they had insisted that he get psychiatric treatment. During the
fall of 1980 and winter of 1980–81, Hinckley was seen perhaps a dozen times
by a Colorado psychiatrist, Dr. John Hopper, during Hinckley’s frequent trips
to his parents’ home from the east coast. Though Hinckley confided to Hop-
per that he was infatuated with Foster, he never shared with the psychiatrist
the full extent of his fantasy life, particularly his thoughts of violence. Hop-
per felt that Hinckley needed to become independent of his parents, who until

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then had been financially supporting their son and unwittingly bankrolling
his stalking trips. Hopper recommended that the Hinckleys require John to
leave their home and begin supporting himself. The agreed-upon plan was
that Hinckley would do so by the end of March 1981. When, by the end of
February, Hinckley had found no employment, he decided to leave home.
On March 7, 1981, Hinckley’s father met him at the local airport. As the
elder Hinckley would later recall,

I told him how disappointed I was in him, how he had let us down,
and how he had not followed the plan that we had all agreed on.
And that he just left us no choice but to not take him back to the
house again, but to force him to go on his own, And so that’s what I
did. . . . I had a couple of hundred dollars with me that I had brought
from the house. And I gave that to him and I suggested that he go
to the Y.M.C.A. He said he didn’t want to do that. . . . I said, “O.K.,
you are on your own. Do whatever you want to.”3

Hinckley then flew to Hollywood. After spending just a day there, he

took a bus to Washington, D.C. where, on March 29, 1981, he checked into the
Park Central Hotel. The following day, after seeing the president’s daily itin-
erary in the Washington Post, Hinckley decided to try to kill Ronald Reagan.
Just before leaving his hotel room, he wrote a letter to Foster:

3/30/81
12:45 p.m.
Dear Jodie,
There is a definite possibility that I will be killed in my attempt to
get Reagan. It is for this very reason that I am writing you this let-
ter now.
As you well know by now I love you very much. Over the past
seven months I’ve left you dozens of poems, letters and love mes-
sages in the faint hope that you could develop an interest in me.
Although we talked on the phone a couple of times I never had the
nerve to simply approach you and introduce myself. Besides my
shyness, I honestly did not wish to bother you with my constant
presence. I know the many messages left at your door and in your
mailbox were a nuisance, but I felt that it was the most painless way
for me to express my love for you.
I feel very good about the fact that you at least know my name
and know how I feel about you. And by hanging around your dor-

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mitory, I’ve come to realize that I’m the topic of more than a little
conversation, however full of ridicule it may be. At least you know
that I’ll always love you.
Jodie, I would abandon this idea of getting Reagan in a second
if I could only win your heart and live out the rest of my life with
you, whether it be in total obscurity or whatever.
I will admit to you that the reason I’m going ahead with this
attempt now is because I just cannot wait any longer to impress
you. I’ve got to do something now to make you understand, in no
uncertain terms, that I am doing all of this for your sake! By sacri-
ficing my freedom and possibly my life, I hope to change your mind
about me. This letter is being written only an hour before I leave
for the Hilton Hotel. Jodie, I’m asking you to please look into your
heart and at least give me the chance, with this historical deed, to
gain your respect and love.
I love you forever,
John Hinckley4

Less than an hour later, armed with a Rohm R6-14 revolver loaded with
“devastator” bullets, in front of a group of television reporters, Hinckley
pulled the weapon and fired six shots. The president was struck in the chest
while three others (his press secretary, a Secret Service agent, and a police
officer) were also wounded. Still pulling the trigger on an empty gun, Hinck-
ley was wrestled to the ground as the president’s limousine hurried away. Ini-
tially, Secret Service agents believed that Reagan had not been shot, but as it
turned out a bullet had ricocheted off the limousine, struck the president, and
lodged itself close to his heart. Two hours of surgery saved Reagan’s life, and
Hinckley was charged with multiple counts of attempted murder.
When Hinckley was tried, more than a year later, his defense was insan-
ity. Prior to the Hinckley trial, most jurisdictions in the United States adhered
to one or the other of two longstanding insanity laws. Most states followed
the so-called M’Naughten test, which was developed in nineteenth-century
England and used in the United States as early as 1895. Under M’Naughten, a
defendant was not guilty by reason of insanity if by reason of mental illness
he was unable to appreciate either the nature and consequences or the wrong-
fulness of his criminal act.5
Under a second test, developed by the American Law Institute between
1952 and 1962 and adopted by a minority of states and the federal govern-
ment, a defendant was not guilty by reason of insanity if, at the time of the

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offense, “as a result of mental disease or defect he lack[ed] substantial capacity

either to appreciate the criminality of his conduct or to conform his conduct
to the requirements of law.”6
Charged in the U.S. federal district court for the District of Columbia,
Hinckley was tried under what was essentially the American Law Institute
insanity standard. In an extraordinary display of resources made possible by
the high-profile nature of the case as well as the wealth of the Hinckley fam-
ily, Hinckley was examined by at least eight forensic mental health experts,
four retained by each side in the litigation. Unlike the typical insanity case,
in which the defense and prosecution each have one or, at most, two experts
who examine the defendant for a few hours, John W. Hinckley, Jr., was inter-
viewed and examined by these teams of experts for hundreds of hours at a
staggering cost rarely if ever matched. It has been estimated that “the doctors
for the government charged over three hundred thousand dollars in fees and
expenses, and those for the defense about half that.”7 Of the approximately
$450,000 spent on experts in the case, over a quarter of that amount went to
one expert for the prosecution, Dr. Park Dietz, a forensic psychiatrist.8
The first question to be addressed by the experts who examined Hinckley
was whether the twenty-six-year-old would-be presidential assassin suffered
from a mental illness. In that regard, all the experts were in general agree-
ment: Hinckley suffered from a diagnosable mental disorder. The question
was: What disorder? Two psychiatrists retained by the defense found that
Hinckley suffered from schizophrenia, perhaps the most severely debilitating
of all mental illnesses. A third psychiatrist on the defense team said Hinckley
suffered from schizotypal personality disorder, which he linked to schizophre-
nia, reporting that Hinckley presented “all the negative symptoms” of schizo-
phrenia but not “the florid positive symptoms.”9 A clinical psychologist who
had administered a battery of objective psychological tests to Hinckley at the
behest of defense counsel concluded that the defendant had an IQ of 113, plac-
ing him in the “bright normal” range but that his responses to the Minnesota
Multiphasic Personality Inventory made it clear that he was suffering from a
severe mental illness.10
Not surprisingly, the prosecution experts had a different take on the nature
of Hinckley’s mental disorder. All of these doctors concluded that Hinckley
was not schizophrenic and had not been psychotic when he shot the president.
They diagnosed Hinckley as suffering from dysthymic disorder (essentially
depression), narcissistic personality disorder (largely characterized by a self-
centered, self-absorbed nature), and schizoid personality disorder (character-
ized by aloofness and inability to relate meaningfully to others).

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Having answered the mental illness question in the affirmative, the

experts then tackled the question of whether, by virtue of his mental disorder,
Hinckley met the criteria for insanity spelled out in federal law. Testifying
for the defense, Dr. William Carpenter awkwardly summarized the defense
experts’ conclusion and reasoning that Hinckley had been insane when he
shot President Reagan:

[Hinckley] lacked substantial capacity to appreciate the wrongful-

ness of his conduct. . . .
The reason for this opinion is that . . . in his own mind, his own
reasoning, the predominant reasoning had to do with two major
things, the first of which was the termination of his own existence;
the second of which was to accomplish this union with Jodie Foster
through death, after life, whatever. . . . He was not able to—he was
not reasoning about the legality issue itself.11

Similarly, Dietz testified for the prosecution why he and his colleagues
on that side of the case had concluded that Hinckley was not insane as the law
defined that term:

Mr. Hinckley did not lack substantial capacity to conform his con-
duct to the requirements of the law. . . .
His background indicates that in the past he had conformed his
behavior, that he had had the ability to do so and had, in fact, done
so. . . .
He was able to make other decisions on that date. He decided
where to go for breakfast, what to eat. He decided to buy a news-
paper, to shower. He made personal decisions of that sort. He was
not a man incapable on that day of making decisions about his life,
about which of these relatively minor things to do. He deliberated
and made a decision to survey the scene at the Hilton Hotel. . . .
We know from the facts that he chose his bullets, that he loaded
his revolver. . . . He chose the exploding bullets. This reflects deci-
sion making and choice. He is controlling his conduct, is taking the
time to write the “Jodie letter.” . . . A man driven by passion, by
uncontrollable forces, is not often inclined to take the time to write
a letter to explain what this is about. He did. . . .
He concealed the weapon . . . until the moment he chose to
draw his weapon. . . . A man driven, a man out of control, would not
have the capacity to wait at that moment for the best shot. . . .

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The evidence of Mr. Hinckley’s ability to appreciate wrong-

fulness on March 30, 1981, [also] has a background. That back-
ground includes long-standing interest in fame and assassinations.
It includes study of the publicity associated with various crimes. It
includes extensive study of assassinations. . . . It includes his choice
of concealable handguns for his assassination plans, and his recog-
nition that the 6.5 rifle he purchased was too powerful for him to
handle. It includes his purchase of Devastator exploding ammuni-
tion on June 18, 1980. It includes multiple writings about assassina-
tion plans. . . .
In that letter to Jodie Foster, he indicated he was going to
attempt to get Reagan and he indicates his knowledge that he could
be killed by the Secret Service in the attempt.
That is an indication that he understood and appreciated the
wrongfulness of his plans because the Secret Service might well
shoot someone who attempted to kill the President.12

Despite what many pundits and commentators regarded as the more per-
suasive testimony of the prosecution experts, particularly Dietz, after three
days of deliberation, a jury of seven women and five men found John W.
Hinckley, Jr., not guilty by reason of insanity. As the jury foreman later said,
“The prosecution evidence was not strong enough.”13 And as another juror
elaborated: ”The evidence being what it was, we were required to send John
back insane.”14
Almost from its announcement the Hinckley verdict was sharply criti-
cized and denounced. Blasting psychiatry as “ideology masquerading as medi-
cine,” conservative columnist George Will wrote that “the Hinckley verdict
illustrates [that] the most morally indefensible crimes are becoming the most
legally defendable.”15 But such critiques came not only from the political right.
U.S. House Speaker Thomas P. (“Tip”) O’Neill said he was “shocked” by the
verdict and observed that in many other parts of the world, having shot the
nations’ leader, “Hinckley would be dead and buried in eight days.” Even the
public at large seemed outraged that a man videotaped shooting the President
could somehow be found “not guilty.” Undoubtedly speaking for many, one
angry anonymous citizen interviewed by a public television reporter said:

I think it’s disgraceful, frankly. I think it’s a miscarriage of justice.

We’re going to be a laughing stock around the world. It’s giving
license to people to simply go out and shoot whoever they wish, and
then parade a bunch of so-called expert witnesses out on trial, and
they testify that in one case that you’re guilty and in another case

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that, well, you’re innocent because you’re supposedly insane. And

you throw temper tantrums in court and get out and run out of
the courtroom whenever you feel like it, and all of a sudden you’re
scot-free.16

Before long these criticisms of the Hinckley verdict made their way to
the halls of Congress and various statehouses around the country. Soon fed-
eral and state legislators were busy revising or abolishing insanity laws in an
effort to make sure that another Hinckley verdict would never occur.
With virtually no opposition, Congress quickly amended federal insanity
laws. In addition to removing the so-called volitional prong (lacking substan-
tial capacity to conform one’s conduct to the requirements of law) from the
federal insanity test, the Federal Insanity Law Reform Act of 1984 changed
the requirement of a “mental disease or defect” to a “severe mental disease
or effect.”17 In the same sweeping reform, Congress also shifted the burden
of proof from the prosecution to the defendant (thus requiring a defendant to
now prove that he was insane rather than requiring the government to prove
that he was not). Finally, as of October 12, 1984, Congress altered the Federal
Rules of Evidence to provide that, while expert witnesses may still give opin-
ions as to the ultimate issue in any case, they may not do so when that issue
involves the mental state or condition of a criminal defendant:

No expert witness testifying with respect to the mental state or

condition of a defendant in a criminal case may state an opinion or
inference as to whether the defendant did or did not have the men-
tal state or condition constituting an element of the crime charged
or of a defense thereto. Such ultimate issues are matters for the
trier of fact alone.18

While Congress was busy reforming federal insanity law in the wake of
the Hinckley verdict, many state legislatures also followed suit. Indeed, in the
several years following Hinckley’s acquittal, half the states in the country
enacted one or more reform measures aimed at limiting the application of
existing insanity laws. To summarize these reforms: seven states placed the
burden of proving insanity on the defendant; four states added laws allowing
jurors to find defendants guilty but mentally ill; and one state, Utah, abolished
the insanity defense altogether.
Despite the flurry of legislative reform that followed the Hinckley trial,
the insanity defense remains a viable option for criminal defendants in the
vast majority of states as well as in the federal jurisdiction. Also, there is little
evidence to suggest that these reforms have made any significant impact on

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the way the defense is used or how successful it is. Recent estimates indicate
that fewer than 1 percent of criminal cases involve an insanity plea, and the
majority of those cases end up with a verdict of guilty.19 But, as the Hinckley
case itself illustrates, even where a criminal defendant does manage to obtain
a verdict of not guilty by reason of insanity, in many cases it may be a pyr-
rhic victory.
Upon acquittal in 1982, John Hinckley was committed to St. Elizabeth’s
Hospital, a federal psychiatric center in Washington, D.C., where he was eval-
uated and found to be a danger to self and others, including Jodie Foster, for
whom he continued to express his love. Under law, Hinckley is to remain
there until such time as he is no longer deemed mentally ill and dangerous.
In 1985, Hinckley sought increased privileges at the hospital, testifying in
court that “my doctors and I believe that my judgment is much better and my
obsession with Jodie Foster has been over for 19 months.” To that testimony,
Hinckley added:

I think I am ready, too, for limited ground privileges. . . . All I want

is the chance to have my therapy in the sunshine for a change
away from the walls and fences and bars and every other depress-
ing thing.
I now cherish my life and believe that everyone’s life is sacred
and precious. I will never again harm another human being. Please
give me the opportunity to prove to you and the hospital and the
entire world that I am getting well.20

Despite Hinckley’s moving testimony, the court denied his request for
grounds privileges and an end to restrictions on interviews. Two years later
Hinckley applied for a court order allowing him periodic home visits. As part
of the review of this request, the judge ordered Hinckley’s hospital room
searched. Carrying out that order, hospital officials found photographs and
letters showing a continued obsession with Foster as well as evidence that
Hinckley had exchanged letters with serial killer Ted Bundy and had sought
the address of mass murderer Charles Manson. Again the court denied Hinck-
ley’s request for additional privileges.
In 1999, seventeen years after his initial commitment, Hinckley, whose
psychosis had been in remission for years, was again turned down for addi-
tional privileges. This time, however, an appeals court reversed the trial court’s
judgment, and Hinckley began a series of supervised trips off the hospital
grounds, all of which proved to be uneventful.
In 2003, the court finally held that Hinckley, then forty-eight years old,
was no longer a danger to self and others and was thus capable of handling

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unsupervised visits with his parents. A year later, in November 2004, the court
heard testimony from psychologists, psychiatrists, and other professionals
at St. Elizabeth’s that, after more than twenty-two years of hospitalization,
Hinckley was finally ready to be released from the hospital under his parents’
supervision because his psychiatric illnesses remained in remission.
Rejecting the staff’s testimony as well as Hinckley’s request for a four-
day home visit every two weeks, the judge granted Hinckley up to six trips
with his parents to last no more than thirty-two hours each and involve travel
no more than fifty miles from the District of Columbia. As they have done in
the past, the U.S. Secret Service planned to observe all of Hinckley’s trips off
hospital grounds.

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p 9
JUDAS PRIEST
A Message

in the Music

qually disconcerting and puzzling are cases in which young people direct
E violence toward themselves in the form of suicidal behavior. There are
many factors that contribute to self-destructive behavior, including depres-
sion, hopelessness, substance abuse, and peer influences. Identifying a specific
cause for violent and suicidal behavior in young people has been extremely
difficult. So when a young person commits suicide and grief-stricken family
members look for a reason, the direct or proximate cause of the suicide is often
difficult to identify. Furthermore, if surviving family members claim that a
certain product on the market or another person contributed to their child’s
death, a lawsuit often quickly follows. Wrongful death suits are complex and
often raise interesting questions about causation. A civil suit against the Brit-
ish heavy metal music group Judas Priest, brought by the family members
of two teenagers who shot themselves, focused on one of the most perplex-
ing questions ever raised about the psychological causes of self-destructive
behavior. Was it possible that subliminal messages on a record album induced
two young men to shoot themselves?
On December 23, 1985, eighteen-year-old Raymond Belknap and
twenty-year-old James Vance had spent several hours drinking beer, smoking
marijuana, and listening to Judas Priest music at Belknap’s home.1 At some
point the two men entered into a suicide pact. They took a sawed-off shot-
gun to a children’s playground located in an empty churchyard. Belknap was

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the first to put the gun to his throat and pull the trigger; he died instantly.
Vance then took the shotgun and put it under his chin. At the last moment,
the gun moved and Vance blew off the lower portion of his face. He endured
thirteen separate surgeries attempting to reconstruct his face. Among the
various procedures that Vance underwent were the construction of a new
nose and two surgeries to implant a bone where his chin had once been. The
judge who presided over the case would later describe the results of Vance’s
suicide attempt as “the most horrible, disfiguring injury that this court has
ever observed.”2
In recent years a number of violent crimes committed by children and
teenagers have received considerable media attention. Among the most vis-
ible have been the shootings at Columbine High School and the Washing-
ton, D.C., sniper attacks. Although these cases differ in their facts, a common
theme among all of them is that in their wake they always seem to evoke
questions of why. Why do some young people commit such severe acts of vio-
lence, and why does it appear that juvenile violence has been on the rise? In
the search for answers, the influence of violence in the media has often been
a focus of concern. Social scientists, observers in the media, and legal experts
have turned their attention to violence in video games, television programs,
music lyrics, and movies as possible causes of violence in young people.
Despite having to endure hundreds of hours of surgery and incurring
over $400,000 in medical expenses, Vance remained horribly disfigured.
Because most of his face was destroyed by his suicide attempt, Vance drooled
constantly, had to wear a bib most of the time, and was required to sleep with
a towel under him. He also experienced recurrent nightmares as a result of
witnessing Belknap’s suicide. Although Vance survived the shooting and even
went on to father a child, he died three years later on November 24, 1988,
from a methadone overdose that was believed to be caused by complications
stemming from his injuries and the use of prescription medications.3
Sometime after Belknap and Vance had left to carry out their suicide
pact, Belknap’s mother, Aunetta Roberson, went into her son’s room to find
the remnants of their drinking and marijuana use. In addition, she found an
album on the turntable of her son’s record player entitled Stained Class by
Judas Priest. One of the songs on the album, “Heroes End and Saints in Hell,”
caught her eye.4 Another song, “Better by You, Better Than Me,” that would
later become a major focus in the search for answers as to why Belknap and
Vance shot themselves, was face down on the other side of the album. Rob-
erson flushed the marijuana down the toilet, threw out the empty beer cans,
and called the police because her son was missing.5 At that point, she did not
know what had happened.

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When Vance was interviewed by police officers the next day, he told them
he had attempted suicide because “life sucks,” yet he made no mention of
Judas Priest or their music.6 Over the next two years, however, Vance and his
family, as well as Belknap’s mother, came to believe that there was another
cause for the suicide pact.
Another publicized tragedy may have had an impact on how the Judas
Priest case developed. On January 12, 1986, the father of a California teenager
issued a public statement that he was going to sue rock star Ozzy Osbourne
and CBS Records.7 The teen’s father claimed that his son killed himself in 1984
after listening to Osbourne’s music. In February of 1986, following the man’s
announcement, Roberson contacted an attorney and asked him to file a suit
against Judas Priest and CBS Records claiming that the heavy metal band’s
music caused her son to commit suicide. Vance’s mother initially declined to
join the suit when Roberson contacted her to see if she wanted to sue Judas
Priest and their record company.
However, Vance informed the police in March that the music he and
Belknap were listening to right before their suicide attempt may have con-
tributed to their behavior. He wrote a letter to Belknap’s mother stating, “We
were mesmerized. There was no doubt, no second thought in my mind that I
was going to pull that trigger, even though I didn’t want to die.”8
On May 8, 1986, Roberson’s lawyer filed a civil lawsuit claiming that the
music of Judas Priest was the direct cause of her son’s suicide. Two months later
on July 10, 1986, the Vance family filed their own lawsuit, and five months
later the trial judge consolidated both cases. The families of both Belknap and
Vance were claiming that the album Stained Class, produced in 1978, con-
tained the song “Better by You, Better Than Me” in which the heavy metal
group was alleged to have intentionally included the subliminal phrase “do
it.” The lawsuit sought to recover money from the band and their record com-
pany to reimburse medical expenses related to treatment that Vance received
for his injuries, compensate the families for the deaths of both young men
(once Vance died), and support the child Vance fathered following his suicide
attempt but prior to his death in 1988.
The band members denied placing any subliminal messages on the album.
Rob Halford, lead singer of Judas Priest, stated: “In my opinion, even if you
do—and we didn’t—put a backward message [on the record], it’s protected
by the First Amendment. . . . It’s freedom of speech. Their allegations to us
were on a different matter: They said we put in a forward message that the
brain listened to backwards.”9 Furthermore, Halford believed the deaths of
both Belknap and Vance were due to a combination of factors, including their
substance abuse, a lack of proper care and guidance from their families, and

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long-standing emotional problems.10 The general position taken by the defen-

dants was that the lawsuit was merely an attempt to shift the responsibility
for the deaths to someone other than Belknap and Vance.
The legal questions raised by the case were novel and had not been exten-
sively addressed in prior cases. One legal issue was whether subliminal mes-
sages should be considered speech that is protected under the First Amend-
ment of the U.S. Constitution.11 Regular lyrics on a musical recordings are
considered a form of artistic expression and have First Amendment protec-
tion. But Belknap and Vance would argue that subliminal messages are dif-
ferent and not protected speech. A second question raised in the case was a
factual one: Did Judas Priest place the subliminal message “do it” on their
recording of “Better by You, Better Than Me”? Finally, the key issue in this
case, and one that would hinge on expert testimony from a number of psy-
chologists, was whether subliminal messages could cause a person to commit
an act such as suicide. In order for the families of Belknap and Vance to pre-
vail, they would need to convince a jury that there indeed was a subliminal
message (i.e., “do it”) on the Judas Priest record, that this phrase was inten-
tionally placed on the record by the band, that the phrase referred to suicide,
and that it was the direct cause of Belknap’s and Vance’s suicidal acts.
Just before the case was to go to trial, both the plaintiffs and the defen-
dants waived a jury trial and agreed to have the presiding judge, the Honor-
able Jerry Whitehead of Washoe County, Nevada, hear testimony and decide
the case. In a pretrial ruling, Judge Whitehead had disagreed with a claim by
Judas Priest that subliminal messages, even if they were present on the album,
were protected by the First Amendment. Judge Whitehead ruled that sub-
liminal speech is not protected by the First Amendment because it does not
communicate any information and other people have the right to be free of
unwanted speech. The key issue at trial was whether subliminal messages on
the Judas Priest record caused the deaths of Vance and Belknap.
Subliminal messaging first gained attention in September 1957 when
James Vicary, a motivational research specialist, publicized his development
of a technology that would allow advertisers to insert messages within adver-
tisements that gave suggestions to individuals without their conscious aware-
ness as a way of influencing their behavior.12 At his press conference, Vicary
reported the results of an experiment he had conducted where he flashed
phrases such as “Hungry? Eat Popcorn” and “Drink Coca-Cola” during a
motion picture at 1/3,000th of a second every five seconds during the film.13
The results showed that popcorn sales increased 57 percent and sales of Coca-
Cola increased 18 percent among groups that were shown the messages. As a

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result of Vicary’s announcement, strong public criticism arose that subliminal

messaging was unethical because it attempted to influence people’s behavior
without their awareness. Over the years, various attempts have been made to
regulate the use of subliminal messages in advertising with limited success.
One of the few legal restrictions on subliminal messaging has been its pro-
hibition from use in the advertising of alcoholic beverages. However, Vance
and Belknap were attempting to prove that subliminal messages had caused
their lethal behavior. A computer expert for the plaintiffs prepared a tape of
the twenty-four-track recording of the song “Better by You, Better Than Me”
that broke the song down into smaller components. Initially, Judge White-
head was able to hear the phrase “do it” on the recording and believed that
it was intentionally placed on the album. The judge listened carefully to the
recording both in open court and privately in his chambers, using sophisti-
cated audio equipment.14 However, members of Judas Priest testified that the
phrase was not placed on the recording and provided the judge with a studio
recording that revealed the words “do it” were the result of a combination of
two tracks containing singer Rob Halford exhaling on one and a guitar on the
other. After hearing the new evidence, Judge Whitehead concluded that, even
though the phrase could be heard in the song, it was due to a chance combina-
tion of sounds on the recording rather than intentional speech.
In his decision, Judge Whitehead held that because Judas Priest had not
acted intentionally when the phrase “do it” was included on their recording,
the lawsuit by Vance and Belknap would be dismissed and Judas Priest would
not be held liable. However, the judge went on to discuss the issue of whether
the subliminal message caused Belknap’s suicide and Vance’s attempted sui-
cide. Since the issue of music lyrics causing self-destructive behavior in young
people had not been litigated in any previous cases, Whitehead’s decision broke
new ground and therefore became a leading case in forensic psychology.
The lawyers for Belknap and Vance had called psychologist Howard
Shevrin as an expert witness to support their claim that the subliminal mes-
sage in the song by Judas Priest caused Belknap and Vance to shoot them-
selves. Dr. Shevrin was a highly respected researcher who had published over
fifty articles on the subject of subliminal perception and its effect and the
unconscious. Judge Whitehead had the “highest respect” for Dr. Shevrin and
wrote the following about the plaintiff’s expert:

His academic credentials are excellent, his experience is very strong,

his research in the field is by far the most extensive of any witness
to testify, and he is not a professional witness. This is the only trial

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in which he has ever testified. The Court concludes that he testified

based upon sincere beliefs and not merely as an advocate for the
side that called him.15

At trial, Dr. Shevrin testified that subliminal information is received by indi-

viduals at a “supraliminal” level, meaning that a person is unaware the infor-
mation has been received. Nevertheless, his research purportedly showed that
people react to subliminal messages and that these messages can affect a per-
son’s behavior, emotions, and health.
Dr. Shevrin also testified that in order for subliminal messages to be capa-
ble of influencing a person’s behavior, the person must have a “personality
predisposition” that makes it more likely that he or she will engage in a par-
ticular act.16 However, situational factors also predispose a person to commit
a particular act. According to Shevrin, if a person is predisposed to commit
suicide as a result of any number of factors in his or her personality, and
situational factors interact with predisposing factors, a person is in a “suicide
zone.” He testified that: “the subliminal command ‘do it’ created a compul-
sion towards doing that which James [Vance] and Raymond [Belknap] were
already predisposed to do, to commit suicide.”17
The scientific basis of Shevrin’s testimony, of course, was challenged by
lawyers for Judas Priest. Before trial, Shevrin was asked by Bill Peterson, a
lawyer for Judas Priest, “What experiments are you referring to when you
say you’re referring to a body of literature, experiments on which you base
your conclusion that subliminal messages may be sufficient to induce sui-
cidal behavior?” Shevrin replied, “I’m basing my opinion, my expert judg-
ment, on a corpus of literature, on hundreds of experiments.” Peterson, how-
ever, pressed Shevrin to name one study that would support his contention
that subliminal messages could cause suicidal behavior.18 Although Shevrin
pointed to a handful of studies that purportedly showed subliminal messages
could cause suicidal behavior, experts for Judas Priest argued that none of the
studies cited by Shevrin had anything to do with proving subliminal mes-
sages induced certain motives or behavior in people.
The entire scientific basis of subliminal influences has been a controver-
sial area in psychological science, one that some have called “pseudoscien-
tific.”19 A confusing aspect of the plaintiff’s case came when Susan Rusk, a
guidance counselor at James Vance’s school, testified that she had questioned
Vance about the suicide attempt. Rusk said that Vance told her he and Belknap
received the message “do it” from the Judas Priest record, suggesting that the
two men had been consciously aware of the message. If Vance and Belknap
knew they were hearing the message, then Shevrin’s claim that the messages

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were subliminal, or out of conscious awareness, was incorrect. As a result,

Vance’s suicide attempt and Belknap’s suicide could be attributed to some-
thing other than the Judas Priest song, such as situational factors (e.g., sub-
stance abuse) or the personal motives of Vance and Belknap.
A number of experts testified for the defense. Dr. Anthony Pratkanis,
a social psychologist and professor at the University of California at Santa
Cruz, testified about research he had conducted that demonstrated subliminal
self-help tapes were essentially ineffective for influencing human behavior.
Like Shevrin, Pratkanis was viewed favorably by Judge Whitehead, who was
of the opinion that Pratkanis “also made a sincere effort to objectively review
the subject matter and testify in an impartial manner.”20
Although Pratkanis had conducted some research on subliminal percep-
tion, it was noted that he was not a clinician trained to diagnose and treat men-
tal disorders. Pratkanis testified that while research tended to show that sub-
liminal stimuli can have an effect on mental processing, much of the research
was limited to “semantic priming” where people can decrease the amount of
time it takes them to recognize the meaning of a target word when a related
word is presented subliminally right before the target word.21 However, Prat-
kanis was of the opinion that there was no scientific evidence of a dynamic
unconscious part of the mind that could be influenced by subliminal messages
that would in turn cause a person to act in a particular way.
Another expert, Dr. Timothy Moore, testified about the flaws that existed
in many of the studies on subliminal messages and the influence these mes-
sages have on human behavior. Moore also testified that he believed there was
dubious scientific evidence to support many of the psychodynamic concepts
about which Shevrin testified. Moore was of the opinion that no scientific
evidence supported the notion that subliminal messages could induce suicidal
behavior. A cognitive psychologist, Dr. Don Read from the University of Leth-
bridge, also testified for the defense about how people comprehend and retain
reversed speech. This issue was related to the claim by plaintiffs that backward
messages were contained in the Stained Class album. Although the practice of
placing backward messages in recordings is apparently quite prevalent among
rock bands, their influence on behavior is untested.
Overall, the expert witnesses for Judas Priest were of the opinion that
Vance’s suicide attempt and Belknap’s suicide were due to depression brought
about by alcohol and marijuana consumption and a host of personality,
employment, and family problems that the two men experienced. In his opin-
ion, Judge Whitehead expressed surprise that there were no controlled experi-
ments on the issue of whether subliminal messages could influence behavior.
Furthermore, the judge found there was adequate scientific evidence to sup-

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port the notion that people perceive stimuli at a subliminal level and that
there was credible evidence that Vance and Belknap perceived the subliminal
message “do it.” However, Judge Whitehead did not elaborate on an apparent
contradiction: If Vance and Belknap perceived the phrase, then how could it
have been “subliminal?”
More important was the fact that Judge Whitehead concluded there was
simply no scientific research to support the theory that subliminal messages
on the Judas Priest album caused the suicidal behavior by Vance and Belknap.
Other factors were noted by the judge that could have been causal factors,
although he was mindful of the fact that he did not want his discussion of these
factors to appear as though Vance and Belknap were being “demeaned.”23 The
factors listed in the judge’s opinion were intended to illustrate that there were
other factors that placed Vance and Belknap at high risk for suicide.
Among the concerns noted by Judge Whitehead was the fact that Vance
and Belknap had extremely poor school adjustment. Vance had a learning dis-
ability and dropped out of school in his sophomore year and Belknap dropped
out in his junior year. Both young men had been expelled for defying author-
ity and they each had a history of violent behavior. For example, Vance had
choked his mother on one occasion and Belknap had been expelled in junior
high school due to a sexual assault. There was extensive substance abuse in
the histories of both Vance and Belknap, as they used alcohol, marijuana,
and cocaine. Heavy metal music played an important role in the lives of both
Vance and Belknap; they shared an affinity for Judas Priest music because
of its loudness and the aggressive nature of the lyrics. Moreover, Vance and
Belknap had conflict with their families over their love for heavy metal music
and there were violent outbursts when attempts were made by their parents
to limit their playing of the music.24 Overall, Judge Whitehead believed that a
combination of factors precipitated the suicidal behavior of Vance and Belknap
and none of the evidence pointed to a specific legal or proximate cause.
Although the case of Judas Priest and alleged subliminal messages was
interesting, it was also a defining case in several respects. For one thing, Judge
Whitehead’s pretrial ruling that subliminal messages were not protected by
the First Amendment because they serve no legitimate purpose and may con-
stitute an unwarranted invasion of privacy25 has been cited in other cases
involving allegations of subliminal influences by heavy metal artists. A simi-
lar suit was brought against heavy metal singer Ozzy Osbourne but later dis-
missed. In addition, the Judas Priest case involved a claim that did not appear
to be clearly resolved in the field of psychology—namely, whether subliminal
messages can induce someone to act in a certain way, let alone commit suicide.
In fact, some have argued that the entire notion of subliminal messages influ-

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encing human behavior to any appreciable degree is pseudoscientific, which

makes it somewhat surprising that the Judas Priest case ever made it to trial.
Thomas Moore, one of the experts who testified for Judas Priest, later
commented that the judge may have been “seduced by psychodynamics” but
nevertheless arrived at a conclusion that was supported by scientific research.26
Still, Moore appeared to take exception to some of the judge’s treatment of
the research on subliminal perception offered by Shevrin. Moore felt that the
judge may have afforded the research more credibility than was warranted. In
particular, Moore pointed out that there is an important difference between
“subliminal stimuli,” that can have some effect on mental processing, and
“subliminal influences” that supposedly influence unconscious motives and
behavior. Moore dismissed the notion alluded to in Judge Whitehead’s opin-
ion that subliminal messages might affect the unconscious mind.
The differing opinions of the expert witnesses in the Judas Priest trial
reflect a split in the field of psychology that has important implications. More
specifically, there is a rift between many clinicians and researchers about the
scientific basis of certain principles, particularly psychodynamic or psychoan-
alytic concepts like the unconscious mind. The plaintiff’s expert, Dr. Shevrin,
was trained as a clinician who had experience in the diagnosis and treatment
of mental disorders. His testimony indicated that he accepted not only that
unconscious motivations and personality dynamics can influence human
behavior but also that subliminal messages can induce certain motivations
and influence behavior. Many of the experts for the defendants, including Drs.
Pratkanis, Moore, and Read, were experimental psychologists trained to con-
duct research on social and cognitive aspects of human behavior. However,
the court opinion recognized that these experts were not clinicians trained
to treat mental disorders. As such, these experimental psychologists tended
to view abstract concepts such as the unconscious mind with skepticism and
were of the opinion that the scientific basis of many psychoanalytic principles
was very weak.
Of course, not all clinicians in psychology have a psychoanalytic perspec-
tive. There are many different theoretical models that can be used to under-
stand and treat psychological problems, including behavioral, humanistic,
cognitive, and eclectic models. In the Judas Priest case, Judge Whitehead wrote
a very prudent, respectful, and balanced opinion in which he gave the testi-
mony of each expert appropriate weight and consideration. Despite the stan-
dard “battle of the experts,” the judge seemed to see the psychological experts
as credible and having something to contribute to the major issue in the case.
Still, an implicit theme that runs through the court’s opinion in the Judas
Priest case is the notion that there is a marked split between clinicians who

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accept the validity of certain abstract theoretical positions and empiricists who
view certain theories and techniques as pseudoscientific or lacking in scientific
merit. There are many areas of professional practice where this split between
science and practice is quite noticeable, such as whether the Rorschach inkblot
method is a reliable and valid assessment technique or if repressed memo-
ries of childhood abuse are reliable. With respect to the profound differences
between clinicians and researchers in their approach to problems in forensic
psychology, the Judas Priest case was a harbinger of things to come.
From a legal perspective, the Judas Priest case also broke new ground.
In light of the fact that the plaintiffs were unsuccessful in proving that rock
lyrics were the proximate cause of their suicidal behavior, there have been
no subsequent cases in which musical groups have been held liable for self-
injurious or violent behavior as a result of subliminal messages being placed
on a musical recording. Judge Whitehead’s opinion was a trial court decision
and therefore it has no authority as a legal precedent over lower courts. Nev-
ertheless, his legal analysis involving First Amendment issues, where he held
that subliminal messages are not protected speech when they are received
by individuals without their knowledge or consent, remains persuasive and
has served as a guide for other cases involving subliminal messages in heavy
metal music.27
One of the main reasons that there has been no increase in litigation over
subliminal messages in rock lyrics in the wake of the Judas Priest case is the
fact that the trial judge was unpersuaded by the scientific evidence that sub-
liminal messages caused behavior of the magnitude that Vance and Belknap
committed. Still, some legal commentators have stated that the scientific evi-
dence demonstrating that subliminal messaging can cause self-destructive
behavior is far from settled and there is hope that “[a]s further [research]
results become available, the relationship between subliminals and the ability
to elicit behavior will be clarified.”28 At least one legal commentator has sug-
gested that the result of the Judas Priest case, or one with similar facts, would
be different if the scientific evidence was able to prove a causal relationship
between subliminal messages and injurious behavior.29
However, this argument seems extremely weak. Absent clear scientific
evidence, it seems very doubtful that proximate causation could be shown
merely “when a harmful message is perceived and action follows from the
message.”30 It seems that legal arguments such as the one advanced by Vance
and Belknap are prone to an error in judgment known as “illusory correla-
tion” wherein causal significance is wrongly attributed to one factor (in this
case subliminal messages) merely because it happens to occur close in time
to another factor (suicidal behavior). Expert testimony supported by sound

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scientific research is one of the ways in which reasoning errors of this nature
can be avoided.
Despite the fact that the Judas Priest case appeared to be a “battle of the
experts,” during which widely differing opinions were offered as to the inter-
pretation of scientific evidence and the application of research findings to the
cause of Vance’s and Belknap’s suicidal behavior, the case was decided judi-
ciously and fairly. Even as more scientific research comes forth to improve our
understanding of how people process subliminal information, it is very likely
that there will be competing views of how this research should be interpreted
and applied to real-world cases.
The Judas Priest subliminal messages case impacted the lives of a number
of people. As a musical group, Judas Priest faced the onerous task of having
to defend not only their music against a claim that it had caused someone to
commit suicide, but also the genre of heavy metal music, which has been seen
by many people as having an adverse impact on the psychological develop-
ment of young people who listen to it. Whether or not these claims are true
should be based on scientific research, not emotional claims or biased argu-
ments. As Rob Halford, the lead singer of Judas Priest, queried, “Why didn’t it
[suicide] happen to more? Why did it just happen to these two? Half a million
people listened to it [the album].”31
On the other hand, Raymond Belknap, James Vance, and their families
suffered the most. The lives of both young men were cut short, albeit by their
own hands. Perhaps the most important and useful scientific research will
come from studies that help us understand how a wide range of factors—not
just a single one—interact with one another to cause young people to kill
themselves. If we understand suicide better, then we can develop more effec-
tive ways of preventing tragedies before they occur.

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p 10
JOHN
DEMJANJUK
Is He “Ivan

the Terrible”?

any highly celebrated criminal trials throughout American history,

M such as the Lindbergh baby kidnapping and O. J. Simpson cases, have
remained controversial. Debate continues over the guilt or innocence of the
defendants in these cases long after the trials have finished. One of the rea-
sons that some cases remain unresolved, at least in the minds of some, is the
absence of eyewitnesses to the crimes. Therefore, many controversial cases—
such as Scott Peterson who is the California man convicted and sentenced
to death for the murder of his pregnant wife—must be tried on the basis of
circumstantial evidence.
Eyewitness testimony is highly probative evidence, meaning that when
witnesses can testify that they saw who committed a crime jurors are likely
to give great weight to the testimony. However, a specialized area of study in
the field of forensic psychology known as eyewitness testimony research has
demonstrated that eyewitnesses are not always accurate in their ability to
identify the perpetrator of a crime. Psychologists who study eyewitness testi-
mony rely on the basic principle that if you can preserve an objective record of
an event, such as a videotape, and then study how people respond to the event,
it is possible to evaluate the accuracy of testimony about the event.1 Unfortu-
nately, objective records of criminal activity—like videotapes—rarely exist in
the real world, so the accuracy of eyewitness testimony must be evaluated in
light of crime-scene evidence.

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m inds o n t r i a l

When witnesses testify at trial, they must rely on memory of the event
in order to tell a story of what they saw at a particular time and place. How-
ever, human memory is fallible because at each stage of the memory pro-
cess something can occur to disrupt or impair a person’s ability to accurately
recall a series of events. A person must acquire information by perceiving and
attending to an event; if stress or some other factor distracts the person then
the acquisition of information might be impaired. Additionally, a person must
retain the information by encoding it and placing it into memory; if the pas-
sage of time or information obtained after the event (e.g., a suggestion from
another person) causes the information to change, then eyewitness accuracy
can also be influenced. Finally, a person must be able to retrieve the informa-
tion from memory; if the person is asked leading or suggestive questions, then
the person’s recollection may change. All of these factors can lead to questions
about the accuracy of human memory and eyewitness testimony in court.
When a defendant’s life hangs in the balance, the accuracy of eyewit-
ness testimony becomes a paramount concern. In one of the most celebrated
criminal cases of all time, the psychology of eyewitness testimony became
the crucial issue that would help shed light on accusations of war crimes, Nazi
atrocities, and lingering questions about the true identity of an unassuming
elderly man.
For nearly three decades, John Demjanjuk lived in relative obscurity
as an automobile plant worker raising a family near Cleveland, Ohio.2 He
immigrated to the United States shortly after obtaining a visa in 1951 and
appeared to live the life of a model citizen. In 1975, however, the name Ivan
(John) Demjanjuk was found on a list of suspected Nazi war criminals given
to the U.S. Immigration and Naturalization Service by a native of the Soviet
Ukraine living in the United States.3 Over the next few years, government
officials began to suspect that Demjanjuk may have served as a guard at Sobi-
bor, a smaller Nazi camp near the larger Treblinka death camp in Poland.4
Although initially no evidence was uncovered that pointed to Demjanjuk ever
having killed anyone, his U.S. citizenship was nevertheless revoked in 1981
because he had lied on his 1951 visa application by failing to disclose his Nazi
affiliations during World War II.5
The publicity surrounding Demjanjuk’s case led to wide circulation of an
identity card obtained from Soviet records that purported to show Demjan-
juk’s picture with a Nazi SS identification number.6 Shortly after the revo-
cation of his U.S. citizenship, Demjanjuk was identified by survivors of the
Treblinka death camp as “Ivan the Terrible,” a sadistic guard who ran the gas
chambers and tortured prisoners at the camp.

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Was Demjanjuk really “Ivan the Terrible” or was he the victim of mis-
taken identity? Were witnesses able to identify Ivan accurately after nearly
forty-five years, or were their memories susceptible to error given the pas-
sage of time? These questions were addressed at Demjanjuk’s trial after he
was extradited from the United States to Israel and became the first man to be
tried as a Nazi war criminal since 1961 when Adolf Eichmann was convicted
for orchestrating the Holocaust.7
Demjanjuk’s alibi was based on his claim that he never knew anything
about the Treblinka or Sobibor camps until after World War II was over.8 He
claimed to be a member of the Red Army when Germany attacked the Soviet
Union in 1941 and to have been captured by the German army in May 1942.
Demjanjuk maintained that he was held in various German POW camps until
the middle of 1944 when he was released to fight in an anti-Soviet Ukrainian
army. He alleged that following the end of World War II he joined the Allied
forces in Bavaria. Of course, the U.S. government did not accept Demjanjuk’s
claims. They believed he joined the German forces and became a Nazi prison
guard who was ultimately stationed at the Treblinka camp.
The evidence against Demjanjuk included not only the identity card, but
also five eyewitness survivors of the Treblinka camp who identified him from
two small photographs. One of the most dramatic moments of Demjanjuk’s
trial came when Eiliyahu Rosenberg, a sixty-two-year-old man who had sur-
vived Treblinka, was asked to look at the accused man. Rosenberg asked the
judge to have Demjanjuk remove his glasses. Despite objections by Demjan-
juk’s attorney, the judge ruled the request permissible and directed the defen-
dant to remove his glasses. Demjanjuk then asked his attorney to have the
witness come closer and, after removing his glasses, gestured to shake hands
with his accuser and said “Shalom.”9
Rosenberg was shocked and stumbled backwards; his wife fainted in the
courtroom after the accused man gestured to her husband. As stunned observ-
ers looked on, Rosenberg shouted, “It is Ivan. I say unhesitatingly and without
the slightest doubts. This is Ivan from the gas chambers. The man I am look-
ing at now. I saw his eyes, I saw those murderous eyes. I saw that face of his.
How dare you put out your hand to me!”10 Although Demjanjuk’s attorney
argued that the gesture was merely an attempt to wish peace to a mistaken
accuser, other courtroom observers thought it was a form of “psychological
torture” by a sadistic guard from a Nazi concentration camp.
In order to prove that Demjanjuk was the victim of mistaken identity, his
lawyers needed to prove that the eyewitness identification of his accusers was
faulty and that their memories were mistaken. Expert testimony was needed

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m inds o n t r i a l

to demonstrate that the memories of witnesses identifying Demjanjuk as Ivan

the Terrible were wrong because Demjanjuk’s photograph from a Nazi iden-
tification card had been repeatedly shown in the context of recent newspaper
articles about Nazi atrocities. Were the memories of eyewitnesses about Dem-
janjuk being at Treblinka based on actual events or were they the product of
recent articles suggesting Demjanjuk was Ivan the Terrible?
The police division responsible for investigating the possibility that Dem-
janjuk had been the sadistic Nazi prison guard was the Division for the Inves-
tigation of Nazi Crimes, a unit of the Israeli police force. Meriam Radiwker
and Martin Kollar were employees of the division who took responsibility
for most of the witness interviews in the Demjanjuk case. Radiwker took out
an initial newspaper advertisement in which she sought information from
survivors of Sobibor and Treblinka announcing, “The Nazi Crime Investi-
gation Division is conducting an investigation against the Ukrainians Ivan
Demjanjuk and Fedor Fedorenko. Survivors of the Death Camps at Sobibor
and Treblinka are requested to report to the Israel Police Headquarters.”11 The
problem with this initial solicitation for eyewitness identification purposes
was that any witnesses coming forward who would be asked to identify Ivan
the Terrible would also know that Demjanjuk’s last name was the focus of
inquiry. Did this initial solicitation create a potential source of bias for wit-
nesses to identify Demjanjuk as Ivan?
One source of error in eyewitness identification involves a phenomenon
known as unconscious transference.12 In cases where witnesses have recog-
nized the face of another person, the witness may sometimes be unclear about
the original circumstances in which the face was first seen. This process, in
which the witness may incorrectly identify a face seen in one context (e.g., an
innocent bystander) as belonging in a different context (e.g., to the perpetra-
tor of a crime), is referred to as unconscious transference. However, empirical
evidence in support of the validity of this concept is inconclusive because it is
difficult to create the process in psychological laboratories. Whether uncon-
scious transference is a special psychological phenomenon that occurs among
eyewitnesses with certain characteristics or is merely the result of confusion
on the part of some witnesses remains unclear. Nevertheless, there have been
actual criminal cases where mistaken identities were the product of uncon-
scious transference.
In the case of John Demjanjuk, it might have been possible that some
witnesses identifying him as the sadistic Nazi prison guard were mistaken
because they had seen him in another context. If Demjanjuk had been at the
prison camp but had worked in a benign capacity, some witnesses may have
mistakenly recognized his face but placed it in the erroneous context of being

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Ivan the Terrible. In fact, some survivors of the Treblinka camp were uncertain
if Demjanjuk was, in fact, Ivan the Terrible. Prisoners at the camp reportedly
never knew the last names of their guards (hence, “Ivan the Terrible” rather
than a complete name). So questions arose over the identification of one sur-
vivor, Eugen Turowski, who claimed under questioning by Israeli police that
he knew the name “Demjanjuk” and recognized it as belonging to the dreaded
guard “Ivan.”13
Further concerns arose over the possibility that some eyewitnesses who
identified Demjanjuk as Ivan the Terrible were influenced by other eyewit-
nesses. Although Turowski could not initially identify Ivan the Terrible from
a photo spread containing Demjanjuk’s picture, he subsequently identified
Demjanjuk after another witness, Avrajam Goldfarb, had remembered the
name Ivan Demjanjuk and identified his photograph from the layout prepared
for witness identification. Goldfarb’s identification was shrouded in contro-
versy as well because he had apparently written in a memoir after the end of
World War II that Ivan had been killed in the 1943 uprising of prisoners at
the Treblinka camp.14 One of Demjanjuk’s defense attorneys, Mark O’Connor,
noted that Goldfarb and Turowski knew each other and had been questioned
within hours of one another. An argument advanced by the defense, therefore,
was that some witnesses spoke to each other and came to the same conclusion
that Ivan the Terrible was alive and that John Demjanjuk was Ivan.
Another problem that arose in the questioning of witnesses had to do
with the photo spread police used to question witnesses. The picture of Dem-
janjuk that was used had been taken in 1951 at the time he had immigrated
to the United States. However, witnesses were basing their identification on
experiences they had with Ivan the Terrible nine years earlier. Many of the
survivors were believed to have had only fleeting encounters with Ivan the
Terrible, yet they were being asked to identify a man they had seen nearly
thirty-five years earlier by a picture of what the man might look like nine
years after their encounter. The photo spread would become a focus of conten-
tion for the defense and would figure prominently in the forensic psychologi-
cal testimony presented at Demjanjuk’s trial.
Other survivors of the camp who were doubtful about identifying Dem-
janjuk as the sadistic guard had their doubts negated by other people.15 At a
1976 reunion of survivors from the Treblinka camp held in Tel Aviv, Israel,
seven individuals were originally unable to identify Ivan the Terrible from
a widely distributed photograph. However, a number of other survivors who
were in attendance at the reunion had already been interviewed by police
officers, and the ensuing discussion among those in attendance at the reunion
may have had considerable impact. One camp survivor who did not identify

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m inds o n t r i a l

Ivan the Terrible from a photo spread containing Demjanjuk’s picture was
Schlomo Helman. Moreover, Helman had been shown fewer photographs
than the other witnesses and still he was unable to identify Demjanjuk.
Helman died before Demjanjuk’s trial began, and his death was considered a
blow to the defense.16
Experimental research also demonstrates that among the factors con-
tributing to erroneous eyewitness identification are suggestive questioning
and exposure to misleading information. Each of these factors can adversely
impact information retained in memory.17 Therefore, the memories of those
witnesses who may have doubted that Demjanjuk was Ivan the Terrible may
have been contaminated as a result of the external influence of other wit-
nesses who seemed more sure.
The criminal investigation that sought to determine if Demjanjuk was
Ivan the Terrible was also flawed because it increased the likelihood that eye-
witness survivors of the camp would be more inclined to identify the Cleve-
land autoworker as the dreaded Nazi guard. When officials from the United
States sent Demjanjuk’s 1951 immigration picture to Israeli officials, the
photo was published in a number of newspaper advertisements that asked
prison camp survivors to contact Israeli police if they had information about
an ongoing investigation into Ukrainians who were suspected of being Nazi
guards. In the advertisements, Demjanjuk was mentioned by name but he was
identified as “Ivan Demjanjuk” in the same context in which his immigration
picture appeared.18 The pairing of the photograph and the name “Ivan Dem-
janjuk” in the same context made it almost certain that the memories of some
survivors would be shaped to produce a positive identification.
As part of Demjanjuk’s criminal defense, his attorney, Mark O’Connor,
sought out the services of Elizabeth Loftus, a pioneering researcher in the
field of human memory and eyewitness identification. Loftus has been listed
as one of the one hundred most influential psychologists of the twentieth cen-
tury due, in part, to her studies that show how a variety of factors can cause
inaccuracies in eyewitness identification and testimony. Given her stature in
the field, along with the fact that primary evidence against Demjanjuk con-
sisted only of a handful of survivors from the Treblinka camp who claimed he
was the infamous guard after decades had passed, Loftus appeared to be the
ideal expert for the defense. Therefore, when O’Connor first contacted Loftus
by telephone to become involved in the case and she subsequently declined
because of other commitments, he decided to fly to Seattle to try and convince
the noted expert that she had to take the case.19 O’Connor was convinced of
Demjanjuk’s innocence and he needed testimony from Loftus about the fal-

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libility of eyewitness testimony to avert what he believed would be a miscar-

riage of justice if Demjanjuk was convicted of being “Ivan the Terrible.” For
two days, O’Connor gave Loftus an impassioned presentation of the evidence
of Demjanjuk’s innocence.
Stress can impair a person’s perception of an event. If someone perpetrat-
ing a crime has a gun, for example, witnesses often focus on the weapon rather
than the features of the perpetrator,20 a phenomenon known as the weapon
focus effect. In addition, some individuals can be induced through repeated
questioning to “remember” incidents that supposedly happened years ago
but never actually occurred. Furthermore, research conducted by Loftus has
shown that the degree of confidence witnesses have in their recollection of an
event is not always related to the accuracy of the memory. Indeed, the amount
of stress experienced by the Treblinka survivors was profound. The death
camp was designed to efficiently exterminate Jewish prisoners. The average
trainload to the camp consisted of about six thousand people, and the average
time between arrival and death for each person on board was only an hour
and a half.21 Approximately one million people were killed at Treblinka, but in
1943 there was an uprising by about two hundred prisoners, and fifty to sixty
of those individuals ended up surviving the war. The trauma of surviving the
camp, along with the awareness of being one of the fifty individuals out of
one million to survive, would certainly have a psychological impact on one’s
memory of the prison camp experience.22
Because jurors rely heavily on eyewitness testimony and find it to be
very persuasive, expert witnesses such as Loftus are frequently called upon
to testify in criminal trials in order to demonstrate the difficulties with this
form of evidence. Rather than providing an assessment of the accuracy of
a particular witness, expert testimony on eyewitness identification is often
used by defense attorneys to help jurors weigh such evidence more accu-
rately. On the other hand, prosecutors who rely on eyewitness testimony
often argue that such testimony is prejudicial to their case, irrelevant, and
likely to confuse the jury. The decision to admit such eyewitness testimony
is left to the judge.
When experts on eyewitness identification are called upon to testify in
court, the most common focus of their testimony is how police procedures
can affect witness testimony and general psychological factors that can impact
the accuracy of witness memory. That is, expert witnesses in the field of eye-
witness identification will commonly instruct jurors on how the wording of
questions by police and the characteristics of a lineup may impact eyewitness
identification. In addition, eyewitness experts often testify about research that

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shows that the confidence of an eyewitness does not predict accuracy in the
identification of a suspect. Some people mistakenly identify as the culprit a
person they have seen in a different context, and high levels of stress can
impair the accuracy of eyewitness identification.23
In the case of Demjanjuk, Loftus was sought as an expert to provide
jurors with an understanding of how human memory works—that it is not
like a video recorder collecting memories in clear and neat pictures or narra-
tives. Rather, memory depends on a number of factors, including the accuracy
of the initial perception, rehearsal of the material, and strategies that people
use to reconstruct their memories. Demjanjuk’s attorneys sought to create
doubt as to the ability of survivors of the Treblinka death camp to accurately
identify a guard after so many years.
Despite the fact that Loftus appeared to be the expert witness with the
ideal academic, scientific, and professional credentials to testify at Demjanjuk’s
trial, she ultimately declined to take the case. Loftus, who is Jewish, declined
the defense’s offer to become involved in the case as a result, in part, of politi-
cal pressures involved in the prosecution of Demjanjuk and the raw emo-
tions surrounding the trial of the suspected Nazi war criminal. The fact that
Loftus reportedly “agonized over whether to take the case” and ultimately
decided against testifying24 demonstrates how responsible and ethical expert
witnesses must sometimes examine their own personal feelings about certain
cases when making decisions about whether to testify.
Nevertheless, Loftus recommended a colleague who could serve as a
defense expert. Moreover, she agreed to travel to Israel during Demjanjuk’s
trial, at the expense of the defense, in order to serve as a consultant and advi-
sor during the testimony of the defense’s memory expert.25 Loftus recom-
mended Dr. Willem Wagenaar, a professor of experimental psychology at the
University of Leyden in the Netherlands.
The facts of the Demjanjuk case appeared to be ideally suited for rais-
ing questions about the reliability of witness memories. Although pretrial
newspaper reports claimed that the memory of witnesses in Demjanjuk’s case
would be questioned, the focus of Wagenaar’s testimony went in a very dif-
ferent direction. Rather than focusing on the unreliability of eyewitnesses
who were basing their identification of Demjanjuk on memories that were
over forty years old, Wagenaar directed his testimony to problems with facial
recognition that were inherent in the procedures Israeli police used to have
witnesses identify Demjanjuk as Ivan the Terrible.26
Wagenaar testified about two sources of bias that could create mistaken
identification when questioning witnesses about the identity of a suspect

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using a layout of photographs. One source of bias, known as positive response

bias, occurs when a person feels compelled to point to a suspect in the photo
spread even if the suspect is not present.27 There are various reasons that a
witness might feel the need to identify a suspected criminal in an array of
photographs, such as when police ask leading questions like, “Which one is
he?” rather than the more appropriate question, “Is he in this group?” A sec-
ond source of bias about which Wagenaar testified was “specific response bias”
in which, once a witness has made a decision to choose one of the photographs
in a layout, he or she will use specific information to select one photo over
another. The information may or may not be accurate and could conceivably
be the result of factors unrelated to the witness’ memory, such as newspa-
per reports about the appearance of a suspect. In Demjanjuk’s case, all of the
Treblinka survivors noted that Ivan the Terrible was balding and had a round
face and short neck.28 Survivors would therefore be compelled to select Dem-
janjuk’s photo from the array because his physical appearance matched the
general description of Ivan the Terrible.
To demonstrate that procedures used by Israeli police were flawed when
they had Treblinka survivors identify Demjanjuk from photographs, Wage-
naar testified about results from an experiment he conducted with students at
the university where he taught. In one condition, Wagenaar used the photo
spread used by Israeli police, and 100 percent of the students selected Demjan-
juk when they were asked to “pick out the criminal with the round face, short
neck, and who was balding.”29 However, when students were given a different
photo array in which Demjanjuk’s picture was interspersed with pictures of
individuals who all shared the same physical characteristics used to describe
Ivan the Terrible, only 8 percent of the students chose Demjanjuk’s picture.
The results of this study were used to support Wagenaar’s contention that the
Israeli photo spread used in their investigation was not a valid measure of wit-
ness memories for identification purposes.
Another focus of Wagenaar’s testimony was on memory gaps that Dem-
janjuk displayed when he testified about his war background. For instance,
Demjanjuk could not remember the name of the POW camp where he had
allegedly been kept when he was captured by the Germans. According to
Wagenaar, the problems with Demjanjuk’s memory may have been due to any
number of factors, including the fact that he never learned the name of the
camp, that he was confused about where or when certain events had occurred,
or that he had never had the right cues to trigger accurate memories.30
Michael Shaked was the prosecutor who cross-examined Wagenaar about
his expert testimony. At first, Shaked addressed a criticism of research on eye-

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witness testimony that is frequently made: the conditions for testing mem-
ory and eyewitness identification accuracy of college student subjects in a
laboratory are very different from the real-world conditions of individuals
who witness actual crimes. Prosecutors faced with testimony from defense
experts often cast doubts on the ability of laboratory research to generalize
to actual court cases. Therefore, Shaked got Wagenaar to concede that the cir-
cumstances of Nazi death camp survivors who actually knew Ivan the Terrible
were very different from college students who were tested in a laboratory and
who had never met the infamous prison guard. Moreover, Shaked challenged
Wagenaar’s study by making the observation that the experiment did not
attempt to re-create the actual conditions of a Nazi death camp and therefore
the results could not generalize to the conditions under which eyewitnesses
identified Demjanjuk as Ivan the Terrible.31
The prosecution then turned to Wagenaar’s testimony about the possible
sources of error in Demjanjuk’s memory about his alibi. Shaked found it sus-
pect that Demjanjuk could be sure about many aspects of his war experiences
but confused about other details such as the name of the POW camp where he
was held. Shaked asked if these memory problems were “selective.”32 Wage-
naar responded that Demjanjuk might have simply failed to bring up a detail,
such as an experience he allegedly had shoveling peat at the POW camp, at
the proper time.
The prosecution also sought to undermine the impact of Wagenaar’s tes-
timony by pointing out limits in the expert’s experience in the field. For
example, Shaked claimed that none of Wagenaar’s eighty-seven publications
addressed the specific issue of identification from photo arrays, and he also
got Wagenaar to admit that only one of the forty cases in which he had testi-
fied as an expert had to do with suspect identification from photographs or
lineups.
In response to these challenges, Wagenaar stated that his area of exper-
tise was “how memory is tested in general and whether such a test provides
a valid picture of the contents of memory.”33 However, Shaked challenged the
body of research on which Wagenaar based his testimony by pointing out that
only one study evaluated the accuracy of memories that were more than forty
years old. The prosecutor asserted on cross-examination that, in fact, this one
study tended to prove that a photograph could be a good cue for getting people
to remember a person after forty years.
Wagenaar’s testimony played an important role in the closing arguments
of both the defense and prosecution and, ultimately, the decision of the three
trial judges who determined Demjanjuk’s fate. Of course the prosecutors

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attempted to cast Wagenaar’s expert testimony as not being expert at all once
it was placed under scrutiny. Despite the impassioned argument of defense
attorneys that Demjanjuk was wrongly accused and that the eyewitness iden-
tification of him being Ivan the Terrible was erroneous, Demjanjuk was con-
victed by the trial judges and sentenced to death.
Wagenaar later wrote about the scientific and ethical issues expert wit-
nesses must consider when testifying in criminal cases, and he outlined the
specific challenges he faced when testifying in the trial of John Demjanjuk.
For instance, Wagenaar noted that expert witnesses must make a distinc-
tion between conclusions that are permissible for an expert and conclusions
that are permissible only for the court. In the Demjanjuk case, Wagenaar
stated that he believed it was appropriate for an expert such as himself to
use scientific evidence to testify that “the conditions under which Demjanjuk
was identified as Ivan are known to have produced mistaken identifications
before.”34 The scientific evidence on eyewitness testimony about which he
testified supported this conclusion. On the other hand, Wagenaar noted that
only the Israeli court, and not an expert witness, could properly draw the fol-
lowing conclusion: “Given the conditions in which the identifications were
made, there is no sufficient proof that Demjanjuk is Ivan.”35
Wagenaar also noted that expert witnesses testifying about eyewitness
identification must recognize the limitations of the research upon which their
testimony is based. He also made the point that most expert witnesses create
problems when they begin to offer conclusions that are best left to the court,
such as which witnesses are credible or whether specific eyewitness identifica-
tions are accurate.
Finally, another interesting set of observations made by Wagenaar had
to do with the reactions of some people to his willingness to testify for the
defense of an individual many believed to be a Nazi war criminal. The reaction
by many individuals that expert witnesses have no place in the courtroom is
often based on the perception that experts are merely advocates for the side
calling them to testify, rather than objective and impartial advocates for sci-
ence or an opinion. In Wagenaar’s case, he clarified his reasons for becom-
ing involved in the Demjanjuk case, pointing to the need to advocate not for
Demjanjuk but for science when he later wrote: “After a careful study of the
immense file, I chose to act as an expert witness summoned by the defense of
John Demjanjuk because I felt that some matters had to be presented in court.
No individual scientists could be forced to testify in this case. But what about
the obligations of science as a collective?”36 Advocacy of science and under-
standing, rather than advocacy for the defendant, appears to have been the

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guiding principle for Wagenaar’s expert testimony in one of the most conten-
tious criminal cases in recent history.
However, when the trial court had its opinion read publicly, one of the
presiding judges, Judge Zvi Tal, noted that the court did not accept Wagenaar’s
testimony about Demjanjuk’s forgetfulness over his POW camp experiences.
In fairness to Wagenaar, he appeared to base his opinions on the existing lit-
erature in experimental psychology and he refrained from offering opinions
about the validity of the photo spread used to identify Demjanjuk. However,
when his testimony began to address the issue of Demjanjuk’s memory, the
opinions appeared to be based more on theory and speculation in light of
Shaked’s cross-examination.
The trial judges stated that they were convinced “unhesitatingly and
with utter conviction” that Demjanjuk was the sadistic Nazi guard and sen-
tenced him to death.37 Demjanjuk began his appeal to the Israeli Supreme
Court on May 14, 1990.38 However, subsequent events in the case revealed
just how contentious and volatile the Demjanjuk case was for those who
were directly involved. One week before the appeal was to be heard, one of
Demjanjuk’s appellate attorneys, the former Israeli District Court Judge Dov
Eitan, committed suicide by jumping off the fifteenth floor of a building in
Jerusalem.39 Although the death was suspect because no suicide note had
been found and none of Eitan’s family members or friends believed him to
be depressed, the death was officially ruled to be a suicide. At Eitan’s funeral,
one of Demjanjuk’s defense lawyers at trial, Yoram Sheftel, was assaulted by
a seventy-seven-year-old man who threw hydrochloric acid in the attorney’s
face. Sheftel’s left eye was severely injured, and he required a number of sur-
geries to restore vision in the eye. The man who had thrown the acid blamed
Sheftel for Eitan’s death and was subsequently convicted of assault, sentenced
to five years in jail, and ordered to pay medical costs and restitution to Shef-
tel. Indeed, the Demjanjuk case was emotionally charged for expert witnesses
and lawyers alike.
In 1993 the Supreme Court of Israel reversed the lower court’s findings
and acquitted Demjanjuk of all charges because newly discovered evidence
purportedly suggested another person, not Demjanjuk, as being Ivan the Ter-
rible.40 Upon his release from prison, Demjanjuk returned to Cleveland and
his U.S. citizenship was restored in 1998. However, his legal troubles did not
end. In 1999, attorneys from the U.S. Department of Justice filed another law-
suit to have Demjanjuk’s U.S. citizenship revoked because he had failed to
disclose his Nazi affiliations on his original visa application in 1951. After a
trial in federal court, Demjanjuk’s citizenship was once again revoked and he
faced deportation.

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Now in his eighties, Demjanjuk continues to face legal battles over ques-
tions about his identity and citizenship. There is no country that has extended
an offer of citizenship to Demjanjuk; thus he is a man without a country
to call home. Yet his case remains one of the classics in forensic psychology
because of the issues it raised about the accuracy of eyewitness identification
in criminal prosecutions.

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p 11
THE USS IOWA
Equivocating on Death

utopsies are conducted in cases where a person has died under suspicious
A circumstances and legal considerations dictate that a detailed medical
examination be performed on the body to determine the exact cause of death.
It has also been suggested that surviving family members have autopsies per-
formed on their loved ones who have died—even if health insurance does not
pay—because results from the procedure may be of considerable benefit to
biological relatives.1 More specifically, autopsies can provide evidence of ill-
nesses and other medical conditions that went undetected while the person
was alive. Autopsy results may point to the need for screening or other pre-
ventive measures that surviving family members might need to take against
serious medical conditions that have a strong genetic component.
Medical autopsies are intended to shed light on the cause of a person’s
death and to be of benefit not only to family members in their search for the
cause of death of a loved one, but also to the legal system in its search for
truth. But what if autopsy results merely add to the confusion arising from a
suspicious death? The findings can often mislead investigators, who can mis-
construe what really happened.
The psychological autopsy is a specialized procedure intended to pro-
vide insight into the mental state of a deceased person at the time of his or
her death. The Federal Bureau of Investigation (FBI) has developed its own
process called “equivocal death analysis,” which is similar to a psychological

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autopsy in that a determination is made as to whether a person died as a result

of homicide, suicide, or accident. Determining the manner of a person’s death
may be particularly important in legal cases, such as settling life insurance
claims, where a person’s mental state at the time of death is a key factor.
Psychological autopsies—or equivocal death analyses—are considered by
some to be controversial because they are based on procedures other than
access to the person whose mental state is being assessed. After all, a dead
person cannot be interviewed to determine what he or she was thinking at the
time of death. Instead, examiners must rely on interviews with other people
who knew the person, documents and records relating to the dead person’s
background, written materials (e.g., diaries), and other resources that can pro-
vide some insight into the person’s mental state at the time of death.
One of the most infamous cases of equivocal death analysis arose from
a tragic incident that occurred on April 19, 1989, aboard the battleship USS
Iowa. During a U.S. Navy training exercise in the Caribbean Sea, one of the
sixteen-inch gun turrets on the Iowa exploded and killed forty-seven crew
members.2 Immediately following the incident, the Navy began an intensive
investigation into the cause of the explosion. This investigation ultimately
led the Navy to seek out the services of agents at the FBI’s Behavioral Science
Unit at the National Center for the Analysis of Violent Crime in Quantico,
Virginia. The Navy was looking for an equivocal death analysis on Petty
Officer Clayton Hartwig, who was one of the crew members killed in the
explosion.3
To fully appreciate the controversy that would soon emerge in the wake
of the official version of the cause of the incident as set forth by the Navy, it is
important to know something about the history of the Iowa and its service in
the Navy. Originally designed in 1938, the Iowa was built to withstand very
rough sea conditions. The battleship was equipped with three gun turrets that
mounted guns with massive sixteen-inch-wide barrels. These weapons were
capable of launching 2,700-pound bombs over a distance of several miles with
considerable accuracy. The amount of explosive force needed to power these
mammoth guns was immense.
After being used in both World War II and the Korean War, the Iowa was
decommissioned and spent the next twenty-six years in storage.4 In 1983,
the Iowa and three other Navy ships were all refurbished and recommis-
sioned during the Reagan administration in an effort to beef up the U.S. mili-
tary. Although the Iowa was modernized with updated equipment, numer-
ous problems plagued the ship, including escape hatches that had rusted shut,
electrical circuits that would short out, outdated gunpowder that was consid-

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ered dangerous, hydraulic leaks, and a bulky design that made maneuvering
at sea difficult.5
In addition, many senior members of the Iowa crew felt increasing pres-
sure to make the refurbished battleship compete effectively in modern war-
fare. For instance, when the Iowa competed in war games with naval forces
from Britain, Canada, and West Germany, it was defeated soundly.6 There-
fore, the crew conducted dangerous experiments to boost the effectiveness of
the ship’s capabilities. One of these experiments, designed by a Master Chief
aboard the Iowa, involved the mixing of “supercharged” propellant powder
to increase the power behind the ship’s explosive shells. While concerns were
raised as to whether the ship’s gun barrels could withstand the increased force
from the volatile powder, the improvised shells were nevertheless used in test
firings. In another experiment, an executive officer ordered a test involving
the simultaneous firing of all six guns in the two forward turrets of the Iowa.
The experiment placed several crew members in danger because there was a
risk that the guns would turn to the side and shoot off the bow of the ship.
Fortunately, the experiment did not cause any serious injuries or damage.
Several crew members had expressed concern that they were sailing aboard a
hazardous ship. On one occasion several senior crew members were reported
to have discussed suicide because of the pressure they felt to take risks that
would increase the efficiency of the ship.
In the months leading up to the explosion, several crew members expressed
fear and concern to family members that the Iowa was unsafe. Among the
issues later cited were that old gunpowder could easily ignite, experimental
test firings of the sixteen-inch guns sometimes violated safety standards, and
untrained personnel were often called upon to man the huge guns.7 The gun
turrets were described as extremely dangerous and some crew members felt
one mishap could ignite the powder and create a fiery deathtrap.
Therefore, when the Iowa engaged in a routine training exercise on the
morning of April 19, 1989, there were many factors that could have contrib-
uted to the tragedy that ensued. During preparations for firing the main guns
aboard the Iowa, senior crew members who were monitoring telephone con-
versations with crew members inside the gun turrets heard someone yell,
“Oh, my God! The powder is smoldering.”8 At 9:53 a.m., the center gun of
turret number two exploded, sending a fireball of between 2,500 and 3,000
degrees Fahrenheit throughout the decks surrounding the turret. The fire
triggered additional explosions when bags of explosive powder ignited and
billowing clouds of deadly gases erupted. In all, forty-seven crew members
were killed by the blast and several others were injured.

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As the fires caused by the explosion continued to burn, many of the ship’s
1,550 surviving crew worked furiously to avoid injury from secondary explo-
sions, extinguish fires, and recover the bodies of dead and injured shipmates. A
small group of crew members took advantage of the ensuing chaos by stealing
money, jewelry, and other valuables from the lockers of those who had per-
ished in the explosion and other crew members who were working to mini-
mize damage and keep the ship afloat.9
The investigation into the cause of the explosion was hampered by a
number of factors, not the least of which was the fact that those witnesses
who directly observed the cause of the tragedy had died in the blast. Respon-
sibility for investigating the cause of the mishap was given to Rear Admiral
Richard Milligan. Although Naval regulations and the Uniform Code of Mili-
tary Justice prohibited investigations such as the one undertaken by Admiral
Milligan to be influenced by higher command, the USS Iowa investigation
was “closely scrutinized” and “micromanaged” from a higher level within the
Pentagon.10 Following a five-month investigation, the Navy issued its offi-
cial finding on September 7, 1989. Accidental causes of the explosion were
all ruled out, including unstable gunpowder, friction, electrostatic charges, or
negligence on the part of crew members.11 The document concluded that Sec-
ond Class Gunner’s Mate Clayton Hartwig “‘most probably’ killed himself
and his shipmates because he was ‘a loner, a man of low self-esteem who
talked of dying in an explosion in the line of duty and being buried at Arling-
ton National Cemetary.’”12
The Navy relied heavily on an equivocal death analysis conducted by two
experienced FBI agents—Richard Ault and Roy Hazelwood—who had exten-
sive experience in criminal investigative analysis, behavioral and psychologi-
cal profiling, and equivocal death analysis.
The initial investigation of the explosion led agents of the Naval Inves-
tigative Service (NIS) to suspect that Hartwig had intentionally caused the
explosion. The NIS wanted to develop a psychological autopsy of the petty
officer’s state of mind. However, there were concerns that if the autopsy was
performed by the Navy’s own investigative service, it might not be taken seri-
ously.13 As a result, an outside agency was sought and the FBI was given the
responsibility of piecing together Hartwig’s possible motive.
Ault and Hazelwood relied on a number of documents, materials, and
interview transcripts to formulate their assessment of Hartwig’s state of
mind at the time of the explosion. However, the focus of the evaluation
appeared to be dictated by information the FBI agents were given by the
Navy. Hazelwood and Ault were apparently told that the explosion was not

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an accident; they were only to determine if there was convincing evidence

to conclude whether Hartwig committed suicide, homicide, or a combined
suicide/homicide.14
Among the key pieces of evidence were a pair of books found among
Hartwig’s possessions: Getting Even: The Complete Book of Dirty Tricks and
a military manual called Improvised Munitions Handbook.15 Other evidence
indicated that Hartwig had a long history of interest in explosives and weap-
ons and was a loner who had difficulties in his relationships. In Naval records,
Hartwig was described as an individual who was immature, lacked leadership
skills, and was not particularly assertive. Letters that Hartwig had written to
other people suggested he was egocentric and self-centered. At the time of his
death, Hartwig had almost no money, very few civilian clothes, and a run-
down vehicle—all signs that he was possibly withdrawn and depressed at the
time of his death.
One important aspect of Hartwig’s life that emerged in the equivocal
death analysis was that he had formed a close friendship with Petty Offi-
cer Kendall Truitt. Long before the explosion occurred, rumors had circulated
around the Iowa that Hartwig and Truitt were homosexual lovers, but the
Navy investigated the allegations and ruled them to be unfounded;16 still, the
rumors persisted. When Truitt started dating a girl, the friendship between
the two crew members cooled. In the wake of Hartwig’s death, it was discov-
ered that Truitt had been named as the beneficiary of a $100,000 life insurance
policy Hartwig had taken out on his own life.17
The fifteen-page equivocal death analysis report produced by Ault and
Hazelwood provided a psychological portrait of Hartwig as an emotionally
unstable individual. Various factors were expanded upon to support the theory
that Hartwig had committed suicide. The equivocal death analysis concluded
that Hartwig had low self-esteem because he had been repeatedly rejected by
other people and had only a handful of close friends.18
One piece of evidence that was considered significant in pointing to
Hartwig’s psychological instability was a poem entitled “Disposable Heroes,”
which consisted of rewritten lyrics from music by the heavy metal band
Metallica. The lyrics were written on a paper posted in turret number two
aboard the Iowa and ended with the line: “Left to die alone in a sixteen-inch
gun.”19 Although the author of the poem was James White, another gunner’s
mate aboard the ship, investigators initially believed that Hartwig had writ-
ten the poem. Although forensic investigators at the FBI crime lab compared
“Disposable Heroes” with letters Hartwig had written to friends, the analysis
failed to identify Hartwig as the author.20 Still, the words in the poem fig-

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ured prominently in the equivocal death analysis. Hazelwood would later tes-
tify before the House Armed Services Subcommittee on Investigations that
whether or not Hartwig actually wrote the poem was “immaterial.”21
The psychological portrait of Hartwig that Ault and Hazelwood painted
was the epitome of an emotionally unstable, suicidal person. They concluded
that he was a loner who was dissatisfied with his life and had a number of rea-
sons to kill himself: Suicide would mean avoiding having a number of lies he
had told to others revealed and exacting a kind of revenge for having been dis-
ciplined and having his rank reduced.22 Hartwig was described as an immature
individual who held grudges, was under significant stress, and had serious
suicidal ideation. He had “the knowledge, ability and opportunity to ignite
the powder in the same fashion that occurred on the USS Iowa” the equivocal
death analysis concluded.23
The theory was that Hartwig may have committed suicide by deliberately
detonating the explosion inside the gun turret because he was rejected by
Truitt. The final conclusion that Hartwig had intentionally caused the explo-
sion aboard the Iowa created a storm of controversy. Hartwig’s sister mounted
a campaign to clear her brother’s name, Truitt hired an attorney and brought
suit against the Navy and the media alleging that his life and reputation had
been harmed by the investigation, and the equivocal death analysis performed
by Ault and Hazelwood was targeted by Congress and the media as highly
speculative and based on faulty scientific principles.
The House Armed Services Subcommittee on Investigations conducted a
formal hearing into the validity of the Navy’s investigation of the USS Iowa
tragedy. House Representative Nick Mavroules, a Democrat from Massachu-
setts who chaired the House Subcommittee on Investigations, outlined the
key focus of the Congressional inquiry into the Navy’s findings: “Was Clay-
ton Hartwig a suicidal murderer? Was he capable of such a heinous act? The
FBI says he was. The NIS psychologist says he might have been and the inde-
pendent psychologists contacted by this committee generally agree that he
was not. Given the serious defects in the Navy investigation that we have
uncovered in our previous hearings, today’s testimony becomes even more
crucial to the Navy’s case against Hartwig.”24
The “serious defects” uncovered by the House Subcommittee to which
Mavroules was referring involved a scientific analysis of the evidence by pro-
fessionals at Sandia National Laboratories who worked on the Navy’s investi-
gation into the cause of the explosion. Scientists from the laboratory had been
retained by the Senate Armed Services Committee to examine the findings.
Results of the analyses pointed strongly to an accidental cause of the explo-
sion.25 If the cause was accidental, then the House Subcommittee believed

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that the equivocal death analysis conducted by Ault and Hazelwood deserved
careful scrutiny.
Before the two FBI agents testified at the House Subcommittee hearing
on December 21, 1989, the Assistant Director of Training at the FBI Academy,
Anthony Daniels, provided an overview of services provided by the National
Center for the Analysis of Violent Crime (NCAVC) at the FBI’s training acad-
emy. The NCAVC was developed to provide investigative support to federal,
state, and local law enforcement agencies using criminal investigative anal-
yses.26 Among the various types of analysis offered are criminal profiling,
where crime scene and other forensic evidence is used to provide a psycho-
logical analysis of an unknown offender that can be used to direct a criminal
investigation. The NCAVC also offers equivocal death analysis, which Daniels
described as the investigation of “a death whose manner, whether it be homi-
cide, suicide or accident, has not been resolved through normal investigative
activities.”27
Ault testified first and described how an equivocal death analysis begins
with an examination of all available evidence, including witness statements,
procedures and protocols, autopsy reports, and other relevant materials to
arrive at a conclusion. Hazelwood then testified about the details of their
analysis by noting the various hypotheses that were considered and the evi-
dence that supported their conclusion that Hartwig intentionally caused the
blast. The two FBI agents were challenged by one of the House Subcommittee
members, Representative Les Aspin, on the certainty of their opinion.
Aspin asked Hazelwood, “How definitive do you have your judgments in
these cases? [sic] . . . Do you always—are you always as definitive as you are in
this case?”28 Hazelwood replied, “Yes, sir.” The definitive conclusion contained
in the FBI’s equivocal death analysis became a point of contention raised by
other experts who were asked to review the findings. In addition, Subcommit-
tee Chair Mavroules challenged the reliability and validity of equivocal death
analysis, to which Ault responded with some apparent irritation: “I certainly
appreciate that wonderful academic approach to a very practical problem. It’s
typical of what we find when we see people who have not had the experi-
ence of investigating, either crime scenes, victims, criminals, and so forth, in
active, ongoing situations. . . . I can say that we have been successful. We don’t
keep academic—or we don’t keep research records with great internal validity
because we’re simply not oriented that way.”29
The House Armed Services Subcommittee on Investigations not only
cross-examined the individuals who conducted the equivocal death analysis
but also solicited help from the American Psychological Association (APA). In
particular, the Subcommittee asked the APA to provide assistance in assem-

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bling a panel of experts to conduct a peer review of the equivocal death analy-
sis. Twelve psychologists were identified who were considered to be experts in
fields of psychology that were relevant to the investigation, including adoles-
cent and adult development, suicide, psychopathology, forensic psychology,
risk assessment of violent behavior, and personality assessment.30 In addition,
two psychiatrists were chosen by the House Armed Services Subcommittee.
The panel of fourteen experts addressed four basic issues: (1) How
valid was the Navy’s conclusion that Hartwig had intentionally caused the
explosion? (2) Were the materials used to develop the psychological profile
of Hartwig valuable and was the investigation exhaustive? (3) What were
Hartwig’s motives, was he suicidal, how likely was it that he committed the
act, and what alternative conclusions might be drawn from the material
reviewed on Hartwig’s psychological functioning? (4) What are the limita-
tions of evaluating suicidal tendencies and behaviors after a person has died?31
Each of the experts prepared a written report independent of the others, but
only six of them ended up testifying before the House Armed Services Com-
mittee on the same day that Ault and Hazelwood testified.
Although four of the professionals who reviewed the FBI’s findings felt
the suicide theory about Hartwig’s motives was plausible, ten of fourteen
professional psychologists contradicted the equivocal death analysis, and all
fourteen reviewers criticized the technique as too speculative.32 A nationally
recognized psychiatrist, Dr. Douglas Jacobs of Harvard Medical School, also
concluded that the evidence did not support a conclusion that Hartwig inten-
tionally caused the explosion. Dr. Jacobs faulted the FBI for not conducting
its own set of interviews. Dr. Roger L. Greene, a psychologist and expert in
personality assessment who is on the faculty of the psychology department
at Texas Tech University, concluded that there were “a number of potential
problems with the logical links between the evidence and the conclusions
drawn by the FBI equivocal death analysis.”33
On the other hand, a forensic psychologist who served as one of the peer
reviewers for the House Armed Services Subcommittee, Dr. Elliott Silverstein,
wrote that the conclusions of the FBI equivocal death analysis were “plau-
sible” provided that the evidence was true and accurate.34 Dr. Alan Berman,
a nationally recognized expert on suicide, viewed the finding that Hartwig
killed himself in the explosion as “most reasonable.”35
Although most of the professionals reviewing the FBI’s equivocal death
analysis were generally critical and contradicted the findings, there was con-
siderable diversity among the various opinions. With well over a dozen differ-
ent experts weighing in with their own opinions about the cause of the explo-
sion aboard the USS Iowa and the adequacy of the equivocal death analysis

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 th e u s s i owa : eq u i vo cat in g o n d e at h

conducted by the FBI, the House Armed Services Subcommittee on Investi-

gations was confronted not with a “battle of the experts” but with a “war of
the experts.” Could any sense be made of the various opinions as to the reli-
ability and validity of the various conclusions about the analysis of Hartwig’s
motives?
A team of psychologists from the Department of Law and Mental Health
at Florida Mental Health Institute at the University of South Florida ana-
lyzed each of the opinions offered by the fourteen panelists who reviewed the
FBI’s equivocal death analysis.36 The experts generally agreed that psycho-
logical autopsies could be of some use, but there was considerable diversity
in the experts’ opinions as to the specific methods used by the FBI examiners
and the conclusions they reached about Hartwig’s guilt in causing the explo-
sion. Although there was general agreement that Hartwig was emotionally
unstable, the evaluation of the FBI experts tended to be more negative and
critical of the gunner’s mate. Despite some of these similarities between the
FBI agents and the APA’s panel of experts, on the whole the experts were more
tentative and equivocal in their conclusion as to whether Hartwig was guilty
of causing the explosion aboard the Iowa.
Norman Poythress, Randy Otto, Jack Darkes, and Laura Starr, research-
ers from the University of South Florida who summarized the findings of the
APA panel of experts, concluded that equivocal death analysis should not be
used in legal settings.37 They based their conclusion primarily on the fact that
very little research existed to support the reliability and validity of psycho-
logical evaluation methods that attempt to reconstruct a person’s past mental
state using indirect methods of assessment when the person is not available
for direct examination. Poythress and his colleagues also noted that if ques-
tionable methods such as equivocal death analysis were allowed in legal and
administrative proceedings, other questionable methods might soon follow,
such as “equivocal burglary analysis” or “equivocal kidnapping analysis.”38
Furthermore, Poythress and his colleagues suggested that if mental health
professionals offered their services in psychological autopsies and equivocal
death analyses, they should refrain from offering conclusive statements about
the cause of a person’s death. Furthermore, experts should avoid misleading
courts, administrative committees, or other decision-making bodies about the
reliability or accuracy of these equivocal methods of evaluation.
In fairness to the FBI agents conducting the equivocal death analysis, they
had the challenging task of reconstructing Hartwig’s mental state without the
benefit of speaking to him directly. Moreover, the focus of their examina-
tion was dictated by the Navy’s firm conclusion that the explosion was not
an accident. Much of the data used to formulate the equivocal death analysis

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was provided by the Navy, which had already concluded that Hartwig was the
culprit. These issues, along with the generally speculative nature of psycho-
logical autopsies, created a very difficult challenge for any forensic investiga-
tor. Furthermore, Ault and Hazelwood approached their evaluation from the
perspective of law enforcement officers with special training in the behav-
ioral sciences, rather than mental health professionals who were providing
assistance to the legal system. This distinction between the perspective of law
enforcement officers and mental health professionals is significant because
the professional demands and needs of police officers and mental health pro-
fessionals are very different. Law enforcement officers approach their work
with expediency; they need to solve crimes and identify suspects to prevent
crimes from occurring and to make sure justice is administered quickly. Men-
tal health professionals, on the other hand, are trained to evaluate and test
hypotheses and offer only those conclusions that can be supported by scien-
tific data. Sometimes mental health professionals can provide only tentative
conclusions that do not always satisfy the needs of courts or fact-finding com-
mittees that need to render definitive rulings.
The congressional investigation into the Navy’s report of the explo-
sion aboard the USS Iowa found there was insufficient evidence to conclude
Hartwig was the cause of the fatal blast.39 Kendall Truitt endured the stress
of having the Navy read his mail and tap his phone during the course of
their investigation.40 Truitt got married four months after the explosion, but
divorced two years later because of the pressure and scrutiny he experienced.
He left the Navy and is now a civilian.
As for Hartwig’s family, they received vindication in October 1991 when
the Navy formally repudiated its conclusion that Hartwig had intentionally
caused the explosion and issued a formal apology to Hartwig’s family. More-
over, a review of the investigation into the explosion revealed that critical
physical evidence had been lost or mishandled. When a former U.S. Secretary
of the Navy, Admiral Frank Kelso, testified during a deposition in a lawsuit
brought by Hartwig’s family, he admitted that the Navy found Hartwig was
not a homosexual. Kelso also said he “rejected the FBI’s ‘equivocal death anal-
ysis’” and that “sabotage had been a theory, not a proven fact.”41 The family
of Clayton Hartwig received a formal apology when Kelso stated publicly,
“I extend my sincere regrets to the family of Hartwig. We’re sorry Clayton
Hartwig was accused of this.”42 However, Kelso also added that there were still
no clear answers as to what caused the explosion aboard the battleship.
Roy Hazelwood stood by his analysis. “I’m as convinced today as I was
then that we were correct,” he later stated.43 Hazelwood noted further that
within days of Admiral Kelso’s public apology to the Hartwig family, the

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Naval Sea System Command issued a final opinion that in the absence of any
evidence of an accident, the cause of the explosion was an intentional act.44
The explosion aboard the USS Iowa, and the ensuing investigation into
its cause, resulted in the application of a controversial technique—psychologi-
cal autopsy, or equivocal death analysis—and considerable confusion about
what actually caused the tragedy. In this particular case, the result was an
official report issued by the Navy that subsequently led to intensive scrutiny
by the media, lawsuits, and a formal apology to the family of one of the men
who was killed in the explosion. A number of military careers were adversely
impacted or ruined by the investigation.45 As for the Iowa itself, the World
War II battleship was officially retired from Naval service in October 1990.
The case raises significant questions about the reliability and validity
of psychological assessment methods like equivocal death analysis and psy-
chological autopsy. In the years since the Iowa tragedy, research has still not
answered all of the questions that were raised by the case. Certainly, more
research will help to establish what works and what fails when mental health
professionals attempt to reconstruct the past mental state of a person at the
time of his or her death. The lack of research has therefore contributed to psy-
chological autopsy and equivocal death analysis being kept outside the realm
of generally accepted methods of evaluation by some members of the psycho-
logical profession, even though several courts have embraced psychological
autopsies as helpful in resolving legal disputes.

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p 12
JEFFREY
DAHMER
Serial Murder,

Necrophilia,

and Cannibalism

n September 26, 1988, twenty-eight-year-old Jeffrey Dahmer went

O hunting on the streets of Milwaukee. His quarry? A teenage boy he
could sexually molest and perhaps kill. After a number of street-wise youths
spurned Dahmer’s offer of fifty dollars for the chance to take nude photo-
graphs of them in his nearby apartment, one youngster, Anoukone Sintha-
somphone, a thirteen-year-old Laotian boy, agreed to the deal.
Once in the tiny apartment, Dahmer persuaded him to remove some of
his clothes and pose on the bed. Dahmer took Polaroid photos, fondled the
boy’s penis, kissed his stomach, and offered him an alcoholic drink laced with
a powerful prescription sleep medication. Though drugged and incoherent,
the boy managed to get out of Dahmer’s apartment and find his way home,
where his parents noticed his condition and took him for medical care.
Before long, Anoukone explained what happened and identified Dahmer
as his abuser. Dahmer was arrested early the next morning and charged with
second-degree sexual assault and enticement of a child for immoral purposes.
After entering a plea of not guilty, Dahmer was released on $10,000 bail to
await further proceedings.
Over the next several months, while Dahmer was on bail, authorities had
a chance to get to know him better. His criminal record revealed that six years
earlier he had been charged with lewd and lascivious behavior for masturbat-

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ing publicly in front of a group of children at the Wisconsin State Fair. Though
Dahmer claimed that he was simply urinating, he was convicted, fined, and
sentenced to one year of probation. Authorities also learned that, earlier in
1988, an Illinois man had complained to the police that he had met Dahmer
in a gay bar, gone home with him, been drugged, and awakened to find his
money and jewelry missing. This time no charges were brought because the
police bought Dahmer’s explanation: the man had simply gotten too drunk to
go home and had slept off his intoxication until Dahmer courteously walked
him to a bus stop and gave him a dollar for the fare.
Though Dahmer eventually pleaded guilty to sexually assaulting and
enticing Anoukone Sinthasomphone, he never really admitted to any sex-
ual contact with the thirteen-year-old victim. He claimed he had no idea that
Anoukone was a minor, denied touching his penis or kissing him, and claimed
that the drugging must have occurred accidentally when the boy drank out
of a cup Dahmer had earlier used to take sleep medication but failed to clean
thoroughly. As Dahmer told it, he had simply paid a young man fifty dollars
to pose for some photographs.
Prior to sentencing for this offense, Dahmer was evaluated by three psy-
chologists, all of whom concluded that Dahmer was a manipulative alcohol
abuser who lacked insight and motivation for treatment.1 One concluded that
Dahmer might suffer from a schizoid personality disorder, the hallmarks of
which are “detachment from social relationships and a restricted range of
emotional expression.”2
Another psychologist, however, was monitoring Dahmer while on bail
and felt that the accused sex offender was making some progress. According
to this psychologist, Dahmer had “begun to come out of his shell” and was
“more verbal, amiable, and relaxed . . . less lethargic . . . more willing to inter-
act . . . instead of staying home constantly.”3
In May 1989, Dahmer was finally sentenced for the September 1988
assault and enticement. The prosecution asked for a prison sentence, argu-
ing that Dahmer preyed on children, was likely to re-offend, and suffered
from “extreme emotional instability” that was not amenable to treatment
outside of prison.4 Dahmer’s defense attorney argued for leniency, acknowl-
edging that Dahmer was “sick” and needed treatment but arguing that “the
kinds of things that Jeff Dahmer needs are more available through the proba-
tion department with a very strong prison sentence withheld and a very long
period of probation.”5 Dahmer, himself, begged the judge to “please spare my
job . . . please don’t destroy my life.”6 Responding to the prosecutor’s argu-
ment that he was not motivated to change and would likely re-offend if not
locked up, Dahmer told the judge: “I do want help. . . . This one incident had

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 jeffrey dahmer: serial murder, necrophilia, and cannibalism

jolted me like nothing else. . . . I desperately want to change my conduct for

the rest of my life.”7
By the time he passed sentence on Jeffrey Dahmer, Judge William Gard-
ner knew that Dahmer was a long-time alcohol abuser with at least two sexual
offenses against children, that several mental health experts had examined
Dahmer and seen little if any hope that he could be turned around, and that
Dahmer’s own father had asked the court to lock him up at least until he could
receive adequate treatment for his alcohol and sexual problems. What neither
the judge nor anyone other than the defendant knew was that the charges
stemming from the 1978 assault on Anoukone Sinthasomphone were only
the tip of an ever-growing iceberg of sex crimes committed and to be commit-
ted by Jeffrey Dahmer.
Not knowing that Dahmer had already sexually assaulted and killed five
men (ages fourteen to forty-eight) over the preceding eleven years, includ-
ing one man Dahmer murdered just two months earlier while on bail await-
ing this sentencing, Judge Gardner ignored the psychological findings, said
he could see no reason to send Dahmer to prison, and told the budding serial
killer: “You’d come out [of prison] probably worse than you are right now.”8
Dahmer faced a combined maximum sentence of ten years in prison, but on
the sexual assault charge the judge imposed a sentence of only five years’
probation plus one year in a work-release program. Under this order, Dah-
mer would sleep in a jail dormitory for twelve months but be allowed to con-
tinue working at his night-shift job in a local candy factory. For enticing a
child for immoral purposes, the judge imposed a sentence of three years pro-
bation, to run concurrently with the five-year probationary term imposed
for the assault.
Ten months later, Dahmer was released from all confinement and told to
see a probation officer weekly, seek counseling, and stay away from minors.
Within a few months of his release, Dahmer would resume his killing ways,
embarking upon a yearlong string of at least a dozen more sex killings. In each
of these murders, Dahmer’s modus operandi was essentially the same. Meet-
ing his male victims (who ranged in age from fourteen to thirty-three) in
gay bars, bathhouses, and other homosexual gathering places, Dahmer would
invite the men to his apartment, offering them money in exchange for sex or
photographs. Once there, the men would be drugged (with five or six sleeping
pills crushed and stirred into drinks), sexually molested, killed, further sexu-
ally abused post-mortem, and finally cut into pieces which were either stored
in the apartment or cooked and eaten by the serial killer.
Amazingly, Dahmer was able to successfully carry out these killings
without even becoming a suspect until he was arrested in July 1991. Only

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m inds o n t r i a l

once in the course of killing a dozen men after serving his work-release sen-
tence did Dahmer even come close to being apprehended. On May 27, 1991,
Dahmer lured fourteen-year-old Konerak Sinthasomphone to his Milwau-
kee apartment. Ironically and tragically, Konerak was the younger brother of
Anoukone Sinthasomphone, the thirteen-year-old Laotian boy Dahmer had
sexually assaulted three years earlier.
With both Sinthasomphone brothers, Dahmer’s modus operandi was
the same. Like his brother, Konerak was lured to Dahmer’s apartment with
a promise of money if he would pose for photographs. Konerak, who already
had a juvenile record for prostitution, followed Dahmer without question.
Konerak posed for Dahmer in his bikini briefs, watched a video, and passed
out after consuming a drink laced with sedatives. Satisfied that his young vic-
tim would be unconscious for awhile, Dahmer left the apartment to buy beer.
While Dahmer was gone, however, the Laotian boy revived and fled the apart-
ment. Neighbors who spotted Konerak on the run immediately contacted the
Milwaukee police.
Officers responded with a patrol car and an ambulance to find the boy
bruised, naked, drugged, and incoherent. By the time they arrived, however,
Dahmer was back and standing at Konerak’s side. Dahmer explained that
Konerak was staying with him, had too much to drink, and had started to act
irrationally. As Dahmer put it, “He’s nineteen. We live together, right here at
924. We’re boyfriends, if you know what I mean.”9 Dahmer showed legitimate
identification to the officers, who concluded that this was a “domestic situa-
tion” requiring no further police action.10
Over the protests of neighbors who complained that Konerak was “just
a boy” and “badly hurt,”11 the officers escorted Dahmer and his victim back
to Dahmer’s apartment, where they found Konerak’s clothing neatly folded.
Apparently to prove that he actually had a sexual relationship with Konerak,
Dahmer boldly showed the police the photos he had just taken, Polaroid pic-
tures of the fourteen-year-old posed in his bikini underwear. The police offi-
cers never bothered to check to see if Dahmer had any criminal record. Nor
did they follow up on the foul odor emanating from the bedroom of Dahmer’s
two-room apartment, where the three-day-old corpse of his latest victim lay
decomposing.
Once the police left, Dahmer strangled Konerak Sinthasomphone, sod-
omized his corpse, took additional photos, and then dismembered the boy’s
body. Sadly, when Dahmer’s neighbors called the police again about an hour
later to inquire about the child’s safety and whereabouts, an officer told them
that Konerak “wasn’t a child” but “an adult” and that he had been returned to
his “boyfriend.”12 When the caller persisted, the officer added, “I can’t do any-

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 jeffrey dahmer: serial murder, necrophilia, and cannibalism

thing about somebody’s sexual preferences in life.”13 Days later, after learning
of the disappearance of Konerak Sinthasomphone and seeing his photograph
in the newspaper, the same neighbor would call the police and even the FBI to
report her belief that Konerak was the boy both she and the police had seen
with Dahmer. Neither agency took any action.
Two months and four murders later, in July 1991, Jeffrey Dahmer’s kill-
ing spree came to an abrupt end, not through any investigative prowess on
the part of the police but quite by chance. On July 22, Dahmer made his usual
money-for-modeling pitch to Tracy Edwards, a thirty-two-year-old man who
agreed and readily accompanied Dahmer to his apartment. Departing from his
usual successful routine of sedating his victims with concealed drugs, Dahmer
suddenly handcuffed one of Edwards’s wrists, pulled a knife on him, showed
him a human skull, and told him that he, too, would be staying with Dahmer.
After about four hours of being held at knifepoint, Edwards responded with a
punch and a kick that enabled him to flee Dahmer’s apartment and flag down
a passing police car.
Two officers listened to the strange tale told by the man with the dangling
handcuff and then accompanied him back to Dahmer’s apartment to see for
themselves whether he was exaggerating. After asking Dahmer’s permission
to look around, the officers almost immediately entered a literal chamber of
horrors: drawers full of photos of mutilated bodies and graphic homosexual
pornography featuring these victims while they were alive; a refrigerator
containing a severed human head and a freezer filled with two others; boxes,
drawers, closets, and coolers jammed with decaying torsos, hands, male geni-
tals, and other body parts; and a shelf lined with two human skulls.
Charged with multiple counts of murder, Dahmer cooperated with inves-
tigators. Dahmer admitted killing seventeen men, beginning with an eigh-
teen-year-old man he killed, dismembered, and buried when Dahmer was sev-
enteen years old and living at his parents’ home in Ohio. A thorough search
of Dahmer’s Milwaukee apartment turned up body parts of eleven of his
victims—some boiled, stripped of flesh, and painted, and others preserved in
formaldehyde like lab specimens. At least some of the victims’ body parts had
been cooked and eaten by Dahmer. As he later explained to the FBI, he would
cut thighs, biceps, and various internal organs into pieces small enough to eat,
and then cook them in a stovetop skillet before consuming them. They tasted,
he told one agent, like filet mignon.
Authorities suspected that Dahmer had killed others as well, including
Adam Walsh, the son of John Walsh, creator of the television program “Amer-
ica’s Most Wanted.” Adam was just six years old when he was kidnapped in
1981 from a Hollywood, Florida mall and later found decapitated. Dahmer

145
m inds o n t r i a l

was known to have been in the area at the time of this killing. In fact, one
witness claimed to have seen Dahmer at the mall the very day Adam was
kidnapped. Questioned at length, Dahmer denied this killing or any others,
except the seventeen to which he had already confessed.
Even taking Dahmer at his word, why would he have committed such
a gruesome series of crimes—homicides in which he not only drugged and
killed his victims, but also had sex with, dismembered, and even ate portions
of their dead bodies? That question was, of course, immediately on the minds
of the police investigating Dahmer’s crimes, but it also became a national
puzzle when media across the country began reporting on the exploits of
the “Milwaukee Cannibal.” The need to answer that question took on even
greater urgency for Gerald Boyle, who had been Dahmer’s defense attorney
in the Anoukone Sinthasomphone case and would now represent the accused
serial killer.
As the police, defense counsel, media, and the public at large would soon
learn, Jeffrey Dahmer’s background had given perhaps some clues that he
might one day become a violent sex criminal but, for the most part, there was
little in his development to suggest that he was destined to become one of
America’s worst serial murderers.
Dahmer grew up the older of two boys in an apparently normal middle-
class family in a suburban home set on a couple of acres near Akron, Ohio.
His father was an engineer with a doctorate who earned a good living. His
mother may have suffered some emotional problems but, if so, they were
minor in nature. A probation report would later say that Dahmer had been
sexually abused by a neighbor at the age of eight, but both he and his father
vehemently denied that claim. Most who knew him growing up regarded
Dahmer as a normal youngster, though in retrospect some recalled him as a
bit “weird.”14 For instance, as a boy he reportedly collected insects and pre-
served them in jars of formaldehyde, may have demonstrated cruelty to small
animals, possibly started several fires, and was regarded as the class clown.
But the single definitive youthful predictor of future trouble emerged only
once Dahmer had reached high school. By then, though he never posed any
disciplinary problems, it was clear to many that Dahmer already had a seri-
ous alcohol abuse problem, a growing obsession exacerbated by his parents’
divorce when he was a senior.
What observers of Dahmer’s youth did not know, however, was that from
about the age of thirteen on he struggled with the growing realization that he
was gay and that, by the time he left home for college, he was already a mur-
derer. At age seventeen, Dahmer had picked up a hitchhiker of roughly the

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 jeffrey dahmer: serial murder, necrophilia, and cannibalism

same age, lured the young man to his home, beaten and strangled him, and
then dismembered and buried his remains in the back yard.
Not long after his first killing, Dahmer began attending Ohio State Uni-
versity. Failing as a college student, his drinking getting beyond his control,
Dahmer dropped out of school and joined the Army. Less then two years later,
after a series of alcohol-related incidents, Dahmer was discharged from the
Army as an untreatable alcoholic.
Dahmer started his post-military career as a phlebotomist, drawing (and
on one occasion drinking) blood at a plasma center in Milwaukee. Within a
year he was laid off and began his career as a criminal defendant after expos-
ing himself at the State Fair in 1982. After several years of unemployment,
Dahmer found work as a mixer at a Milwaukee chocolate factory, a job he
would maintain steadily for years, even while becoming a serial killer. Not
long after beginning this job, Dahmer found himself in trouble again, once
more exposing himself and masturbating in public. Though his 1986 convic-
tion and probation carried with it an order that he undergo psychotherapy,
he merely went through the motions and few if anyone could have foreseen
what was to come.
Steadily employed and with little else to occupy his time, Dahmer began
frequenting gay bars in Milwaukee and Chicago. In November 1987, he com-
mitted his second known homicide. Though Dahmer later admitted killing
this man, whom he met in a gay bar and accompanied to a nearby hotel room
for sex, Dahmer always claimed he could not recall how the man died. Dahmer
did, however, remember carrying the man’s body from the hotel room to his
grandmother’s house in a large suitcase. There, he told authorities, he mastur-
bated over the body, skinned and dismembered it, and deposited the remains
in the trash.
Two months later, Dahmer began his longstanding modus operandi of
luring men to his apartment by offering them money to pose nude for him. In
what would be the first of another fifteen similar slayings, Dahmer strangled
and dismembered a Native American teenager he had met earlier outside the
Milwaukee bus station.
And so it went for the next three and a half years. Dahmer’s killing spree,
which began slowly, escalated rapidly, especially toward the end. In the last six
months before he was arrested, Dahmer took the lives of eight men—the last
four of whom he killed within a span of about twenty days.
Faced with trying to understand the unfathomable (how any sane human
being could possibly murder seventeen men and boys, then sodomize, dis-
member, and, in some cases, eat parts of their dead bodies), the attorneys

147
m inds o n t r i a l

charged with prosecuting and defending Jeffrey Dahmer looked to mental

health professionals for answers and assistance. What they got from a team of
three psychologists and four psychiatrists was a classic “battle of the experts”:
some opining that Dahmer had clearly been insane (unable to appreciate the
wrongfulness of his conduct or unable to conform his conduct to the require-
ments of law) when he killed his victims while others concluded that he did
not even suffer from a major mental illness, much less legal insanity.
Dr. Kenneth Smail, a Milwaukee court psychologist who spent more
time than any other expert examining Dahmer, concluded that Dahmer
was competent to stand trial but did not offer an opinion at trial regard-
ing Dahmer’s sanity or lack thereof. Smail reportedly saw Dahmer as a man
whose “sensory functioning was not impaired . . . [who] could think logically
. . . [showed] no gross impairment in his emotional functioning [and] could
delay gratification, set goals and problem solve with relative effectiveness.”15
While such a finding would not be consistent with a conclusion that Dahmer
had been insane, according to one expert who did testify at trial, Smail had
written that his testing of Dahmer revealed “the possibility of a major men-
tal illness, either of the quality of a schizophrenic disorder or a major affec-
tive disorder.”16
The expert who quoted Dr. Smail’s report was a Chicago psychiatrist, Dr.
Carl Wahlstrom, who was retained by and testified for the defense. Wahlstrom
found Dahmer to be a man “with a long history of serious mental illness which
was essentially untreated.”17 He testified that Dahmer had performed a primi-
tive sort of brain surgery on a number of his victims in an effort to “create a
zombie to keep him company” and “remain his personal friend and posses-
sion.”18 One of his victims, Dahmer had said, actually survived for two days
after this “operation.” As Dahmer explained to the psychiatrist: “I wanted to
induce a permanent zombie-like state to make them pliable, obey my wishes,
so they would be permanent, always with me, never leave my apartment. If
they had their own thought processes they might remember that they had to
leave, or (that they) lived somewhere else.”19
According to Wahlstrom, Dahmer believed that eating parts of his vic-
tim’s’ bodies would keep “them closer to him for a longer period of time”
and kept their bones because he felt they “could endow him with magical
powers.”20 Dahmer, he testified, also had explained that he wanted to build
a temple to his victims in order to help him “get financial gain, perhaps suc-
cess in the real estate market.”21 Such thinking Wahlstrom characterized as
“psychotic,” part of a “bizarre delusional” system, and symptomatic of a bor-
derline personality disorder, an illness sometimes characterized by transient
psychotic episodes.22

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 jeffrey dahmer: serial murder, necrophilia, and cannibalism

Two other mental professionals, both experts on sexual disorder, testi-

fied for the defense. Dr. Fred Berlin, a psychiatrist who directed the sexual
disorders clinic at Johns Hopkins University, diagnosed Dahmer as suffer-
ing from necrophilia, a paraphilia or fetish that involves sexual attraction to
corpses. Other paraphilias include, for example, pedophilia (sexual attraction
to prepubescent children), exhibitionism (deriving sexual satisfaction from
exposing one’s genitals to others), transvestism (deriving pleasure from cross-
dressing), and voyeurism (sexual arousal from the surreptitious observation
of others nude, disrobing, or engaging in an act of sex).
As Berlin testified, paraphilias are recognized as mental illnesses in the
American Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders. Calling necrophilia a “cancer of the mind,” Berlin testified
that Dahmer had “overpowering urges to kill to have sex with dead bodies”
and tried “very hard not to give in to these urges” but was “beaten by the dis-
ease.”23 “This is a love sickness,” Berlin added. “[Dahmer] wanted to sustain a
relationship with these people.”24
Also testifying for Dahmer was Dr. Judith Becker, a clinical and research
psychologist from the University of Arizona and a former member of the U.S.
Attorney General’s Commission on Pornography. Becker agreed that Dahmer
had killed as a result of a mental illness he was unable to control: “I believe
that Jeffrey Dahmer killed his victims because he is interested in engaging
in sexual acts with either a total corpse or body parts of someone who is not
living.”25
While not unique, Becker told the jury, Dahmer’s case was extremely
unusual. Citing 122 documented cases of necrophilia, she noted that only
fifteen of them, including Dahmer’s, involved actually killing sex partners.
Becker added that Dahmer’s penchant for having sex with comatose individu-
als was a unique paraphilia that might be described as “kumaphilia” based
upon the Greek word for coma.26 In any event, the psychologist testified that
Dahmer was insane and that, while necrophilia does not appear to be success-
fully treatable, it would be a “miscarriage of justice” to send him to prison
rather than a mental hospital where he would, in her view, spend the rest of
his life.27
The testimony of Wahlstrom, Berlin, and Becker was countered in whole
or part by four other experts, two testifying for the prosecution and two
appointed by the court.
Dr. Frederick Fosdal, a psychiatrist in private practice in Madison and a
frequent expert witness in the courts of Wisconsin, testified that Dahmer had
“a mental disease” but that this illness did not interfere with his ability to
conform his conduct to the requirements of law or to appreciate the wrongful-

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ness of his conduct. Thus, Fosdal concluded that Dahmer had not been insane
at the time of the murders.
On cross-examination by Dahmer’s attorney, Fosdal acknowledged that
Dahmer said he drilled holes into the skulls of some of his victims and poured
a chemical into the holes in a failed effort to “keep them around longer by
making them zombie-like.”28 But the psychiatrist defended his opinion by
stating that neither Dahmer’s proposed altar nor his eating of various body
parts reflected delusional thinking. Indeed, amazingly, Fosdal did not even
regard Dahmer’s effort to create a “zombie” as delusional:

[Defense counsel:] What about his desire to create a zombie? Do

you consider that to be delusional thinking?
[Dr. Fosdal:] No, it was a very practical and reasonable attempt to
achieve his aim.29

Also testifying for the prosecution was Dr. Park Dietz, a forensic psychia-
trist from California who had years earlier made his reputation by testifying
in the trial of John W. Hinckley, Jr. (who had been charged with attempting to
assassinate President Ronald Reagan). Dietz, a well-known and frequent wit-
ness for prosecutors across the country, testified that Dahmer suffered from
several paraphilias, including necrophilia, but refused to say whether Dahmer
suffered from an “abnormal condition of the mind.”30
Dietz downplayed the significance of Dahmer’s necrophilia, telling the
jury that neither necrophilia nor any other paraphilia would have rendered
Dahmer unable to appreciate the wrongfulness of his acts or stop himself
from committing them: “What the paraphilias do affect are sexual interests.
But mental processes, the ability to think clearly and use logic, are untouched
by the paraphilias.”31
As the psychiatrist further explained his view of the matter, “Most para-
philes never act on their paraphilia in a criminal way. The paraphile is as free
as any other human being to choose whether to commit a crime to gratify his
wishes.”32
Dietz also argued that Dahmer’s paraphilias, including necrophilia, had
not driven him to commit his crimes. “There was no force pushing him to
kill,” Dietz testified. “There was merely a desire to spend more time with
the victim.”33 Moreover, Dietz expressed the opinion that, in any event, “The
intensity of his sexual urges at that point was less than many teenagers expe-
rience in back seats with their girlfriends.”34
Finally Dietz said that his opinion regarding Dahmer’s sanity rested upon
Dahmer’s apparently calculated behavior. For example, Dietz observed, Dah-
mer committed all of the killings in private; used condoms when having sex

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 jeffrey dahmer: serial murder, necrophilia, and cannibalism

with the corpses; gave up on the idea of freeze-drying the corpses due to the
cost of the necessary equipment; crushed the sleeping pills used to debilitate
his victims before luring them back to his apartment; and had made plans
ultimately to destroy the evidence of his crimes by using acid to completely
obliterate the various body parts he had collected.
Dr. George Palermo, a psychiatrist at the Milwaukee County Mental
Health Center appointed by the court to examine Dahmer, concluded that
the serial killer was “a sick person” but “not psychotic.”35 In Palermo’s view,
Dahmer was suffering from “a very serious” antisocial personality disorder
but was “not legally insane.”36 Palermo described Dahmer as a sexual sadist
and liar who may well have embellished certain details of the murders, such
as the mutilation and cannibalism, describing his fantasies rather than what
actually occurred.
Still, Palermo was not without a modicum of sympathy for Dahmer. The
psychiatrist testified that “Jeffrey Dahmer killed these people . . . because he
wanted to kill the source of his homosexual attraction. . . . He was not really
gratified from the killing. He was afraid they might abandon him. . . . He’s not
such a bad person, even though he did what he did. . . . Wherever he goes, I
think he should receive treatment.”37
The other court-appointed expert, Dr. Samuel Friedman, a Milwau-
kee psychologist, agreed that Dahmer suffered from a severe personality
disorder, which he characterized as a mental disease. He also testified that
Dahmer’s killings were part of an effort to maintain a relationship with his
victims. Like his court-appointed colleague, Dr. Palermo, Friedman seemed
sympathetic to Dahmer’s plight, telling the jury that Dahmer was “amiable
and pleasant to be with, courteous, with a sense of humor, conventionally
handsome and charming in a manner” and that “he was, and still is, a bright
young man.”38 Also, like Palermo, Friedman saw a glimmer of hope for Dah-
mer: “I hope that something can be done to reconstruct this individual, who
certainly has the assets of youth and intelligence.”39 In the final analysis,
however, the psychologist also concluded that Dahmer had been sane at the
time of the killings.
Just as the experts split on Dahmer’s sanity, so did the jury. After only a
day of deliberations, it became clear that the jury could not reach a unanimous
verdict. Ten of the jurors were convinced that Jeffrey Dahmer had been sane
when he killed; two others opted to find him not guilty by reason of insanity.
Under Wisconsin law, Dahmer was thus guilty of fifteen counts of murder.
At sentencing, a polite, contrite, and articulate Jeffrey Dahmer concluded a
lengthy apology by telling the judge, “I know my time in prison will be ter-
rible, but I deserve whatever I get because of what I have done. Thank you,

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your honor, and I am prepared for your sentence, which I know will be the
maximum. I ask for no consideration.”40
Dahmer was right on both counts. The judge sentenced him to 957 years
in prison, and prison was much worse than perhaps even he could have imag-
ined. After serving less than two years in a maximum-security prison, Dah-
mer was brutally murdered by a mentally ill inmate who crushed Dahmer’s
skull with a steel bar, later telling authorities “God told me to do it.”41

152
p 13
WOODY ALLEN
AND
MIA FARROW
A Swing of King

Solomon’s Sword

he story of King Solomon tells of two women who each argued that she
T was the rightful mother of a child. The dispute was brought before the
wise king, who was asked to determine which woman should have the child.
Presented with equally compelling arguments from both sides, King Solomon
drew his sword and declared that he would cut the child in two and give half
to each woman. One woman quickly demanded that the king give the child to
the other woman, for she was indeed the child’s mother. King Solomon then
gave the child to the woman who had stopped him from cutting the boy in
two. After all, only the true mother would be willing to give up her child so
that he could live.
When married couples divorce, a number of issues need to be resolved,
including who should have custody of the children. The adverse psychologi-
cal effects of a divorce on children are minimized when parents are able to
cooperate with one another in parenting duties following breakup of their
marriage. Therefore, privately negotiated divorces work out better when
the parties agree on custody and visitation arrangements for their children.
Unfortunately, many divorcing couples are unable to agree on custody mat-
ters and the result is often a highly contentious and bitter battle for custody
of the children that forces judges to confront issues like those faced by King
Solomon. The resolution of child custody disputes is typically guided by the
prevailing legal standard of doing what is in the “best interests of the child.”

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m inds o n t r i a l

The precise meaning of “best interests of the child” is elusive, and judges
making custody decisions have considerable power over determining where
to place the children of divorcing couples. Still, the laws of the state where the
divorce is granted must guide a judge’s decision. However, the best interests of
the child include such issues as which parent can provide the best home envi-
ronment, more effectively foster a child’s emotional and intellectual develop-
ment, attend to basic needs like clothing and shelter, show positive affection,
and demonstrate sound judgment when it comes to parenting decisions. Long
ago, fathers were often granted custody of their children based on the theory
that their offspring were property of the marriage. This approach to grant-
ing custody was later replaced by the “tender years” doctrine where mothers
were typically granted custody because they were believed to be more nur-
turing and children would be better cared for emotionally if they were placed
with their mothers. Today, neither mothers nor fathers have an assumed right
to custody. Rather, judges must consider a number of factors when consider-
ing the best interests of the child. Because of concerns about the emotional,
psychological, and intellectual development of children from divorced fami-
lies, judges frequently seek the input of mental health professionals to assist
in making difficult child custody decisions.
Forensic psychologists find child custody matters to be among the most
difficult and challenging cases they face during their careers. Many profes-
sionals simply refuse to get involved in these kinds of cases. When custody
evaluations become complicated, such as when a claim of sexual abuse arises,
the degree of conflict and animosity intensifies. One of the main reasons that
custody cases involving allegations of sexual abuse are so difficult is the sheer
number of possibilities that must be considered. There is a very wide range
of hypotheses that judges must consider, ranging from the possibility that a
child has been abused and is giving an accurate and reliable report of what
happened, to the possibility that a child has not been abused and is falsely
accusing someone of the abuse.1 In between these two extremes are a number
of alternative possibilities. Some allegations of sexual abuse involve children
who provide conflicting accounts of what happened to them or later retract a
valid allegation out of fear or shame. Other allegations of sexual abuse may
involve children who have not been abused, have misunderstood an innocent
interaction with an adult and yet make alarming or misleading statements
that suggest abuse because of intellectual or language limitations. Still other
allegations of sexual abuse may involve children who were not abused but
whose memories and statements are either intentionally or unintentionally
contaminated by adults who question the child repeatedly or with leading
questions.

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 woody allen and mia farrow: king solomon’s sword

When allegations of sexual abuse arise within the context of a child cus-
tody dispute, the issues become even more complicated. Various issues must
be considered, such as the timing of the allegation. Was an allegation of sexual
abuse involving one of the parents the cause of divorce? Did the allegation
arise after the initiation, but before finalization of, divorce proceedings? Is
the divorce process so hostile that one parent is capable of using an allega-
tion of sexual abuse as a means of getting back at the other parent? Did the
allegation of sexual abuse come about long after the divorce was finalized and
the child has entered adolescence? Questions about the timing, circumstances,
and nature of the allegation must be considered when sexual abuse allegations
arise in divorce proceedings. In addition to the highly complicated nature of
these types of cases, the level of anger, resentment, and hostility between the
parties can often cause all but the most battle-hardened mental health profes-
sionals to shy away from becoming involved in helping to resolve the com-
plicated issues.
One of the most visible and highly publicized child custody cases involv-
ing an allegation of sexual abuse occurred when filmmaker Woody Allen and
actress Mia Farrow dissolved their romantic relationship. Their case was com-
plicated by a number of factors that served to increase not only the public’s
curiosity and interest in the case, but also the hostility and animosity between
these two well-known individuals.
In 1980, Allen and Farrow met and began a romantic relationship.2
Although they made movies together regularly and had children, they never
married but maintained separate residences over the course of their twelve-
year relationship. Farrow came into her relationship with Allen with six chil-
dren from her previous marriage to André Previn. Three of the children from
her marriage to Previn—Matthew, Sascha, and Fletcher—were biological
and three—Lark, Daisy, and Soon-Yi—were adopted. After Allen and Farrow
began their relationship, they adopted two children, a son Moses and a daugh-
ter Dylan. The famous couple also had one biological child together, Satchel.
The relationship between Allen and Farrow soured even as Farrow was
pregnant with Satchel. In 1987, while she was expecting, Farrow allegedly
told Allen not to become too close to the child because she did not think their
relationship was “going anywhere.”3
When Farrow discovered nude pictures of her twenty-two-year-old adop-
tive daughter, Soon-Yi Farrow Previn, in Allen’s apartment, she confronted
both of them. Allen had apparently been carrying on a sexual relationship
with his adoptive stepdaughter since she was eighteen years old and a senior
in high school. When Farrow learned of the relationship, she sought to retain
custody of the three children that she and Allen shared together. Soon-Yi was

155
m inds o n t r i a l

not part of the petition for custody because Allen had not adopted her and the
state of New York, where Farrow filed the custody petition, adjudicates cus-
tody only for children under the age of eighteen.
When the couple’s seven-year-old adopted daughter, Dylan, purportedly
told her mother that Allen had touched her in “certain places,” Farrow raised
a claim that Allen had sexually abused their daughter. Thus, in addition to the
high-profile nature of the parties in the case, the fact that they were not mar-
ried, and that Allen was carrying on an affair with Farrow’s adopted daughter
from a previous marriage, the case was complicated further by an allegation
of sexual abuse.
The manner in which Dylan’s allegation came about became a critical
issue in the case. Psychological research has shown that when a child is inter-
viewed during a sexual abuse investigation, several factors can often lead to
inaccurate, misleading, or distorted statements when children are later called
upon to testify in court. Repeated interviewing of a child, leading questions,
subtle cues from the interviewer that a child sees as approving or disapprov-
ing, and other similar factors can lead to tainted statements from a child.4
Therefore, the testimony of Monica Thompson, a nanny caring for Farrow’s
children who was present when Dylan was first questioned by her mother
about the alleged abuse, would cast doubt about the veracity of the allegation.
Thompson testified that Farrow asked Dylan, “What did Daddy do?” and then
followed up with the leading question, “Did Daddy ask you to take off your
underwear?”5 The nanny also testified that Farrow videotaped her interview
with Dylan and turned off the camera when the child appeared to lose interest
in the conversation; this raised questions about the completeness of the record
of Dylan’s initial statement to Farrow.
Allen filed a cross-suit against Farrow in which he sought custody of their
three children based on a charge that Farrow was an unfit mother.6 It appeared
that Allen’s suit was weak from the beginning because he had fostered con-
siderable moral outrage by having an affair with Farrow’s adopted daughter.
Furthermore, the allegation of sexual abuse added further complications to
the already difficult task of determining the specific custody and visitation
arrangements that would be in the best interest of the children.
At least one psychologist from whom Farrow sought therapy for Dylan
was “fired” after the psychologist stated that it would be “difficult to be cer-
tain” if Allen had actually molested the couple’s daughter.7 Dr. Susan Coates,
a clinical psychologist who was hired by Allen and Farrow to provide ther-
apy for their children, saw Dylan and Satchel for a period of time and also
involved both Farrow and Allen in the treatment process.

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 woody allen and mia farrow: king solomon’s sword

Coates testified that she felt Allen was a committed father, particularly
to his younger children, but that he also exhibited bad judgment by engag-
ing in an affair with Farrow’s adopted daughter. Judge Elliott Wilk, the New
York State Supreme Court judge who presided over the case and who would
reveal strong negative opinions about Allen, questioned Coates about her
view of the relationship between Allen and Soon-Yi Previn and its effect on
the other children. Coates admitted that Allen’s behavior was “irresponsible
and destructive,” but she avoided offering an opinion about custody when
asked by Wilk. The psychologist admitted that she would need to do more of
an evaluation.8
Not only was Coates acting properly by refusing to offer an opinion
about custody, but it would have been improper for her to conduct an addi-
tional evaluation to make such a determination. Her role in the Allen-Farrow
case was originally as a treating clinician who was hired to provide therapy
to Dylan. Although it was entirely proper for her to be called as a fact wit-
ness to testify as to the findings from her evaluation and interviews with
Allen, Farrow, and Dylan, she was not originally sought as an expert to offer
testimony about custody. A critical distinction exists in forensic psychologi-
cal cases between a mental health professional who is providing therapy to
an individual or family members involved in a legal case and a mental health
professional who is hired as an expert to conduct an evaluation that results in
an opinion about a legal question. Treating clinicians serve as fact witnesses
whereas only an expert witness is qualified by a judge to offer an opinion that
goes to a critical legal issue, which in the Allen-Farrow case was custody of
and visitation with their children. Therefore, Coates was on safest grounding
by testifying as to her findings from the treatment she provided and avoiding
formal opinions about custody and visitation.
Still, Farrow’s attorney, Gerald Walpin, tried to get Coates to admit that
Farrow’s hostile feelings toward Allen and the affair with Soon-Yi were rea-
sonable. Walpin asked Coates, “Do you think it was unreasonable that Ms. Far-
row considered Mr. Allen evil?”9 Coates replied, “I wouldn’t use that word.”
Walpin challenged the psychologist further, “Why not?” Coates replied, “I try
to understand judgments and I don’t make judgments.”
Walpin revealed the extent of Farrow’s extreme hostility toward Allen
when he asked Coates, “Isn’t it a fact that it is not unusual for a mother,
under the circumstances, to believe that the man she had brought into the
family, introduced to the children as a lifetime partner-parent, who was hav-
ing an affair with one of her daughters, continuing the affair, responsible for
her being thrown out of . . . camp and concealing where the girl is, is evil?”10

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m inds o n t r i a l

Coates qualified her response to Walpin’s description of Allen’s behavior in

fairly clinical terms, “I would call it an act of extremely bad judgment, but if
you wanted to call it evil I could understand that—as long as it did not gener-
alize to a person’s whole self.”11
During her testimony, Coates described how Allen’s relationship with
his seven-year-old daughter was “inappropriately intense.”12 At times Allen
would play with their daughter on his bed while wearing his underwear. How-
ever, Coates testified that she did not believe the relationship between Allen
and Dylan was sexual. In addition, Coates believed Farrow’s rage over Allen’s
affair with Soon-Yi Previn was so intense that the psychologist feared for
Allen’s safety. Farrow had apparently stated in sessions with Coates that Allen
should be killed or have his eyes stabbed out. However, Farrow later testified
that any threats toward Allen were facetious and not to be taken seriously.
Under cross-examination, Coates was challenged by Walpin, Farrow’s
attorney, about her professional record keeping, professional judgment, and
ability to remain objective in the case. The attorney suggested that Coates
was “mesmerized” by Allen’s celebrity status and chose to obtain most of the
information for her evaluation from Allen,13 creating a bias and thus clouding
the psychologist’s professional judgment. In the end, Coates concluded that
she believed Allen should have regular unsupervised visits with the couple’s
son, but she was less clear about the conditions of visitation between Allen
and Dylan.
The allegation of sexual abuse forced Judge Wilk to seek additional input
from mental health experts in an attempt to determine if Allen had, in fact,
sexually abused his young daughter. As a result, more expert opinions entered
into the case, including not only opinions about whether the sexual abuse
allegation was true but also opinions about the quality of the evaluations that
were performed to determine the veracity of the allegation. The result was a
dizzying array of expert opinions.
Given that the alleged abuse of the couple’s child occurred in Connecticut,
the state police referred Dylan to the Child Sexual Abuse Clinic at Yale-New
Haven Hospital for an evaluation. A team of forensic mental health experts
conducted a lengthy examination of Dylan and concluded that Allen had not
sexually abused the child. The team’s report was never released publicly and
remains sealed as part of a confidential court record.14 Therefore, the conclu-
sions of the Yale-New Haven Hospital study cannot be appraised directly. The
only details of the report that are available to the public are those read into
the court record by expert witnesses who offered their own opinions about
the soundness of the conclusions in the report.

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 woody allen and mia farrow: king solomon’s sword

The overall conclusion of the Yale-New Haven study stated that “it is
our expert opinion that Dylan was not sexually abused by Mr. Allen.”15 Nei-
ther Allen nor Farrow were apparently described favorably in the report, but
among the reasons that the sexual abuse allegation was determined to be
unfounded was the fact that the team identified problems in Dylan’s think-
ing. She was observed to have difficulty telling a consistent story and her
thoughts were sometimes loosely connected to one another.16 For example,
Dylan talked about “dead heads in the attic” and the examiners concluded
that her thought disturbances rendered her self-reports about alleged abuse
suspect. Of course, there were other factors that undoubtedly entered into
the conclusion of the experts from Yale-New Haven, since Allen made him-
self available for the evaluation. Forensic evaluations in allegations of sexual
abuse are on much firmer grounding when both the alleged victim and alleged
perpetrator can be independently interviewed and examined.
Despite the positive reputation of the Yale-New Haven clinic and the fact
that the experts conducting the evaluation were appointed by authorities in
Connecticut and presumed to be neutral and unbiased, attorneys for both
Allen and Farrow hired their own experts to cast the findings from the study
in a light most favorable to their respective case. The result was a battle of
expert opinions concerning the findings of other experts!
Since the findings from the Yale-New Haven investigation were favor-
able to Allen, his attorneys called a forensic psychologist, Dr. Anne Meltzer,
to testify about the merits of the report. Meltzer testified that in her opinion
the Yale-New Haven evaluation was “thorough” and conducted in a “sensi-
tive” way.17 “They reached conclusions that were supported well by the data
they collected,” Meltzer said of the report that found Allen did not sexually
abuse his daughter.18
As a rebuttal witness, Farrow’s attorney called Dr. Stephen Herman, a
child psychiatrist, to testify. Not surprisingly, Herman’s opinion held that the
report was “seriously flawed” because of questionable investigative methods.19
Herman claimed that he could identify no evidence of thought disorder in the
child based on the examples cited in the Yale-New Haven report because some
of Dylan’s statements had logical explanations. One of Herman’s more ironic
criticisms of the report, however, was his claim that the experts at Yale-New
Haven had jumped to conclusions about individuals involved in the case who
had not been interviewed or examined. Yet, Herman had apparently testi-
fied about the likely absence of a thought disorder in Dylan, although public
reports of the proceedings fail to provide any indication that Herman had
actually examined the child to help prepare his testimony.

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m inds o n t r i a l

However, the most damaging critique of the Yale-New Haven study

was the fact that original notes from the interviews and meetings had been
destroyed and could not be examined to test the validity of the report’s con-
clusions.20 The destroying of raw interview notes is a major concern. Most
agreed-upon ethical and professional standards for conducting forensic men-
tal health evaluations call for experts to outline the basis for their opinions—
which often include findings from interviews—and to preserve their records
for examination later in the legal process. When a case is referred for a foren-
sic evaluation, the experts must know that there is a strong possibility their
records, opinions, and conclusions will be closely scrutinized in court. As such,
forensic experts have an obligation to preserve their notes and records for
later review.
Since Meltzer and Herman were hired by attorneys for Allen and Far-
row, respectively, it is understandable that they had such divergent opinions
about the quality of the Yale-New Haven examination and report in the case.
What is more intriguing, however, is why the mental health professionals
who actually examined Allen and his daughter and wrote the report did not
testify at the child custody trial before Judge Wilk. In his final decision in the
case, Judge Wilk noted that the members of the evaluation team were unwill-
ing to testify, although the clinician leading the team gave testimony at a
deposition.21 It remains unclear why the clinicians who performed the direct
evaluation of the sexual abuse allegation were unwilling to testify, given the
fact that they accepted the task of performing an examination where it was
almost certain that they would be asked to testify in court. What is even less
clear is the reason that members of the team were not subpoenaed by Allen’s
attorney. One could speculate that because the child-custody trial took place
in New York State and the experts were located in Connecticut, there may
have been questions about jurisdiction. Still, the fact that the experts were
not willing to testify, along with the fact that they had destroyed their notes,
led Judge Wilk to view their conclusion with skepticism. He said in his final
decision in the case that these factors, “compromised my ability to scrutinize
their findings and resulted in a report which was sanitized and, therefore, less
credible.”22
In his final decision, Judge Wilk had harsh words for Allen as he granted
sole custody of the couple’s children to Farrow. The highly publicized case
created a media frenzy because it involved lurid details of the private lives of
two well-known celebrities, complete with allegations of sexual abuse, claims
of unfit parenting, and several children caught in the middle of the bitter dis-
pute. Judge Wilk stated in his ruling that he believed Allen “demonstrated no

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 woody allen and mia farrow: king solomon’s sword

parenting skills that would qualify him as an adequate custodian” for his chil-
dren and that he lacked “judgment, insight and impulse control.”23 The judge
also went on to express his opinion that Allen was “self-absorbed, untrust-
worthy, and insensitive.”24 Moreover, while the judge did not entirely agree
with the report of the team of experts from Yale-New Haven Hospital that
Dylan had not been sexually abused, he also stated that it was not likely Allen
could be prosecuted for sexual abuse.
With respect to custody, Judge Wilk wrote: “After considering Ms. Far-
row’s position as the sole caretaker of the children, the satisfactory fashion in
which she has fulfilled that function and Mr. Allen’s serious parental inad-
equacies, it is clear that the best interests of the children will be served by
their continued custody with Ms. Farrow.”25 The “severe parental inadequa-
cies” in Allen that the judge observed no doubt included the fact that Allen
did not know many details of the children’s lives (e.g., names of teachers)
and, of course, the affair he carried on with Farrow’s adopted daughter. Allen
was not completely shut out of Dylan’s life, since the judge ordered that a
therapist be appointed to work with the child to determine if future contact
with her father would be harmful. Moreover, the judge ruled that Allen and
Farrow’s fifteen-year-old son, Moses, would not be forced to see his father
and that Allen would be permitted weekly supervised visits with the couple’s
five-year-old son, Satchel.
Allen continued his relationship with Soon-Yi Previn and they remain
involved with one another to this day. His suit for custody was deemed by
Judge Wilk to be frivolous and Allen was ordered to pay Farrow’s legal fees,
in addition to his own. Farrow embraced the final decision and subsequently
adopted two other children following her break up with Allen. She later
filed a legal claim to have Allen’s adoption of her children overturned. Allen
found the judge’s decision hard to take. In a statement he issued following
the final ruling, Allen said, “I think it’s tragic for the children that their
custody was not awarded to me.”26 Given his behavior in the case, however,
it defies credulity to think the judge would have awarded the famous actor,
screenwriter, and director sole custody of the children. Nevertheless, Allen
was encouraged by the prospect that he might be able to see his daughter in
the near future.
Although the child custody dispute between Allen and Farrow was acri-
monious, bitter, and filled with strong feelings by those closest to the case, one
is left wondering if the best interests of the children were really served—or if
they can ever really be served in a case like this. The problem is not necessar-
ily with the final disposition of the case, but with the behavior and opinions

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of many people involved. The lives of three children were affected, yet several
aspects of the case worked against their best interests being served.
For one thing, Allen’s affair with Soon-Yi Previn was extremely disrup-
tive to the family relationships and contributed not only to the dissolution of
Allen’s relationship with Farrow but also added fuel to the fires of rage and
hostility surrounding the case. The children not only had to deal with the fact
that their parents would never be together again but they also would grow up
facing a confusing relationship with their older sister, Soon-Yi. Would she be
their sister, quasi-stepmother, or both?
Another factor that worked against the best interests of the children was
the fact that that Allen and Farrow leveled sudden claims of parental unfitness
against one another. It is common in cases where child custody is disputed
that parents try to cast themselves in the most favorable light, with the hope
that the judge will grant custody to the more desirable parent. Mothers and
fathers who fight over custody of their children often have a distorted view
of the standard for granting of custody as the “most favorable parent” test,
rather than best interests of the child. Efforts to create favorable impressions
often lead to claims by one parent that the other parent is unfit, dangerous, or
abusive. When parents raise questions about the fitness of the other parent,
absent any evidence of abusive or neglectful behavior, one question that begs
an answer is, “If your ex-spouse is such an unfit parent, why did you entrust
him or her with the care of your children all the years you were married?”
Children of divorce are best served when their parents are able to set
aside hostility, antagonism, and marital conflicts in order to work together to
make sure that relationships with both parents are fostered and encouraged.
Many divorce cases are able to be resolved without bitter disputes over child
custody and spouses are able to agree on the best arrangements for their chil-
dren. After all, parents should ordinarily determine what is in the best inter-
ests of their children.
Finally, the decision in the Allen-Farrow child custody case written by
Judge Wilk is laced with strong condemnation of Allen’s behavior and skep-
ticism of the purportedly neutral evaluation conducted by the professionals
at the Yale-New Haven clinic who evaluated the veracity of the sexual abuse
allegation against Allen. Although the judge’s condemnation of Allen’s affair
with Soon-Yi Previn is warranted, the judge’s expressed doubt about the con-
clusion of the experts who evaluated the veracity of the sexual abuse alle-
gation against Allen led to visitation arrangements that added further dis-
ruption to seven-year-old Dylan’s life. Judge Wilk cited several examples of
Allen’s behavior that supported the overall decision to grant custody to Far-
row, including the fact that Allen did not know the names of his son’s teach-

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 woody allen and mia farrow: king solomon’s sword

ers or which children shared bedrooms in Farrow’s apartment. However, the

judge made it clear in his decision that he was not certain that Allen had not
abused Dylan and ordered further psychological treatment of the child before
Allen would be allowed to have visitation with his daughter.
In child custody cases involving allegations of sexual abuse where the
abuse is unfounded or proven to be false, judges are often left in a position
of having to decide about visitation arrangements with the accused parents.
Undoubtedly, one of the questions that looms large in a judge’s thinking is,
“What if the abuse really happened but it just couldn’t be proven in court?” In
these instances, a cautious decision that some judges make is to rule the abuse
to be unfounded but then order custody and visitation arrangements that
protect the children in case the allegations happened to be true. Therefore, a
completely innocent parent who has been the target of an unfounded or com-
pletely false allegation of abuse may be granted only supervised visitation
with a child in order to protect the child. In Allen’s case, this is exactly what
occurred because the sexual abuse allegation was unfounded; there were pre-
sumably no facts proven at trial to substantiate the need for supervised visi-
tation. Nevertheless, given the apparent existence of questions in the judge’s
mind, supervised visitation was granted nonetheless.
Of course, in cases where there is clear or even equivocal evidence of
abuse (e.g., an expert opinion that the abuse could be neither substantiated
nor disproved), supervised visitation would seem to be a likely choice. How-
ever, in cases where the accused parent is innocent, one must question the
impact a decision of supervised visitation would have on a child who had not
been sexually abused. Somewhere along the way, the child may pick up cues
from the parent who remains convinced the abuse occurred or from questions
asked by therapists or case workers who monitor the supervised visitation
that the accused parent has “done something wrong.” These outcomes beg
the question of whether supervised visitation in cases where an allegation of
sexual abuse has been unfounded adds to, rather than helps, the child adjust
to divorce. Other than the tragic physical injuries to an abused child, one can
only wonder if there are real differences in the psychological and emotional
injuries suffered by children who are actually abused and children who have
not been abused but treated by the legal system as though they have been
abused.
Given the fact that divorce and custody arrangements are disruptive to
the lives of children, it is perhaps more appropriate to view child custody cases
as resulting only in what is in the “better interests of the child,” since “best
interests of the child” may be an elusive ideal that can never really be attained
in these difficult and challenging cases. Furthermore, some of the more prob-

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ing psychological questions in child custody cases are those pertaining to the
motives of the parents. For instance, why do some divorcing parents fail to
put their animosities aside when it comes to their children in order to work
toward making their post-divorce lives ones that will allow their children to
continue growing, thriving, and developing into happy, well-adjusted, and
productive adults?

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p 14
GARY AND
HOLLY RAMONA
Recovered Memories

or False Allegations?

y 1988, forty-four-year-old Gary Ramona found himself in a life sit-

B uation most people could only envy. After two decades of hard work,
he had moved up the corporate ladder to become a top executive at one of
America’s leading wineries and was earning nearly half a million dollars a
year. He was married to a glamorous woman, had three bright and attractive
teenage daughters, and lived in a luxurious home in California’s exclusive
Napa Valley.
But all was not entirely well with the Ramona family. Ramona’s old-
est daughter, Holly, a high school senior, was struggling with depression and
what appeared to be an eating disorder. She was withdrawing from family and
friends and spending more and more time alone. Though she stood only five
feet, four inches tall, her weight had ballooned from 120 to 155 pounds. Her
mother, Stephanie Ramona, wanted her in psychotherapy but Gary did not
like the idea. Holly was about to enter her freshman year at the University
of California at Irvine, and it was not unreasonable to think that perhaps a
change of scenery would be beneficial for the eighteen-year-old.
Sadly, Holly’s condition continued to deteriorate during her first year of
college. She became anorexic and bulimic, alternating between rigid dieting
and a regimen of bingeing and purging. With her parents only suspecting
the worst, Holly’s eating disorder continued to dominate her life during the
summer after her freshman year. Just as she was about to return to UC Irvine

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for her sophomore year, she confided in her mother, who immediately sought
psychological help for the ailing teenager.
By the time Holly was back at Irvine for the fall semester, Stephanie had
arranged for her to begin seeing a counselor, Marche Isabella at the Irvine
Family Psychological Services, an off-campus private practice. Isabella, a newly
licensed marriage and family counselor, had little experience with eating dis-
orders. When Stephanie Ramona asked Isabella what could have caused her
daughter’s bulimia, Isabella told her that 70 to 80 percent of bulimic women
have been sexually abused.1 Stephanie then confronted Holly and asked if
she had ever been molested. Holly said she was not sure but thought she had.
Stephanie asked if Gary had been the perpetrator and Holly replied that he
was not.
Holly’s treatment with Isabella began uneventfully but she soon asked
Holly to join a therapy group she was conducting for women with eating dis-
orders, some of whom had been sexually abused.
In December, after a semester of college and psychotherapy, Holly
returned home for the holidays. Later she would report that during the
Christmas break her father had stared at her in a sexual way. Shortly thereaf-
ter, she would later say, she began having “flashbacks” of her father sexually
abusing her.2 The flashbacks continued and became more vivid, going from
thoughts of fondling to vaginal, oral, and anal intercourse, and ultimately to
bestiality—Gary having sex with the family dog and Holly performing oral
sex on the animal.3
Initially Holly had told no one about what she was experiencing. But her
bulimia worsened and, by mid-January, she told Isabella about her father’s
“sexual” look, which Isabella labeled “emotional incest.”4 Soon, Holly was
seeing Isabella three or four times weekly and sharing her flashbacks with the
therapist. Isabella suggested that Holly confront Gary. Holly wanted to do so
but wanted to be absolutely sure that what she was experiencing were memo-
ries of actual abuse. Having heard from a fellow group member that a drug
called sodium amytal could be used in such cases as a sort of “truth serum,”
Holly pressed to have the drug administered.5
Isabella initially resisted the idea but then gave in and consulted a psy-
chiatrist, Dr. Richard Rose. Rose agreed that if Holly were to confront Gary,
the confrontation should take place in the safety of a psychiatric ward. On
March 12, Holly was admitted to such a ward at the Western Medical Center
where, after a forty-five-minute interview, Rose determined that she was a
good candidate for a sodium amytal interview.
Two days later, Rose administered the drug to Holly and asked her to
try to recall the events she had been discussing with him and Isabella. No

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 gary and holly ramona: recovered memories?

record was made of the session but it would later be reported that Holly
readily described the sexual abuse she had been reliving in her mind for the
past several months and added that she now recalled actually being raped by
her father.
Following the interview, Isabella contacted Stephanie Ramona and told
her that her daughter had been raped. The next day, Isabella reassured Holly
that she had been truthful while under the drug’s influence “because usu-
ally you need to be trained to lie under sodium amytal.”6 Isabella added that
“given my experience and analysis of you during the interview, you were
not lying.”7
Later that day, having been summoned to Isabella’s office, Gary Ramona
was confronted by Holly, who told him flatly, “You raped me.”8 When Ramona
denied ever having done any such thing, Isabella told him “we have proof”
and explained that sodium amytal was “kind of like truth serum in the mov-
ies.”9 When Ramona asked how it could be that his daughter had been repeat-
edly sexually abused and had only recently recalled it, Isabella explained that
Holly had repressed memories of the abuse because the emotional pain had
been too great to allow her to deal with them.
Sued for divorce and cut off from virtually any contact with his wife and
daughters, Ramona soon discovered that the impact of Holly’s accusations
would not stop there. Before long, rumors of the alleged abuse made it to
Ramona’s employer: he was placed on paid leave, then demoted, and finally
eased out of his job altogether. Meanwhile Ramona began seeking legal advice,
asking lawyers if he could sue the mental health professionals he felt had
somehow caused his daughter to believe that he had abused her.
The lawyers were blunt, and with good reason. Ramona, they said, could
not sue Isabella or Rose for malpractice because under then-existing Califor-
nia law, neither professional had any duty to him because he had not been
their patient. Additionally, the lawyers noted that, as a practical matter, such
a lawsuit would not succeed because all of Holly’s medical and mental health
records were confidential, and without access to those records no malpractice
could be proven.
Meanwhile, as the flashbacks continued and Holly’s mental health con-
tinued to deteriorate, she gave increasing thought to initiating her own law-
suit—one in which she would sue her father for the psychological damage she
believed had been caused by his sexual abuse.
Holly’s lawsuit would be far from the first such legal action taken by an
alleged victim of child sexual abuse. In the 1980s, a number of adult women
began confronting men they claimed had sexually abused them during child-
hood. Many of these cases involved the alleged perpetrator being sued for

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m inds o n t r i a l

damages incurred as a result of sexual abuse that had occurred years, some-
times even decades, earlier. Although confrontation of the perpetrator, and
even litigation itself, was believed by some therapists to facilitate recovery,
one of the legal hurdles in these cases was the statute of limitations.
Seen as a safeguard against stale evidence, these statutes impose strict
time limitations on the filing of lawsuits. However, certain exceptions have
long allowed civil plaintiffs to overcome the statute of limitations, such as
when an injury is not discovered until months or years later. For instance,
minors are typically allowed to wait until their age of maturity (e.g., eighteen
years old) before bringing suit; also, people who do not know they have been
injured until years later (e.g., the patient who finds out that a surgeon left a
sponge in the body cavity) are permitted to sue after the statute of limitations
has passed.
Consulting an attorney, Holly learned that three years earlier, in 1987,
the California legislature had joined numerous other states in enacting laws
liberalizing the statute of limitations in cases of alleged sexual abuse.10
Responding to a growing number of lawsuits brought by people with
so-called recovered memories of distant sexual abuse, California lawmakers
had made it possible for alleged victims of child sexual abuse to bring lawsuits
within three years of reaching adulthood, no matter how much earlier the
alleged abuse had occurred. Several years later, the legislature had also made it
possible for alleged sexual abuse victims to bring lawsuits within three years
of discovering the psychological harm done them by the abuse, regardless of
whether they had ever forgotten the abuse.
Ultimately Holly decided to sue her father and, when she did, she unwit-
tingly made possible the lawsuit Gary Ramona’s lawyers had previously said
could not be brought or won.
By claiming that she had been psychologically harmed by the sexual
abuse allegedly inflicted upon her by her father, Holly had, in legal terms,
placed her mental condition at issue. To win the monetary damages she was
seeking she would have to prove not only that the abuse had occurred but that
it had impaired her psychologically. That would require evidence from the
mental health professionals, including Isabella and Rose, who had treated her.
Moreover, the rules of discovery meant that, in order to enable Gary Ramona
to defend himself against Holly’s charges, he and his lawyers would have to
be granted access to Holly’s records.
Emboldened by the knowledge that he would now have the evidentiary
ammunition needed to pursue his claims against Isabella, Rose, and the hos-
pital in which the sodium amytal interview had been conducted, Ramona filed
an $8.5 million lawsuit. Ramona would still have to get a court to agree that

168
 gary and holly ramona: recovered memories?

Isabella and Rose owed him a duty of care, but his attorneys now had an
encouraging theory about that.
Ten years earlier the California courts had dealt with a case in which a
woman was misdiagnosed as suffering from a sexually transmitted disease
(STD).11 The woman’s physician, who had made the erroneous diagnosis, had
also suggested that she inform her husband so that he, too, could be tested
for the STD. The wife’s revelation to her husband led to the couple’s divorce.
When they learned that the diagnosis had been faulty, they sued the physi-
cian and won. The California Supreme Court upheld the verdict, ruling that:

In the case at bar the risk of harm to plaintiff was reasonably fore-
seeable to defendants. It is easily predictable that an erroneous diag-
nosis of syphilis and its probable source would produce marital dis-
cord and resultant emotional distress to a married patient’s spouse;
Dr. Kilbridge’s advice to Mrs. Molien to have her husband examined
for the disease confirms that plaintiff was a foreseeable victim of
the negligent diagnosis. Because the disease is normally transmit-
ted only by sexual relations, it is rational to anticipate that both
husband and wife would experience anxiety, suspicion, and hostility
when confronted with what they had every reason to believe was
reliable medical evidence of a particularly noxious infidelity.
We thus agree with plaintiff that the alleged tortious conduct
of defendant was directed to him as well as to his wife. Because the
risk of harm to him was reasonably foreseeable we hold, in neg-
ligence parlance, that under these circumstances defendants owed
plaintiff a duty to exercise due care in diagnosing the physical con-
dition of his wife.12

When attorneys for Isabella and Rose claimed that Ramona’s suit should
be dismissed because their clients owed him no duty of care, Ramona’s legal
team argued that this case was similar to that of Mr. and Mrs. Molien. In
allowing Gary Ramona’s lawsuit to continue, the judge agreed, finding Isa-
bella and Rose did owe Gary Ramona a duty of care because they directed
Holly to confront her father and it was foreseeable that being confronted with
the allegations of incest would harm him.13
Meanwhile, Holly’s lawsuit against her father would eventually be
doomed by her allegation that her memories of molestation were confirmed
by the sodium amytal interview arranged by Isabella and administered by
Rose. In unanimously ordering her lawsuit dismissed, a California appeals
court held that Holly’s own testimony about the alleged abuse (essentially the
only evidence that it occurred) was inadmissible because it had been “tainted”

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m inds o n t r i a l

by the sodium amytal interview, a technique the court found to be scientifi-

cally unreliable.14 Ironically, in arranging and conducting the sodium amytal
interview, Isabella and Rose had not only opened the door to a lawsuit against
themselves but also precluded their patient from suing her alleged abuser.
Though Holly Ramona had been denied her day in court, when Gary
Ramona’s lawsuit finally went to trial, it was clear that the case would turn
on the question of whether Holly’s allegations of sexual abuse were true.
Although officially the defendants were Marche Isabella and Richard Rose,
there could be little question that the true parties in interest were Gary and
Holly Ramona or that the trial would turn more on the legitimacy of repressed
memories than the technicalities of professional malpractice law.
A verdict for the defense would vindicate not only the professionals, but
Holly as well. A verdict for the plaintiff would not only vindicate Gary but
drive a dagger into the heart of the controversial repressed-memories move-
ment that had grown so rapidly over the preceding decade and had fueled
so many other lawsuits against (and criminal prosecutions of) alleged sexual
abusers.
Given the stakes, it came as no surprise that the witness list in the trial read
like a who’s who in the fields of sexual abuse, eating disorders, and repressed
memory. Dr. Park Dietz, the forensic psychiatrist who had previously testi-
fied against presidential assassin John W. Hinckley, Jr., and Milwaukee serial
killer Jeffrey Dahmer, led off the parade of experts for Gary Ramona. Dietz
testified that there was “no credible evidence” for the existence of repressed
memories such as those claimed by Holly, and that Holly was “reporting, sin-
cerely, false memories caused by the treatment she received.”15 Dietz added
that, “She started with obsessional intrusions and dreams and through the
‘magic’ of truth serum, she was led to believe that she was sexually abused by
her father.”16 It was only after the sodium amytal interview, Dietz testified,
that “Holly becomes persuaded that she was raped by her father.”17 Finally,
Dietz faulted Isabella and Rose, concluding that their failure to videotape or
audiotape the sodium amytal session fell below the professional standard of
care. Confronted on cross-examination with a statement he had made a couple
of years before the Ramona trial regarding the possible existence of repressed
memories, Dietz replied: “I’ve learned more, changed my mind.”18
Next came the testimony of Dr. Robert Gerner, a prominent California
psychiatrist selected by Ramona’s legal team to conduct the only examina-
tion of Holly Ramona that the plaintiff’s side would be allowed by the court.
Gerner offered the opinion that Holly had difficulty differentiating reality
from fantasy, had significant personality disorders, and had projected her
sexual fantasies onto her father. However, on cross-examination, Gerner’s

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 gary and holly ramona: recovered memories?

objectivity was called into question when he was forced to admit that, like
Gary Ramona, he too had come under investigation for engaging in sexual
improprieties. Pressed further by one of the attorneys for the defense, Gerner
acknowledged that in the course of counseling a couple regarding their mar-
riage he had accepted oral sex from the wife in his office.19
The next psychiatric expert to testify was Dr. James Hudson, a Harvard
Medical School professor and founder of the Academy for Eating Disorders.
Hudson testified that he knew of no evidence that childhood sexual abuse
caused bulimia; he also asserted that the sorts of behaviors demonstrated by
Holly (e.g., her obsession with weight, preoccupation with food, and aversion
to certain foods such as bananas and mayonnaise) were symptoms of bulimia
and not “evidence of childhood sexual abuse.”20
Asked whether “there [was] any evidence at all that a person who has
been sexually abused from age five to age sixteen [as Holly claimed she had
been] could have repressed it and forgotten the whole thing,” Hudson replied:
“No. People who have been forcibly raped over an eleven-year period from
age five to age sixteen just don’t forget.”21 Asked on cross-examination if,
in light of his direct testimony, he thought Holly had been lying about the
alleged abuse, Hudson said, “I don’t think she’s consciously lying but saying
things that I think are untrue.”22
Next, after the jury heard from two local doctors, a psychologist and a
psychiatrist, that Isabella and Rose had failed to meet the standard of care
in their respective professions, Dr. Elizabeth Loftus took the stand. Loftus, a
world-renowned experimental psychologist and the pre-eminent authority
on human memory agreed with Hudson. Citing her own studies and others,
Loftus testified that “there is no scientific support for the idea that you can be
raped, molested, anally raped—bestiality—spanning an eleven year period,
and totally forget about it, block it into your subconscious, and then reliably
recover it later.”23
Loftus also described the mechanisms by which false memories may be
created. As an example, she detailed a study she and a colleague had conducted.
In this research, twenty-four adult subjects (ages eighteen to fifty-three) were
asked to try to remember a number of childhood events they were told had
been recounted by their parents, older siblings, or other close relatives. Each
subject was presented with three incidents that had actually occurred and one
that was entirely fictional—a scenario in which the subject reportedly had
been lost for a long period of time in a shopping mall at about age five. The
description included the subject crying, being assisted by an elderly woman,
and then reunited with family. After reading accounts of the events, both true
and false, seven of the twenty-four subjects (29 percent) reported partially or

171
m inds o n t r i a l

fully recalling the fictional shopping-mall event; in follow-up interviews, six

subjects (25 percent) continued to claim recall of the fictitious event.24
Could Holly Ramona’s “memories” have been the product of sugges-
tion? Loftus believed so. After all, her therapist and psychiatrist had not only
accepted and nurtured Holly’s beliefs that she had been sexually abused by
her father, but had fueled them through repetition and the use of suggestive
terms such as “emotional incest” and “truth serum.”
On cross-examination, defense counsel were quick to establish that Lof-
tus was an experimentalist and not a clinician; she had never treated patients
and based her conclusions on academic studies rather than real-world experi-
ence; the subjects in her research were healthy college students, not sexually
traumatized children; and she could not rule out the possibility that Holly
Ramona had been sexually abused by her father. Asked whether she believed
Holly had been lying about the alleged abuse, Loftus echoed what Dietz and
Hudson had already told the jury: “I see no evidence that she was deliberately
lying. False beliefs, false memories, false constructions—we’re talking about
people who are trying to tell the truth.”25
In an effort to counter the compelling expert testimony of Drs. Dietz,
Hudson, and Loftus, defense attorneys pinned their hopes on the testimony of
the two defendants, Isabella and Rose, and the expert testimony of Dr. Thomas
Gutheil and Dr. Lenore Terr.
Isabella testified that she “believe[d] everything” Holly told her and
that she had “no reason not to believe” what Holly said while under sodium
amytal.26 She acknowledged that it had never occurred to her to tape the
interview and she admitted referring to sodium amytal as “kind of like a
truth serum.”27 She had taken no notes of the interview, she testified, because
“I hate notes.”28
Cross-examination was even worse for the defendant. Contradicting her
earlier testimony, Isabella then said, “I did not tell them [sodium amytal] was
a truth serum. I never believed it was a truth serum.”29 Acknowledging that
at the time she understood that one could not lie while under the drug unless
trained to do so, Isabella now admitted that she was mistaken in that belief.
Asked about her admitted assertion that 70 to 80 percent of people with eat-
ing disorders had been sexually abused, Isabella could not identify the source
for that purported statistic, except to say that she had read it in a “big book.”30
Finally, when asked if she would believe a patient who reported incidents of
witchcraft while under sodium amytal, Isabella replied “I would accept that as
true if the patient reported that under a sodium amytal interview.”31
Rose proved not much better as a witness on his own behalf. The psychia-
trist played down his support for the sodium amytal interview, acknowledg-

172
 gary and holly ramona: recovered memories?

ing that he had relented and given Holly the drug because “She thought she
was going crazy.”32 Rose admitted telling Holly after the interview that he did
not think she was lying but when asked if he was concerned that the sodium
amytal might have led to false memories, he replied, “Yes.”33
To meet allegations that Rose had not met the standard of care in psy-
chiatry when he administered sodium amytal to Holly, the defense called
Dr. Thomas Gutheil as an expert witness. Gutheil, another Harvard Medi-
cal School professor, had written extensively on psychological and legal
issues including “the tendency of . . . poorly trained counselors to seize upon
childhood sexual abuse as a single cause for all adult psychopathology” and
“therapist[s] testifying in court to reasonable medical certainty that some-
thing really happened . . . based solely upon what the patient said.”34 Gutheil
had also written approvingly of Loftus’s work on the creation of false memo-
ries. But in the confines of psychotherapy, Gutheil testified, “you have to
immerse yourself in your patient’s belief,” adding that “If he told you a
spaceship came down, you didn’t tell him you believed it really happened.
You asked ‘What is the spaceship trying to tell us about your inner life?’”35
Nonetheless, in Gutheil’s view, Rose had met the standard of care because
the psychiatrist had been “try[ing] to help someone who was really torn
between the memories and the wish that they were not true.”36 Administer-
ing sodium amytal to Holly, Gutheil testified, responded to her needs and
helped her to clarify her experience.
The last psychiatric expert to testify was Dr. Lenore Terr, a San Francisco
psychiatrist who had spent thirty years working with traumatized children
and had recently been involved as an expert in two sensational cases. Terr
was best known for her groundbreaking study of a group of twenty-six chil-
dren who had been kidnapped from their school bus in Chowchilla, California
and held underground for twenty-seven hours. Terr, who later interviewed
twenty-five of these children, concluded that they, as well as other youngsters
who had been traumatized, had lasting memories of the trauma.37
But Terr was also well known for her more recent role as an expert wit-
ness in an unprecedented California criminal case. In 1989, twenty-eight-
year-old Eileen Franklin-Lipsker experienced a “flashback.” Suddenly, in her
mind’s eye, it was twenty years earlier and her father was raping and beating
her best friend to death. In this allegedly recovered memory, Franklin-Lipsk-
er’s father also threatened to kill her. Soon, Franklin-Lipsker also claimed to
have recovered memories of her father and others repeatedly sexually abus-
ing her from the age of five on.
After Franklin-Lipsker revealed her “flashback” to the authorities, her
father, George Franklin, was charged with murder in the twenty-year-old

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unsolved killing of his daughter’s childhood friend. Lacking other direct evi-
dence, prosecutors relied upon Franklin-Lipsker’s purported recovered mem-
ory as proof of George Franklin’s guilt. Testifying for the prosecution, Terr,
who had examined Franklin-Lipsker, told the jury how Franklin-Lipsker
would have been able to completely forget such a horrific trauma and then
recall it vividly and accurately twenty years later. Franklin was convicted and
sentenced to life but his conviction was later overturned on appeal and he was
freed after spending more than six years in prison.38
In the Ramona trial, Terr seemed to reconcile the apparent conflicts
between the Chowchilla kidnapping and the Franklin case. Chowchilla, she
testified, involved “a single blow” trauma, as compared with the sort of “mul-
tiple blow” trauma alleged in the Franklin and Ramona cases.39 With “sin-
gle blow” or “Type I” trauma, as Terr called it, the traumatic event would
be remembered well. But with “multiple blow” trauma, “Type II” in Terr’s
schema, memory loss followed by later recovery would be more likely. The
key distinction, she told the jury, was “anticipation”; children subjected to
repeated abuse, as Eileen Franklin-Lipsker and Holly Ramona allegedly had
been, “know it’s going to happen” and “can suppress” the memories.40
Terr claimed that this distinction, which she developed, was “gener-
ally accepted” and “being taught in medical schools.”41 Though there are no
systematic empirical data to support the theory or her assertions about its
acceptance, Terr pointed to “something like eighty-five years of single case
reports.”42 Terr added that in her own “very strong opinion” those who had
gone through many traumatic events remembered the events less well than
people who had gone through just one event.43
But Terr went even further than educating the jury with regard to
repressed memories. She as much as told the panel that Holly had been sexu-
ally abused. Holly’s trauma, Terr testified further, was validated by the “symp-
toms and signs” she demonstrated.44 Holly’s fears of men and sex, her dislike
for movie idol Tom Cruise because he had teeth like her father’s, her avoid-
ance of foods that reminded her of penises, semen, or sex (e.g., mayonnaise,
cream sauce, and uncut bananas and pickles), and her enjoyment of games
such as “Charlie’s Angels, Bionic Woman, Wonder Woman (which involved
destroying ‘villainous men’)” all constituted a cluster of symptoms indicating
that she had been sexually abused.45 Finally, Terr testified that Isabella, Rose
and the hospital had all met the standard of care in their treatment of Holly.
“I don’t see that any major mistakes were made,” she told the jury.46
After about two days of deliberations, the jury found in favor in Gary
Ramona, responding in the affirmative to three questions posed to them in
their instructions from the judge. First, the jury concluded that Isabella and

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 gary and holly ramona: recovered memories?

Rose were negligent in providing health care to Holly Ramona by implant-

ing or reinforcing false memories that her father had sexually molested her.
Second, the jury determined that Holly’s therapists had caused Gary Ramona
to be personally confronted with the accusation that he sexually abused his
daughter. And, finally, the jury found that Ramona suffered damages that
were caused by the negligence of Holly’s therapists. In a rather surprising
move, however, the jury awarded no money damages to Gary Ramona for the
emotional harm he had incurred. Overall, the jury awarded Ramona $500,000
in economic damages, apportioning 40 percent of the responsibility to Isa-
bella, 10 percent to Rose, 5 percent to the hospital, and 40 percent to others
named by the jury—people in the community whose loose lips and point-
ing fingers had cost Ramona his reputation and his livelihood. The jury also
assessed 5 percent of the blame to Ramona himself, not for molesting Holly
but for his failure as a parent.
In the end, Gary Ramona had spent millions to come away with only
$500,000, something very few litigants could afford. But in addition to win-
ning the vindication he sought, his lawsuit paved the way for dozens of others
from coast to coast. In the years since the Ramona verdict, courts across the
nation have become receptive to suits of this sort and many parents have suc-
cessfully sued their children’s psychologists, psychiatrists, and other counsel-
ors, alleging that these professionals implanted false memories of abuse that
destroyed their families.
The question of whether and, if so, to what extent repressed and recov-
ered memories exist remains unresolved and continues to be the subject of
great controversy among and between clinicians and behavioral scientists.
But, out of financial and professional self-defense if nothing else, since the
Ramona verdict many therapists have taken a more reasoned, cautious, and
skeptical approach to allegations of recently uncovered memories of tempo-
rally remote sexual abuse.

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p 15
COLIN
FERGUSON
A Fool for a Client?

ccording to the old adage, “He who has himself for an attorney has a fool
A for a client.” While the folly of representing oneself legally, especially in
court, has long been recognized, so too has the legal right to do so. The right
to self-representation has a long history in Anglo-American jurisprudence.
Prior to the establishment of colonial America, only one British tribunal had
ever forced a defendant to be represented by anyone other than himself. That
tribunal was the notorious sixteenth- and seventeenth-century Star Cham-
ber, which has since come to symbolize disregard for legal rights.
In the U.S. federal courts, self-representation has been guaranteed since
1789, when the First Congress passed the Judiciary Act, which provided that
“in all the courts of the United States, the parties may plead and manage their
own causes personally or by the assistance of . . . counsel.”1 Additionally, the
right to self-representation is guaranteed by the Constitutions of thirty-six
states and by statute and/or case law in numerous other states.
In 1975, the U.S. Supreme Court held that a criminal defendant’s right
to represent himself in court is also guaranteed by the Sixth Amendment.
In elevating this right to constitutional stature, the Court held in Faretta v.
California that:

The Sixth Amendment does not provide merely that a defense shall
be made for the accused; it grants to the accused personally the

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right to make his defense. It is the accused, not counsel, who must
be “informed of the nature and cause of the accusation,” who must
be “confronted with the witnesses against him,” and who must be
accorded “compulsory process for obtaining witnesses in his favor.”
Although not stated in the Amendment in so many words, the right
to self-representation—to make one’s own defense personally—is
thus necessarily implied by the structure of the Amendment. The
right to defend is given directly to the accused; for it is he who suf-
fers the consequences if the defense fails.2

In Faretta the Court recognized that while choosing to represent oneself

in court may be foolish and even detrimental to a defendant’s own interests,
such a choice must be respected. As the Court explained:

It is undeniable that in most criminal prosecutions defendants could

better defend with counsel’s guidance than by their own unskilled
efforts. But where the defendant will not voluntarily accept repre-
sentation by counsel, the potential advantage of a lawyer’s train-
ing and experience can be realized, if at all, only imperfectly. To
force a lawyer on a defendant can only lead him to believe that the
law contrives against him. Moreover, it is not inconceivable that in
some rare instances, the defendant might in fact present his case
more effectively by conducting his own defense. Personal liberties
are not rooted in the law of averages. The right to defend is per-
sonal. The defendant, and not his lawyer or the State, will bear the
personal consequences of a conviction. It is the defendant, therefore,
who must be free personally to decide whether in his particular case
counsel is to his advantage. And although he may conduct his own
defense ultimately to his own detriment, his choice must be hon-
ored out of “that respect for the individual which is the lifeblood of
the law.”3

Not all of the justices agreed with the Court’s conclusion in Faretta. Three
dissenters noted, among other concerns, the inability of most laymen to rep-
resent themselves in court, quoting the Supreme Court’s opinion in the 1932
case of Powell v. Alabama:

Even the intelligent and educated layman has small and sometimes
no skill in the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left with-
out the aid of counsel he may be put on trial without a proper

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 colin ferguson: a fool for a client?

charge, and convicted upon incompetent evidence, or evidence irrel-

evant to the issue or otherwise inadmissible. He lacks both the skill
and knowledge adequately to prepare his defense, even though he
may have a perfect one. He requires the guiding hand of counsel at
every step in the proceedings against him. Without it, though he
be not guilty, he faces the danger of conviction because he does not
know how to establish his innocence. If that be true of men of intel-
ligence, how much more true is it of the ignorant and illiterate, or
those of feeble intellect.4

Nine years after deciding Faretta, the U.S. Supreme Court tackled the
question of how courts must respond when a mentally troubled defendant
wishes to waive counsel and represent himself. In Godinez v. Moran (1993),
capital defendant Allan Moran waived his right to be represented by an attor-
ney, pleaded guilty, and ultimately was sentenced to death. The trial court
held that Moran’s waiver of counsel was legal because he was competent to
stand trial. A federal district court reversed Moran’s conviction, holding that
competence to waive counsel requires a higher degree of understanding and
reason than does mere competence to stand trial, the standard for which is
simply that the defendant understand the charges against him and be able to
assist counsel in his own defense. After a federal appeals court rejected the
district court’s decision and sided with the trial court, the U.S. Supreme Court
also essentially agreed with the trial court that if a defendant is competent to
stand trial he is competent to waive counsel and to represent himself if he so
chooses. As the Court concluded:

There is no reason to believe that the decision to waive counsel

requires an appreciably higher level of mental functioning than the
decision to waive other constitutional rights. Respondent suggests
that a higher competency standard is necessary because a defendant
who represents himself “ must have greater powers of compre-
hension, judgment, and reason than would be necessary to stand
trial with the aid of an attorney.” But this argument has a flawed
premise; the competence that is required of a defendant seeking
to waive his right to counsel is the competence to waive the right,
not the competence to represent himself. In Faretta v. California,
(1975), we held that a defendant choosing self-representation must
do so “competently and intelligently,” but we made it clear that the
defendant’s “technical legal knowledge” is “not relevant” to the
determination whether he is competent to waive his right to coun-
sel, and we emphasized that although the defendant “may conduct

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his own defense ultimately to his own detriment, his choice must
be honored.” Thus, while “it is undeniable that in most criminal
prosecutions defendants could better defend with counsel’s guidance
than by their own unskilled efforts,” a criminal defendant’s ability
to represent himself has no bearing upon his competence to choose
self-representation.5

Writing in dissent for himself and Justice Stevens, Justice Blackmun chal-
lenged the Court’s reasoning in Moran:

The majority “reject[s] the notion that competence to plead guilty

or to waive the right to counsel must be measured by a standard
that is higher than (or even different from)” the standard for com-
petence to stand trial. . . . But the standard for competence to stand
trial is specifically designed to measure a defendant’s ability to
“consult with counsel” and to “assist in preparing his defense.” A
finding that a defendant is competent to stand trial establishes only
that he is capable of aiding his attorney in making the critical deci-
sions required at trial or in plea negotiations. The reliability or even
relevance of such a finding vanishes when its basic premise—that
counsel will be present—ceases to exist. The question is no longer
whether the defendant can proceed with an attorney, but whether
he can proceed alone and uncounseled.6

The Supreme Court’s rulings in Faretta and Moran were put to a practical
test perhaps most dramatically in the 1994 murder trial of Colin Ferguson.
In the fall of 1993, Colin Ferguson, a thirty-five-year-old divorced black
Jamaican immigrant was living alone in a single room in the Flatbush section
of New York City. For years, since coming to the United States in 1985, Fer-
guson had moved from job to job, had attended two colleges (Nassau Com-
munity College and Adelphi University), and had become embroiled in con-
troversies with the Worker’s Compensation Board, the Equal Employment
Opportunity Commission (EEOC), and various law enforcement agencies.
Ferguson had been unable to remain in the same job or attend college for long
because he believed that he was the victim of racism wherever he worked or
studied. His marriage ended after he concluded that the U.S. Immigration and
Naturalization Service (INS) was harassing him, in part because the INS had
shown his wife a picture of another man and she had failed to identify that
man as Ferguson, her husband.
In December 1993, Ferguson’s landlady began to notice a change in his
behavior; he was “acting funny” and praying loudly.7 On December 7, around

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 colin ferguson: a fool for a client?

4:00 p.m., Ferguson left his room, carrying a bag. Nearly two hours later, the
bag still in hand, Ferguson boarded a rush-hour commuter train packed with
commuters heading home to Long Island from New York City.
Ferguson chose a seat at the end of the third car, where he had a full view
of all twenty-six rows of seats. But Ferguson wasn’t seated long. After two
stops, he pulled a 9-mm semiautomatic pistol from the bag, stood up, and shot
the passenger on his right five times. He then turned and fired at a passenger
to his left. Other passengers began to cry and scream as Ferguson made his
way down the aisle, shooting one commuter after another, stopping only long
enough to reload his pistol.
When Ferguson stopped, apparently to reload the gun a second time, he
was rushed and tackled by two passengers. While they pinned Ferguson to the
floor, he mumbled incoherently and did not resist.
In less than three minutes, Colin Ferguson had killed six passengers and
wounded nineteen others. Although one passenger remarked that Ferguson
ought to be shot, others held him for the police. Arrested at the scene and
positively identified as the shooter, Ferguson claimed that the killer was not
him but another man who looked just like him. In Ferguson’s pockets, police
found numerous handwritten notes listing “reasons for this.”8 Among the
“reasons” listed in Ferguson’s notes were “Adelphi University’s racism, the
EEOC’s racism, Worker’s Compensation’s racism, NYC Transit Police, NYC
Police, [and] the racism of Governor Cuomo’s staff.”9 “Additional reasons for
this” were listed as: “The sloppy running of the #2 train. It is racism by Cau-
casians and Uncle Tom Negroes. Also the false allegations against me by the
filthy Caucasian racist female on the #1 line.”10
After Ferguson’s arrest and arraignment on multiple counts of murder
and attempted murder, a court-appointed psychologist, Dr. John D’Alessandro,
and psychiatrist, Dr. Allen Reichman, jointly examined Ferguson’s compe-
tence to stand trial and found that that he was intelligent but “evasive, defen-
sive and misleading,”11 was “able to understand the charges against him and
to cooperate with his attorney” and was “malingering in an attempt to create
an impression that he is unable to do so.”12 D’Alessandro and Reichman felt
that Ferguson was suffering from a paranoid personality disorder but was not
delusional or psychotic. They characterized him as an overly suspicious man
who had difficulty getting along with others, had a “chip on his shoulder,” and
made a “big issue out of little things.”13
Meanwhile, while they were still representing him, Ferguson’s attor-
neys maintained that Ferguson was mentally ill and had a possible insanity
defense. A psychiatrist selected by the defense, Dr. Richard Dudley, examined
Ferguson and found him to be suffering from a delusional disorder (persecu-

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m inds o n t r i a l

tory type). In his lengthy report, Dr. Dudley wrote that Ferguson’s “ belief
that he has been and continues to be surrounded by and constantly perse-
cuted by racist whites and non-whites who have been influenced by white
racism is so extreme (and out of line with reality) and so resistant to change
by available evidence that it meets the definition of a delusion.”14 Dudley also
concluded that as a result of this mental illness, Ferguson had been insane at
the time of the killings and that he was, at the time of trial, not competent
to be tried.
In view of the conflicting psychological and psychiatric reports, the
judge conducted his own in-court questioning of the defendant. Though his
responses to the judge’s questions were at times polemic and often laced with
bitterness toward the criminal justice system, they demonstrated knowledge
of the charges and the system under which he would be tried. For example,
Ferguson and the judge engaged in the following colloquy aimed at determin-
ing whether Ferguson understood the role of the Assistant District Attorney
prosecuting him:

The Court: Do you know what his role is?

The Defendant: Yes, I suspect, if you would permit me to express
myself fully—
The Court: I’m sorry?
The Defendant: Simply, in a monstrous and evidently wounded
criminal justice system—
The Court: No. I don’t want a speech. I just want an answer what
his role is.
The Defendant: Well, I think it’s appropriate for me to speak on this
because—
The Court: I’ll make that decision. What is his role?
The Defendant: To perpetrate injustice against me.
The Court: Is it to prosecute you?
The Defendant: Inasmuch as the description of that term is, yes.15

The judge felt that Ferguson clearly understood the nature of the charges
against him and the process by which he would be tried. There remained,
however, the question of whether Ferguson was capable of assisting counsel
in his own defense. His two court-appointed attorneys, William Kunstler and
Ronald Kuby, believed that he was not capable of assisting them. Ferguson not
only disagreed but told the judge that he wanted to represent himself, in part
because he was troubled by an article that had just appeared in Newsday, a
widely read local newspaper. “Having read that article,” Ferguson explained to
the judge, “it suggests that substantial damage has been done to my case. . . . It

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 colin ferguson: a fool for a client?

seemed to me that what appeared in the media would severely harm my case
if I were not to go psychiatric [i.e., plead insanity].”16
The article to which Ferguson referred quoted defense attorney Ronald
Kuby as describing Ferguson as extremely mentally ill: “Clearly he’s deterio-
rated dramatically since even March when we entered into the case. The man
is crazy.”17 The article also quoted Kuby and Kunstler as having informed the
court that Ferguson “has begun to assert that he, in fact, did not do the shoot-
ing.”18 “These assertions,” the defense lawyers said, “obviously are totally at
variance with the evidence and with reality.”19
Ferguson rejected the notion that he was mentally ill and refused to go
along with an insanity plea premised upon what his lawyers called “Black
rage.”20 Ferguson was in good company. Both Dr. D’Alessandro and Dr. Reich-
man agreed that he was not seriously mentally ill or insane.
As the prosecution would later point out, Ferguson’s lack of trust in his
court-appointed attorneys was not delusional but based in reality:

Defendant’s distrust of his attorneys in this case also germinated

from actual events. . . . Defendant . . . repeatedly told his attorneys
that he did not want to use a “black rage” or insanity defense. But
his attorneys, neither of whom was confronted with spending the
rest of their lives in a mental institution, did not heed their client’s
wishes. Instead, they continued to advance these theories, over their
client’s objection. Defendant’s trust in his attorneys was further
eroded when his private communications with them were published
in Newsday. In that article, defendant’s attorneys, referring to
recent conversations with defendant, derogatorily referred to him as
“crazy” and tacitly conceded he had committed the crimes.21

Ferguson’s attorneys not only argued that he was incompetent but one
of them, Ronald Kuby, cited Ferguson’s refusal to plead insanity as evidence
that he was not competent to stand trial, much less defend himself. Kuby told
the court that “Colin Ferguson has never permitted any lawyer to stand up in
court and argue his insanity. He’s too crazy.”22 Kuby concluded his argument
in Ferguson’s competency hearing by predicting that if found competent and
allowed to represent himself, Ferguson’s trial would be “an obscene and tragic
spectacle.”23 Ultimately, the judge rejected Kuby’s arguments and concluded
that Ferguson not only understood the charges against him but was capable
of assisting in his own defense and, thus, both competent to stand trial and
to waive his right to legal representation. As a result, Colin Ferguson went
to trial representing himself, joining a host of other “celebrity” defendants
who had chosen and been allowed to take the same legal path: serial killer Ted

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m inds o n t r i a l

Bundy, mass murderer Charles Manson, assisted-suicide specialist Dr. Jack

Kevorkian, accused terrorist Zacarias Moussaoui, and former U.S. Congress-
man James Trafficant—not to mention Jesus Christ, Socrates, Thomas More,
and Joan of Arc, who also defended themselves.
Attorney William Kunstler criticized the court’s decision, labeling Fergu-
son “a delusional paranoid.”24 Kunstler also decried Ferguson’s refusal to plead
insanity: “He thinks he is sane, I’m sure. He thinks and believes thoroughly
that he did not shoot anyone, that he was sleeping, and some white man took
a gun out of his bag and then massacred everybody. He’s clearly insane. And
that’s unfortunate, that he’s in there doing the one thing that’s sure to convict
him. He’s giving up an insanity defense, which clearly applies here.”25
As the highly publicized and nationally televised trial unfolded, many
observers echoed Ronald Kuby’s sentiments and criticized a system that
would allow an obviously troubled if not seriously disturbed mass murderer
to represent himself. Certainly the trial was more traumatic for some wit-
nesses than it would have been had Ferguson been represented by counsel;
many who survived Ferguson’s rampage were forced not only to face him in
court but to be cross-examined by him. But was Ferguson’s trial as detrimen-
tal to his chances for acquittal as Kuby, Kunstler, and others predicted? And
was the trial the bizarre and grotesque mockery of the American criminal jus-
tice system that Kuby, Kunstler, and many other critics claimed?
To answer those questions requires first a look at what Ferguson’s chances
were even if represented by Kunstler and Kuby (then two of America’s top
criminal defense lawyers), then, second, an examination of how Ferguson per-
formed as a lay attorney representing himself in this high profile trial, and,
third, a consideration of the benefits Ferguson and society derived from his
self-representation.
After representing himself at trial, claiming that he was not the shooter,
the jury quickly and easily convicted him of multiple counts of murder and
attempted murder and he was sentenced to six consecutive terms of twenty-
five years to life in prison, making him theoretically eligible for parole in 150
years. Would an insanity plea presented by professional legal counsel have
brought a different or more desirable result? Almost assuredly not.
To begin with, the chances of acquittal by reason of insanity in any pros-
ecution are minuscule; some studies have found that as few as 1 percent of
those who raise this plea are actually acquitted. But the chance that Colin
Ferguson would be found not guilty by reason of insanity was virtually nil,
regardless of who represented him in court. A court-appointed psychologist
and psychiatrist who examined him prior to trial agreed that while Fergu-
son suffered from a paranoid personality disorder, he was evasive, misleading,

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 colin ferguson: a fool for a client?

inconsistent, and attempting to fake a mental illness. Their opinions would

have been pitted against a single psychiatrist, hired by defense counsel, who
opined that Ferguson was “suffering from a Delusional Disorder, persecutory
type on 7 December 1993, and that as a result of this disorder he lacked sub-
stantial capacity to understand that what he was doing was wrong.”26
Even in the extremely unlikely event Ferguson had been found not
guilty by reason of insanity, under New York law he would almost certainly
have spent the rest of his life incarcerated along with the most dangerous
and deranged offenders in a secure state mental institution—a hybrid facil-
ity where treatment for mental illness is available but in a prison-like setting.
In that case, by statute, Ferguson could never be released from state custody
until he was proven to be no longer dangerous or mentally ill. Having deliber-
ately killed six and wounded nineteen railroad passengers, Ferguson would be
extremely hard pressed to ever establish that he posed no danger to others.
Though many commentators who observed Ferguson’s trial felt he would
have been better served by accepting representation from an attorney, at least
one reporter who sat through the trial described Ferguson as “smooth” and
his lawyerly performance as “polished, calm, articulate.”27
Even before the prosecution presented its case, Ferguson took actions that
most lawyers would have approved. First, though he claimed he had been
assaulted by other inmates while in jail awaiting trial, he declined to testify
against his assailants for fear that to do so might prejudice his own chances
for acquittal. He told an assistant district attorney prosecuting that case that
he preferred to wait until after his own trial was complete because testify-
ing earlier might have allowed defense lawyers in the assault case to cross-
examine him about what the law calls “prior bad acts,” including the allega-
tions that he shot twenty-four people in the Long Island Railroad. It should
also be noted that by representing himself at trial, Ferguson was able to “tes-
tify” (essentially tell the jury his story) without being sworn in or facing any
cross-examination.
Second, during the voir dire, the jury selection process, Ferguson repeat-
edly and astutely tried to question potential jury members about their racial
biases. Among other questions, Ferguson asked potential jurors:

Judge Belfi read the charges as stated in the indictment . . . And you
understand that the charges suggest racial overtones? Would you
agree on that?
How do you think you would react if you were to see, for
instance, the portrayal of [the crime] scene involving only people of
your race?

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m inds o n t r i a l

If you are . . . seated in [this] trial as a juror, you will be asked

to make judgments concerning specific charges of civil rights viola-
tions. This is something you’ll have to deal with here during the
trial. Therefore, I just need to ask what are your impressions of
people of African descent?
If I may read directly from the indictment . . . “The defendant,
Colin Ferguson . . . subjected and attempted to subject another per-
son to physical contact, to wit: Alfred Casazza because of the race,
color or nation of Alfred Casazza” . . . Therefore I will make one
more attempt to ask you, and this is not a reflection of you because
you have made no decision to bar the question, what impressions do
you have of people of African descent in general?28

While these questions and others of a similar vein were all objected to
and disallowed by the court, they are precisely the kinds of questions even a
seasoned criminal defense attorney would have asked as part of the effort to
select a racially unbiased jury. As noted by the attorney who later appealed
Ferguson’s conviction in part on the grounds that these questions were not
permitted by the trial judge:

[Ferguson’s] initial question—You understand that the charges

suggest racial overtones? —was not an objectionable question and
the judge should have allowed the juror to answer. In the first place,
it was an accurate statement. The crime [with which Ferguson was
charged] plainly does have racial overtones and it was vital to [his]
right to a fair trial that he sound out potential jurors as to their pre-
conceptions about crimes committed by African-Americans against
Caucasians.29

Once the jury was selected, the prosecutor and Ferguson each made
opening statements to the jury. Among other things, Ferguson told the jury
that “Mr. Ferguson did not fire a gun. He simply is the victim of a shooting
on a train, like any other victim.”30 Ferguson also told jurors that “there were
ninety-three counts to that indictment. Ninety-three counts only because
it matches the year 1993. Had it been 1925, it would have been twenty-five
counts.”31 While some commentators regarded this statement as delusional,
that is unlikely. Throughout the trial, Ferguson made it plain that he under-
stood the charges contained in the indictment. Indeed, at times he read from
the indictment in open court. A more likely explanation for this reference
is that Ferguson was mocking the indictment. His opening statement may

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have been somewhat stilted and arrogant but it does not appear to have been
delusional.
Critics of Ferguson’s self-representation also complained that his cross-
examinations were often not helpful because some prosecution witnesses
were able to make him look foolish by resisting his use of the third person
and identifying him directly as the gunman. For example:

Colin Ferguson: It was your statement that you played dead?

Maryanne Phillips: Yes.
Colin Ferguson: And did that involve closing your eyes?
Maryanne Phillips: Yes, it did.
Colin Ferguson: So you wanted the person who was doing the
shooting to think that you were dead?
Maryanne Phillips: Yes. I didn’t want you to shoot me again. I saw
you shoot me and I played dead.32

Still, with this witness and others, Ferguson managed to point out that
given what he called the “pandemonium” and “chaos” that ensued once the
shooting began, much of the eyewitness testimony against him was at least
questionable.33
At least one law professor who reviewed Ferguson’s performance as an
examiner and cross-examiner of witnesses felt he did a reasonably good job of
mastering the technical aspects of trial practice. Reflecting on the job Fergu-
son did representing himself, Marianne Wesson, who teaches evidence, crimi-
nal law, and trial practice at the University of Colorado School of Law, said:

Every observer at that trial thought that Colin Ferguson suffered

from fairly severe mental illness; not so severe that he couldn’t
stand trial and couldn’t represent himself. By many accounts, he did
a pretty credible job of employing a lot of standard lawyerly advo-
cacy techniques. He mastered the art of impeaching witnesses with
prior inconsistent statements. He made hearsay objections, objected
that counsel was leading the witness, that sort of thing.34

Other legal commentators also made much of Ferguson’s “rambling three

hour closing argument.”35 Specifically, they pointed to Ferguson’s comparison
of himself to a Biblical martyr: “John the Baptist lived in the wilderness, a
humble man, and he was put into prison for no reason. He was beheaded by a
criminal justice system similar to this.”36
The critics and pundits also pointed to Ferguson’s affected use of the third
person:

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m inds o n t r i a l

Vindicate Mr. Ferguson. Do not destroy his life more than it has
already been destroyed. . . . Come back with a verdict of not guilty.
Not guilty. That will be the most joyful day, I believe, for me and
not only for yourselves. Mr. Ferguson is willing to be patient as
long as you need to deliberate. It is appreciated. I thank you ladies
and gentlemen.37

Again, Ferguson’s presentation may have been somewhat stilted and may
not have been very persuasive, but it was neither delusional nor without sub-
stance. In a nationally televised discussion of the case, a well-known defense
lawyer and a criminal law professor both gave Ferguson good grades for his
closing argument. Criminal defense attorney and former federal prosecutor
Michael Nasatir said, “The final argument, I thought, was a passable final
argument. I mean, I think that the three of us could maybe do better and that
better lawyers could do better, but it was really astounding how well he did
do.”38 Law professor Stanley A. Goldman, who teaches criminal justice, crimi-
nal procedure, and evidence at Loyola Law School, had even more praise for
Ferguson’s closing argument: “His closing argument was more fluid than the
prosecution. And given the case he had, he did about as well as the prosecution
did in the closing argument.”39
It is difficult if not impossible to regard Colin Ferguson’s self-represen-
tation as having had any significant value to society, other than perhaps vin-
dicating a centuries-old legal tradition that is rooted in the ideal of personal
autonomy. It is much easier, however, to see what good representing himself
did for Ferguson.
Of course, Ferguson “lost” the trial and was convicted of many of the
charges against him. But, given the evidence against him, those convictions
seemed to be foregone conclusions regardless of who represented him. By
representing himself, Ferguson not only gained a number of potential strate-
gic trial advantages but also achieved a measure of self-satisfaction that would
have been impossible to attain had he been represented by counsel.
In terms of trial strategy, representing himself gave Ferguson many of the
advantages identified in a 2000 study of criminal defendants who dismissed
attorneys and appeared in court on their own (pro se). Psychiatrists Douglas
Mossman and Neal Dunseith examined fifty-four such cases and identified
several “potential advantages of pro se representation,” all of which appear to
have redounded to Colin Ferguson’s benefit, even though he was convicted:

Being a pro se defendant allowed defendants to confront directly

and cross-examine their accusers . . . and introduce information
at trial without being cross-examined. In a few cases, defendants

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 colin ferguson: a fool for a client?

appeared to benefit from the rapport they established with jurors

who got to know the defendants from the beginning of the trial and
therefore had more opportunity to understand pro se defendants
as persons than would have been the case had the defendants used
lawyers.40

On a personal level, this troubled man, who believed that he had been dis-
respected most of his adult life, was given the chance to command the atten-
tion not only of the judge and jury but also of the media and thousands of
Americans who watched his trial on Court TV. Moreover, by representing
himself, he was able to show a skeptical world that he was, in fact, intelligent
and articulate and not nearly as mentally ill as he had been made out to be.

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p 16
RALPH
TORTORICI
A Question

of Competence

alph Tortorici was born in 1968 with a rare condition known as hypo-
R spadias. This congenital deformity of the urethra results in an opening
near the base rather than at the tip of the penis. The condition embarrassed
Tortorici as a youngster and likely contributed to his later mental illness.
Three separate operations failed to correct the problem but clearly
seemed to influence Tortorici’s psychiatric symptoms. By the time Tortorici
reached adolescence, he was convinced that the government had placed a
listening device in his penis. Diagnosed as suffering from paranoid schizo-
phrenia, he was hospitalized numerous times. As psychiatric treatment also
proved unsuccessful, Tortorici’s delusions expanded and he came to believe
that the government was controlling his behavior through a second micro-
chip implanted in his brain. For years, Tortorici complained of a conspiracy
against him and kept a list of those he suspected were involved, including his
parents and brother.
Despite his physical and mental abnormalities, Ralph Tortorici was a
bright young man who eventually was accepted as a psychology major and
functioned for awhile as a “B” student at the State University of New York
at Albany (SUNY Albany). Still troubled by his delusions, however, Tor-
torici continued to complain that his mind was under government control.
In August 1992, for example, a nurse at the SUNY Albany Student Health
Services noted that:

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m inds o n t r i a l

Ralph came in and said that he could no longer handle what was
happening, he couldn’t take the pressure of what was going on in
his head and just couldn’t take it any longer. . . . And he told me that
he had had an X-ray, the X-ray was negative, and that he still was
sure he had an implant, a microchip in his penis, and that was forc-
ing him to do things he didn’t want to do. He felt that the govern-
ment was speaking to him through the microchip and he couldn’t
handle the pressure.1

Later that day, Tortorici was admitted to a local psychiatric hospital. His
record upon admission contained the following “impression”:

24-year old male presents with a fixed delusion accompanied by

suspiciousness. After eight years of dealing with this experience
privately, he comes to attention. Because of increased stress in his
life, he believes more conspiracy activity is taking place and, so, out
of desperation he seeks to expose the conspiracy.2

On another occasion, in December 1992, Tortorici took his concerns to

the New York State Police, complaining that the microchip in his penis was
transmitting voices directing him to molest young girls. The state trooper
who listened to Tortorici’s rambling diatribe later said, “I wanted to get him
under control. I decided I was going to take him into custody and deliver him
to the psych center at that point.”3 Admitted to the Capital District Psychiat-
ric Center, the growing urgency of Tortorici’s delusions was described in detail
by hospital staff:

Patient states that he had baby-sat for his sister’s child and a few
other children and admits to holding the seven-year-old female
and kissing her. Patient states that the penis implant emits beeping
sounds in a code that he has managed to break and they are now
giving him instructions to fuck the girl, as per Trooper McDonald.
Patient informs Trooper McDonald that he was getting frustrated
and wanted the investigation out in the open and threatened, “Do I
have to do something drastic?”4

Apparently to get the kind of attention he felt he needed, Ralph Tortorici

did need to do something drastic. In November 1994, despite his lengthy psy-
chiatric history, Tortorici was able to purchase a Remington rifle at a local
discount department store. Several weeks later, on December 14, 1994, Ralph
Tortorici stormed into a lecture hall at the university. Dressed in military
fatigues and armed with the semiautomatic rifle, eighty rounds of ammuni-

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 ralph tortorici: a question of competence

tion, and a hunting knife, he terrorized a class of thirty-five students. After

yelling “Stop government experimentation,” Tortorici demanded to see both
the governor and the president, threatened to kill his hostages, and fired the
rifle at a projection screen.5
After a two-hour standoff, several student hostages overpowered Tor-
torici. During the struggle with Tortorici, one student was shot in the scro-
tum and severely maimed. Another student suffered superficial knife wounds.
Police officers rushed the classroom and arrested Tortorici, charging him with
attempted murder, assault, kidnapping, reckless endangerment, and criminal
use and possession of a firearm.
Following his arraignment the next day, two psychiatric examiners found
Tortorici incompetent to stand trial—that is, unable to understand the charges
against him and to assist in his own defense. As a result, he was remanded to
the Mid-Hudson Psychiatric Center, a secure state forensic hospital where,
upon admission, he was noted to be delusional and “very psychotic with para-
noid beliefs.”6
While hospitalized, Tortorici received counseling but refused all medica-
tion. During his stay he was described as “rational and logical in speech and
thought . . . very cooperative to the interview situations [and] able to follow
the rules and regulations of the hospital.”7 The staff found that he had “sat-
isfactory knowledge of courtroom procedure and the duties of court officials
. . . [knew] his lawyer . . . and state[d] he is going to go along with his lawyer’s
suggestions.”8 On March 20, 1995, after ten weeks as an inpatient, Tortorici
was returned to the court as competent to stand trial.
From that date until the start of jury selection in his trial the following
January, Tortorici appeared in court on several occasions, each time speak-
ing only briefly to the judge and asking to be excused from the proceedings.
For example, at a pretrial hearing on November 16, 1995, Tortorici’s attorney
indicated that the defendant wanted to waive his presence. Questioned by
the judge, Tortorici made just two statements. The first was “I speak English,
Judge. I don’t desire to be present. I made that point clear. That is all.”9 The
second was “I do not desire to be present. No further comments.”10
On January 3, 1996, at the beginning of jury selection, defense coun-
sel informed the court that Tortorici wished to waive his right to be present
throughout the course of the trial. The judge questioned Tortorici about his
wishes, and Tortorici replied, “Let me make this clear, please. This trial, the
bad memory, it’s a nuisance to me. I want to have as little to do with these
proceedings as possible.”11
The next day, while jury selection proceeded, Tortorici was examined by a
psychiatrist retained by the prosecution in an effort to rebut Tortorici’s claim

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that he was insane at the time of his crimes. Based on this examination, which
defense counsel and the prosecutors attended, the psychiatrist, Dr. Lawrence
Siegel, reported that he was unable to assess Tortorici’s mental state at the
time of the offense, but that Tortorici was “incapable of rational participation
in court proceedings”12 and “not fit to proceed to trial.”13
Siegel concluded that “[Tortorici’s] mental condition does not appear suf-
ficiently stable to enable him to withstand the stresses of a trial without suf-
fering a serious, prolonged or permanent breakdown. [H]e has deteriorated
into a psychotic state.”14 Siegel further concluded that:

Mr. Tortorici is currently exhibiting signs and symptoms of acute

psychosis. He is incapable of rational participation in court proceed-
ings. He requires hospitalization and treatment with medication to
restore him to fitness. . . . Based upon the information available at
this time, it is my professional opinion with a reasonable degree of
psychiatric certainty that Mr. Tortorici is not fit to proceed to trial.15

Dr. Siegel also reported that Tortorici knew the names of the charges
against him, the date and place of the alleged offense, the name of his attor-
ney, and the roles of the major participants in the trial, and had more than a
rudimentary understanding of the trial process. Siegel added, however, that
“this understanding is tainted by his conviction that there are external gov-
ernmental forces influencing these persons through waves.”16 Siegel also said
of the defendant: “While he is capable of forming a relationship with his
attorney (and appears to have formed one), his delusional system is such that
there cannot be a joint understanding of the meaning of the trial currently
going on.”17
After Dr. Siegel’s report was distributed, defense counsel told the court
that “the law of this case is that there had been a previous determination, after
Mr. Tortorici’s [hospitalization], that he was in fact fit to proceed. . . . Ralph
Tortorici is in fact suffering from a mental illness, paranoid schizophrenia.
Notwithstanding the mental illness, your Honor, we are ready to proceed with
the defense. And I’m not making any motions at this time.”18
The prosecutor advised the court that “a review of the jail records . . .
would not in any way contradict the fact that [the defendant] appeared at all
times fit to proceed as of yesterday.”19 That statement was made on January 5,
1996, so the “yesterday” referred to by the prosecutor was the day the state’s
own expert, Dr. Siegel, had examined Tortorici. Later the prosecutor would
explain that while she was well aware of Dr. Siegel’s conclusions, she did not
resist going forward with the trial because “I think we thought he was as com-
petent as he ever was,” adding that “somebody described competent once as

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 ralph tortorici: a question of competence

knowing the difference between a judge and a grapefruit and that was about
the standard for competency. I think [Tortorici] knew that.”20
Hearing no objections from either the defense or the prosecution, the
judge then observed that in light of his own observations of Tortorici and rep-
resentations by both counsel that they were ready to proceed: “Nothing has
occurred in this court and to this court’s observation that would lead it on its
own initiative to review the expert determination made by the psychiatrists
of Mid-Hudson earlier on, that this defendant is in fact fit to proceed. And
therefore, we will proceed.”21
Proceed they did and the jury heard from a bevy of witnesses, both lay
and expert, about just how psychotic Ralph Tortorici had been for years and
was at the time of his classroom siege at SUNY Albany. The prosecution pre-
sented no evidence to the contrary, and certainly no expert testimony to indi-
cate that Tortorici was sane at the time of the crimes. Instead, the prosecutor
argued to the jury that, while Tortorici was mentally ill, he did not meet the
stringent legal definition of insanity:

The issue is not whether Ralph Tortorici is crazy, insane, what-

ever you want to call it. The issue is not, as it is understandably for
Ralph’s Tortorici’s family, whether or not he needs treatment or
medical attention, as opposed to punishment. The punishment issue
is whether Ralph Tortorici’s mental illness is so pervasive, so pro-
found, so all consuming that it prevented him from knowing either
of those two things that I told you about: the physical nature, con-
sequences of his acts, that his conduct was wrong, legally, morally.22

On February 16, 1996, after deliberating for just an hour, the jury rejected
Ralph Tortorici’s insanity plea and convicted him of all charges. Though the
judge had the authority to set aside the jury’s verdict and impose a finding
of legal insanity, he declined defense counsel’s request that he do so. As the
defense lawyer explained, “I can recall Judge Rosen basically commenting to
me that the insanity defense in Albany County [is] essentially dead because if
I didn’t win this case on legal insanity, what possible case could you win? Of
course, I responded to him, ‘Well, then, why don’t you set the verdict aside?’
which he refused to do.”23
Indeed, not only did the judge refuse to alter the verdict, he sentenced
Tortorici to the maximum term of incarceration allowed under New York
law: a prison term of twenty to forty-seven years. As the judge would later
explain, he doubted that any other judge would have imposed any lesser sen-
tence despite Tortorici’s obvious mental illness, adding, “When you have 37
victims as you had here, I felt the hammer had to be utilized.”24

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m inds o n t r i a l

Tortorici appealed, claiming that, in light of Dr. Siegel’s report, the judge
erred in not ordering a competency hearing prior to trial. In support of
this claim, Tortorici’s appellate attorney cited Pate v. Robinson, a 1966 U.S.
Supreme Court decision and the 1957 New York Court of Appeals decision in
People v. Smyth. In Pate, the U.S. Supreme Court held that “Where the evi-
dence raises a ‘bona fide doubt’ as to a defendant’s competence to stand trial,
the judge on his own motion must . . . conduct a hearing.”25 And in Smyth, the
New York Court of Appeals held that:

if at any time before final judgment in a criminal action it shall

appear to the court that there is reasonable ground for believing
that a defendant is in such state of idiocy, imbecility or insanity that
he is incapable of understanding the charge, indictment or proceed-
ings or of making his defense, it is the duty of the court to direct
him to be examined in these respects.26

The first court to hear Tortorici’s appeal affirmed his conviction by a vote
of 3–2.27 The Court of Appeals, New York’s highest court, also affirmed the
conviction by a 5–1 margin.28 The Court of Appeals explained that in making
a decision as to whether to order a competency examination, a trial judge may
consider all the evidence, including his or her own observations. Addition-
ally, the court noted that nearly a year before the trial, mental health pro-
fessionals at the Mid-Hudson Psychiatric Center had pronounced Tortorici
fit to proceed. The court also relied on the fact that Tortorici’s own attorney,
who had attended Dr. Siegel’s examination, had not asked for another com-
petency examination, indeed had repeatedly told the court he was ready to
proceed. The court emphasized that defense counsel was in the best position
to assess Tortorici’s capacity, raise the issue of Tortorici’s fitness to proceed, or
request another examination, but instead consistently made it clear that Tor-
torici was competent and that the defense was ready to proceed. In that regard,
the court expressed the belief that the attorney may have been acting out of
some defense strategy and might well have viewed a finding of incompetence
as interfering with his presentation of an insanity defense. Finally, the court
emphasized that some of the evidence in Dr. Siegel’s own report supported the
belief that Tortorici was competent.
Confined in a maximum-security prison with virtually no hope that the
U.S. Supreme Court would agree to hear his case and overturn his convic-
tion,29 Ralph Tortorici’s mental illness made it impossible for him to adjust
to incarceration. For three years he was shuttled back and forth between the
regular prison population and a special prison unit for the severely mentally

196
 ralph tortorici: a question of competence

ill. In August 1999, Tortorici committed suicide by hanging himself from a

bed sheet tied to a shelf in his cell.
Following Tortorici’s suicide, one of the two assistant district attorneys
who prosecuted him wrote,

As prosecutors, we were satisfied we had done the right thing. We

had a totally innocent victim, an incredibly dangerous, albeit insane,
defendant, and a law that was clearly on our side. . . . The public
would be protected from Ralph for a long, definite time period, and
Ralph would be protected from himself. . . .
Unfortunately, securing Ralph’s conviction only accomplished
the former. Incredibly enough, to the officials at [the state correc-
tions department], the guilty verdict equaled a determination that
Ralph was not insane. Nothing, of course, could have been further
from the truth. Into population he went. Within the year, he did a
good job hanging himself. He was then transferred to a psychiatric
hospital, and subsequently returned to prison. This time, he did a
much better job. His death haunts me more than I can explain.30

The crimes, prosecution, conviction, and suicide of Ralph Tortorici all

reflect the failure of the criminal justice system to deal appropriately with
offenders and potential offenders who are mentally ill.
Despite his obviously severe mental illness, Tortorici was never able to
secure the kind of treatment that might have prevented him from harming
others and himself. Civil commitment laws in New York and elsewhere allow
involuntary confinement of the mentally ill only when they pose an immi-
nent danger to themselves or others. Even when Tortorici complained to the
police that voices were telling him to molest children, he was not regarded as
sufficiently dangerous to warrant hospitalization against his will. Moreover,
even with his long history of mental illness, psychiatric care, and numerous
hospitalizations, he had the same right as any other adult citizen to purchase
a rifle from a department store.
The danger Ralph Tortorici posed (at least to others) was, of course, rec-
ognized when he committed the crimes for which he was convicted. But even
then, the criminal justice and mental health systems continued to fail him.
Under New York law, had Tortorici been judged incompetent to stand trial,
he would have been returned to the secure forensic psychiatric hospital and
would have remained there until his competence was restored or he had been
confined for a period equal to two-thirds of the maximum sentence he faced
if convicted. Thus, had he not been restored to competency sooner, Tortorici

197
m inds o n t r i a l

could have been retained behind locked doors at the secure forensic hospital
for at least thirty-one years.
Yet, despite obvious signs that he was not competent to stand trial, the
trial judge, prosecutor, and his own attorney allowed Tortorici to be tried
without ever even requesting a hearing on competency. Why?
Surely much of the blame has to be placed on the law itself. In New York,
as in virtually all states, the threshold for competence to stand trial is rela-
tively low. In 1960, in Dusky v. United States, the U.S. Supreme Court con-
cluded that competency to stand trial encompasses only two questions: (1)
Does the defendant have “sufficient present ability to consult with his law-
yer with a reasonable degree of rational understanding”?31 (2) Does he have
a “rational as well as factual understanding of proceedings against him”?32
Thus, even a severely psychotic defendant might be held competent to stand
trial if he were able to understand the charges against him and assist counsel
in his own defense.
But did the key players in this tragedy fully understand and apply the
law as intended by the Supreme Court? Consider first the prosecutor who, at
the very least, had serious doubts about Tortorici’s competence to stand trial.
After describing the “grapefruit” test mentioned earlier, she stated: “Was he
competent to help his counsel? Of course he wasn’t. . . . He was certainly
less able to help in his defense than most. So in the spirit of competence, was
he competent? No. Did he fit the legal definition of competency? Yes, prob-
ably.”33 That ambivalent appraisal, of course, came after the prosecutor’s own
expert had examined Tortorici at the time of trial and opined that Tortorici
was grossly psychotic and clearly not competent to stand trial.
As a matter of trial strategy, the prosecutor’s failure to raise the issue of
competency despite her own expert’s report that Tortorici was incompetent
is not surprising. Delay of any sort usually works to the detriment of the
prosecution in a criminal case; witnesses move or even die, public indignation
wanes, and the defense has more time to prepare. What is less understandable,
if understandable at all, is the prosecutor’s unwillingness to stipulate to a ver-
dict of insanity in this case. Had the prosecutor agreed that Tortorici met the
legal criteria for insanity, there would have been no need for a trial; the court
would have simply entered such a judgment.
By her own acknowledgment, the prosecutor was concerned that a find-
ing of insanity might result in Ralph Tortorici being returned to the com-
munity prematurely and thereby posing a serious threat to others. What she
was either unaware of or unwilling to acknowledge is that such a scenario had
virtually no chance of ever occurring. In New York, as in most other jurisdic-
tions, a finding of insanity requires state experts to determine whether the

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 ralph tortorici: a question of competence

acquitted defendant is mentally ill and dangerous. A finding that the defen-
dant is both mentally ill and dangerous—a foregone conclusion in this case—
results in an indefinite commitment to a secure state forensic hospital. Release
from such a commitment requires proof that the defendant is no longer dan-
gerously mentally ill. As a result, defendants acquitted by reason of insanity
often spend much more time in state custody than they would have had they
pleaded guilty or been convicted. Indeed, in many cases where defendants
have committed serious crimes, a finding of insanity results in a lifetime of
confinement.
The prosecutor here was also purportedly concerned about what would
happen to the defendant. A conviction, she believed, would be a “win-win”
situation in which the public would be protected from a dangerous, mentally
ill offender and Ralph Tortorici would be protected from himself.34 What she
either did not know or failed to acknowledge is that New York state pris-
ons, like those in most states, treat convicted defendants as convicts, not as
patients. When an inmate like Ralph Tortorici becomes a management prob-
lem in the regular prison population, he is likely to be segregated and may
even be briefly treated. However, such treatment is aimed at maintaining
order in the prison, not at rehabilitating the troubled inmate. Having been
convicted rather than found not guilty by reason of inanity, Tortorici had no
right to any other treatment than what he received.
The actions of Tortorici’s defense counsel are another story. Unlike the
prosecutor whose ethical duty is not to “win” but to make every effort to
see that justice is done, criminal defense attorneys are legally and ethically
obligated to zealously represent their clients’ interests within the bounds of
law. In its decision in the Tortorici case, the New York Court of Appeals sug-
gested that the defense counsel’s failure to raise the issue may have been
an indication that he believed his client was competent to stand trial. At the
same time, the appeals court also suggested that defense counsel’s failure to
raise the issue may have been the result of a strategic decision not to prevent
Tortorici’s insanity defense from being heard by a jury; had Tortorici been
declared incompetent he would have been denied an immediate trial and may
have been denied trial altogether.
Apparently the appeals court was at least partially correct in these specula-
tions. Interviewed after the conviction had been affirmed by the appeals court,
Tortorici’s defense attorney explained that he had felt he had “no ability” to
move for another hearing on Tortorici’s competence to stand trial, despite Dr.
Siegel’s conclusions, because “I had no authority from Ralph.”35 According to
the attorney, he did not press for further review of Tortorici’s competence at
the time of the trial because “Ralph didn’t want to go back to Mid-Hudson

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m inds o n t r i a l

[the secure forensic hospital to which Tortorici had been earlier been com-
mitted for evaluation]. He did not like it at Mid-Hudson. He wanted to move
on with the process.”36 The attorney added that “I had to make a judgment
call. . . . I went forward on the basis of the fact that we had put together a very
significant [case] to support the legal insanity defense.”37
The defense attorney’s rationale in this regard is somewhat puzzling.
Assuming he genuinely believed that his client was competent to stand trial,
even in the face of overwhelming evidence that he was not, his duty was to
zealously represent his client’s interest. Thus, since he says Tortorici wanted
to go to trial, he would have been both legally and ethically justified in doing
whatever he could to ensure that Tortorici was not found incompetent. At the
same time, however, he would be legally and ethically bound to make sure
that his client was properly advised regarding the consequences of going to
trial. The attorney said that at least part of Tortorici’s motivation for want-
ing to go to trial was a desire to avoid going back to Mid-Hudson Psychiatric
Center. Ironically, a trial in this case had only two possible outcomes. If con-
victed, Tortorici would be sent to prison. If acquitted by reason of insanity he
would be committed indefinitely to a secure state forensic mental hospital, in
all likelihood Mid-Hudson Psychiatric Center. Even the attorney appeared to
have some doubts about his client’s reasoning regarding going to trial: “Do I
know whether or not Ralph’s telling me he wants this case to get behind him
[is] part of the delusion or not? I don’t know the answer to that.”38
Like the prosecutor, whose “grapefruit” test clearly understates the legal
standard for competence to stand trial, the defense attorney in this case may
also have further minimized what was already admittedly a rather low legal
standard. As he later explained, in his view a defendant in New York was
likely to be found competent by forensic mental health professionals if he
had a “bare-bones understanding” of the number of counts with which he is
charged and the general roles of the judge, prosecutor, and defense counsel.39
Ironically, Dr. Siegel’s report on Ralph Tortorici belies such reasoning. The
psychiatrist reported that, upon examination at the time of trial, Tortorici was
“aware of the names of the charges against him and [had] an understanding
of what he is alleged to have done.” Moreover, Siegel found that Tortorici had
“more than a rudimentary understanding of the process of trial and the roles
of the judge, jury, prosecutor, and defense attorney.”40 Nevertheless, based on
Tortorici’s mental state at that time, Siegel concluded that he was clearly not
competent to stand trial.
While the Court of Appeals clearly defended the judge’s failure to pur-
sue the question of Tortorici’s competence in light of Dr. Siegel’s eleventh-

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 ralph tortorici: a question of competence

hour report, he was clearly the one key player in this trial who had both the
duty and the power to stop the proceeding at any time if he felt there was
legitimate doubt about Tortorici’s competence. As noted earlier, under both
the U.S. Constitution and New York case law, the judge was obligated to
conduct a hearing on the issue if at any time he had any “bona fide doubt”
or any “reasonable ground” to question Tortorici’s competence to stand
trial. There can be no question that Dr. Siegel’s detailed, nine-page report
would have given any reasonable jurist pause with regard to Tortorici’s
competence.
While Siegel reported to the judge that Tortorici was able to relate to
his attorney and had a basic understanding of the charges against him and
the roles played by the attorneys, judge, and the psychiatrist, he clearly
and graphically qualified these findings by reference to Tortorici’s severe
psychosis:

Much of Mr. Tortorici’s communication regarding his legal situa-

tion makes sense. He is aware of the names of the charges against
him and has an understanding of what he is alleged to have done.
However many of his ideas concerning how he should deal with his
legal situation, and how others might perceive his ideas, betrays his
problems with his thinking. His thought that his current criminal
trial is a test prior to his being made a “leader” is clearly erroneous.
His thought that persons in the court are influenced through “air
waves” and “power waves,” interferes with his capacity to under-
stand the true nature of the proceedings.
The defendant is oriented to time and place. He has more than
a rudimentary understanding of the process of trial and the roles
of the Judge, jury, prosecutor and defense attorney. However this
understanding is tainted by his conviction that there are external
governmental forces influencing these persons through waves. His
mental condition does not appear sufficiently stable to enable him
to withstand the stresses of a trial without suffering a serious, pro-
longed or permanent breakdown. Based upon the examination he
has deteriorated into a psychotic state.
His abilities to perceive, recall and relate are variably impaired.
His perceptions are filtered by his psychotic beliefs. For instance he
perceives that the examiner has moved in a manner that proves the
examiner has been subjected to power waves. He appears able to
recall, but much of his recollections are of psychotic material. His

201
m inds o n t r i a l

ability to relate is impaired by difficulty expressing himself in a

rational manner. While he is capable of forming a relationship with
his attorney (and appears to have formed one), his delusional sys-
tem is such that there cannot be a joint understanding of the mean-
ing of the trial currently going on. He does seem able to consider
advice given to him by his attorney.41

Both the trial judge and the appellate courts pointed to the Mid-Hud-
son report of March 1995 as evidence that Tortorici was competent to be
tried at the time of trial. The trial, of course, took place nearly nine months
after doctors at Mid-Hudson Psychiatric Center found Tortorici competent
to stand trial. Under both state and federal law, competence to stand trial
is not a static concept that can be finally determined at any given point
prior to the conclusion of the trial; a defendant must be competent to stand
trial at all times throughout the proceedings against him. Thus, the Mid-
Hudson report had little if any bearing on Ralph Tortorici’s competence in
January 1996.
In affirming Tortorici’s conviction, the appellate courts also pointed to
the judge’s independent capacity to observe and evaluate the defendant’s
competence:

The Trial Judge additionally could consider his “progressive per-

sonal observations of defendant,” during which defendant clearly
indicated that he understood his right to be present in the court-
room and consult with counsel, and also understood the proceed-
ings that would ensue in his absence. These observations included
the court’s questioning of defendant on January 3, 1996, the day
before Dr. Siegel examined him. Furthermore, it is significant that
the court continued to monitor defendant’s understanding of his
rights and the proceedings against him throughout the duration of
the trial, even though defendant himself did not appear in court.
Every day during the trial, before the jury entered the courtroom,
the Trial Judge asked defendant’s lawyer if defendant still wished
to be absent from the courtroom. Counsel always responded in the
affirmative, indicating that he had spoken with defendant regarding
the defense.42

Even assuming that the very limited and formal contact the judge had
with Tortorici on a few occasions in the courtroom were sufficient for the
judge (who is not a trained mental health professional, much less a forensic

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 ralph tortorici: a question of competence

psychiatrist or psychologist) to evaluate Tortorici’s competence, as the dis-

senting Judge on the Court of Appeals noted: “The trial record is undisput-
edly devoid of any indication that the trial court, after having received the
nine-page communication from the People’s forensic psychiatrist, undertook
any further contact, communication with, or observation of defendant prior
to rendering its decision.”43

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p 17
MIKE TYSON
Predicting

the Violence of a

Professional Fighter

n June 28, 1997, Mike Tyson and Evander Holyfield met in a highly
O touted boxing match for the heavyweight championship of the world.
During the fight, Tyson committed a major foul by biting Holyfield. Boxing
observers speculated that Holyfield was winning the fight and Tyson’s act
may have resulted from frustration over the prospect of losing. After Tyson
had two points deducted from his score, the fight resumed, but Tyson again
bit Holyfield, this time taking off a piece of the defending champion’s ear. As
thousands of spectators at the event and millions of people tuning in on pay-
per-view television watched, Holyfield jumped up and down in pain as blood
dripped from his ear.1 The referee disqualified Tyson and declared Holyfield
the winner.
Tyson’s personal and professional journey to the bout with Holyfield was
troubled in several respects. As a child he had numerous behavioral problems
that led him to be placed in a residential facility in upstate New York. At the
age of twelve, Tyson was taken into the home of Cus D’Amato and Camille
Ewald. D’Amato became Tyson’s mentor and trainer. Leaving school after the
tenth grade, Tyson became a boxer. His professional career was initially very
successful. In the early years of his boxing career, many people thought he
was unbeatable. However, when Cus D’Amato died in 1985, Tyson experi-
enced the death as one would experience the loss of a parent.

205
m inds o n t r i a l

In 1992, Tyson’s professional boxing career and personal life were both
derailed after he was convicted of rape and sentenced to six years in an Indiana
prison. His sentence was reduced for good behavior and he was released after
serving three years. He resumed his boxing career, but his personal troubles
outside the ring seemed to raise questions about his emotional stability.
After the bout with Holyfield, the Nevada State Athletic Commission
revoked Tyson’s license to box and fined him $3 million. They stated that
Tyson would be eligible to apply for a new license after one year, provided
that his behavior during the ensuing time showed that he could control him-
self. He would need to persuade the commission that he could box again
without engaging in the outrageous behavior he displayed in the fight with
Holyfield.
Once the year had passed, Tyson applied for a new boxing license. On
July 17, 1998, Tyson announced that he would apply for a license to box
in New Jersey instead of in Nevada.2 His decision angered members of the
Nevada State Athletic Commission, perhaps because his application in New
Jersey was viewed as a way of avoiding having to answer to the commission’s
concerns about his behavior inside the boxing ring. Moreover, Tyson’s appli-
cation placed members of the New Jersey boxing commission under scrutiny,
because the question was raised whether the state was “more concerned with
making money from Tyson’s fights than seeing the orderly regulation of
boxing.”3
Members of the Nevada State Athletic Commission expressed their
expectation that the New Jersey commission would take note of the fact that
Tyson’s license had been revoked in Nevada. However, a loophole in the law
might have allowed Tyson to get a license to box without having to answer to
the Nevada commission. The state athletic commissions responsible for regu-
lating the sport of boxing are administrative agencies, governmental bodies
empowered by the executive branch of government to oversee certain activi-
ties. Federal laws pertaining to the regulation of boxing require that states
recognize the rulings of other state commissions when they suspend a license
to box. In Tyson’s case, his license had been revoked, not suspended, and he
apparently intended to take advantage of this loophole by getting the New
Jersey commission to consider his application to box.
Although Tyson had obtained a license to box in New Jersey back in 1990,
he had not renewed it and therefore was required to participate in a public
hearing where he would need to demonstrate why he should be granted a
license. The standard boxing application rules do not normally require a pub-
lic hearing, but the New Jersey commission consulted with the state attorney
general’s office in light of Tyson’s license revocation in Nevada. The New Jer-

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sey commission decided to hold a public hearing so that a public legal record
could be established.4
In preparation for the hearing, Tyson was required to meet with a psy-
chologist, Dr. Bert Rothman, who later testified that he found no signs of men-
tal disturbance and that Tyson would not be prone to engage in the behavior
he exhibited in the Holyfield fight that led to his disqualification and the sus-
pension of his boxing license.5 However, Dr. Rothman’s examination of Tyson
consisted of only a one-hour meeting.
At Tyson’s hearing before the New Jersey Athletic Control Board, a num-
ber of people testified on his behalf, including his wife and Rothman. Tyson
testified on his own behalf and admitted that he had bought property in New
Jersey merely to increase the chances that he would be granted a boxing
license. He expressed remorse for having bitten Holyfield’s ear. The explana-
tion he gave for his actions was that he “snapped.”6 In addition, when Tyson
was asked about his conviction for rape in 1992, he said that the incident had
provided him an opportunity to receive mental health treatment that he was
continuing at the time of his appearance before the New Jersey Board.
However, a key moment came when Tyson’s attorney began to make his
closing argument as to why the boxer should be issued a license to box in New
Jersey. While his attorney spoke to the board, Tyson became upset over hav-
ing to repeatedly defend himself and blurted out: “How many fucking times
do I have to say this?”7 The impulsive nature of his outburst cast doubt on
Tyson’s claim, and Dr. Rothman’s finding, that he was in control of himself.
Before the board could return its decision, Tyson withdrew his application to
box in New Jersey and announced that he would seek to have his license in
Nevada reinstated. As part of the administrative hearing process, members
of the Nevada Athletic Commission required Tyson to undergo a thorough
mental health evaluation.
The forensic evaluation of Tyson’s psychiatric status was conducted by
a team of experts from the Law and Psychiatry Service at Massachusetts
General Hospital. Two members of the team were psychiatrists, two were
neurologists, one was a clinical psychologist, and the other was a neuropsy-
chologist. The task assigned to this team of experts by the Nevada State Ath-
letic Commission was to answer a series of questions about Tyson’s mental
health. Among the questions to be answered were the following: (1) What
was Tyson’s psychiatric diagnosis? (2) What treatment, if any, was needed or
proposed? (3) What was Tyson’s ability to handle stress in unpredictable situ-
ations? (4) What was the potential for Tyson to commit another major foul in
the boxing ring? and (5) Did the team of experts believe Tyson was mentally
fit to comply with the rules and regulations of boxing?8

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What made the referral questions in this case so unusual was the fact that
the Nevada State Athletic Commission was essentially requesting a foren-
sic psychological evaluation in the course of a state administrative proceed-
ing (the reinstatement of a license) to address the rather unusual question
of whether or not a professional boxer was prone to violent or aggressive
outbursts that constituted major rule violations in a sport where success is
measured by whether or not one can knock out an opponent. In other words,
the professionals who evaluated Tyson were being asked to predict if he might
become “too violent” when he stepped into the boxing ring.
The two psychiatrists on the evaluation team, Dr. Ronald Schouten and
Dr. David Henderson, interviewed Tyson and reviewed a number of records,
including findings from hearings conducted by the New Jersey Athletic Com-
mission and Nevada State Athletic Commission concerning Tyson’s conduct.
Schouten, who was the lead examiner, met with Tyson for a total of six hours,
and Henderson interviewed the boxer for an hour and a half.9 The evaluation
also involved the examiners watching tapes of the Tyson-Holyfield match.
Additionally, they also interviewed Tyson’s wife and other professionals who
had some involvement with him over the years.
The ten-page report written by Schouten summarized the entire evalua-
tion and provided an overview of Tyson’s personal history. Among the various
experiences noted was the fact that Tyson was extremely close to Cus D’Amato
and Camille Ewald, the couple who took Tyson into their home when the
boxer was twelve years old. Tyson viewed these two people as parents. Inter-
estingly, the history in Schouten’s report noted that Tyson had spent his early
years in Brooklyn before he was sent to a school in upstate New York because
of behavioral problems. However, no details are provided about the early rela-
tionship he had with his biological parents other than to note that they were
both deceased. In any case, when D’Amato died, Tyson experienced the death
“as that of a child losing a parent.”10 The history also details Tyson’s arrest
and conviction for rape in 1992 before exploring the details of Tyson’s mental
state on the night of the fight with Holyfield.
The psychiatrists asked Tyson whether he had been experiencing symp-
toms of depression or other psychological problems at the time of the fight.
Tyson told Schouten that he “was experiencing significant depression at the
time, in the context of multiple financial and personal problems.”11 However,
Tyson also said that he had “snapped” and bit Holyfield’s ear because he felt
he had been the victim of head butting in an earlier fight between the two
boxers. Tyson had suffered a cut in their first bout and when he was cut in the
second fight and got no response after protesting to the referee, he “felt that
this was no longer a prize fight, but had become a street fight.”12

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 mike tyson: predicting violence

During his interviews with the psychiatrists, Tyson displayed a sense of

responsibility for his family as well as feelings of guilt over the success he
had in his life. “I have no self-esteem but the biggest ego in the world,” he
told Schouten, and explained that he often used his egocentricity as a defense
against underlying feelings of poor self-esteem.
The notion that an inflated ego really masks underlying feelings of inad-
equacy is commonly found in popular psychology. More recently, however,
a number of researchers have questioned whether high self-esteem is really
necessary for success or if it is even possible for low self-esteem to be masked
by over-confidence or arrogance. Rather, it has been suggested that perhaps
people become violent when the favorable views they have of themselves are
threatened, instead of when underlying feelings of inadequacy break through.
Psychologist Roy F. Baumeister has shown how the combination of high self-
esteem and an unflattering evaluation by others are among the main causes
of violent behavior.13
Tyson displayed his sensitivity to unflattering or negative evaluations
by others in his psychiatric interview. He told Schouten about his “sense of
humiliation at being asked to undergo an evaluation by mental health pro-
fessionals” and that he was “deeply embarrassed” that people knew he was
undergoing the examination given the highly publicized nature of his case
and that everyone might think he was a “psycho.”14 As a result, Tyson would
become angry with the evaluation process and had to take frequent breaks in
order to continue. In fact, at one point during his examination with the psy-
chologist on the evaluation team, Dr. David Medoff, Tyson voiced a desire to
harm Medoff because of the humiliation he experienced over having to be
evaluated. Medoff wrote in his report that “at no time did [he] feel physically
threatened or endangered” by Tyson.15 Instead, Medoff interpreted Tyson’s
statement as an expressed fantasy brought about by frustration rather than
as a true statement of intent to harm the psychologist.
As part of the examination, Tyson also underwent a neurological evalu-
ation by Drs. Jeremy Schmahmann and Barry Jordan to assess whether there
were any underlying brain abnormalities that could account for Tyson’s erratic
behavior. The diagnostic testing included an electroencephalogram (EEG) to
assess for abnormal electrical activity in the brain and a magnetic resonance
image scan (MRI) to determine if there were structural problems in Tyson’s
brain. Results from both of these tests were normal.16
A thorough examination of Tyson’s brain functions was important in his
particular case because several details of the boxer’s history raised questions
about whether his violent outburst in the Holyfield fight may have been due
to brain damage. Tyson admitted to Schmahmann that he had lost conscious-

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ness several times in his life, although never in the boxing ring. Surprisingly,
and perhaps because of his success as a boxer, Tyson had never been knocked
unconscious at any time prior to his bout with Holyfield. As a youngster,
however, Tyson had been knocked out after having been hit in the head with
a baseball bat. On another occasion he was assaulted with a brick. One other
time he was beaten up so badly that he collapsed. Still, Schmahmann found
no abnormalities in Tyson’s motor responses, reflexes, attention, memory,
language skills, spatial reasoning, or judgment. It is important to note, how-
ever, that Schmahmann’s neurological examination revealed no impairment
in areas where neuropsychological testing by Dr. Thomas J. Deters showed
Tyson to be impaired.
One problem in Tyson’s neurological functioning that Schmahmann
identified was in the area of executive functioning, which is controlled by the
frontal lobes of the brain. Executive functioning is broadly defined as the abil-
ity to initiate appropriate responses to the environment by planning behavior,
shifting to new ways of responding when circumstances change, and the abil-
ity of monitor and recognize whether one’s behavior is appropriate in various
situations. Schmahmann’s report noted that Tyson’s difficulties with execu-
tive functioning were subtle and relatively mild. However, the neurologist
said that in light of Tyson’s history of impulsive behavior “the stressors in
the past combined with the relative weakness in the executive control system
make it imperative that Mr. Tyson have some outlet other than boxing to vent
his frustrations and deal with the psychological issues that have caused him
trouble in the past.”17 More important was Schmahmann’s conclusion that it
was “impossible from a clinical neurologic perspective to predict whether Mr.
Tyson is likely to lose control of his actions in the future.”18
Neuropsychological testing by Deters involved nearly two dozen tests
being administered to Tyson to evaluate his cognitive functions, including
intelligence, memory, attention, complex problem solving, and motor skills.
The findings from this portion of the evaluation revealed that Tyson’s per-
formance was average in several areas, including general intelligence, long-
term memory, expressive and receptive language, and verbal reasoning and
concept formation. However, like the neurologists who examined Tyson, the
neuropsychologist found evidence of problems with impulse control and
executive functioning. The neuropsychologist concluded that he was “unable
to predict whether or not Mr. Tyson will lose control of his behavior in a
future boxing match.” Furthermore, Dr. Deters stated that “Mr. Tyson seems
to have a clear understanding that he will have no future chance of return-
ing to boxing if he commits the same, or a similar foul” such as the biting of
Evander Holyfield’s ear.

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 mike tyson: predicting violence

The psychologist who conducted personality testing as part of the com-

prehensive evaluation of Tyson, Dr. David Medoff, saw Tyson over a two-day
period. Medoff’s examination consisted of a brief clinical interview and three
widely used psychological tests.19 The Bender Gestalt Visual-Motor Integra-
tion test consists of a series of geometric shapes that a person is asked to copy;
the test measures visual-perceptual functioning. Given the extensive neuro-
psychological testing that had been conducted by Deters, use of the Bender
Gestalt as a screening in Tyson’s case seemed to be unnecessary. The two other
psychological tests administered to Tyson were the Rorschach Inkblot Test
and the Minnesota Multiphasic Personality Inventory–2 (MMPI–2). These
tests are used to identify personality dynamics and patterns that are helpful
in understanding how a person interacts with others, functions in various set-
tings, and deals with stress.
Medoff’s testing revealed that Tyson’s MMPI–2 results were similar to
people “who are irritable, angry and argumentative, and with whom it may be
difficult to interact due to these characteristics.”20 Moreover, the testing indi-
cated that Tyson experienced depression, sadness, and pessimism. He tended
to blame other people for the problems his anger caused, and he was suspi-
cious of others. Results from the Rorschach indicated that Tyson experienced
“instances of faulty judgment and errors in decision making,” as well as a
number of distracting thoughts that he was generally able to manage but
which increased when he was under stress. Interestingly, Medoff noted in his
report that Tyson’s scores appeared to fall within the range of scores of nonpa-
tients in a normative sample of Rorschach responses. However, the psycholo-
gist also noted that there were no norms available for professional boxers on
the Rorschach and therefore it was “impossible to confidently determine the
clinical implications” of Tyson’s results.21
Overall, Medoff’s evaluation concluded that Tyson did not appear to have
any major mental illness or personality disorder. In addition, Tyson’s abil-
ity to control and tolerate stress was considered to be similar to that of most
people, but periods of poor judgment and impaired decision making were
sometimes triggered by distracting thoughts when Tyson was under more
stress. Medoff did not make any specific statements about Tyson’s ability to
return to the boxing ring or whether he might commit another major foul in
the future. One other interesting note from Medoff’s report was that Tyson
appeared to have difficulty forming close relationships and that his values and
beliefs seemed to be rigid and fixed, making it likely that change in therapy
would be difficult.
With respect to the five specific questions the Nevada State Athletic
Commission wanted Tyson’s examiners to answer, Schouten summarized the

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findings of the evaluation team in his report. First, the diagnostic team con-
cluded that Tyson suffered from a chronic form of depression called dysthy-
mia, and a cognitive disorder (characterized by problems in short-term mem-
ory, fine-motor coordination, and verbal learning and memory—presumably
as a result of several blows to the head that he experienced over the course
of his boxing career).22 Dysthymic disorder is characterized by a depressed
mood that lasts most of the day and is present more days than it is absent for
at least two years.23 In addition, the disorder is accompanied by at least two
other symptoms of depression such as a disturbance in appetite, hopelessness,
poor concentration, difficulty making decisions, low self-esteem, low energy,
or sleep disturbance. The evaluation revealed that in addition to his chronic
depression, Tyson had low self-esteem and difficulty making decisions. He
was also diagnosed with features of borderline personality disorder, which is
characterized by unstable relationships, impulsive behavior, inappropriate or
intense anger, and an unstable self-image.
Second, the team of evaluators had “the unanimous opinion . . . that Mr.
Tyson should be engaged in a course of regular psychotherapy with the goal
of building trusting relationships, understanding and managing his emotional
responses to specific situations, and anger management skills.”24 Furthermore,
the team recommended that even though Tyson had a depressive disorder and
the most effective approach to treatment depression calls for antidepressant
medications to be used in conjunction with psychotherapy, Tyson’s treatment
should consist primarily of psychotherapy without the use of medication. In
light of Tyson’s traveling schedule, lifestyle, and side effects of antidepressant
medications, the team felt that medication was not necessary for Tyson to
return to boxing and that if he was allowed to box again he would obtain relief
from some of the stressors that were contributing to his depression.
The third question addressed by the evaluation team had to do with
Tyson’s ability to handle stress in unpredictable situations. To answer this
question, the evaluators drew a distinction between their observations of
Tyson responding to the stress of having to undergo the mental health evalu-
ation and the stress of being in the boxing ring. Schouten wrote that the team
felt Tyson’s ability to handle the stress of unpredictable situations was “fair
to good” because he was able to compose himself and respond appropriately
even after he experienced humiliation and frustration over the course of the
entire evaluation. On the other hand, the team “saw no definitive evidence
that Mr. Tyson would be unable to handle unpredictable events in the [box-
ing] ring” and noted that his ability to deal with the stress of boxing was due
to the mastery he had over his sport.

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The last two questions addressed by the evaluation team were really what
the Nevada State Athletic Commission wanted to know: Would Tyson com-
mit another major foul if he returned to the boxing ring and was he mentally
fit to compete without snapping? The prediction of violent behavior has been
shown to be difficult in that mental health professionals have not developed
specific tests for predicting future violence with a very high degree of accu-
racy. Professionals continue to debate the merits of clinical versus actuarial
approaches to assessing dangerousness.25 Clinical approaches typically involve
detailed interviews and testing of the individual, with the professional then
rendering a professional opinion about whether or not the person poses a risk
for danger to others. Actuarial approaches to predicting violence are based on
statistical methods using specific variables to yield a probability of the likeli-
hood that a person will or will not become violent. Many factors influence
the accuracy of predictions of violence, including situational variables that are
often unpredictable or unforeseen, the time frame over which predictions are
made, and the confidence that one can place in predictions. Even when mental
health professionals are able to agree on specific variables that are useful in
appraising a person’s risk for violence, those professionals often differ in the
importance given to different variables and the manner in which variables are
combined to arrive at a determination of violence potential.
At the present time, many advocate a risk-assessment approach in which
specific factors that raise or lower a person’s potential for violence are identi-
fied and general estimates are offered as to a person’s risk for violence under
certain conditions (e.g., low, moderate, or high risk for violence). Professionals
also tend to qualify their evaluations based on the time over which a person’s
risk is assessed and the reliability of the information that forms the basis of
an expert opinion about violence potential.
The professionals who evaluated Tyson were presented with the extremely
difficult task of making an assessment of dangerousness in a situation that
was highly specific: whether or not a boxer would commit an act of violence or
aggression in the ring that constitutes a major rule violation. Although there
is research to show that certain factors raise a person’s potential for violence
(e.g., history of violent behavior, substance abuse, psychopathic personality
features), no research exists to provide any inkling of the factors that would
increase the risk that an accomplished heavyweight boxer like Mike Tyson
would “snap” and commit a major foul in the boxing ring. Therefore, the
experts who evaluated Tyson were in the position of having to use a combina-
tion of rational clinical judgment, an appraisal of the general research on pre-
diction of violence, and an analysis of Tyson’s history in the boxing ring.

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m inds o n t r i a l

The final report of the team of forensic experts acknowledged the difficul-
ties of their task when they stated:

It is not possible to predict the future behavior of any individual.

Fouls are committed in boxing, as they are in other sports. There
is thus some risk of a foul occurring by virtue of being a boxer or
an athlete in general. While past behavior is the best predictor of
future behavior, that fact argues both ways for Mr. Tyson. On the
one hand, it could be said that his commission of a foul puts him at
increased risk of committing another offense. On the other hand,
Mr. Tyson’s history of limited point deductions in 48 previous bouts
suggests that he is at low risk of another foul, especially given the
consequences to date of the June 28, 1997, incident.26

The team of experts concluded that Tyson was “mentally fit to return to box-
ing, to comply with the rules and regulations, and to do so without repeti-
tion of the” biting incident which led to revocation of his boxing license.27
Dr. Schouten and his colleagues presented their findings before the Nevada
State Athletic Commission. In addition, Tyson’s request to be reinstated was
supported by the testimony of two athletes who are legends in their respec-
tive sports. Basketball star Magic Johnson told the commission that he would
provide support to Tyson by helping the boxer make good decisions. Boxing
great Muhammad Ali, stricken with symptoms of Parkinson’s disease, had his
wife read a statement to the commission in which he said there was no more
severe punishment than preventing someone from earning a living at their
profession and that he would be there to provide Tyson with guidance.28
After a three-hour hearing the commission voted 4 to 1 to reinstate
Tyson’s license to box in Nevada; this ruling came over a year after the Tyson-
Holyfield fight that led to the revocation of his license to box. Although Tyson
went on to box in several bouts in subsequent years, he continued to expe-
rience difficulties both inside and outside of the ring. He went through a
divorce and had other incidents where his emotional stability was questioned,
including having his face permanently tattooed, becoming involved in a scuf-
fle during a media appearance for his fight with Lennox Lewis, and making
provocative comments during media appearances for some of his other bouts.
For example, he attempted to intimidate an opponent by boasting he could
“eat the children” of the other boxer.
Nevertheless, the forensic mental health evaluation that was undertaken
by a team of experts during his application for reinstatement of his license
remains noteworthy in several respects. The experts undertook a challeng-
ing evaluation that involved a highly specific and unusual question that most

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 mike tyson: predicting violence

forensic mental health professionals never face during their careers—namely,

whether or not a professional boxer poses a risk for aggression or violence
that constitutes a major rule violation while engaging in a sport known for
being aggressive and violent. In addition, the experts performed a compre-
hensive evaluation, worked together as a team, and presented their findings
in a manner that demonstrated their commitment to answering a number of
specific questions, while qualifying their findings appropriately. Finally, the
issue of violence risk assessment in this particular case took place not during
a criminal or civil commitment proceeding, but during the hearing of a state
administrative hearing that had the authority only to grant or deny Tyson’s
request to engage in the sport of professional boxing in the state of Nevada.
In short, this case involved an assessment of whether a person would become
“a bit too violent” in a highly unusual and very public case.

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p 18
DARYL ATKINS
Mental Retardation,

Decency, and the

Death Penalty

y the time Daryl Atkins turned eighteen, his juvenile criminal record
B included over a dozen prior felonies, most of which involved larceny, bur-
glary, and robbery without a firearm. His criminal career was all the more
remarkable because it had not begun until he was fourteen years old and
because by the age of nineteen, he was out of custody, living at home in Vir-
ginia with his parents, and still committing burglaries, robberies, and other
serious crimes.
For example, on April 29, 1996, four young adults were robbed at gun-
point by three men on a street in Hampton, Virginia. Later all four would
identify Daryl Atkins as one of the robbers, though not the gunman. About
six weeks later, in June 1996, Atkins and an acquaintance, twenty-six-year-
old William Jones, broke into a townhouse in Hampton, Virginia, and stole
a television, a VCR, a leather coat, and jewelry. Three weeks after that bur-
glary, a pizza deliveryman was robbed at gunpoint in Hampton by three
masked men, one of whom was Daryl Atkins. The robbers made off with $26.
About two months later, a Hampton woman was attacked and shot in the
stomach in her yard while mowing the lawn. The shooter was later identi-
fied as Daryl Atkins.
Though none of these adult offenses had resulted in an arrest, Atkins’s
freedom finally came to an end a week later when he and William Jones com-
mitted a robbery that ended in the death of its victim. Later, Atkins and Jones

217
m inds o n t r i a l

each admitted their involvement in the crime but gave authorities conflicting
versions of what happened.
According to Atkins, at around 11:00 a.m. on August 16, 1996, he and
Jones had begun drinking whiskey and malt liquor and smoking marijuana
laced with cocaine and had spent most of the day and evening consuming
alcohol and drugs: approximately thirty to fifty dollars worth of marijuana,
ten dollars worth of cocaine, fifty dollars worth of hard liquor, and five or six
forty-ounce bottles of malt liquor. By Atkins’s account, during the evening
Jones borrowed a gun from one of their drinking buddies, and the duo decided
to walk to a nearby 7-11 store, rob someone, and use the proceeds to purchase
more alcohol. Atkins admitted coming up with a plan whereby Jones would
wave to or holler at a potential victim to get him to stop; then, when the
victim came close, Jones would produce the gun and rob him. Instead, Jones
approached a pickup truck driven by Eric Nesbitt, an Air Force airman, who
had pulled into the convenience store parking lot.
According to Atkins, Jones pulled the gun and forced his way into the
driver’s side of the truck while Atkins entered the vehicle from the passen-
ger’s side. At Jones’s direction, Atkins demanded Nesbitt’s wallet, which con-
tained only $60. Jones and Atkins then drove Nesbitt to a nearby automatic
teller machine, where a surveillance camera videotaped them forcing him to
withdraw $200 in cash. At that point, Atkins admitted, he held the gun while
Nesbitt reached across Jones to make the withdrawal. The pair then drove
Nesbitt to a secluded location where Atkins said he returned the gun to Jones,
who ordered Nesbitt out of the truck, shot him eight times in the arms, stom-
ach and back, and, in so doing, also accidentally shot Atkins in the leg.
Though he initially invoked his right to remain silent, William Jones even-
tually agreed with much of what Atkins had to say. Jones, however, claimed
that it was Atkins who first approached Nesbitt, and Atkins who shoved his
way into the truck while pointing a gun at the twenty-one-year-old airman.
Also, according to Jones, it was Atkins’s idea to drive Nesbitt to a secluded area
and tie him up. When the three men arrived at the scene, according to Jones,
Atkins shot and killed Nesbitt and was accidentally shot in the leg when Jones
struggled to take the gun away from him.
In the end, prosecutors chose to believe, or at least rely upon, Jones’s
account of the robbery and killing. In exchange for Jones’s plea of guilty to
murder and agreement to testify against Atkins, the prosecutor agreed not
to seek the death penalty for Jones. It is not clear why the state chose Jones’s
account over that of Atkins, but it may have been because Atkins not only had
a lengthy record of prior criminal offenses and substance abuse but was also
a high school dropout who was obviously not very bright. Atkins had never

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 daryl atkins: mental retardation and the death penalty

been employed, had a history of learning disabilities, had achieved a grade

point average of only 1.26, and was ranked 347 out of a senior class of 371
when he left school.
Jones testified against Atkins, who was convicted of capital murder, and
the question of the death penalty was presented to the jury. At a sentencing
hearing to determine whether Atkins should die for his crime, defense coun-
sel argued that Atkins was mentally retarded and thus should be spared the
ultimate punishment.
The debate over Atkins’s intellectual capacity rather quickly developed
into a “battle of the experts.” Dr. Evan Nelson, a forensic psychologist, exam-
ined and psychologically tested Atkins, using the standard, widely accepted,
and most up-to-date intelligence test, the Wechsler Adult Intelligence Scale,
Third Edition (WAIS–III).
Nelson testified that Atkins’s performance on the WAIS–III resulted in a
full-scale IQ of 59, that only 1 percent of the population has IQ scores of 59
or lower, and that Atkins was “mildly mentally retarded.”1 Nelson based his
diagnosis of mild mental retardation not only on the WAIS–III results but
also on (1) interviews with Atkins, members of his family, and correctional
officers at the jail where he had been for eighteen months; and (2) school and
legal records, including the statements Atkins made to the police.2
Nelson also explained in his testimony that a diagnosis of mental retarda-
tion is not based solely upon an IQ score but also takes into account the per-
son’s ability to function independently as compared to other people the same
age. For example, according to the American Association of Mental Retarda-
tion, “Mental retardation refers to substantial limitations in present function-
ing. It is characterized by significantly subaverage intellectual functioning,
existing concurrently with related limitations in two or more of the following
applicable adaptive skill areas: communication, self-care, home living, social
skills, community use, self-direction, health and safety, functional academics,
leisure, and work. Mental retardation manifests before age 18.”3 Similarly, the
American Psychiatric Association’s diagnostic standards indicate that “The
essential feature of Mental Retardation is significantly subaverage general
intellectual functioning . . . accompanied by significant limitations in adap-
tive functioning in at least two of the following skill areas: communication,
self-care, home living, social/interpersonal skills, use of community resources,
self-direction, functional academic skills, work, leisure, health, and safety.”4
With regard to Atkins’s functioning, Dr. Nelson testified that while the
convicted killer had never before been diagnosed as mentally retarded, he had
received poor grades in school, often failed tests and classes, and was placed
in special remedial courses. Nelson also testified that Atkins’s deficits had

219
m inds o n t r i a l

been manifest throughout his life and that, while he might have “scored a
little higher” on the WAIS–III had he not been depressed at the time the test
was administered, his IQ of 59 was not an “aberration, malingered result, or
invalid test score.”5
“The possibility that Mr. Atkins was malingering,” Dr. Nelson reported,
“was considered and ruled highly unlikely.”6 As the psychologist indicated in
his written report of the evaluation, this conclusion was based upon a number
of factors:

From the available school records, it was evident that this defendant
had always been of limited intellect. In 8th grade, he scored in the
15th percentile on standardized achievement tests; in 10th grade he
scored at the 6th percentile; he failed driver’s education twice; and
he barely passed the Virginia Literacy Passport subtests on reading
and math. Furthermore, although a presentence report from 5/1/97
reported that the defendant was never in “Special Education,” that
is incorrect. After consultation with a Bethel High School guidance
counselor who reviewed the defendant’s transcript, it turned out
that Mr. Atkins was, indeed, placed in a lower level classes [sic] for
slow learners and in classrooms with intensive instruction to reme-
diate deficits. Furthermore, persons who are malingering IQ tests
usually have an uneven pattern of scores on the multiple subtests
because they do not know how many questions to answer accu-
rately versus pretend not to know, and the results of Mr. Atkins’
test was a fairly uniform pattern of scores.7

In his testimony, Dr. Nelson made it clear that Atkins’s history of aca-
demic failure had begun as early as the second grade. School records reviewed
by Nelson indicated that Atkins failed that grade because “work of grade too
difficult.”8 After repeating second grade, Atkins struggled through third grade
and was “socially promoted” from fourth to fifth grade.9 In junior high school,
Atkins was referred for testing for special education but never received it.
Instead he was placed in the lowest of three academic tracks and was eventu-
ally promoted to the ninth grade, although the records indicated that he did not
meet the requirements for promotion to high school. In ninth grade, he man-
aged a D+ average, but in tenth grade, which he took twice, his average fell to
D- on both attempts. Eventually placed in a specially structured class for slow
learners, he succeeded briefly before leaving school without a diploma.
In rebuttal, the prosecution presented the testimony of another psychol-
ogist, Dr. Stanton Samenow. Samenow also had interviewed Atkins, reviewed
his school records, and interviewed correctional officers who had observed

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 daryl atkins: mental retardation and the death penalty

Atkins in jail. Samenow did not interview anyone who had information
regarding Atkins’s functioning outside of custody. Nor did he perform any
formal intelligence tests. Instead, he asked Atkins some questions taken from
an outdated (1972) version of the Wechsler Memory Scale as well as some
items from the WAIS–III. He also administered a projective test known as the
Thematic Apperception Test (TAT), a personality test in which the subject is
presented with drawings and asked to tell a story about each. The TAT is not
and never has been recognized as a measure of intelligence.
Confronted on cross-examination about his reliance on portions of an
outdated test instead of administering a full version of a current intelligence
test, Samenow acknowledged that the ethical principles of the American Psy-
chological Association, of which he was a member, required the use of up-to-
date tests. But Samenow qualified his reply by claiming that this ethical prin-
ciple applied only “When one is doing a full evaluation with testing, which I
was not doing.”10
The prosecution psychologist testified that, although he did not con-
test the way in which Dr. Nelson had computed Atkins’s IQ scores, his own
observations led to the conclusion that Atkins was not mentally retarded but
rather of at least average intelligence. Samenow said he based this conclusion
on his assessment of Atkins’s vocabulary, knowledge of current affairs, and
other responses. For example, Samenow reported that Atkins knew that John
F. Kennedy had been president in 1961, knew the name of the state’s current
governor, and used “sophisticated words” including orchestra, decimal, and
parable.11 Samenow noted that Atkins was able to recall information he had
been asked to remember and was able to understand cause and effect. Same-
now testified that although Atkins’s academic performance had been “by and
large terrible,” he said that was because Atkins “is a person who chose to pay
attention sometimes, not to pay attention others, and did poorly because he
did not want to do what he was required to do.”12
Addressing the issue of Atkins’s adaptive functioning, Dr. Samenow tes-
tified that:

Well, Mr. Atkins never lived independently. In other words, he

was not a self-supporting member of society. However, he told
me he was able to wash his clothes, wash and dry his clothes, he
used his parents’ washing machine and dryer. He told me—when I
asked him if he was able to cook, he gave me his recipe for cooking
chicken.
This Defendant . . . lived a life in which he didn’t work, and I
don’t mean just didn’t hold a job, that he didn’t do, but then again

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m inds o n t r i a l

there are a lot of 18-year-olds who maybe haven’t worked because

they’ve been in school. But he didn’t work in school either.
So the point is he chose . . . a certain way of life, and there was
no lack of ability to adapt and to take care of basic needs, certainly.13

In addition to the testimony of the two psychologists, the jury also heard
graphic testimony from some of the victims of Atkins’s many prior violent
felony convictions, people Atkins had abducted, shot, pistol-whipped, and
beaten with a beer bottle. Weighing this evidence, the jury concluded that
Atkins’s crime had been “outrageously or wantonly vile, horrible or inhu-
man”14 and thus sentenced Atkins to death. On appeal, the Virginia Supreme
Court initially upheld the verdict but overturned the sentence because a
legally defective jury sentencing form had failed to alert jurors to the pos-
sibility of imposing a sentence of life in prison. The case was remanded to the
trial court for a new sentencing proceeding, at which the evidence offered the
jurors, including the testimony of the psychologists, was largely the same as
in the first sentencing hearing. Again Atkins was sentenced to die. This sen-
tence also was appealed, and the Supreme Court of Virginia affirmed, holding
that the death penalty had been properly imposed.
One justice, however, dissented, concluding that Dr. Samenow’s testi-
mony was simply not to be believed:

I simply place no credence whatsoever in Dr. Samenow’s opinion

that the defendant possesses at least average intelligence . . .
Dr. Samenow admitted that he does not contest the manner in
which Dr. Nelson computed the defendant’s IQ scores. Addition-
ally, Dr. Samenow admitted that some of the questions he adminis-
tered to the defendant were based upon a test developed in 1939. Dr.
Samenow described this test as “an old standard,” yet, he used this
obsolete test even though he acknowledged that the Ethical Prin-
ciples of Psychologists and Code of Conduct, Ethical Standards 2.07
(1992) of the American Psychological Association, prohibits the use
of obsolete tests and outdated test results and specifically states that
“psychologists do not base such decisions or recommendations on
tests and measures that are obsolete and not useful for the current
purpose.”15

When Atkins’s appeal reached the U.S. Supreme Court in 2002, many
expected the death sentence to be affirmed there as well. After all, in 1989,
the Supreme Court held in Penry v. Lynaugh that imposing the death penalty
on a mentally retarded criminal defendant did not violate the Eighth Amend-

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 daryl atkins: mental retardation and the death penalty

ment’s ban on cruel and unusual punishment.16 Moreover, the facts in Penry
were much more sympathetic to the defendant than those in Atkins.
Johnny Penry, then twenty-two, also had committed a brutal murder and
been sentenced to die. However, Penry, whose IQ was 54, was not only men-
tally retarded but diagnosed with organic brain damage, most likely caused
by birth trauma and/or beatings he received at an early age. Expert testimony
indicated that Penry “had the mental age of a 6 1/2-year-old [and] social
maturity, or ability to function in the world . . . of a 9- or 10-year-old.”17
Evidence further established that Penry was essentially unable to learn, had
never even finished first grade, had been severely beaten in the head, abused
and neglected as a child, and had been in and out of state institutions for the
retarded and mentally ill until he was twelve years old. His aunt testified that,
even then, it had taken her over a year to teach Penry to print his name. Even
the doctors who testified for the prosecution “acknowledged that Penry was a
person of extremely limited mental ability, and that he seemed unable to learn
from his mistakes.”18
In rejecting Penry’s claim that executing the mentally retarded consti-
tuted cruel and unusual punishment of the sort barred by the Eighth Amend-
ment to the Constitution, the U.S. Supreme Court concluded that:

In sum, mental retardation is a factor that may well lessen a defen-

dant’s culpability for a capital offense. But we cannot conclude today
that the Eighth Amendment precludes the execution of any mentally
retarded person of Penry’s ability convicted of a capital offense sim-
ply by virtue of his or her mental retardation alone. So long as sen-
tencers can consider and give effect to mitigating evidence of mental
retardation in imposing sentence, an individualized determination
whether “death is the appropriate punishment” can be made in each
particular case. While a national consensus against execution of the
mentally retarded may someday emerge reflecting the “evolving
standards of decency that mark the progress of a maturing society,”
there is insufficient evidence of such a consensus today.19

That consensus, found lacking in 1989, had apparently “emerged” some

thirteen years later when the U.S. Supreme Court considered Atkins’s appeal.
In 2002, reversing their earlier holding in Penry, the Court held in Atkins
that executing a mentally retarded criminal offender does violate the Eighth
Amendment. As the Court’s landmark decision explained:

Much has changed since Penry’s conclusion that the two state stat-
utes then existing that prohibited such executions, even when added

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m inds o n t r i a l

to the 14 States that had rejected capital punishment completely, did

not provide sufficient evidence of a consensus. Subsequently, a sig-
nificant number of States have concluded that death is not a suitable
punishment for a mentally retarded criminal, and similar bills have
passed at least one house in other States . . .
An independent evaluation of the issue reveals no reason for
the Court to disagree with the legislative consensus. Clinical defini-
tions of mental retardation require not only subaverage intellectual
functioning, but also significant limitations in adaptive skills. Men-
tally retarded persons frequently know the difference between right
and wrong and are competent to stand trial, but, by definition, they
have diminished capacities to understand and process information, to
communicate, to abstract from mistakes and learn from experience,
to engage in logical reasoning, to control impulses, and to under-
stand others’ reactions. Their deficiencies do not warrant an exemp-
tion from criminal sanctions, but diminish their personal culpability.
In light of these deficiencies, the Court’s death penalty jurisprudence
provides two reasons to agree with the legislative consensus.
First, there is a serious question whether either justification
underpinning the death penalty—retribution and deterrence of
capital crimes—applies to mentally retarded offenders. As to ret-
ribution, the severity of the appropriate punishment necessarily
depends on the offender’s culpability. If the culpability of the aver-
age murderer is insufficient to justify imposition of death, the lesser
culpability of the mentally retarded offender surely does not merit
that form of retribution. As to deterrence, the same cognitive and
behavioral impairments that make mentally retarded defendants
less morally culpable also make it less likely that they can process
the information of the possibility of execution as a penalty and, as a
result, control their conduct based upon that information. Nor will
exempting the mentally retarded from execution lessen the death
penalty’s deterrent effect with respect to offenders who are not
mentally retarded.
Second, mentally retarded defendants in the aggregate face a
special risk of wrongful execution because of the possibility that
they will unwittingly confess to crimes they did not commit, their
lesser ability to give their counsel meaningful assistance, and the
facts that they are typically poor witnesses and that their demeanor
may create an unwarranted impression of lack of remorse for their
crimes.20

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 daryl atkins: mental retardation and the death penalty

The U.S. Supreme Court’s decision in Atkins has already been the sub-
ject of much debate, with some critics expressing the fear that many capital
murder defendants will now pretend to be mentally retarded in order to avoid
a sentence of death. Indeed, Justice Antonin Scalia raised this concern in his
dissenting opinion in Atkins:

One need only read the definitions of mental retardation adopted

by the American Association of Mental Retardation and the Ameri-
can Psychiatric Association to realize that the symptoms of this
condition can readily be feigned. And whereas the capital defendant
who feigns insanity risks commitment to a mental institution until
he can be cured (and then tried and executed), the capital defen-
dant who feigns mental retardation risks nothing at all. The mere
pendency of the present case has brought us petitions by death row
inmates claiming for the first time, after multiple habeas petitions,
that they are retarded.21

This concern about the malingering of mental retardation, however,

seems misplaced. Contrary to Justice Scalia’s unsubstantiated assertion, men-
tal retardation is difficult to fake. As the American Psychological Association,
American Psychiatric Association, and American Academy of Psychiatry and
the Law informed the Supreme Court in their amicus (friend-of-the-court)
brief filed in Atkins,

False positive diagnoses of mental retardation due to malinger-

ing (i.e., the opportunistic feigning of symptoms) are essentially
unknown. . . . Indeed, to the extent feigning is an issue relating to
diagnoses of mental retardation, it arises because individuals with
retardation try to cover up their disability due to the lifelong stigma
that often attaches to it.22

Successfully faking or malingering mental retardation in order to avoid

a death sentence is almost impossible to conceive of for several reasons. First,
diagnosis of mental retardation must be based upon, among other things, the
individual’s score on one or more objective and standardized tests used to
measure intellectual functioning. As Dr. Nelson explained to the jury in his
testimony at Atkins’s sentencing hearings, “It would be pretty hard to malin-
ger. . . . You’d have to have extraordinary knowledge of the test, have decided
in advance which questions you’re going to get, do the equivalent of card
counting in your head, keep track of how many questions you’ve said right or
wrong.”23 To put it more bluntly, a person capable of faking mental retarda-
tion on an objective, standardized intellectual test would almost certainly be

225
m inds o n t r i a l

too obviously bright to carry off the deception, even if he or she were some-
how capable of fooling the psychological tests.
Second, mental retardation is a developmental disorder, the diagnosis of
which requires evidence of significant limitations in adaptive functioning,
beginning in childhood. Thus, to successfully feign retardation in order to
avoid execution for a capital crime, would-be defendants would have to begin
laying the groundwork for their malingered defenses in early childhood, years
before they would even be age-eligible for the death penalty.
Other critics of the Atkins decision have complained that making mental
retardation an automatic barrier to the death penalty will lead to difficult line
drawing (if not hair splitting) and turn many capital sentencing proceedings
into “battles of the experts” such as occurred in Atkins itself.
This complaint, however, also seems without merit. As for drawing the
line between who is and who is not mentally retarded, as already noted this is
a reasonably objective process. Not only is intelligence measured by standard-
ized, objective, and well-established instruments, but so is adaptive function-
ing. As the amicus brief in Atkins informed the Court:

Clinicians have at their disposal objective rating scales and assess-

ment methods for the comprehensive evaluation of adaptive func-
tioning skills. Such instruments were largely developed for the
express purpose of testing adaptive functioning as it relates to
mental retardation, and the tests accordingly have a high degree of
validity in connection with this use. . . . In addition to validity, the
reliability of particular adaptive functioning tests has been deter-
mined through extensive and intensive analyses.24

One concern that may have some arguable validity with regard to this
line-drawing criticism relates to the inherent possibility of error in the mea-
surement of intelligence or IQ. But while this issue may result in a small
increase in the number of people diagnosed as mentally retarded, it has little
practical effect on the validity and reliability of IQ scores.
By commonly accepted clinical and legal definition, a diagnosis of mental
retardation requires an IQ of no greater than 70. Where an individual’s IQ is
substantially lower or higher than 70, there is little if any problem in deter-
mining whether or not the person meets the IQ criterion for a diagnosis of
mental retardation. IQs close to 70 are not quite so easy to characterize one
way or the other because standardized intelligence tests are subject to mea-
surement error, which varies among instruments but is generally in the range
of no more than plus or minus five points. As one authority put it: “The best
a psychometrician can do is state the odds that the true IQ will be included

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 daryl atkins: mental retardation and the death penalty

within some range above and below the obtained score. Averaging across all
the age ranges, a person’s true IQ will be within [plus or minus] 5 points of
his/her measured IQ more than 95 percent of the time.”25
As a practical matter, this problem is dealt with by expanding the range of
IQs considered to meet the intellectual criterion for retardation to include those
as high as 75. While this correction means that some rather small percentage
of capital murder defendants who do not in fact have IQs in the retarded range
may appear to, they would not be diagnosed as mentally retarded unless they
also met the other diagnostic criteria, such as significant limitations in adap-
tive functioning and pre-adult onset.
As for the specter of many capital sentencing hearings being turned into
battles of the experts, to begin with, most such proceedings already involve
expert, often conflicting, testimony. It has long been clear that convicted capi-
tal defendants have a constitutional right to present any and all potentially
mitigating evidence to the jury charged with sentencing them. Given the
nature of many of these offenders and their crimes, not surprisingly, many if
not most opt to present psychological and/or psychiatric testimony regard-
ing mental illness, mental retardation, addiction, family dysfunction, and so
forth. And, when they do, the prosecution is ordinarily allowed to present
evidence and/or other expert testimony to rebut the defendant’s experts. This,
of course, is exactly what happened in Atkins’s sentencing hearings.
But, as is clear from the Atkins case, such a battle of the experts need
not occur if defendants are fully, carefully, and competently evaluated—as,
of course, they ought to be in this literally “life and death” context. As the
U.S. Supreme Court heard from psychological and psychiatric professionals
in their amicus brief in Atkins:

Qualified professionals who conduct a complete mental retarda-

tion examination of an individual will be able to make an objective
determination whether the individual has mental retardation, in the
sense that independent professionals undertaking separate assess-
ments should reach the same conclusion.
To achieve objectivity, however, certain safeguards must be fol-
lowed. The assessment must be performed by qualified profession-
als with experience relating to mental retardation and to adminis-
tration of IQ and adaptive functioning tests. The evaluation must
also be complete, i.e., it must include a thorough assessment of
each of the three necessary criteria indicating mental retardation.
Compliance with these safeguards should curtail unnecessary legal
wrangling, conflicting “diagnoses,” and both false positive and false

227
minds on trial

negative determinations concerning whether the individual has

mental retardation.26

Atkins was evaluated by two psychologists, one of whom did a complete

evaluation and concluded that he was mentally retarded. The other conducted
what could be characterized at best as an incomplete evaluation. Not only did
he rely upon outdated and inadequate methods of psychological testing but, as
one of the dissenting judges wrote in Atkins’s state appeal, “an assessment of
mental retardation is predicated upon the subject’s IQ score and the subject’s
adaptive behavior. Dr. Samenow, however, could not validly opine about the
defendant’s adaptive behavior because he had not interviewed anyone who
had observed the defendant prior to his incarceration.“27
In fairness to Dr. Samenow, it should be recalled that he testified that he
was not “doing a full evaluation” in this case.28 Had he done such an evalu-
ation, he too might have concluded that Atkins was mentally retarded, and
there would have been no “battle of the experts.”
The true test of that proposition in this case, however, may be yet to come.
When the U.S. Supreme Court ruled that the Eighth Amendment barred sen-
tencing the mentally retarded to death, the justices remanded Daryl Atkins’s
case to the Virginia courts “for further proceedings not inconsistent with this
opinion.”29 The state court responded by ruling that still another hearing will
be held to determine whether Atkins is mentally retarded—a proceeding in
which the judge has ruled that Atkins must prove that he is retarded by a
preponderance of the evidence (i.e., that it is more likely than not that he is
retarded).
The prosecutor in the case responded, predicting that Atkins will be
unable to prove that he is mentally retarded no matter what standard of evi-
dence the court uses. In her words, “He’s no Rhodes scholar. But he is not
mentally retarded, either.”30

228
p 19
ANDREA YATES
An American Tragedy

n the evening of June 19, 2001, thirty-six-year-old Andrea Yates of

O Clear Lake, Texas, sat in her home and watched cartoons. After some
time had passed, she went outside to play basketball with her husband, Rus-
sell, and their seven-year-old son, Noah, who was the oldest of their five chil-
dren. Without uttering a word, Yates suddenly went inside and got into bed
while still in her clothes and slept until the next day.1 In the morning, her
husband made sure Yates took antidepressant medications prescribed by her
psychiatrist. For nearly two years, Yates had been suffering from severe post-
partum depression and psychosis. When Russell Yates left home for his engi-
neering job at the Space Shuttle Program at NASA’s Johnson Space Center,2
the last image he would take in of his wife as a free person was of her eating
cereal out of a box.
Shortly after her husband’s departure at around 9:00 a.m., Yates drew
bath water to within three inches of the top of the tub.3 Beginning with her
three-year-old son, Paul, Yates pushed him face down into the tub, held him
underneath the water until he drowned, placed him on the bed, and covered
him with a sheet. She proceeded to do the same with two-year-old Luke and
five-year-old John. Each child was put face down in the tub, drowned, and laid
on the bed next to the bodies of the other children.
After Yates drowned her six-month-old daughter, Mary, she called her
son Noah into the bathroom. When the boy saw his sister face down in the

229
m inds o n t r i a l

tub, he asked his mother “What happened to Mary?”4 When his mother did
not answer, Noah became frightened and tried to run away, but Yates grabbed
him and held the boy face down under the water. Noah struggled with his
mother and managed to get his face out of the water a couple of times to gasp
for air. Each time, Yates forced her son back down into the water and after a
three-minute struggle the boy was dead.
After making sure that Noah was indeed dead, Yates took Mary’s body
out of the tub and placed her daughter’s lifeless body on the bed and covered
it as she had done with the other children. However, Noah was left in the tub
because his body was too heavy for his mother to lift. Yates then called 911
and asked for a police officer. Once she got off the phone with the 911 dis-
patcher, she called her husband. Just before 10:00 a.m., Russell Yates received
a call from his wife.
“You need to come home,” Yates said to her husband. As Russell Yates
inquired as to why, he asked “Is anyone hurt?” “Yes,” replied his wife, “the
children.”5 When Rusty Yates arrived home, he found the police there and
learned that his wife had drowned their five children.
The case soon became national news and attention focused immediately
on a search for the reason why a mother would kill all of her children. There
were several inconsistencies in Yates’s history that made it all the more puz-
zling that she would commit such a horrific crime. How did the life of this
former high school valedictorian, swimming champion, college graduate, and
professional nurse spiral down to such a point that she would kill each of her
children? Several issues piqued the public’s interest in the case. The fact that
Yates and her husband had five children in a period of seven years raised ques-
tions of whether the young mother was acting out against her children as a
means of getting back at her husband.
However, the most relevant details of the Yates case emerged when it was
revealed that since at least 1999—approximately two years before killing her
children—Yates had begun a marked decline into severe mental illness. After
her attorneys made it known they would defend her by raising the insan-
ity defense and the prosecutor decided to seek the death penalty for Yates,
the case polarized opinions about personality responsibility, mental illness,
the responsiveness of the mental health system, and the culpability of people
close to Andrea Yates.
A nurse by education and training, Yates married her husband in 1989
and worked until 1994 when her first child, Noah, was born. Shortly after the
birth of her son, Yates had a vision in which she saw an image of a knife that
transformed into a vision of someone being stabbed.6 Although Yates never

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 andrea yates: an american tragedy

told anyone of this incident until after her arrest, the event was the first indi-
cation that she might suffer from a postpartum mental disorder.
According to the American Psychiatric Association’s formal diagnos-
tic classification system, the Diagnostic and Statistical Manual for Mental
Disorders (4th ed.), postpartum mental disorders can include severe mood
changes or psychosis and occur within four weeks following the birth of a
child. According to the diagnostic manual:

Symptoms that are common in postpartum-onset episodes, though

not specific to postpartum onset, include fluctuations in mood,
mood lability, and preoccupation with infant well-being, the inten-
sity of which may range from overconcern to frank delusions. The
presence of severe ruminations or delusional thoughts about the
infant is associated with a significantly increased risk of harm to the
infant.7

Subsequent events revealed that Yates’s disturbing vision following the birth
of Noah was not an isolated incident and foreshadowed a continuing decline
into mental illness.
In the middle of 1996, the Yates family moved to Florida so that Rus-
sell Yates could work on a project for NASA. Around this time, Andrea Yates
wrote a letter to Rachel Woroniecki, the wife of a traveling evangelist, in
which she expressed feelings of loneliness. As a result of this contact, Yates
was directed to read passages from the Bible that told how women should love
their husbands and children and subject themselves to their husbands.8 The
move to Florida also brought about a change in lifestyle for the Yates family.
Russell Yates decided that he wanted to see what it would be like to live on the
road, so they leased their home in Texas, sold many of their possessions, and
moved into a trailer.
Once Russell Yates had completed his work in Florida, the family moved
back to their trailer park in Texas. However, Russell and Andrea maintained
their contact with the Woronieckis. When the evangelist and his wife decided
to sell their three-hundred-square-foot mobile home—a 1978 GMC bus that
was converted into a mobile home for the preacher and his family—Russell
Yates decided it was an ideal time to make further changes in the family’s
lifestyle. In May of 1998, he bought the Woronieckis’ mobile home and in
October of the same year he sold the family house. For the next year, the Yates
family lived in the mobile home.9 As Russell and Andrea Yates continued to
have children and live in the unconventional surroundings of a converted bus,
Andrea Yates became more isolated, lonely, and severely depressed.

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m inds o n t r i a l

To many people who knew Andrea Yates, she appeared to be a “model of

efficiency” in the home,10 and the family was described as loving and happy.
Moreover, she was captivated by the fire-and-brimstone preaching of Woro-
niecki, although her husband was more skeptical about organized religion.11
Andrea Yates became more religiously preoccupied and the effect Woroniecki
had on her began to concern both her husband and her family.
In June 1999, after the birth of the couple’s fourth child and while also
caring for her father who was suffering from Alzheimer’s disease, Yates tried
to commit suicide by taking an overdose of her father’s prescription medica-
tion. She was hospitalized and diagnosed with severe depression. The psychia-
trist who took care of Yates during this first hospitalization would later testify
that she was “severely mentally ill. . . . left to her own devices, she would not
have survived. She was not eating or taking in fluids.”12
A few months later, she was hospitalized a second time after her husband
had to wrestle away a knife that she was holding to her throat. Yates was
diagnosed as having severe depression with psychotic features; she was hear-
ing voices and had concerns that she might “hurt somebody.”13 Doctors also
questioned whether she might have schizophrenia.
Over the next year or so, Yates apparently functioned fairly well as she
continued to see her psychiatrist and was given various antidepressant medi-
cations in a search to find the most effective treatment. Although one of her
physicians recommended that she and her husband not have any more chil-
dren, the couple’s fifth child was born in November of 2000. In addition to
the birth of her daughter, Yates was experiencing several other stressors at
the same time, including continuing to care for her father with Alzheimer’s
disease and having to deal with his subsequent death in March 2001.14 A con-
clusion drawn by many people following the case was that these stressors,
all experienced within a relatively short period of time, and her history of
severe mental illness, triggered the horrific acts that resulted in the death of
her children.
But other questions were also raised about Yates’s motives for killing her
children. Was she angry at her husband over the fact that he wanted so many
children, sold the family home, and had her living in a remodeled bus? Was
she suffering from severe postpartum mental illness that caused her to take
the lives of her children?
Her criminal trial became one of the most closely watched in recent his-
tory. An interesting subplot emerged when the role of her husband in the
children’s deaths was scrutinized. Russell Yates was seen by some observ-
ers—fairly or not—as equally, if not more, responsible for the deaths of the
couple’s five children. There were highly publicized media accounts of his con-

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 andrea yates: an american tragedy

trolling nature, desire for more children, rigid religious beliefs, and perceived
indifference to his wife’s depression.15 For example, television commentator
Bill O’Reilly made his own public observations: “Russell Yates knew his wife
was having psychological problems, yet he continued to get her pregnant,
even after she attempted suicide. Mr. Yates himself admitted the house was
in deplorable condition yet felt he could leave his wife unsupervised with the
children. That is on Mr. Yates.”16
Within days of her arrest, Yates was evaluated by a clinical psychologist,
Dr. Gerald Harris, to evaluate her competence to stand trial. Harris found Yates
to be psychotic; she was experiencing hallucinations where she saw Satan on
the walls of her jail cell and would take up to two minutes to respond to ques-
tions Harris posed to her during their interviews.17 A psychologist appointed
by the prosecution, Dr. Steven Rubenzer, also evaluated Yates and found that
she had some difficulty with attention and concentration, took a long time to
respond to questions, and did not show any evidence of faking her illness.18
By the time Yates appeared at her competency hearing to determine if
she could understand the court proceedings and assist in her defense, she had
been treated in the Harris County jail’s psychiatric unit for her psychosis
for three months.19 In the state of Texas, pretrial competency hearings may
be argued before a jury and, in Yates’s case, a jury of eleven women and one
man were to determine if she was competent to stand trial. Presiding over
the case was State District Court Judge Belinda Hill, who had been rated by
the Houston Bar Association as one of the top criminal judges in the city.
Judge Hill instructed the jurors that they were to determine only the issue
of whether Yates was able at the present time to understand the court pro-
ceedings and to assist in her defense. After hearing conflicting opinions from
Dr. Harris (who was of the opinion that Yates was not competent because of
her religious delusions) and Dr. Rubenzer (who was of the opinion that Yates
was competent to stand trial despite her mental illness), the jury deliberated
on the issue.
Yates believed that by being convicted and receiving the death penalty she
would be able to kill Satan. Consequently, her attorneys and Harris believed
she was unable to assist rationally in mounting a defense. The jury initially
voted 8–4 in favor of finding Yates incompetent. However, over the course
of several more hours of deliberation, opinions shifted and Yates was found
competent to stand trial.20
Of course, the key issue in Yates’s trial was whether she was insane at the
time she drowned her five children. The legal standard for insanity in Texas
has been characterized as extremely narrow and nearly impossible to meet.21
Following the acquittal of John Hinckley, Jr., for the attempted assassination

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of Ronald Reagan, Texas moved from a fairly liberal test of insanity to a much
more restrictive standard. The standard in place at the time of Yates’s trial was
a revised M’Naughten test. Most states that have a M’Naughten insanity test
require that for a person to be held insane at the time of a crime, he or she
must have been unable to either (1) know the nature or consequences of an act
or (2) know that the act was right or wrong. In Texas, only the second of these
two standards was adopted. Therefore, in order for Yates to be found insane at
the time of she drowned her children, it would be of no significance whether
she knew the nature or consequences of what she did. Rather, the only deter-
mination was whether she knew drowning her children was wrong.
The expert testimony presented by both the defense and prosecution
focused on the issue of whether she knew the wrongfulness of her actions.
Both the prosecution and defense agreed that Andrea Yates was mentally ill.
Her history of serious psychiatric difficulties was well documented prior to
her arrest.
Yates was admitted twice in 1999 to inpatient psychiatric facilities after
failed suicide attempts. At various times, her condition was noted to be severely
depressed. She was often unresponsive or responded minimally to questions,
showed severe pessimism and hopelessness in her thinking, appeared with-
drawn, and was treated with various antidepressant and antipsychotic medica-
tions. There was a one-month inpatient admission in March 2001 soon after
her father died because she was depressed and refusing to drink liquids. Her
husband and brother had to assist Yates to the hospital because she was resis-
tant to any help. Her treating psychiatrist prescribed various medications, but
she showed minimal improvement. Following her discharge, she was placed in
a partial hospitalization program that allowed her to go home in the evening
while she attended intensive outpatient programming during the day. In May
2001, Yates was once again readmitted to the hospital and the use of electro-
convulsive therapy was discussed with her husband because she was not eat-
ing or drinking and had not responded well to previous treatments. Russell
Yates refused to consider shock treatments even though his wife continued to
show marginal changes in her condition. She disclosed little to her therapists,
claiming to have no major issues to discuss. Following her discharge, and just
two days before Yates drowned her children, her husband had a discussion
with her psychiatrist about the most appropriate medication. Concerns were
raised that she was not doing well on her current medications and was having
nightmares.
This history of psychiatric illness emerged in detail during Yates’s trial.
However, the major difference of opinion among the experts who evalu-
ated her was whether she knew that the actions of drowning her children

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were wrong, as defined under Texas insanity law. The principal expert for the
defense was Dr. Phillip Resnick, a nationally renown forensic psychiatrist who
had testified in a number of high-profile insanity cases and who had extensive
experience studying woman who kill their children. According to Resnick,
Yates did not kill her children out of feelings of revenge against her husband
and there was no evidence that the deaths of the children were the result of
a pattern of abuse or neglect.22 Rather, the evidence indicated that there was
no rational motive for the drownings—suggesting acute psychosis—and that
Yates believed by killing her children she was serving their best interests,
indicating an altruistic motive.
Resnick was of the opinion that Yates laid her children on the bed and
covered them out of respect, rather than trying to conceal the bodies. Further-
more, Yates suffered from religious delusions and Resnick testified that he
believed she was saving her children from Satan by killing them. The psychia-
trist testified that, “Mrs. Yates had a choice to make: to allow her children to
end up burning in hell for eternity or to take their lives in earth. . . . She would
give up her life on earth . . . and her afterlife for the purpose of eliminating
Satan and protecting her children from the fate of eternal damnation.”23
That is, Yates’s delusions caused her to believe that the only way to save
her children from Satan was to kill them. The implication of Resnick’s tes-
timony was that even though Yates knew killing her children was legally
wrong, she believed it was morally right because of her religious delusions.
The prosecution’s principal expert was Dr. Park Dietz, a forensic psychia-
trist who was a nationally recognized expert witness at the time who had
testified in many high-profile insanity trials like the Hinckley case. Dietz tes-
tified that he did not typically offer opinions on the ultimate issue of san-
ity, but added that he provided opinions on a criminal defendant’s knowledge
of wrongfulness at the time of a criminal offense,24 a subtle distinction that
has minimal significance and seemed to create the appearance that Dietz was
unwilling to address the ultimate legal issue of Yates’s sanity. With respect to
the issue of Yates’s understanding of the wrongfulness of her actions, Dietz
testified:

My opinion with reasonable medical certainty is that at the time

of the drowning of each of the children, Mrs. Yates knew that her
actions were wrong in the eyes of the law . . . in the eyes of society
. . . in the eyes of God. . . . Mrs. Yates may have believed the killings
were in the best interest of the children and that the ends—saving
the children—justified the means, which was to wrongly and ille-
gally kill them.25

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m inds o n t r i a l

Dietz, whose testimony and methods of forensic evaluation are noted for their
detail and thoroughness, provided several examples of Yates’ thinking and
behavior that supported the opinion that she knew her actions were wrong.
The fact that Yates attributed her actions to Satan was one indication that she
knew her actions were wrong. Dietz testified:

Mrs. Yates indicates that at that time before the homicide she had
the idea of killing her children and she attributed the origin of that
idea to Satan. So, of course, the idea comes from her mind, but she’s
mistakenly thinking Satan put it there. The fact that she regards it
as coming from Satan is the first indication of her knowing that this
is wrong. Because she recognizes even the idea of killing your chil-
dren is an evil idea that comes from Satan. She doesn’t think this is
a good idea that comes from God.26

Other aspects of Yates’s thinking and behavior that were used to support
Dietz’s opinion included the fact that she concealed her thoughts of harming
the children from others because she knew they were wrong and that other
people would try to stop her.27
The most controversial portion of Dietz’s testimony came when Yates’s
attorney cross-examined the prosecution expert. A point raised by defense
attorney George Parnham was Dietz’s lack of clinical experience with post-
partum depression. During cross-examination, Parnham asked Dietz about
his various consulting experiences and the forensic psychiatrist stated that
he was a consultant to the television show Law and Order. When Parnham
asked if any of the shows dealt with postpartum depression, Dietz stated, “As
a matter of fact, there was a show of a woman with postpartum depression
who drowned her children in the bathtub and was found insane, and it was
aired shortly before this crime occurred.”28
The defense recalled one of its expert witnesses, forensic psychiatrist
Dr. Lucy Puryear, to rebut Dietz’s testimony. During cross-examination of
Puryear, prosecutor Joseph Owmby pressed the defense expert on the notion
that Yates may have gotten the idea to drown her children and claim insan-
ity from the episode of Law and Order that Dietz had mentioned during his
testimony. There was a problem, however. The episode of which Dietz spoke
had never aired.29
After Puryear had concluded her rebuttal testimony, the defense rested
its case. Closing statements were made and the jury was charged with the
law governing the case. Although the jury had heard over three weeks worth
of testimony, it rendered its verdict after less than three-and-a-half hours of

236
 andrea yates: an american tragedy

deliberation. Yates was found guilty of capital murder and faced a sentencing
hearing to determine if she would receive life in prison or the death penalty.
On the evening the guilty verdict was rendered, Yates’s defense attorney,
George Parnham, discovered that Law and Order had never aired an episode
in which a mother had drowned her children and claimed insanity. When the
show’s creative director was contacted, he confirmed that a show like the one
Dietz described had never been written, produced, or televised.30 Dietz had
consulted with writers on plots for hundreds of shows. When the erroneous
testimony was brought to Dietz’s attention, he wrote to prosecutors and told
them that he had been mistaken and confused the episode he described with
infanticide cases and other episodes for Law and Order.31
The erroneous testimony became an issue that Parnham raised on Yates’s
behalf in asking for a mistrial. Parnham claimed that the erroneous testimony
misled jurors into thinking that Yates had planned the murders of her children
by watching a television show. However, the judge denied the motion. During
the penalty phase of her trial, however, jurors were informed of the incorrect
testimony. Yates avoided the death penalty and was sentenced instead to life
in prison.
Subsequent interviewing of the jurors revealed that they were persuaded
by Dietz’s account of Yates’s crimes. Jurors found that a number of defense
experts all agreed Yates did not know that her actions were wrong but had
differing accounts of how her mental illness affected her thinking at the time
she drowned her children. Instead, jurors found Dietz’s coherent and detailed
account of Yates’s motives more convincing. Given the apparent persuasive-
ness and influence of Dietz’s testimony, along with the erroneous mention
of the Law and Order episode that never aired, the defense has appealed the
verdict in the Yates case.
An investigative journalist covering the Yates case had been a producer
and consultant for NBC, the network on which Law and Order appeared. Fol-
lowing announcement of the verdict, Yates wrote a letter to the journalist
expressing her distress over the fact that people may have mistakenly thought
she got the idea to drown her children from a television show. She wrote,
“I guess it bothered me the jury didn’t think I was mentally ill and I was
offended they thought there was a ‘hidden motive.’ But it was a . . . terrible
case and I am grateful the jury didn’t give me the death penalty.”32 Parnham,
Yates’s attorney, was even more direct. After the jury gave its recommenda-
tion against the death penalty in favor of life in prison without the possibility
of parole, Parnham told the journalist that helping to uncover the error in
Dietz’s testimony had saved Yates’s life.

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m inds o n t r i a l

But the controversy over Dietz’s testimony did not end with Yates’s sen-
tence of life in prison. Her attorneys appealed to the Court of Appeals for the
First District in Texas. Among the many errors that Yates’s attorneys claimed
in the appeal were the trial judge’s failure to sustain the defense’s motion for
a mistrial and a violation of Yates’s due process rights because the prosecu-
tion had relied on “false or perjured testimony.”33 Yates’s attorneys argued in
her appeal that Dietz’s false testimony about the Law and Order episode that
never aired constituted a major error because it provided critical support for
the prosecution’s theory that Yates knew her actions were wrong, that her
crime was premeditated, and that she deceptively used a television show to
create an explanation for her actions that would provide her with an excuse,
namely insanity.
On January 6, 2005, the Court of Appeals for the First District of Texas
brought the Yates case into the spotlight once again when it ruled in favor of
her appeal. The court found that even though there was no evidence on the
record that Dietz “intentionally lied in his testimony,” his reference to the
Law and Order episode was “false” and a material piece of evidence dealing
with Yates’s insanity defense.34 Moreover, the appellate court found that the
prosecution made use of the evidence when it cross-examined the defense’s
rebuttal witness, Puryear, and in its closing statement. The prosecutor argued
to the jury that Yates “gets very depressed and goes to Devereux [the hospital].
And at times she says these thoughts came to her during that month. These
thoughts came to her, and she watches Law and Order regularly, she sees this
program. There is a way out. She tells that to Dr. Dietz. A way out.”35
Because the testimony was false, went directly to the material issue of
Yates’s sanity, and was used by the prosecution in its cross-examination of a
defense expert and in closing arguments before the jury, the trial judge’s fail-
ure to grant the defense’s motion for a mistrial was an error. The result of the
appellate court decision could mean that Yates will be granted a new trial and
the entire case will once again hinge on her sanity at the time of the killing.
Prosecutors have requested that the Court of Appeals for the First District of
Texas re-hear the appeal. If their attempt to have the conviction upheld fails,
they have vowed to appeal to the Texas Court of Criminal Appeals. It seems
clear that the tragedy of Andrea Yates and her children will continue to lin-
ger in the media, as well as the Texas criminal courts, until it can be legally
resolved.
A number of issues have made the Yates case one of the most interesting,
yet controversial, trials in recent history. Among the factors contributing to
debates about the case include the narrow definition of insanity under Texas
law, the varying theories offered by experts about why Yates drowned her

238
 andrea yates: an american tragedy

children, and, of course, the horrific deaths of the five Yates children and vary-
ing opinions about the most appropriate punishment for Yates. However, an
equally interesting issue was the scrutiny given to the actions of both Andrea
and Russell Yates that pointed to a gender bias that exists when people try to
explain the causes of criminal behavior for men and women.
There is a tendency for people to attribute the cause of a woman’s violent
behavior to biological or psychological factors that are outside of her control,
while the violent actions of a man are often attributed to situational factors
that are within his control.36 Moreover, social science research indicates that
people tend to view the insanity defense as more acceptable for females than
males.37 As a result, one might expect there to be greater public sympathy for
Andrea Yates in her plea of insanity than for Russell Yates in his role as the
innocent father whose children were murdered.
Because Andrea Yates’s depression appeared to have been postpartum,
in that it was triggered following the birth of her fourth child, there was
a tendency to attribute the cause of her mental illness to biological factors
that were beyond her control. While the public was no doubt horrified by her
actions, there was considerable support for her among women, particularly
those who could understand the stressors she faced, including having to raise
five young children, suffering from severe depression, and having to deal with
a dying father.38
Her husband, on the other hand, did not fare well in the view of some as
the grieving father whose five children were murdered by their mother. As
noted earlier, some observers of the case suggested that the “wrong parent
was being prosecuted,” and that Russell Yates was the more culpable parent
because he did not heed warning signs that his wife might be dangerous.39
However, Russell Yates claimed that he was never informed that his wife had
violent fantasies and assumed that because she had responded to antipsy-
chotic medication in the past that she would respond again in the future if she
became ill.40 Nevertheless, there were some calls from the public to have Rus-
sell Yates prosecuted as an accessory in the death of his children.
One of the most intriguing aspects of the Yates case, however, remains
the way in which gender roles and expectations in society influenced some of
the public commentary that was made on the case. Social science research has
dispelled several myths about the insanity defense. Contrary to widely held
beliefs, the insanity defense is not raised very often in criminal cases. When
the defense is raised, it is more likely to be unsuccessful than successful and
individuals acquitted by reason of insanity spend more time confined to a psy-
chiatric hospital than an individual convicted of a comparable crime spends
in prison. In short, there are risks to the defendant who raises an insanity

239
m inds o n t r i a l

defense and successfully makes his or her case. Gender biases, and the differ-
ing ways violent criminal behavior is explained for males and females, com-
pound the distorted views that many people have of the insanity defense.
The circumstances surrounding Andrea Yates’s crime prompted strong
ambivalent feelings. While her actions generated horror and outrage, there
were many who could sympathize with the fact that she was mentally ill,
faced serious stressors and demands, and was in a situation where it was easy
to be overwhelmed and “snap.” The final disposition in her case remains an
open question. Perhaps one day her behavior will be explained to the satisfac-
tion of all. Yet, the case of Andrea Yates and her husband continues to be an
interesting study in how expectations of men and women behaving in accor-
dance with their gender roles can compound the controversies that surround
the insanity defense in criminal cases.

240
p 20
MICHAEL
KANTARAS
What Makes

a Man a Man?

s a very young child, Margot Kantaras felt more like a boy than a girl
A and came to consider herself a male despite her female body. Her parents
even referred to her as their “son.”1 Growing up she engaged in typically male
pursuits such as football, baseball, basketball, wrestling, and fishing. It was not
until she was twenty-six years old, however, that Margot became aware of the
possibility of physically becoming a male.
In 1985, after watching “What Sex Am I?”—an HBO television program
on the treatment of gender disorders—Margot contacted a clinic mentioned
in the show and was soon diagnosed with gender identity disorder.2 According
to the American Psychiatric Association’s Diagnostic and Statistical Manual
of Mental Disorders (4th ed.), gender identity disorder is manifested in “a
strong and persistent cross-gender identification,” “the desire to be, or insis-
tence that one is, of the other sex” and “persistent discomfort about one’s
assigned sex” resulting in “clinically significant distress or impairment in
social, occupational or other important areas of functioning.”3
Doctors told Margot that, in essence, she was a man with a woman’s body.
Shortly thereafter, she underwent a variety of treatments including hormone
therapy and sex-reassignment surgery (including hysterectomy, ovariectomy,
and reconstructive mastectomy), which left her with a deepened voice, facial
hair, a more masculine body, male pattern baldness and an elongated clitoris
that doctors described as a “small phallus.”4 Given the cost (anywhere from

241
m inds o n t r i a l

$25,000 to $100,000) and significant medical risks involved, Margot did not
undergo phalloplasty, which is the surgical construction of a penis.
A year later, Margot legally changed her name to Michael Kantaras. Then,
at her request and based upon medical evidence, an Ohio court amended Mar-
got’s birth certificate to reflect her new name and gender.
In 1989, thirty-year-old Michael Kantaras met Linda Forsythe and they
became sexually intimate. At the time, Michael had a girlfriend, and Linda
had been living with a boyfriend for about four years. Michael explained his
gender history to Linda, who was initially incredulous but shortly came to
understand and accept Michael’s status as a woman who had become a man.
Soon Linda learned that she was pregnant; her boyfriend, the putative father,
moved away. Three weeks after Linda’s son Matthew was born, she began liv-
ing with Michael Kantaras. On July 18, 1989, when Matthew was six weeks
old, Michael and Linda were married in a civil ceremony in Florida. Shortly
thereafter, Michael legally adopted Matthew. In both the marriage and the
adoption, Michael represented to authorities that he was a man.
Not satisfied with an only child, Michael and Linda began discussing how
they might conceive another offspring. Michael told Linda that years earlier
he had discussed this possibility with his brother, Tom, who had agreed that
if Michael (then Margot) ever married, he would donate his sperm so that
Michael’s wife could be artificially inseminated. In fact, that is exactly what
happened. In 1991, Michael and Linda went to a fertility clinic and, on the
second attempt at artificial insemination, Linda was successfully impregnated
with Tom’s sperm. In 1992, Linda gave birth via cesarean section to a daugh-
ter, Irina.
Seven years later, Michael and Linda separated. Michael left Linda to
begin a relationship with her best friend, Sherry Noodwang. Michael brought
a divorce action against Linda, she countersued seeking an annulment, and the
two became embroiled in a contentious legal battle over the custody of Mat-
thew and Irina. Fighting to exclude Michael from the children’s lives, Linda
claimed that her ex-husband was not a man and thus could not legally have
been a husband or a father. She testified that “Michael Kantaras is a woman
who thinks that he is a man”5 and cited Florida laws banning same-sex mar-
riages and adoptions by homosexuals.
When Michael Kantaras sued for divorce and custody, the legal odds were
clearly against him. The question of whether a transgendered person could be
legally recognized as having a gender other than that with which he or she
was born had never before come to the attention of a court in Florida but had
been litigated in other states. Courts in Kansas, New York, Ohio, and Texas

242
 michael kantaras: what makes a man a man?

had all refused to recognize the marriages of postoperative transsexuals. Only

one U.S. court, in New Jersey, had recognized the marriage of a transsexual.
In the New York case, the court rejected a female-to-male transsexual’s
claim for divorce, holding that there had never been a marriage because he
could not carry out the sexual and procreative functions of marriage. As that
court explained its ruling:

Assuming, as urged, that defendant was a male entrapped in the

body of a female, the record does not show that the entrapped male
successfully escaped to enable defendant to perform male functions
in a marriage. Attempted sex reassignment by mastectomy, hys-
terectomy, and androgenous hormonal therapy, has not achieved
that result. The comment by Dr. George Burou, specialist in male-
to-female surgery, who over the past 15 years has performed more
than 700 such operations in Casablanca, applies with equal perti-
nency to this defendant: “I don’t change men into women. I trans-
form male genitals into genitals that have a female aspect. All the
rest is in the patient’s mind.”6

In the New Jersey case, which involved a male-to-female transsexual,

the court based its acceptance of the marriage at least in part on the testi-
mony of several medical experts, including two psychologists. One psychol-
ogist “expressed the opinion that if a person had a female psychic gender
and underwent a sex reassignment operation, that person would be consid-
ered female although no person is ‘absolutely’ male or female.”7 The other
psychologist testified that, having undergone sex reassignment surgery, the
transsexual’s body was “now in line with the psyche.”8
Michael Kantaras also relied on the testimony of numerous medical
experts, including three psychologists. The first psychologist to testify was
Dr. Walter Bockting, who specialized in the treatment of transsexualism and
gender identity disorders. In his expert testimony, Dr. Bockting, who had not
examined or treated Michael Kantaras, defined these terms for the court:

Well, transsexualism is—the term that we use today is gender

identity disorder. And gender identity disorder is defined as hav-
ing an intense discomfort with one’s sex and gender assignment at
birth, and an intense discomfort with one’s primary and second-
ary sex characteristics. At the same time, there is a preoccupation
with obtaining the sex characteristics of the opposite sex. So they’re
in intense conflict between the basic conviction and psychological

243
m inds o n t r i a l

sense of who a person is. And their anatomy, their body, they have
conflict. Patients who have an intense conflict in that area meet
criteria for gender identity disorder. An intense conflict means that
they report clinically significant distress as a result of this mis-
match between their body and their sense of identity. Gender iden-
tity disorder is a conflict between the anatomy and your gender
identity. Gender identity is a basic conviction of being a man or a
woman. And I think most of us take this for granted because it is
so consistent with our body and our anatomical sex. But what we
have learned from transsexuals is that’s not the case for everyone
and that their sense of being a man or a woman is [in] conflict with
their body.9

Dr. Bockting further testified as to the prevalence of transsexualism:

“Based on studies in the Netherlands they found that one in 11,900 persons
is male to female (M to F) transsexual. And one in every 30,400 is female to
male. The male to female are more common. They are three times as common
as female to males.”10
Michael also presented the expert testimony of Dr. Collier Cole, a clini-
cal psychologist who specialized in the assessment and treatment of sexual
disorders and had treated more than two hundred female-to-male transsexu-
als. Transsexualism, he told the court, cannot be “cured” but can be effectively
treated with surgery, hormones, and counseling: “There have been a number of
studies in the last 20 years to indicate that people can be very well adjusted, can
go on to lead very productive lives having followed this type of procedure that
is currently espoused in modern medical literature of dealing with individuals
of this concern.”11 In his vast experience, he testified, “There was not a single
individual who regretted their decision to go through this process at all.”12
Dr. Cole testified that in 1985 he evaluated Michael Kantaras, diagnosed
him as a transsexual, and ruled out any underlying psychopathology. He also
told the court that he had examined Michael four times since the surgery.
Michael, the doctor testified, was “a very typical case.”13
Dr. Cole also refuted Linda’s allegation that Michael was a homosexual.
Asked whether when “a transsexual man has intimate sexual relations with a
woman [he is] engaging in a lesbian relationship,” Cole replied, “Absolutely
not.”14 “In this particular case,” he further testified, “we have an individual
who has an identity of male and like most men he’s turned on by women. So
we would have a heterosexual.”15
Dr. Cole also told the court that in his experience a significant number
of female-to-male transsexuals, such as Michael, had successful marriages,

244
 michael kantaras: what makes a man a man?

raised children, and were good fathers and good male role models. He added
that in a study of over four hundred transsexuals, he and his colleagues had
found that these individuals had no greater incidence of psychopathology,
depression, or suicide attempts than “normal” Americans.16
Asked by the trial judge what effect it would have on Michael to be legally
ruled a female, Dr. Cole replied “I think it would be absolutely devastating.
. . . In my mind it’s much like a sexual assault victim having to be dragged
through the courts and the background and history smeared in the courts.”17
The court also received expert input in the form of an affidavit from Dr.
James Boone, a psychologist appointed by the court to treat Michael, Linda,
and the children. Dr. Boone informed the court that:

Michael is more emotionally stable but may have a history of being

emotionally controlling of Linda . . . Linda is a chronically depressed
and dependent-manipulative woman who is intensely angry with
Michael for his perceived abandonment of her. . . . I suspect that her
anger is to the level that she is willing to circumvent court orders to
sabotage his visitation and relationship with the children.18

Dr. Boone also suggested that Linda might suffer from borderline person-
ality disorder. As Dr. Cole explained in his testimony to the court, borderline
personality disorder is a “serious” mental condition:

Generally this is an individual who has a lot of instability in his or

her life in terms of inter-personal relationships, work relationships
and the like. Often these relationships can be very intense. If a per-
son loves you or loves the job and then suddenly feels wronged in
some fashion they can become very angry, very vindictive. In many
cases there is evidence of individuals engaging in suicidal gestures
or attempts, self-mutilating behavior. These are often the most dif-
ficult patients for any therapist to treat.19

Finally, the court heard the testimony of a fourth psychologist, Dr. Rob-
ert R. Dies, who had been appointed to conduct a custody evaluation. After
evaluating Michael, Linda, and the children, Dr. Dies observed that Linda had
“repeatedly and consistently undermined the quality of the relationship that
the children had with their father . . . interfered with visits, in many ways
downgraded Michael, blamed him, faulted him, and essentially made him
look bad in the children’s eyes.”20 For example, Dr. Dies reported that “the
children have often heard Linda, and they report this in numerous occasions,
hearing Michael described as a woman, an it, a he-she and given the name
Markel which is a contamination of Margo and Michael.”21 Moreover, he

245
m inds o n t r i a l

noted that when Matthew was ten and Irina eight years old, Linda had dis-
closed to them not only that Michael was not their father as they had always
believed but that he was born a woman, not a man. Linda reportedly also
told the children that Michael was “living a lie” and “cannot be regarded as
a man.”22 Dr. Dies also told the court that Linda “is much more inclined to
distort the truth and to engage in behaviors that are quite inappropriate to
suit her needs.”23
Dr. Dies concluded that Michael was not only the “better parent” but also
in a better position to meet the children’s material needs and “more likely
to allow frequent and continuing contact with the visiting parent.”24 Dies
acknowledged that “Matthew and Irina have routinely stated that they would
favor custody on behalf of their mother” but concluded that “it appears quite
clear that the youngsters have been poisoned against their father and pre-
vented from having a meaningful and constructive relationship with him due,
in large part, to their mother’s insidious and alienating tactics.”25
Dr. Dies also reported that he conducted psychological testing with both
parents. The test results indicated that while Michael “answered . . . in an hon-
est fashion with little effort to conceal problems,” Linda’s results were marked
by “extreme defensiveness and/or denial of psychological problems.”26
Michael’s test results, the psychologist reported, “suggested that he tends
to be overly concerned with behaving in socially acceptable ways and that he
strives to convince others that he is reasonable and logical.”27 The results in
his case were similar to those of individuals who are “often insecure and have
a strong need for attention, affection and sympathy [and are] frequently very
dependent, but uncomfortable with the dependency and experience conflict
because of it.”28
Linda’s psychological test results, on the other hand, suggested “that she
may be inclined to disregard social standards and values due to an underdevel-
oped sense of conscience.”29 According to Dr. Dies’s report, “Individuals with
her pattern of scores are often unwilling to accept responsibility for their own
behavior, rationalizing shortcomings and failures and blaming difficulties on
other people.”30 Her results, the psychologist told the court, also “were con-
sistent with those of people who harbor intense feelings of anger and hostility
. . . expressed in occasional emotional outbursts.”31
Comparing the test results of Michael and Linda, Dr. Dies concluded that:

On the basis of the test results it would be difficult to argue

strongly in behalf of either party as the preferred custodial parent.
They are both angry, likely to behave in ways that will sometimes
be self-serving and insensitive to others, but neither could be judged

246
 michael kantaras: what makes a man a man?

to be a “bad parent” due to their test results. Nevertheless, Michael

comes across as somewhat less inclined to engage in behaviors that
are deliberately or openly deceptive.32

What appeared to influence Dr. Dies more than the test results was the
way in which Linda seemed to systematically alienate the children from
Michael:

Linda and her family have given the children powerful and insidi-
ous messages that undermine Matthew’s and Irina’s relationship
and respect for their father, as well as the woman with whom he
plans his future (Sherry). The pervasive pattern of name-calling,
blaming, manipulating have [sic] been harmful and destructive.33

Asked to make a custody recommendation, Dr. Dies said: “Based on the

considerable volume of evidence from multiple sources which I independently
confirmed, and using the major criteria from the Florida Statutes, my consid-
ered opinion is that Michael Kantaras would be the more appropriate parent
for these children using the criterion of the best interest of the children.”34 Dr.
Dies added, however, that he felt that the parents should have shared paren-
tal responsibility and thus Linda should have liberal visitation with Matthew
and Irina.
In response to Michael’s proof, including the testimony of the three
psychologists, Linda presented little evidence but argued that a ruling that
Michael was a man would so blur the lines of gender as to create a legally cha-
otic situation in which people could switch virtually at will. As her attorney
told the court:

If you open the door this much it’s going to be like the barnyard
door coming open. If Michael can be a male because Michael thinks
he is a male, and because of some surgery, your honor, then we’re
headed for big trouble. . . . It will create utter chaos. I believe the
floodgates will be opened. . . . He would like us to believe that his
clitoris has somehow been magically transformed into a penis, but
no one but Michael Kantaras can tell you that.35

The attorney added, questioning the motives of Michael’s expert witnesses:

“They are all part of this transsexual wave. They all have something to gain
by the testimony in this case.”36
Countering these arguments, Michael’s attorney argued that Michael had
already long been recognized as a man: “His family knows it, the community
knows it, and the medical community knows it. And now, your honor, you’ve

247
m inds o n t r i a l

been asked to decide whether the legal community knows that Michael Kan-
taras is a man.”37
Leaning heavily upon the testimony of the physicians and psychologists
as well as that of the many other witnesses called by both parties, in Febru-
ary 2003, Judge Gerald O’Brien issued a groundbreaking 802-page decision
holding that:

Michael at the date of marriage was a male based on the persuasive

weight of all the medical evidence and the testimony of lay wit-
nesses in this case, including the following:
(a) As a child, while born female, Michael’s parents and siblings
observed his male characteristics and agreed he should have
been born a “boy.”
(b) Michael always has perceived himself as a male and assumed
the male role doing house chores growing up, played male
sports, refused to wear female clothing at home or in school
and had his high school picture taken in male clothing.
(c) Prior to marriage he successfully completed the full process of
transsexual reassignment, involving hormone treatment, irre-
versible medical surgery that removed all of his female organs
inside of his body, including having a male reconstructed chest,
a male voice, a male configured body and hair with beard and
mustache, and a naturally developed penis.
(d) At the time of the marriage his bride, Linda was fully informed
about his sex reassignment status, she accepted along with his
friends, family and work colleagues that Michael in his appear-
ance, characteristics and behavior was perceived as a man. At
the time of the marriage he could not assume the role of a
woman.
(e) Before and after the marriage he has been accepted as a man in
a variety of social and legal ways, such as having a male driv-
ing license; male passport; male name change; male modifica-
tion of his birth certificate by legal ruling; male participation in
legal adoption proceedings in court; and as a male in an artificial
insemination program, and participating for years in school
activities with the children of this marriage as their father.
All of this was no different than what Michael presented himself as
at the date of marriage.38

The judge also indicated that he had been influenced in his decision by
Michael’s typical male appearance:

248
 michael kantaras: what makes a man a man?

The court had the opportunity to directly observe Michael Kantaras

both inside the courtroom and in the hallways of the courthouse.
Michael is visibly male. He has a deep, masculine voice, a chin beard
and a mustache, a thinning hair line and some balding, wide shoul-
ders, muscular arms and the apparent shifting of fat away from
the hips toward the stomach. He has a pronounced maleness that
prompts one to automatically refer to Michael with the pronoun he
or him.39

Having held that Michael was legally a man despite having been born
a woman, the judge further held that his marriage to Linda was thus legal
and proper, that the adoption of Matthew was valid, and that, by virtue of his
marriage to Linda, Michael was legally the father of Irina, who was conceived
through artificial insemination.
Significantly, the judge also awarded Michael Kantaras primary physical
custody of both children. Had the judge merely held that Michael was a man
and thus legally capable of having married Linda and adopting Matthew, that
might have been the end of this case. But since Linda had been denied custody
and relegated to “liberal visitation” with the children, she appealed the trial
court’s judgment, reasserting her claims that Michael was not a man and thus
legally incapable of marrying her or adopting her son.
In July 2004, in the midst of a growing national debate over same-sex
marriage, the Court of Appeal of Florida reversed the trial judge’s decisions
regarding Michael’s gender and marriage.40 With regard to Michael’s gender,
the appellate court held “the common meaning of male and female, as those
terms are used statutorily, refer to immutable traits determined at birth”41
and deferred to the Florida legislature to determine if and when transgen-
dered individuals such as Michael may claim a gender other than that with
which they were born. This ruling, according to the court, also determined the
question of marriage and adoption in the Kantaras case.
As regards the marriage between Michael and Linda, the appeals court
observed that:

The Florida Legislature has expressly banned same-sex marriage.

As amended in 1977 by chapter 77-139, Laws of Florida, the statute
governing the issuance of a marriage license, at the time one was
issued in this case, provided that no license shall be issued unless
one party is a male and the other a female: “No county court judge
or clerk of the circuit court in this state shall issue a license for the
marriage of any person unless . . . one party is a male and the other
party is a female.”42

249
m inds o n t r i a l

The appeals court further noted the Florida Defense of Marriage Act,
enacted by the state legislature in 1997 prohibiting marriage between persons
of the same sex and prohibiting the state of Florida from recognizing any such
marriage, whether entered into within or outside of Florida.
By this court’s reasoning, since Michael Kantaras was born a female,
nothing (including surgery, gender reassignment, hormonal treatments, etc.)
thereafter could legally be said to have made Michael a man. Thus, under the
1977 statute, Michael was never legally married to Linda. But even if he had
been, that marriage would not be recognized by the state after 1997. As a
result, the court voided Michael’s divorce and granted Linda’s petition for an
annulment.
The Court of Appeal decision did not reach the issue of the validity of
Michael’s adoption of Matthew. If allowed to stand, that court’s ruling that
Michael is not a man would, however, appear to void the adoption as well as
the marriage. Since the appeals court has held that Michael is and always has
been a woman, and Florida law bars same-sex couples from adopting a child, it
follows that Michael never legally adopted Matthew. Moreover, since Michael
never adopted, and under current law cannot adopt, Irina, he is not legally her
father either.
The appeals court stated explicitly that its decision did not reverse the
trial judge’s decision on custody but also made it clear that it was remanding
the case to the trial court for a new determination on that issue:

Our holding that the marriage is void . . . does not take into consid-
eration the best interests of the children involved in this case. While
we recognize that the trial judge went to great lengths to determine
the best interests of the children, the issue of deciding primary
residential custody was dependent on the trial court’s conclusion
that the marriage was valid. We do not attempt to undertake a
determination of the legal status of the children resulting from our
conclusion that the marriage is void. The legal status of the children
and the parties’ property rights will be issues for the trial court to
examine in the first instance on remand.43
In early 2005, the Florida Supreme Court declined (without written opin-
ion) to accept Michael’s petition for review, thus leaving intact the appeals
court’s judgment.44 The bad news for Michael Kantaras and perhaps the chil-
dren as well is that when the trial court re-confronts the issue of custody and
visitation, as directed by the appeals court, Michael will in all likelihood have
no legal standing to seek custody. Since legally he was and still is a woman,
he was never married to the children’s mother and was never legally their

250
 michael kantaras: what makes a man a man?

father, biological or adoptive. Having no direct blood relationship or legal tie

to the children, he would seem to have no legal claim whatsoever to custody
of—or even visitation with—the children he has been a father to throughout
their lives.
Ironically, under current Florida laws, including the Defense of Marriage
Act, if Michael ever wants to “remarry” in that state, he will have to marry
a man, thus committing himself to the very kind of relationship (same-sex
marriage) the Defense of Marriage Act was designed to prevent.

251
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p
EPILOGUE

t is impossible to generalize from a mere twenty cases to the way psycho-

I logical issues are handled by the legal system as a whole. That problem
is compounded when so many cases, including many of those in this book,
involve high-profile trials with famous or infamous litigants, leading attor-
neys, renowned expert witnesses, and intense media scrutiny. Still, despite
certain extraordinary aspects that made these cases fascinating, in many ways
they are not unlike countless others in which the legal system is informed (or
sometimes misinformed) by psychology and related behavioral sciences.
What, if any, broader lessons can we learn from these great cases in law
and psychology? The first, it would seem, is that over the past half-century
psychology has become an essential and ever-expanding fixture in our sys-
tem of justice. Whereas psychologists and psychiatrists were once involved
primarily, if not exclusively, in traditional areas of the law (e.g., criminal
responsibility, competence to stand trial, and the assessment of psycho-
logical harm), these twenty cases illustrate that the involvement of mental
health professionals in the legal system now spans many other areas. Among
the more recent legal arenas in which psychologists and psychiatrists have
brought their skills to bear are cases involving profiling unknown criminal
suspects, predicting dangerousness, assessing the best interests of the child,
and psychological autopsies. Many of these applications were unheard of
fifty years ago.

253
m inds o n t r i a l

Perhaps a second point to be taken from the cases in this book is that psy-
chology remains a “soft” science, the inexact nature of which is subject to con-
troversy if not exploitation in an intensely adversarial system of justice. As a
number of the cases examined here make clear, expert psychological opinions
are often in conflict. Sometimes it appears that such conflict is the result of
attorneys using “hired guns,” experts paid to give testimony that supports
one side of the case. In other instances, it appears that such conflicts are more
likely the result of genuine differences of opinion within the relevant profes-
sions, differences that are not unreasonable given the often subjective nature
of psychology and the other behavioral sciences. In our view, the cases we have
discussed generally demonstrate that, despite the relatively “soft” nature of
the science, expert psychological testimony can be, and usually is, reasonably
objective and that “hired guns” or experts who sell their testimony to whom-
ever wants to pay are the rare exception, rather than the rule.
A theme that emerges in many of these cases is how the courtroom set-
ting often becomes an arena where competing psychological theories and
opinions are scrutinized under the close eye of judges, juries, and the public.
Some cases involve one psychological expert offering an opinion about the
validity of a particular method of research or evaluation, followed by another
expert who offers a critique of the expert’s methods or a completely differ-
ent theory or perspective. Is this form of scientific debating merely the soft
sciences airing their dirty laundry about unresolved principles or theories?
We do not think so. Rather, judges and juries, and even the laws of evidence
governing expert testimony, appear to recognize that reasonable experts from
the same field can have different opinions. The challenge, of course, is for the
process of direct testimony and cross-examination to bring out the prevailing
opinion that will influence the final outcome.
The third lesson is that the relationship of psychology to the legal system
is not always a harmonious one. As these cases illustrate, the modern legal
system would be hard pressed to ignore input from psychology and psycho-
logical experts. Indeed, as the law has evolved in many of the areas covered in
this book (as well as in even more areas not covered here), such input is now
virtually if not literally required. Still, as can be seen in a number of these
cases, even where psychological input comes from honest and well-inten-
tioned experts, there is sometimes serious question as to whether such input
has actually helped or hindered the justice system. Our conclusion in that
regard is that, on the whole, these cases vividly and sometimes powerfully
illustrate the salutary influence psychology has on the way the law resolves
complicated issues dealing with the human mind and behavior.

254
 epilogue

Perhaps the final lesson worth noting here is that while most of the cases
we examined in this book have been fully resolved, most of the psychologi-
cal issues they raised so dramatically remain unresolved and will continue
to command the attention of psychologists, the courts, the public, and the
media in the decades ahead. Indeed if the history of law and psychology in the
last fifty years recounted in these cases is an indicator of the future—and we
believe it is—we expect to see a continued and rapid growth in the role played
by psychology in the legal system. Issues such as criminal profiling; mental
illness and retardation; prediction of dangerousness; psychological autopsy;
child custody; or the reliability of eyewitness, confession, and repressed mem-
ory evidence are raised in countless civil and criminal cases that make their
way through the courts on a daily basis. Most of these cases are ordinary
in the sense that they do not draw the kind of public fascination associated
with the cases chronicled in this book. However, given the seemingly endless
and generally appropriate creativity of lawyers and the courts in fashioning
new claims and defenses and the steady and growing stream of psychological
research into these and other legal issues, there can be little doubt that there
are many more great cases in law and psychology to come.

255
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p
NOTES

introduction

1. Elizabeth Frost-Knappman and David S. Shrager, A Concise Encyclopedia of

Legal Quotations (New York: Barnes & Noble Books, 1998), 80.
2. See, e.g., Charles Patrick Ewing, “Yes: Good Lawyering Can Weed Out Unscien-
tific Testimony,” American Bar Association Journal, 83, 76; Margaret A. Hagen,
Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of
American Justice (New York: Regan Books), 199.

chapter 1
g e o r g e m e t e s k y Profiling the “Mad Bomber”

1. See, e.g., “Profilers Say Sniper Feasts on Attention; Police Statements Could
Provoke Killer,” Washington Post (October 13, 2002): A22.
2. Brent Turvey, Criminal Profiling (San Diego, Calif.: Academic Press, 1999); Paul
Britton, The Jigsaw Man (London: Corgi Books, 1997).
3. J. R. Cochran, “Fair Play George Metesky,” New York Daily News (October 27,
1999): 13; James A. Brussel, Casebook of a Crime Psychiatrist (New York: Grove
Press: 1968), 14.
4. Ibid., 15–16.
5. Ibid., 17.
6. Ibid., 18.

257
notes to pa ge s 9 –2 1

7. Troy Lennon, “Profile of a Bomber,” Daily Telegraph (Sydney, Australia), Janu-

ary 7, 2002.
8. Brussel, Casebook of a Crime Psychiatrist, 21–22.
9. Charles Delafuente, “Recalling the Mad Bomber, Whose Rampage Shook New
York,” New York Times (September 10, 2004): B1.
10. Lynn Bixby, “ ‘Mad Bomber’ of Waterbury Terrorized New York for 17 Years,”
The Hartford Currant (July 2, 1995): A6.
11. Delafuente, “Recalling the Mad Bomber.”
12. Jennifer Warren and Richard C. Paddock, “Blackmail Can Lead to a Terrorist’s
Downfall,” Los Angeles Times (September 24, 1995): A3.
13. Lennon, “Profile of a Bomber.”
14. V. A. Musetto, “The Man Who Hated Con Ed,” New York Post (November 16,
2001): 15A.
15. Brussel, Casebook of a Crime Psychiatrist, 48–52, 59.
16. Ibid., 13–14.
17. Ibid., 36.
18. Ibid.
19. Ibid., 37.
20. Ibid., 38–39.
21. Ibid., 47–48.
22. Ibid., 49.
23. Ibid., 55–60.
24. Ibid., 60.
25. Turvey, Criminal Profiling.

chapter 2
l e e h a rv e y o s wa l d The Formative Years of an Assassin

1. The Warren Commission Report: Report of the President’s Commission on

the Assassination of President John F. Kennedy (New York: St Martin’s Press,
1964).
2. Final Report of the Select Committee on Assassinations (Washington: Govern-
ment Printing Office, 1979).
3. Warren Commission Report.
4. Final Report of the Select Committee on Assassinations.
5. Gerald Posner, Case Closed: Lee Harvey Oswald and the Assassination of JFK
(New York: Random House, 1993).
6. Warren Commission Report.
7. Laurence Steinberg and Robert G. Schwartz, “Developmental Psychology Goes
to Court,” in Youth on Trial: A Developmental Perspective on Juvenile Justice,
ed. Thomas Grisso and Robert G. Schwartz (Chicago: University of Chicago
Press, 2000), 9–31.
8. Ibid.

258
 n ot e s to page s 21–32

9. Thomas Grisso, Forensic Evaluation of Juveniles (Sarasota, Fla.: Professional

Resource Press, 1998).
10. Kent v. United States, 383 U.S. 541 (1966); In re Gault, 387 U.S. 1 (1967).
11. Diane Holloway, The Mind of Oswald: Accused Assassin of President John F.
Kennedy (Victoria, B.C.: Trafford, 2000), 2.
12. Warren Commission Report.
13. Ibid.
14. Ibid.
15. Ibid., 380.
16. Warren Commission Report.
17. Posner, Case Closed.
18. Stephen J. Lally, “Should Human Figure Drawings Be Admitted into Court?”
Journal of Personality Assessment 76 (2001): 135–149; Joseph T. McCann,
“Projective Assessment of Personality in Forensic Settings,” in Comprehensive
Handbook of Psychological Assessment: Vol. 2: Personality Assessment, ed.
Michel Herson (New York: John Wiley, 2004), 562–572.
19. Warren Commission Report, 381.
20. Posner, Case Closed.
21. From the testimony of Dr. Renatus Hartogs as cited in Posner, Case Closed, 12.
22. Donald W. Hastings, “The Psychiatry of Presidential Assassination: Part IV: Tru-
man and Kennedy,” Lancet (July 1965): 294–301.
23. Ibid., 296. Although Hastings does not list Hartogs by name, it can be readily
assumed that he was talking about Hartogs since no other “New York psychia-
trist” is known to have evaluated Oswald.
24. David A. Rothstein, “Presidential Assassination Syndrome,” Archives of Gen-
eral Psychiatry 11 (1964): 245–254.
25. Robert A. Fein and Bryan Vossekuil, “Assassination in America: A Study of
Assassins and Near Lethal Approachers,” Journal of Forensic Sciences 44 (March
1999): 321–333.
26. Holloway, Mind of Oswald, 97–98.
27. David A. Rothstein, “Presidential Assassination Syndrome II: Application to Lee
Harvey Oswald,” Archives of General Psychiatry 15 (1966): 260–266.
28. Ibid., 265.
29. Warren Commission Report, 382.
30. Ibid.

chapter 3
pat r i c i a h e a r st Uncommon Victim or Common Criminal?

1. William Carlsen, “The Kidnapping That Gripped the Nation,” San Francisco
Chronicle (February 4, 1999): A1.
2. Ibid.
3. Patricia Campbell Hearst, Every Secret Thing (New York: Doubleday, 1982), 42.

259
notes to pa ge s 3 2 – 4 1

4. Ibid., 63.
5. Ibid., 118–120.
6. Ibid., 147.
7. Ibid.
8. Ibid., 148.
9. Marilyn Baker, Exclusive: The Inside Story of Patricia Hearst and the SLA (New
York: Macmillan, 1974), 169.
10. Hearst, Every Secret Thing, 156.
11. Shana Alexander, Anyone’s Daughter (New York: Viking Press, 1979), 127.
12. Ibid.
13. Ibid.
14. Ibid., 365.
15. “Trial Ends,” Facts on File World News Digest (March 20, 1976): 201, B1.
16. Michael Taylor, “Haunted by Past; She Still Faces Legal Troubles, Decades after
Her Terrorist Days,” San Francisco Chronicle (October 7, 1999): A3.
17. Hearst, Every Secret Thing, 85.
18. Ibid.
19. Ibid., 86–87.
20. Ibid., 96.
21. Ibid., 97.
22. Ibid., 158.
23. Alexander, Anyone’s Daughter, 70.
24. Hearst, Every Secret Thing, 377.
25. Ibid., 378.
26. Ibid.
27. United States v. Patricia Hearst, trial transcript, reproduced in The Trial of Patty
Hearst (San Francisco: The Great Fidelity Press, 1976), 257.
28. Ibid., 257–258.
29. Ibid., 258.
30. Alexander, Anyone’s Daughter, 70.
31. Ibid.
32. Trial transcript, Trial of Patty Hearst, 263.
33. Ibid., 294.
34. Ibid.
35. Ibid.
36. Ibid.
37. Ibid., 301.
38. Ibid., 302.
39. Ibid., 301.
40. Ibid., 324–325.
41. Ibid., 437.
42. Ibid., 438.
43. Ibid., 591.
44. Ibid., 488.

260
 n ot e s to page s 42–53

45. Ibid., 520.

46. Ibid., 519.
47. Ibid., 527.
48. Ibid., 556.
49. Hearst, Every Secret Thing, 443.
50. Ibid., 401.

chapter 4
t h e g u i l d f o r d f o u r “You Did It, So Why Not Confess?”

1. Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat,

Responding to the Challenge (New Haven, Conn.: Yale University Press, 2002).
2. See, for example, Seth F. Kreimer, “Too Close to the Rack and the Screw: Con-
stitutional Constraints on Torture in the War on Terror,” University of Penn-
sylvania Journal of Constitutional Law 6 (2002): 278–325; Sanford Levinson,
“‘Precommitment’ and ‘Postcommitment’: The Ban on Torture in the Wake
of September 11,” Texas Law Review 81 (2003): 2013–2053; and John T. Parry,
“What Is Torture, Are We Doing It, and What If We Are?” University of Pitts-
burgh Law Review 64 (2003): 237–262.
3. Tim Pat Coogan, The IRA, rev. ed. (New York: Palgrave, 2000).
4. Bob Woffinden, Miscarriages of Justice (London: Hodder & Stoughten, 1987).
5. Ibid.
6. Ibid.
7. Ibid., 1.
8. Ibid.
9. Gisli H. Gudjonsson and James A. C. MacKeith, “The Guildford Four and the
Birmingham Six,” in The Psychology of Interrogations, Confessions, and Testi-
mony, ed. Gisli Gudjonsson (Chichester, England: John Wiley, 1992), 260–273.
10. Woffinden, Miscarriages of Justice.
11. Ibid.
12. Gudjonsson and MacKeith, “Guildford Four and the Birmingham Six.”
13. Ibid.
14. Ibid.
15. Ibid.
16. Ibid.
17. Woffinden, Miscarriages of Justice.
18. Ibid.
19. Gudjonsson and MacKeith, “Guildford Four and the Birmingham Six.”
20. Ibid.
21. Ibid.
22. Ibid., 265.
23. Ibid.
24. Ibid.

261
notes to pa ge s 5 3 – 6 2

25. Ibid.
26. Glenn Frankel, “British Court Overturns Convictions in IRA Case,” Washing-
ton Post (October 20, 1989): 36A.
27. Ibid.
28. “Blair Apologises to Guildford Four,” BBC News, June 6, 2000, http://news.bbc
.co.uk/1/hi/northern_ireland/778940.stm (accessed March 10, 2003).
29. “Guildford Four Members Demand Settlement,” BBC News, October 19, 1999,
http://news.bbc.co.uk/1/hi/northern_ireland/478929.stm (accessed March 10,
2003).
30. “Blair Apologises to Guildford Four.”
31. Woffinden, Miscarriages of Justice.

chapter 5
p r o s e n j i t p o d da r a n d tat i a n a ta r as o f f
Where the Public Peril Begins

1. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425; 551 P. 2d 334;

131 Cal. Rptr. 14 (Sup. Ct. Cal., 1976).
2. People v. Poddar, 10 Cal. 3d 750 (Sup. Ct. Cal., 1974).
3. Ibid.
4. Leon VandeCreek and Samuel Knapp, Tarasoff and Beyond: Legal and Clinical
Considerations in the Treatment of Life-Endangering Patients (Sarasota, Fla.:
Professional Resource Press, 1993).
5. Ibid.
6. Ibid.
7. Tarasoff v. Regents of the University of California.
8. Alan A. Stone, “The Tarasoff Decisions: Suing Psychotherapists to Safeguard
Society,” Harvard Law Review 90 (1976): 358–378.
9. VandeCreek and Knapp, Tarasoff and Beyond.
10. People v. Poddar.
11. Fillmore Buckner and Marvin Firestone, “ ‘Where the Public Peril Begins’:
Twenty-five Years After Tarasoff,” Journal of Legal Medicine 21 (2000): 187–
222.
12. Ibid.
13. Buckner and Firestone, “ ‘Where the Public Peril Begins.’ ”
14. Ibid., 195.
15. Ibid.
16. Ibid.
17. Tarasoff v. Regents of the University of California.
18. John G. Fleming and Bruce Maximov, “The Patient or His Victim: The Thera-
pist’s Dilemma,” California Law Review 62 (1974): 1025–1068.
19. Stone, “Tarasoff Decisions.”
20. Fleming and Maximov, “The Patient or His Victim,” 1032.

262
 n ot e s to page s 63–77

21. Ibid., 1051–1052.

22. Stone, “Tarasoff Decisions,” 377.
23. Tarasoff v. Regents of the University of California, 345.
24. Ibid., 347.
25. VandeCreek and Knapp, Tarasoff and Beyond.
26. Peck v. Counseling Service of Addision County, 499 A. 2d 422 (Vt. 1985).
27. Brady v. Hopper, 570 F. Supp. 1333 (D. Colo. 1983).
28. VandeCreek and Knapp, Tarasoff and Beyond.
29. Buckner and Firestone, “ ‘Where the Public Peril Begins.’ ”
30. Ibid.
31. Stone, “Tarasoff Decisions.”

chapter 6
da n w h i t e The Myth of the Twinkie Defense

1. Associated Press, “Assault Defense: Tea Made Me Do It,” St. Petersburg Times,
July 12, 2003, http://www.sptimes.com/2003/07/12/State/Assault_defense_Tea_
.shtml (accessed September 5, 2005).
2. Alan M. Dershowitz, The Abuse Excuse and Other Cop-Outs, Sob Stories, and
Evasions of Responsibility (Boston: Little, Brown, 1994), 339.
3. Mike Weiss, Double Play: The San Francisco City Hall Killings (Reading, Mass.:
Addison-Wesley, 1984), 209.
4. Ibid., 215.
5. Ibid., 218.
6. Trial transcript, People v. Daniel James White (Superior Court of San Francisco)
No. 98663 (1979).
7. Ibid., statement of Daniel White to San Francisco Police Inspector Frank Falzon.
8. Ibid.
9. People v. Gorshen, 336 P.2d 492 (Cal. 1959); People v. Wells, 202 P.2d 53 (Cal.
1969); People v. Wolff, 394 P.2d 959 (Cal. 1964); People v. Conley, 411 P.2d 911
(Cal. 1966).
10. Cal. Penal Code 187 (as enacted in 1872).
11. People v. Wells.
12. People v. Conley.
13. Trial transcript, People v. Daniel James White.
14. Ibid.
15. “Twinkie Shrink Stabbed,” ABC News, July 12, 2003, http://www.abcnews.
go.com (accessed July 1, 2004).
16. People v. Daniel James White.
17. The Straight Dope Science Advisory Board, “Did a Murderer Escape Punish-
ment Using the ‘Twinkie Defense’?” November 15, 2000, http://www
.straightdope.com/mailbag/mdimcapacity.html (accessed November 9, 2004).
18. Trial transcript, People v. Daniel James White.

263
notes to pa ge s 7 7– 8 2

19. Ibid.
20. Ibid.
21. Ibid.
22. ”The Case That Shocked the City,” The Recorder (January 31, 1996): 1.
23. Ibid.
24. People v. White, 117 Cal. App. 3d 270 (Cal. Ct. of Appeal, 1981): 278.
25. Ibid.
26. Cynthia Gorney, “The Legacy of Dan White; A Stronger Gay Community Looks
Back on the Tumult,” Washington Post (January 4, 1984): D1.
27. Chris Carlsson, “White Night Riot,” http://www.shapingsf.org/ezine/gay/files/
whitengt.htm (accessed November 10, 2004).
28. Carol Pogash, “Myth of the ‘Twinkie Defense’: The Verdict in the Dan White
Case Wasn’t Based on His Ingestion of Junk Food,” San Francisco Chronicle,
November 23, 2003, http://www.sfgate.com (accessed November 10, 2004).
29. Ibid.
30. People v. White, 281.
31. Ibid., 282.
32. Ibid.
33. Act of September 19, 1981, ch. 404, sec. 1, 1981 Cal. Stat. 1591, 1592, codified at
Cal. Penal Code sec. 28 (West 2002).
34. Mike Weiss, “Mayhem Shadowed Therapist’s Life; Expert on Relationships
Examines Why Many of His Have Ended Badly,” San Francisco Chronicle (May
22, 2001): A1.
35. “Twinkie Shrink Stabbed.”
36. Andrew Gumbel, “Twinkie, a Chocolate Cake that Leaves Murder and Mayhem
in its Wake,” The Independent of London (October 11, 2000): 16.
37. Pervaiz Shallwani, “Ex-Wife of ‘Twinkie Defense’ Doctor Found Dead; Woman
Was Suspected of Stabbing Psychiatrist,” San Francisco Chronicle (October 9,
2000): A19.
38. Pogash, “Myth of the ‘Twinkie Defense.’”

chapter 7
c a m e r o n h o o k e r Judging the Experts?

1. “Elizabeth Smart Found Alive,” CNN.com, http://www.cnn.com/2003/US/

West/03/12/smart.kidnapping/ (accessed November 11, 2004).
2. Ibid.
3. Katherine Ramsland, “The Initial Revelation,” in The Case of the Seven-Year
Sex Slave, http://www.crimelibrary.com/criminal_mind/psychology/sex_slave/
index.html?sect=19 (accessed November 11, 2004).
4. Christine McGuire and Carla Norton, Perfect Victim (New York: Dell, 1988).
5. Ibid.
6. Ibid.

264
 n ot e s to page s 82–96

7. Katherine Ramsland, “Over the Border into Trouble,” in The Case of the Seven-
Year Sex Slave, http://www.crimelibrary.com/criminal_mind/psychology/sex_
slave/2.html?sect=19 (accessed November 11, 2004).
8. People v. Hooker, 198 Cal. App. 3d 1365; 244 Cal. Rptr. 337; 1988 Cal App. LEXIS
146 (Ct. App. Cal., 1st Dist., Div. 4, 1988). The subsequent history of this case
reveals that on June 9, 1999, the Reporter of Decisions was directed not to pub-
lish the opinion. Available at http://www.courtinfo.ca.gov/opinions/.
9. McGuire and Norton, Perfect Victim.
10. Ibid.
11. Ibid., 78.
12. Katherine Ramsland, “Time to Leave,” in The Case of the Seven-Year Sex Slave,
http://www.crimelibrary.com/criminal_mind/psychology/sex_slave/9
.html?sect=19 (accessed November 11, 2004).
13. People v. Hooker.
14. Ibid., 5.
15. McGuire and Norton, Perfect Victim, 290.
16. Ibid., 291.
17. Ibid., 331.
18. Ibid.
19. People v. Hooker, 11.
20. McGuire and Norton, Perfect Victim, 358.
21. Ibid., 362.
22. People v. Hooker.
23. Ibid., 8.
24. Ibid.
25. Katherine Ramsland, “Hooker’s Defense,” in The Case of the Seven-Year Sex
Slave, http://www.crimelibrary.com/criminal_mind/psychology/sex_slave/12
.html?sect=19 (accessed November 11, 2004).

chapter 8
j o h n w. h i n c k l e y, j r . Shooting for the Stars

1. Douglas Linder, “The Hinckley Trial,” http://www.law.umkc.edu/faculty/

projects/ftrials/hinckley/hinckleymono.HTM (accessed September 26, 2005).
2. Peter W. Low, John Calvin Jeffries, and Richard J. Bonnie, The Trial of John W.
Hinckley, Jr. (Mineola, N.Y.: Foundation Press, 1986), 94.
3. Lincoln Kaplan, The Insanity Defense and the Trial of John W. Hinckley, Jr.
(Boston: Godine, 1984), 14.
4. Ibid., 11–12.
5. M’Naughten’s Case, 8 Eng. Rep. 718 (1843).
6. American Law Institute, Model Penal Code (New York: American Law Institute,
1955), Section 4.01.
7. Kaplan, Insanity Defense, 59.

265
notes to pa ge s 9 6– 1 0 7

8. Ibid.
9. Low, Jeffries, and Bonnie, Trial of John W. Hinckley, Jr., 28.
10. Kaplan, Insanity Defense, 85–86.
11. Low, Jeffries, and Bonnie, Trial of John W. Hinckley, Jr., 53–54.
12. Ibid., 61, 80–81.
13. Douglas Linder, “Use of the Insanity Defense in the Aftermath of the Hinckley
Trial,” http://www.law.umkc.edu/faculty/projects/ftrials/hinckley/backlash.htm
(accessed September 5, 2005).
14. Ibid.
15. George F. Will, “Insanity and Success,” Washington Post (June 23, 1982): A27.
16. “Hinckley Verdict,” The MacNeil Lehrer Report (June 22, 1982): Transcript no.
1757.
17. 18 USCS § 17 (Added Oct. 12, 1984, P.L. 98-473).
18. Federal Rules of Evidence, Rule 704(b), as amended 12 Oct. 1984, P.L. 98-473.
19. See, e.g., Insanity Defense FAQs, http://www.pbs.org/wgbh/pages/frontline/
shows/crime/trial/faqs.html (accessed September 5, 2005).
20. Douglas Linder, “John Hinckley at St. Elizabeth’s Hospital: Still Seeking
His Freedom,” http://www.law.umkc.edu/faculty/projects/ftrials/hinckley/
hinckleyeliz.HTM (accessed September 5, 2005).

chapter 9
j u das p r i e st A Message in the Music

1. Cy Ryan, “Mother Says She Never Knew Her Son Listened to Judas Priest,”
United Press International, BC Cycle (July 18, 1990).
2. Vance v. Judas Priest, 1990 WL 130920 (Nev. Dist. Ct., 1990), 17.
3. Chuck Philips, “Trial to Focus on Issue of Subliminal Messages in Rock,” Los
Angeles Times (July 16, 1990): F1.
4. Ryan, “Mother Says She Never Knew.”
5. Ibid.
6. Philips, “Trial to Focus.”
7. Ibid.
8. Ibid.
9. Matt Neufeld, “Judas Priest Rocks Out After Its Exoneration,” Washington
Times (October 23, 1990): E1.
10. Richard Harrington, “In Defense of Heavy Metal: The Trials of Rob Halford, Soft-
spoken Lead Screamer of Judas Priest,” Washington Post (January 6, 1991): G1.
11. Pamela Marsden Capps, “Rock on Trial: Subliminal Message Liability,” Colum-
bia Business Law Review (1991): 27–50.
12. Berta Blen, “To Hear or Not to Hear: A Legal Analysis of Subliminal Communi-
cation Technology in the Arts,” Rutgers Law Review 44 (1992): 871–922.
13. Ibid.
14. Vance v. Judas Priest, 8.

266
 n ot e s to page s 108–117

15. Ibid., 11.

16. Ibid.
17. Ibid., 12.
18. Timothy Moore, “Scientific Consensus and Expert Testimony: Lessons from the
Judas Priest Trial,” Skeptical Inquirer 20 (June 1996): 32.
19. Ibid.
20. Vance v. Judas Priest, 12.
21. Ibid.
22. Moore, “Scientific Consensus and Expert Testimony.”
23. Vance v. Judas Priest, 14.
24. Ibid.
25. Vance v. Judas Priest, 1990 WL 130921 (Nev. Dist. Ct., 1990).
26. Moore, “Scientific Consensus and Expert Testimony.”
27. Capps, “Rock on Trial.”
28. Ibid., 48.
29. Ibid.
30. Ibid., 49.
31. Neufeld, “Judas Priest Rocks Out After Its Exoneration.”

chapter 10
j o h n d e m j a n j u k Is He “Ivan the Terrible”?

1. Gail S. Goodman, Allison D. Redlich, Jianjian Qin, Simora Ghetti, Kimberly

S. Tyda, Jennifer M. Schaaf, and Annette Hahn, “Evaluating Eyewitness Testi-
mony in Adults and Children,” in The Handbook of Forensic Psychology, 2nd
ed., ed. Alan K. Hess and Irving B. Weiner (New York: John Wiley, 1999), 218–
272.
2. Eric Lichtblau, “Death Camp Suspect Loses His Citizenship,” Los Angeles Times
(February 22, 2002): 16A.
3. George D. Moffett, “Israeli Judges Convict Former Auto Worker of Being ‘Ivan
the Terrible,’” Christian Science Monitor (April 19, 1988): 7.
4. Debbie Nathan and Jan Haaken, “From Incest to Ivan the Terrible: Science and
the Trials of Memory,” Tikkun 11 (1996): 29.
5. Ibid.
6. Ethan Bronner, “Israel to Review Demjanjuk Verdict: Files May Reveal Mis-
taken Identity,” The Boston Globe (December 20, 1991): 36.
7. “Demjanjuk’s Alleged Nazi Past to be on Trial Again,” Los Angeles Times (May
27, 2001): 20A.
8. Elizabeth Loftus and Katherine Ketcham, Witness for the Defense: The Accused,
the Eyewitness, and the Expert Who Puts Memory on Trial (New York: St.
Martin’s Press, 1991).
9. Ken Myers, “‘Ivan’—or Just Plain John?” National Law Journal (April 6, 1987):
6A.

267
notes to pa ge s 1 17 – 1 2 9

10. Ibid.
11. Willem A. Wagenaar, Identifying Ivan: A Case Study in Legal Psychology (New
York: Harvester, 1988): 96.
12. Goodman et al., “Evaluating Eyewitness Testimony,” 241.
13. Loftus and Ketcham, Witness for the Defense, 218.
14. Ibid.
15. Ibid.
16. Nathan and Haaken, “From Incest to Ivan the Terrible.”
17. Goodman et al., “Evaluating Eyewitness Testimony.”
18. Nathan and Haaken, “From Incest to Ivan the Terrible.”
19. Loftus and Ketcham, Witness for the Defense, 211.
20. Peter Tague, “How Often Do Witnesses Make False Identifications in Criminal
Trials?” Chicago Daily Law Bulletin (July 10, 1991): 2.
21. Loftus and Ketcham, Witness for the Defense, 212.
22. Ibid.
23. Aldert Vrij, “Psychological Factors in Eyewitness Testimony,” in Psychology
and Law: Truthfulness, Accuracy, and Credibility, ed. Amina Memon, Aldert
Vrij, and Ray Bull (London: McGraw-Hill, 1998), 105–123.
24. Nathan and Haaken, “From Incest to Ivan the Terrible.”
25. Tom Teicholz, The Trial of Ivan the Terrible: State of Israel vs. John Demjanjuk
(New York: St. Martin’s Press, 1990).
26. Ibid.
27. Ibid.
28. Ibid.
29. Ibid., 258.
30. Ibid.
31. Ibid.
32. Ibid., 260.
33. Ibid., 262.
34. Wagenaar, Identifying Ivan, 151.
35. Ibid.
36. Ibid., 171.
37. Bronner, “Israel to Review Demjanjuk Verdict.”
38. Teicholz, Trial of Ivan the Terrible.
39. Ibid.
40. Joshua Muravchik, “Demjanjuk: A Summing-up; Reevaluation of Alleged War
Criminal John Demjanjuk,” Commentary 103 (April 1997): 46.

chapter 11
t h e u s s i owa Equivocating on Death

1. Kevin Helliker, “How an Autopsy Could Save Your Life,” The Wall Street Jour-
nal (June 3, 2003): D1.

268
 n ot e s to page s 130–136

2. Charles C. Thompson, A Glimpse of Hell: The Explosion on the USS Iowa and
Its Cover-up (New York: W. W. Norton, 1999).
3. Molly Moore, “Navy’s USS Iowa Probe Called Flawed; Accusation Against
Hartwig Unsupported, Hill Panel Concludes,” The Washington Post (March 3,
1990): A14.
4. Thompson, Glimpse of Hell, 16.
5. Ibid., 57.
6. Ibid., 74.
7. Ibid., 84–88.
8. Ibid., 101.
9. Ibid., 110, 124.
10. Ibid., 135.
11. Ibid., 292–294.
12. John Lancaster, “Iowa Sailor Exonerated in Blast; Navy Repudiates Investigation
Results,” The Washington Post (October 18, 1991): A1.
13. Thompson, Glimpse of Hell, 245.
14. Stephen G. Michaud and Roy Hazelwood, The Evil That Men Do (New York: St.
Martin’s Press, 1998).
15. Lancaster, “Iowa Sailor Exonerated in Blast.”
16. Thompson, Glimpse of Hell, 76.
17. Dave Moniz, “‘I’ve Known in My Heart All Along’: Navy Apology Vindicates
Survivor of USS Iowa Explosion,” The Houston Chronicle (October 18, 1991):
A16.
18. Thompson, Glimpse of Hell, 252.
19. Ibid., 92.
20. Ibid.
21. Ibid.
22. Michaud and Hazelwood, Evil That Men Do, 155–156.
23. Ibid., 156.
24. Hearing of the House Armed Services Subcommittee on Investigations of the
House Armed Services Committee. Transcript of proceedings, December 21,
1989.
25. Thompson, Glimpse of Hell, 358–360.
26. Hearing of the House Armed Services Subcommittee.
27. Ibid.
28. Ibid.
29. Ibid.
30. Ibid.
31. Norman Poythress, Randy K. Otto, Jack Darkes, and Laura Starr, “APA’s Expert
Panel in the Congressional Review of the USS Iowa Incident,” American Psy-
chologist 48 (1993): 8–15.
32. Thompson, Glimpse of Hell, 333.
33. Michaud and Hazelwood, Evil That Men Do.
34. Ibid.

269
notes to pa ge s 1 36 – 1 4 8

35. Ibid., 157.

36. Randy K. Otto, Norman Poythress, Laura Starr, and Jack Darkes, “An Empirical
Study of the Reports of APA’s Peer Review Panel in the Congressional Review of
the U.S.S. Iowa Incident,” Journal of Personality Assessment 61 (1993): 425–442.
37. Poythress, Otto, Darkes, and Starr, “APA’s Expert Panel.”
38. Ibid.
39. Moore, “Navy’s USS Iowa Probe Called Flawed.”
40. Moniz, “‘I’ve Known in My Heart All Along.’”
41. Thompson, Glimpse of Hell, 394.
42. Ibid.
43. Michaud and Hazelwood, Evil That Men Do, 159.
44. Ibid. Although it does not appear to be noted by whom the blast was intention-
ally caused.
45. Susanne M. Schafer, “Navy Apologizes to Sailor’s Family, Admits Iowa Blast
Cause Unknown,” The Commercial Appeal (October 18, 1991): A2.

chapter 12
j e f f r e y da h m e r Serial Murder, Necrophilia, and Cannibalism

1. Anne E. Schwartz, The Man Who Could Not Kill Enough (New York: Birch
Lane Press, 1992), 65–66.
2. American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 4th ed. (Washington, D.C.: American Psychiatric Association, 1994),
638.
3. Schwartz, Man Who Could Not Kill Enough, 64.
4. Ibid., 66.
5. Ibid.
6. Robert J. Dvorchak and Lisa Holewa, Milwaukee Massacre (New York: Dell,
1991), 92.
7. Schwartz, Man Who Could Not Kill Enough, 69.
8. Richard W. Jaeger and M. William Balousek, Massacre in Milwaukee (Oregon,
Wisc.: Waubesa Press, 1991), 59.
9. Ed Bauman, Step into My Parlor (Chicago: Bonus Books, 1991), 31.
10. Schwartz, Man Who Could Not Kill Enough, 91.
11. Bauman, Step into My Parlor, 31.
12. Dvorchak and Holewa, Milwaukee Massacre, 117.
13. Ibid., 118.
14. Jaeger and Balousek, Massacre in Milwaukee, 23.
15. John Lloyd, “Humanity Takes Just One Small Step to Another Golgotha,” Scot-
land on Sunday (March 17, 1996): 16.
16. Brian Masters, The Shrine of Jeffrey Dahmer (London: Coronet Books, 1993), 247.
17. Ibid., 246–247.
18. Ibid., 227.

270
 n ot e s to page s 148–155

19. Rogers Worthington, “Dahmer Judge to Call Own Experts; Court Forensic Special-
ists Could Be Pivotal to Jury Decision,” Chicago Tribune (February 6, 1992): 6C.
20. Jerry C. Smith, “Dahmer Personality,” United Press International, BC Cycle
(February 15, 1992).
21. Associated Press, “Question of Self-Control May Decide Dahmer Case,” New
York Times (February 9, 1992): 23.
22. Masters, Shrine of Jeffrey Dahmer, 246–247.
23. Maureen O’Donnell, “Four Experts Call Dahmer Sane; Three Disagree,” Chi-
cago Sun-Times (February 14, 1992): 10.
24. Smith, “Dahmer Personality.”
25. Jerry C. Smith, “Psychologist: Dahmer Illness Began in Childhood,” United
Press International, BC Cycle (February 5, 1992).
26. Richard W. Jaeger, “Prosecutor Challenges Psychiatrist’s Claims,” Wisconsin
State Journal (February 6, 1992): 1B.
27. Associated Press, “Witness Disputes Dahmer Lobotomies,” Madison Capital
Times (February 6, 1992): 5A.
28. Richard W. Jaeger, “Dahmer Wanted Zombies; Killer’s Experiments Explained,”
Wisconsin State Journal (January 19, 1992): 1A.
29. Masters, Shrine of Jeffrey Dahmer, 257.
30. Rogers Worthington, “Dahmer Jury Nears Decision Time; Conflicting Testi-
mony about Sanity Complicates Task,” Chicago Tribune (February 14, 1992): 6C.
31. Ibid.
32. Masters, Shrine of Jeffrey Dahmer, 262.
33. Rogers Worthington, “Doctor: Desire, Not Disease, Pushed Dahmer,” Chicago
Tribune (February 13, 1992): 10C.
34. Associated Press, “Dahmer Able to Control Sexual Urges, Psychiatrist Says,”
Kitchener-Waterloo Record (February 14, 1992): A8.
35. Associated Press, “Question of Self-Control,” 23.
36. Smith, “Dahmer Personality”; Associated Press, “Witness Disputes.”
37. Ibid.
38. Masters, Shrine of Jeffrey Dahmer, 252.
39. Ibid.
40. “Dahmer: ‘Your Honor. It Is Now Over,’” Chicago Sun-Times (February 17, 1992).
41. Michael C. Buelow, “Inmate Charged in Dahmer Slaying,” Chicago Sun-Times
(December 15, 1994): 1.

chapter 13
wo o dy a l l e n a n d m i a fa r r ow A Swing of King Solomon’s Sword

1. Katherine Kuehnle, Assessing Allegations of Child Sexual Abuse (Sarasota, Fla:

Professional Resource Press, 1996).
2. “Judge Denounces Woody, Mia Keeps Kids, Allen Pays Legal Fees,” The Record
(June 8, 1993): A1.

271
notes to pa ge s 1 55 – 1 6 6

3. Richard Perez-Pena, “Woody Allen Tells of Affair as Custody Battle Begins,”

New York Times (March 20, 1993): 25.
4. Debra A. Poole and Michael E. Lamb, Investigative Interviews of Children: A
Guide for Helping Professionals (Washington, D.C.: American Psychological
Association, 1998).
5. Tracey L. Miller, “Nanny Says Mia Selective in Taping Abuse Allegation,”
United Press International, BC Cycle (April 5, 1993).
6. Samuel Maull, “Therapist Feared Farrow Wanted to Injure Allen,” Chicago Sun-
Times (March 30, 1993): 2.
7. “Doubting Therapist Fired by Mia Farrow,” The Toronto Star (March 27, 1993):
A20.
8. David Kocieniewski, “Shrink Raps: Doc Knocks Woody and Mia as Parents,”
Newsday (March 31, 1993): 7.
9. Ibid.
10. Ibid.
11. Ibid.
12. Tracey L. Miller, “Psychiatrist: Woody Was Committed to Being a Good Father,”
United Press International, BC Cycle (March 30, 1993).
13. Kocieniewski, “Shrink Raps.”
14. Peter Marks, “Yale Study About Allen Flawed, Expert Testifies,” New York Times
(April 28, 1993): B4.
15. Ibid.
16. Ibid.
17. Ibid.
18. Ibid.
19. Ibid.
20. Ibid.
21. Peter Marks, “Allen Loses to Farrow in Bitter Custody Battle,” June 8, 1993, http://
partners.nytimes.com/books/97/02/23/reviews/farrow-verdict.html (accessed
October 5, 2004).
22. Ibid.
23. John J. Goldman, “Farrow Wins Custody of Three Children She, Allen Share,”
Los Angeles Times (June 8, 1993): A1.
24. Peter Marks, “N.Y. Judge, in Scathing Ruling, Rejects Allen’s Custody Attempt,”
The Houston Chronicle (June 8, 1993): A7.
25. Ibid.
26. Goldman, “Farrow Wins Custody of Three Children.”

chapter 14
g a ry a n d h o l ly r a m o n a Recovered Memories or False Allegations?

1. Moira Johnson, Spectral Evidence (Boulder, Colo.: Westview Press, 1997), 77.
2. Jane Meredith Adams, “Father Sues Therapists in Abuse Memory Case,” Chi-

272
 n ot e s to page s 166–173

cago Tribune (March 25, 1994): 2N; Cynthia Grant Brown and Elizabeth Mertz,
“A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy,”
Harvard Law Review (January 1996): 556.
3. Johnson, Spectral Evidence, 148–149, 163.
4. Ibid., 84.
5. Ibid., 83.
6. Ibid., 98.
7. Ibid.
8. Ibid., 101.
9. Ibid., 102.
10. See Gary M. Ernsdorff and Elizabeth Loftus, “Let Sleeping Memories Lie?
Words of Caution about Tolling the Statute of Limitations in Cases of
Memory Repression,” Journal of Criminal Law and Criminology (Spring
1993): 129.
11. Molien v. Kaiser Foundation Hospitals, 616 P.2d 813.
12. Ibid., 817.
13. Victoria Slind-Flor, “He Says ‘Recovered’ Memories Ruined Him,” National
Law Journal (April 18, 1994): A10.
14. Ramona v. Ramona, 66 Cal. Rptr. 2d 766, 773.
15. Johnson, Spectral Evidence, 257.
16. Katy Butler, “Memory on Trial,” San Francisco Chronicle (July 24, 1994): 5/Z1.
17. Johnson, Spectral Evidence, 259.
18. Ibid.
19. Ibid., 261–262.
20. Ibid., 266.
21. Ibid., 267.
22. Ibid., 269.
23. Ibid., 274.
24. Elizabeth F. Loftus and Jacqueline E. Pickrell, “The Formation of False Memo-
ries,” Psychiatric Annals (1995): 720–725.
25. Johnson, Spectral Evidence, 276.
26. Ibid., 278.
27. Ibid.
28. Ibid., 279.
29. Ibid., 281.
30. Ibid.
31. Ibid., 282.
32. Ibid., 284.
33. Ibid., 285.
34. Ibid., 319.
35. Ibid.
36. Ibid., 320.
37. See Lenore Terr, “Childhood Traumas: An Outline and Overview,” Ameri-
can Journal of Psychiatry (1991): 10–20; Lenore Terr, Unchained Memories:

273
notes to pa ge s 1 7 4 – 1 8 3

True Stories of Traumatic Memories, Lost and Found (New York: Basic Books,
1994).
38. See Harry N. MacLean, Once Upon a Time: A True Story of Memory, Murder,
and the Law (New York: HarperCollins, 1993); Mary Curtius, “Man Won’t Be
Retried in Repressed Murder Case; Prosecutor Says There Is Not Enough Evi-
dence to Reconvict Him of Crime Daughter Recalled Years Later,” Los Angeles
Times (July 3, 1996): A1.
39. Johnson, Spectral Evidence, 340.
40. Ibid., 341.
41. Ibid.
42. Ibid.
43. Ibid.
44. Ibid., 342.
45. Ibid., 343.
46. Ibid., 344.

chapter 15
c o l i n f e r g u s o n A Fool for a Client?

1. This right is currently codified at 28 USC § 1654 (1994).

2. 422 U.S. 806 (1975) at 819.
3. Ibid., 834.
4. Ibid., 838–839, quoting Powell v. Alabama, 287 U.S. 45 (1932).
5. 509 U.S. 389 (1993) at 399–400.
6. Ibid., 412–413.
7. Kevin McCoy, “Clues to the Fury Within Him; Ferguson Was ‘Bomb Waiting to
Explode,’” Newsday (December 9, 1993): 5.
8. “Train Killings Called Bias Crime; Hate Notes Found on Suspect,” Chicago Tri-
bune (December 9, 1993): N3.
9. Ibid.
10. “Death on the L.I.R.R.,” New York Times (December 9, 1993): B8.
11. John G. D’Alessandro, Examination Report, People v. Colin A. Ferguson (Docket
No. 27126, Nassau County Court, December 28, 1993): 6.
12. Robin Topping, “Weighing Competence vs. Sanity,” Newsday (February 5,
1995): A6.
13. Brief for the Respondent, People v. Colin A. Ferguson, 248 A.D.2d 725; 670
N.Y.S.2d 327 (1998): 40.
14. Richard G. Dudley, Jr., M.D., Psychiatric evaluation, In the Matter of Colin Fer-
guson (November 27, 1994): 13.
15. Brief for the Appellant, People v. Colin A. Ferguson, 248 A.D.2d 725; 670
N.Y.S.2d 327 (1998): 6.
16. Ibid., 8.

274
 n ot e s to page s 183–189

17. Maureen Fan, “Ferguson Lawyers Seek New Test,” Newsday (August 12, 1994):
A23.
18. Ibid.
19. Ibid.
20. Sylvia Adcock. “ ‘Black Rage’ Strategy; New Insanity Defense in LIRR Massa-
cre,” Newsday (March 15, 1994): 7.
21. Brief for the Respondent, People v. Colin A. Ferguson, 248 A.D.2d 725; 670
N.Y.S.2d 327 (1998): 41.
22. Peter Marks, “L.I.R.R. Murderer Argues for Reversal,” New York Times (March
21, 1995): B5.
23. Brief for the Appellant, People v. Colin A. Ferguson, 248 A.D.2d 725; 670
N.Y.S.2d 327 (1998): 37.
24. “Colin Ferguson Defends Himself in Court,” Larry King Live (February 14,
1995): Transcript 1357-1.
25. Ibid.
26. Richard G. Dudley, Jr., M.D., Psychiatric evaluation, In the Matter of Colin Fer-
guson (November 27, 1994): 14.
27. “Train Massacre Trial Scene of Surreal Drama,” Charleston Gazette (January 30,
1995): P2A.
28. Brief for the Appellant, People v. Colin A. Ferguson, 248 A.D.2d 725; 670
N.Y.S.2d 327 (1998): 63–64.
29. Ibid., 65.
30. “Surreal Trial on Par with Unusual Shooting,” St. Petersburg Times (January 30,
1995): 4A.
31. “Colin Ferguson’s Long Island Rail Road Shooting Case,” CNBC News Tran-
scripts (January 8, 1998).
32. “The Abrams Report,” MSNBC (October 20, 2003): Transcript No. 102000cb464;
“Train Massacre Trial.”
33. Maureen Fan, “It’s Up to the Jury; Ferguson’s Fate Weighed Today,” Newsday
(February 17, 1995): A4.
34. “Defendants Who Serve as Their Own Attorneys During Trials,” Weekend Edi-
tion Sunday, National Public Radio (February 24, 2002).
35. Bruce Frankel, “Conspiracy Theories Close Shooting Trial,” USA TODAY (Feb-
ruary 17, 1995): 10A.
36. John T. McQuiston, “Rail Gunman to Spend Life Behind Bars,” New York Times
(March 23, 1995): B1.
37. Fan, “It’s Up to the Jury.”
38. “The Verdict in the Colin Ferguson Trial,” CNBC News Transcripts (February 7,
1995).
39. Ibid.
40. Douglas Mossman and Neal Dunseith, “ ‘A Fool for a Client’: Print Portrayals of
49 Pro Se Criminal Defendants,” Journal of the American Academy of Psychia-
try and Law (2001): 408.

275
notes to pa ge s 1 92 – 1 9 6

chapter 16
r a l p h t o rt o r i c i A Question of Competence

1. Trial transcript, testimony of Patricia Ford, People v. Ralph Tortorici, Albany

County Court, 374–375.
2. “Progress Notes” (Capital District Psychiatric Center) regarding Ralph Tortorici
(August 31, 1991).
3. “A Well Documented History of Mental Illness,” PBS Frontline, http://www.pbs
.org/wgbh/pages/frontline/shows/crime/ralph/incidents.html (accessed Septem-
ber 5, 2005).
4. Ibid.
5. James Dao, “Gunman Terrorizes Students in Campus Siege,” New York Times
(December 15, 1994): B1.
6. “Clinical Summary” (Mid-Hudson Psychiatric Center) regarding Ralph Tor-
torici (March 3, 1995).
7. Ibid.
8. Ibid.
9. People v. Tortorici, 92 N.Y.2d 757 (1999), 761.
10. Ibid.
11. Ibid., 763.
12. Report of Lawrence A. Siegel, M.D., regarding Ralph Tortorici (January 7, 1996),
1. Available at http://www.pbs.org/wgbh/pages/frontline/shows/crime/ralph/
siegel.html (accessed September 5, 2005).
13. Ibid., 8.
14. Ibid.
15. Ibid., 1, 8.
16. Ibid., 8.
17. Ibid.
18. Trial transcript, statement of Peter Lynch, People v. Ralph Tortorici, Albany
County Court, 134–135.
19. Ibid., statement of Cheryl Coleman, 133.
20. “Interview: Cheryl Coleman,” PBS Frontline, http://www.pbs.org/wgbh/pages/
frontline/shows/crime/interviews/coleman.html (accessed September 5, 2005).
21. Trial transcript, statement of Hon. Larry Rosen, People v. Ralph Tortorici,
Albany County Court, 135–136.
22. “The Prosecution’s Summation,” PBS Frontline, http://www.pbs.org/wgbh/
pages/frontline/shows/crime/ralph/psummation.html (accessed September 5,
2005).
23. “Interview: Peter Lynch,” PBS Frontline, http://www.pbs.org/wgbh/pages/
frontline/shows/crime/interviews/lynch.html (accessed September 5, 2005).
24. “Interview: Larry Rosen,” PBS Frontline, http://www.pbs.org/wgbh/pages/
frontline/shows/crime/interviews/rosen.html (accessed September 5, 2005).
25. Pate v. Robinson, 383 U.S. 375 (1966), 385.
26. People v. Smyth, 3 N.Y.2d 184 (1957), 187.

276
 n ot e s to page s 196–209

27. People v. Tortorici, 671 N.Y.S.2d 162 (1998).

28. People v. Tortorici, 92 N.Y.2d 757 (1999).
29. Tortorici v. New York, 528 U.S. 834 (1999) (Petition for writ of certiorari unani-
mously denied).
30. Cheryl Coleman, “ ‘Guilty but Mentally Ill’ Verdict Needed?: Yes,” New York
Law Journal (September 23, 1999): 2.
31. Dusky v. United States, 362 U.S. 402 (1960), 402.
32. Ibid.
33. “Interview: Cheryl Coleman.”
34. Coleman, “’Guilty but Mentally Ill’ Verdict Needed?” 35; “Interview: Peter
Lynch.”
36. Ibid.
37. Ibid.
38. Ibid.
39. Ibid.
40. Report of Lawrence A. Siegel, M.D., 8.
41. Ibid., 8–9.
42. People v. Tortorici, 92 N.Y.2d 757 (1999), 766–767.
43. Ibid., 773.

chapter 17
m i k e t ys o n Predicting the Violence of a Professional Fighter

1. Bryan Robinson, The Mike Tyson Boxing License Hearing, http://www.courttv

.com/trials/tyson/ (accessed December 12, 2002).
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
7. Ibid., paragraph 11.
8. Ronald Schouten, Independent Medical Evaluation of Michael Gerard Tyson for
the Nevada State Athletic Commission, September 30, 1998, http://www.lvrj
.com.
9. Ibid.
10. Ibid., 3.
11. Ibid.
12. Ibid.
13. Roy F. Baumeister, Evil: Inside Human Violence and Cruelty (New York: W. H.
Freeman, 1999).
14. Schouten, Independent Medical Evaluation, 6.
15. David Medoff, Report of Psychological Testing, September 30, 1998, http://www
.lvrj.com.

277
notes to pa ge s 2 09 – 2 2 2

16. Jeremy D. Schmahmann, Neurological Evaluation, September 30, 1998, http://

www.lvrj.com.
17. Ibid., 6.
18. Ibid.
19. Medoff, Report of Psychological Testing.
20. Ibid., 8.
21. Ibid.
22. Schouten, Independent Medical Evaluation.
23. American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 4th ed. (Washington, D.C.: American Psychiatric Association, 1994).
24. Schouten, Independent Medical Evaluation, 8.
25. John Monahan, Henry J. Steadman, Eric Silver, Paul S. Appelbaum, Pamela C.
Robins, Edward P. Mulvey, Loren H. Roth, Thomas Grisso, and Stephen Banks,
Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and
Violence (New York: Oxford University Press, 2001).
26. Schouten, Independent Medical Evaluation, 9.
27. Ibid., 10.
28. Kathryn Rubenstein, “Tyson Allowed to Go Another Round,” http://www
.courttv.com/trials/tyson/101998.html (accessed December 12, 2002).

chapter 18
da ry l at k i n s Mental Retardation, Decency, and the Death Penalty

1. Atkins v. Virginia, 536 U.S. 304 (2002), 309.

2. Ibid.
3. American Association of Mental Retardation, Mental Retardation: Definition,
Classification, and Systems of Supports, 9th ed. (Washington, D.C.: 1992), 5.
4. American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 4th ed. (Washington D.C.: American Psychiatric Association, 2000),
41.
5. Atkins v. Virginia, 309.
6. Evan Nelson, “Capital Sentencing Evaluation” of Daryl Atkins, April 15, 1998.
7. Ibid.
8. Respondent’s Motion to Dismiss Writ of Certiorari as Improvidently Granted,
Atkins v. Virginia, 277.
9. Ibid.
10. Ibid., 529.
11. Ibid., 479.
12. Ibid., 480–481.
13. Ibid., 483–484.
14. Atkins v. Commonwealth, 260 Va. 375 (2000), 379.
15. Ibid., 394–395.

278
 n ot e s to page s 223–230

16. Penry v. Lynaugh, 492 U.S. 302 (1989).

17. Ibid., 346.
18. Ibid., 310.
19. Ibid., 340.
20. Atkins v. Virginia, 304.
21. Ibid., 353–354.
22. American Psychological Association, American Psychiatric Association, and
American Academy of Psychiatry and the Law, Brief Amicus Curiae, McCarver
v. North Carolina, 2000 U.S. Briefs 8727 (June 8, 2001), 18 (also filed in Atkins
v. Virginia).
23. Respondent’s Motion to Dismiss Writ of Certiorari as Improvidently Granted,
Atkins v. Virginia, 440.
24. American Psychological Association, American Psychiatric Association, and
American Academy of Psychiatry and the Law, Brief Amicus Curiae, McCarver
v. North Carolina, 2000 U.S. Briefs 8727 (June 8, 2001), 16 (also filed in Atkins
v. Virginia).
25. Robert J. Gregory, Foundations of Intellectual Assessment (Boston: Allyn and
Bacon, 1999), 100.
26. American Psychological Association, American Psychiatric Association, and
American Academy of Psychiatry and the Law, Brief Amicus Curiae, McCarver
v. North Carolina, 2000 U.S. Briefs 8727 (June 8, 2001), 3–4 (also filed in Atkins
v. Virginia).
27. Atkins v. Commonwealth, 260 Va. 375 (2000), 395.
28. Respondent’s Motion to Dismiss Writ of Certiorari as Improvidently Granted,
Atkins v. Virginia, 529.
29. Atkins v. Virginia, 321.
30. Adam Liptak, “New Challenge for Courts: How to Define Retardation,” New
York Times (March 14, 2004): 20.

chapter 19
a n d r e a yat e s An American Tragedy

1. Debrah W. Denno, “Time Line of Andrea Yates’s Life and Trial: April 1993–April
2002,” Duke Journal of Gender Law and Policy 10 (2003): 61–84.
2. “Two Tragedies: Dad Says He Loves Wife Accused of Killing Kids,” June 23,
2001, http://abcnews.go.com (accessed August 22, 2001).
3. “Transcript of Andrea Yates Confession,” Houston Chronicle, February 21, 2002,
http://www.chron.com/cs/CDA/story.hts/special/drownings/1266294 (accessed
September 5, 2005).
4. Ibid.
5. “Two Tragedies.”
6. Denno, “Time Line,” 61.

279
notes to pa ge s 2 3 1 – 2 3 9

7. American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders, 4th ed. (Washington D.C.: American Psychiatric Association, 2000),
422.
8. Denno, “Time Line,” 61.
9. Ibid.
10. Scott Commerson, “Villain or Victim? Myths, Gender, and the Insanity
Defense,” Developments in Mental Health Law 22 (Feb. 2003): 1–17.
11. Debrah W. Denno, “Who Is Andrea Yates? A Short Story about Insanity,” Duke
Journal of Gender Law and Policy 10 (2003): 1–60.
12. Carol Christian, “Doctor: Yates Illness Severe,” Houston Chronicle, March 6,
2002, http://www.chron.com/archives (accessed July 11, 2003), 2.
13. Commerson, “Villain or Victim?” 3.
14. Ibid.
15. Mike Snyder, “Russell Yates on Trial, Too, with Public’s Commentary,” Houston
Chronicle, March 13, 2002, http://www.chron.com/archives (accessed July 11,
2003).
16. Bill O’Reilly, “Talking Points: First, Do No Harm,” Fox News, June 29, 2001,
http://www.foxnews.com/printer_friendly_story/0,3566,28430,00.html
(accessed November 16, 2004).
17. Denno, “Time Line,” 70.
18. Ibid., 71.
19. Suzanne O’Malley, “Are You There Alone?”: The Unspeakable Crime of Andrea
Yates (New York: Simon & Schuster, 2004).
20. Ibid.
21. Denno, “Who Is Andrea Yates?” 16.
22. O’Malley, “Are You There Alone?”
23. Ibid., 157.
24. Ibid.
25. Ibid., 201.
26. “Portions of Prosecuting Psychiatrist Park Dietz’s Testimony in the Andrea
Yates Trial, March 7, 2002,” Duke Journal of Gender Law and Policy 10 (2003):
97–139, 109.
27. Denno, “Who Is Andrea Yates?” 20.
28. O’Malley, “Are You There Alone?” 201.
29. Ibid.
30. Ibid.
31. Denno, “Who Is Andrea Yates?” 23.
32. O’Malley, “Are You There Alone?” 218.
33. Yates v. Texas, Nos. 01-02-00462-CR and 01-02-00463-CR. [Online.] January 6,
2005, http://www.1stcoa.courts.tx.us/opinions/html (accessed January 6, 2005),
2.
34. Ibid., 11.
35. Ibid., 7.
36. Commerson, “Villain or Victim?” 1.

280
 n ot e s to page s 239–246

37. Ibid.
38. Ibid.
39. Snyder, “Russell Yates on Trial Too.”
40. Lisa Teachey, “Jurors Say They Believed Yates Knew Right from Wrong,” Hous-
ton Chronicle, March 18, 2002, http://www.chron.com/archives (accessed July
11, 2003).

chapter 20
m i c h a e l k a n ta r as What Makes a Man a Man?

1. Opinion, In re the Marriage of Michael J. Kantaras v. Linda Kantaras, Circuit

Court of the Sixth Judicial Circuit in and for Pasco County, Florida, Case No. 98-
5375, February 2003, 62.
2. Ibid., 47.
3. American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 4th ed. (Washington, D.C.: American Psychiatric Association, 1994),
532–533.
4. Opinion, In re the Marriage of Michael J. Kantaras v. Linda Kantaras, 359.
5. Ibid., 180.
6. Frances B. v. Mark B., Formerly Known as Marsha B., 355 N.Y.S.2d 712 (1974),
717.
7. M.T. v. J.T., 140 N.J. Super. 77 (1976), 81.
8. Ibid., 82.
9. Opinion, In re the Marriage of Michael J. Kantaras v. Linda Kantaras, 268.
10. Ibid., 270.
11. Ibid., 376.
12. Ibid.
13. Ibid., 357.
14. Ibid., 350.
15. Ibid.
16. Ibid., 371.
17. Ibid., 381.
18. Ibid., 783–784.
19. Ibid., 774.
20. Ibid., 423.
21. Ibid., 428–429.
22. Ibid., 529.
23. Ibid., 786.
24. Ibid., 206.
25. Ibid., 201.
26. Ibid., 787.
27. Ibid.
28. Ibid.

281
notes to pa ge s 2 4 6 – 2 5 0

29. Robert R. Dies, Ph.D., Custody evaluation, Kantaras v. Kantaras, April 28, 2001,
17.
30. Ibid.
31. Ibid.
32. Ibid., 18.
33. Opinion, In re the Marriage of Michael J. Kantaras v. Linda Kantaras, 789.
34. Ibid., 510.
35. Matt Bean, “Lawyers Have Last Words in Transsexual Custody Battle,” Court
TV, February 8, 2002, http://www.courttv.com/trials/kantaras/020802_ctv.html
(accessed November 6, 2004).
36. Ibid.
37. Ibid.
38. Opinion, In re the Marriage of Michael J. Kantaras v. Linda Kantaras, 795–796.
39. Ibid., 761.
40. Kantaras v. Kantaras, 884 So. 2d 155 (2004).
41. Ibid., 161.
42. Ibid., 157.
43. Ibid., 161.
44. Kantaras v. Kantaras, 2005 Fla. LEXIS 373 (2005).

282
p
INDEX

Addams, Jane, 21 Armstrong, Paddy. See also Guildford Four

Ali, Muhammad, 214 arrest of, 48
Allen, Woody, 4 hypnosis of, 51–52
aftermath of case, 161–162 sodium amytal interview of, 50–51
child custody case of, 155, 156–161 artificial insemination, 242
relationship with Mia Farrow, 155–156, Aspin, Les, 135
161 assassination, 3, 65, 71, 78
sexual abuse allegation and, 156, 162 assassins, 5
American Academy of Psychiatry and Law, Atkins, Daryl
225 appeal of, 222–228
American Association of Mental Retardation, background of, 217
219, 225 crimes of, 217–219, 222
American Psychiatric Association, 219, 225, trial of, 219–222
231, 241 Ault, Richard
American Psychological Association equivocal death analysis and, 132–133,
amicus brief in Atkins case, 225 135, 138
ethical principles of, 221, 222 testimony of, in USS Iowa case, 135, 136
expert panel in USS Iowa case, 135–137 autopsies, 5, 129, 253, 255
Anderson, Brian, 48–49, 50 psychological, 129–130, 139
Anderson, Dr. Wilmer, 59
anorexia. See eating disorders Bailey, F. Lee, 35, 36, 38, 40–42
antisocial personality disorder, 151 Baumeister, Dr. Roy F., 209
Apcar, Denise, 72–73 Bazelon, Judge David L., 5
Arc, Joan of, 184 Beall, William, 58

283
index

Becker, Dr. Judith Burou, Dr. George, 243

testimony in Dahmer case, 149 Butler, Eddie, 51
Behavioral Sciences Unit. See Federal Bureau
of Investigation (FBI) Carpenter, Dr. William
Belknap, Raymond testimony of, 97
suicide of, 103–104, 110 Carro, John, 29
wrongful death suit of, 105–113 Carter, President Jimmy, 42, 93
Bender Gestalt Visual-Motor Integration child abuse
Test, 211 reporting of, 65
Berlin, Dr. Fred child custody, 4, 5, 245, 255
testimony in Dahmer case, 149 Christ, Jesus, 184
Berman, Dr. Alan, 136 civil commitment, 215
best interests of the child, 253 dangerousness and, 197
in Allen-Farrow case, 162, 164 Clinton, President Bill, 42
in Kantaras case, 250 Coates, Dr. Susan, 156
legal standard, 153–154, 163–164 testimony of, 157–158
“Better by You, Better Than Me” (song), coercion, 3, 7, 81
104–105, 106, 107 in Hearst case, 40–41
Blackmun, Justice Harold, 180 in Hooker case, 86–88
Blair, Prime Minister Tony, 54 Cole, Dr. Collier
Blinder, Dr. Martin testimony of, 244–245
attack on, 79–80 Coleman, Paul, 48–49, 50
testimony in White case, 75–79 Columbine shooting, 104
Bockting, Dr. Walter competence to stand trial, 3, 5, 198, 253
testimony of, 243–244 of Ferguson, Colin, 181–182, 183
Boone, Dr. James of Hearst, Patty, 36
affidavit in Kantaras case, 245 of Tortorici, Ralph, 193, 194–195, 196,
borderline personality disorder, 148, 212, 245 197–203
Boston Strangler. See DiSalvo, Albert of Yates, Andrea, 233
Boyle, Gerald confessions, 3, 45–46, 255
defense of Jeffrey Dahmer, 146 false, 46, 52–53
Brady, James, 65 Guildford Four and, 49–50, 54–55
brainwashing, 3, 5. See also mind control validity of, 4–5
in Hearst case, 32, 36–38, 40–41 confidentiality, 57, 61–62
in Hooker case, 86 Conlon, Gerry. See also Guildford Four
Browning, James, 34 arrest of, 48
Bruce, Lenny, 40 interrogation of, 48
Brussel, Dr. James A., 7 Connally, John, 20
Casebook of a Crime Psychiatrist, 14 counterterrorism, 45
contacted by “Mad Bomber,” 11–12 Court of Appeals of Florida
profile of “Mad Bomber,” 10–11, 14, Kantaras decision, 249–250
16–17 Court TV, 189
false leads and, 16 criminal profiling, 3, 5, 135, 255. See also
use of psychiatric training in profiling, profiling
15–16 Cruise, Tom, 174
views on profiling, 13, 14–15
bulimia. See eating disorders Dahmer, Jeffrey, 4, 170
Bundy, Ted, 100, 183–184 arrest of, 145–146

284
 in d e x

background of, 146–147 eating disorders

crimes of, 141–142, 143–145, 147 sexual abuse and, 166, 170, 171, 172
psychological evaluation of, 142, 147–151 Edwards, Tracy, 145
sentencing of, 151–152 Eichmann, Adolf, 117
D’Alessandro, Dr. John Eitan, Judge Dov, 126
evaluation of Colin Ferguson, 181, 183 electroconvulsive therapy, 234
D’Amato, Cus, 205, 208 electroencephalogram (EEG), 59, 209
Daniels, Anthony, 135 Engels, Friedrich, 34
Darkes, Jack, 137 equivocal death analysis, 129–130, 135
Day-Lewis, Daniel, 54 critique of, 134–138
D.C. sniper, 3, 7, 104 USS Iowa explosion and, 132–134, 139
death penalty, 3 Ewald, Camille, 205, 208
Atkins case and, 219, 222 executive functions, 210
competence as, 5 exhibitionism, 149
mental retardation and, 223–225 expert testimony, 5, 36, 90, 254
delusional disorder, 181, 185 diminished capacity and, 79
Demjanjuk, John, 4 expert witnesses, 5–6
background of, 116 in child custody cases, 157
military history of, 117 as “hired guns,” 254
photo spread and, 119 eyewitness identification, 255
post-conviction case status, 126–127 expert testimony on, 121–125
questions about identity, 116–117, 118– probative value of, 115
119 reliability of, 4, 5, 116
trial of, 117–125 research on, 118, 120, 121–122
De Niro, Robert, 92 in Demjanjuk trial, 117–118
Dershowitz, Alan, 69
Deters, Dr. Thomas J., 210 Faretta v. California, 177–178
Diagnostic and Statistical Manual of Mental Farrow, Mia
Disorders (DSM), 149, 231, 241 aftermath of custody case, 161–162
Dies, Dr. Robert R. child custody case of, 155, 156–161, 162
custody evaluation in Kantaras case, relationship with Woody Allen, 155–156
245–247 sexual abuse allegation and, 156
Dietz, Dr. Park Federal Bureau of Investigation (FBI)
and Dahmer case, 150–151 equivocal death analysis and, 129–130,
and Hinckley case, 96, 97–98, 150 132, 135, 137
and Ramona case, 170, 172 National Center for the Analysis of Vio-
and Yates case, 235–238 lent Crime, 130, 135
diminished capacity, 74–79 Federal Insanity Law Reform Act of 1984,
DiSalvo, Albert, 35 99
Dowd, Brendan, 51 Federal Rules of Evidence, 99
Dudley, Dr. Richard Feinstein, Dianne, 73, 79
examination of Colin Ferguson, 181–182 Ferguson, Colin, 5
due process, 22 background of, 180
Duggan, Harry, 51 crimes of, 180–181
Dunseith, Neal, 188 trial of, 181–189
Dusky v. United States, 198 flashbacks, 166, 167, 173
duty to protect, 64, 65, 66 Fleming, John G., 62–63
dysthymic disorder, 96, 212 Florida Defense of Marriage Act, 250, 251

285
index

Florida Mental Health Institute Hartwig, Clayton, 5, 130

research on USS Iowa case, 137 exoneration of, 138
Florida Supreme Court, 250 FBI equivocal death analysis of, 132–134,
Forsythe, Linda 135
appeal, 249 peer review of, 136–138
court decision and, 248–249 Hastings, Dr. Donald, 27
divorce and child custody proceedings of, Hatcher, Dr. Chris
242–248 testimony of, 86–87
relationship with Michael Kantaras, 242 Haward, Dr. Lionel, 51
Fort, Dr. Joel, 40–41, 42, 43 Hazelwood, Roy
Fosdal, Dr. Frederick comments on USS Iowa case, 138
testimony in Dahmer case, 149–150 equivocal death analysis and, 132–134, 138
Foster, Jodie, 92, 93, 94–95, 100 testimony of, 135, 136
Franklin, George, 173–174 Hearst, Catherine, 42
Franklin-Lipsker, Eileen, 173–174 Hearst, Patty, 4, 87
Friedman, Dr. Samuel bank robberies of, 32–33
testimony in Dahmer case, 151 capture of, 33
experiences in captivity, 34, 35
Gardner, Judge William, 143 kidnapping of, 31–32
gender identity disorder, 241, 243–244 psychiatric evaluation of, 35
Gerner, Dr. Robert trial of, 35–43
Ramona case and, 170, 171 Hearst, Randolph, 31, 38
Godinez v. Moran, 179–180 Helman, Schlomo, 120
Gold, Dr. Stewart, 58 Henderson, Dr. David, 208
Tarasoff case and, 61 Herman, Dr. Stephen
Goldfarb, Avrajam, 119 testimony of, 159, 160
Goldman, Stanley A., 188 Hill, Courtney Kennedy, 54
Greene, Dr. Roger L., 136 Hill, Judge Belinda
Groth, Dr. Nicholas, 42 Yates trial and, 233
Gudjonsson, Dr. Gisli, 52–54 Hill, Paul. See also Guildford Four
Guildford Four, 4, 48. See also Armstrong, arrest of, 47
Paddy; Conlon, Gerry; Hill, Paul; interrogation of, 47–48
Richardson, Carole Hinckley, John W., Jr., 5, 65, 150, 170, 233
appeal, 51–54 aftermath of acquittal, 98–99
compensation of, 54 assassination planning by, 94–95
sentencing of, 51, 55 background of, 91–92
trial of, 49–51 commitment of, 100–101
Gutheil, Dr. Thomas fascination with Jodie Foster, 93
Ramona case and, 172, 173 psychiatric treatment of, 93–94
trial of, 96–98
Halford, Rob hindsight bias, 26
public statements of, 105–106, 113 Holyfield, Evander, 205, 206, 207, 208, 209,
singing of, 107 210, 214
Harris, Dr. Gerald, 233 homicide, 3
Hartogs, Dr. Renatus Hooker, Cameron, 4
psychiatric evaluation of Lee Harvey abduction of victim, 81–82
Oswald, 23–27 appeal of, 89–90
testimony of, 23, 26 arrest of, 85

286
 in d e x

methods of control used by, 82–84 Jacobs, Dr. Douglas, 136

testimony of, 87 Johnson, Frank, 49
trial of, 85–89 Johnson, Magic, 214
Hooker, Janice Johnson Space Center. See NASA
abduction of husband’s victim, 81–82 Jones, Reverend Jim, 71, 86
complicity of, 84 Jones, William, 217–219
doubts about husband, 84–85 Jordan, Barry, 209
trial of husband, 85, 90 Judas Priest, 4
aftermath of, 90 music of, 104–105
Hopper, Dr. John, 93–94 wrongful death suit against, 103, 105–113
House Armed Services Committee, 134, juvenile delinquency, 5
135–136, 137 court proceedings, 21–22
House Select Committee on Assassinations juvenile violence
Report, 19, 20 causes of, 104
Hudson, Dr. James
Ramona case and, 171, 172 Kantaras, Michael
Hull House, 21 appeal of, 249–251
human figure drawing test, 25 court decision and, 248–249
hypnosis, 38, 51–52 divorce and child custody proceedings of,
hypospadias, 191 242–248
as Margot Kantaras, 241–242
illusory correlation, 112–113 relationships of, 242
In re Gault, 22 Kantaras, Tom, 242
In the Name of the Father, 54 Kelso, Admiral Frank, 138
insanity defense, 3, 5 Kennedy, John F., 19, 20, 221
Dahmer, Jeffrey, and, 148–151 assassination of, 19–20, 23, 26
distinguished from diminished capacity, Kennedy, Robert F., 54
74–75 Kent v. United States, 22
Ferguson, Colin, and, 182–183, 184–185 Kevorkian, Dr. Jack, 184
gender issues and, 239–240 Knight, Judge Clarence B., 86, 87–89
Hearst, Patricia, and, 36 Kollar, Martin, 118
Hinckley, Jr., John W., and, 92, 96–99 Kozal, Dr. Harry, 41–42, 43
legal issues Kuby, Ronald, 182–184
reforms, 99–100 kumaphilia, 149
standards, 95–96 Kunstler, William, 182–184
M’Naughten test, 234
Poddar, Prosenjit, and, 59 Law and Order, 236, 237, 238
Tortorici, Ralph, and, 193–195, 198 Leary, Timothy, 40
Yates, Andrea, and, 230, 233–239 Levey, Dr. Ronald
involuntary commitment, 62–63, 66–67 testimony in White case, 75, 76–77
Irish Republican Army (IRA), 46–47, 48, 51 Lewis, Lennox, 214
Isabella, Marche Lifton, Dr. Robert Jay, 39–40, 43
lawsuit and, 168, 169, 170–175 Loftus, Dr. Elizabeth
treatment of Holly Ramona, 166, 167 Demjanjuk case and, 120–121, 122
Israeli Supreme Court, 126 expertise of, 120
Ramona case and, 171, 172
Jackson, George, 34 research of, 121, 171–172
Jackson, Michael, 3 Los Angeles Police Department, 86

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Lunde, Dr. Donald Mossman, Douglas, 188

testimony of, 87–89 Moussaoui, Zacarias, 184

MacKeith, Dr. James, 52–54 narcissistic personality disorder, 96

“Mad Bomber.” See Metesky, George NASA, 229, 231
magnetic resonance imaging (MRI), 209 Nasatir, Michael, 188
Maguire, Annie, 48–49 National Center for the Analysis of Violent
malingering, 220, 225 Crime (NCAVC). See Federal Bureau
Manson, Charles, 100, 184 of Investigation (FBI)
Marx, Karl, 34 National Enquirer, 3
Mavroules, Nick, 134, 135 Naval Investigative Service (NIS), 132
Maximove, Bruce, 62–63 necrophilia, 149, 150
McGuiness, John, 48–49, 50 Nelson, Dr. Evan
Medoff, Dr. David, 209, 211 testimony in Atkins case, 219–220, 221,
Meltzer, Dr. Anne 222, 225
testimony of, 159, 160 Nesbitt, Eric, 218
memory distrust syndrome, 53 Nevada State Athletic Commission, 206, 207,
mental retardation, 5, 219, 224, 226–227, 255 208, 211, 213, 214
malingering and, 225–226 New Jersey Athletic Control Board, 207, 208
Metallica, 133 New York Times, 3
Metesky, George, 4 Noodwang, Sherry, 242, 247
background of, 13
bombings of, 7–12 O’Brian, Judge Gerald
capture of, 10, 13 decision in Kantaras case, 248–249
court proceedings of, 13 O’Connell, Joseph, 51
identification as “Mad Bomber,” 12–13 O’Connor, Mark, 119, 120–121
false leads and, 16 Oedipal complex, 15
letters to newspapers, 9–10, 14 O’Neill, Thomas (“Tip”) P., 98
letters to police, 7, 8, 12 Orne, Dr. Martin, 38–39, 40, 43
paranoia of, 10–11 Osbourne, Ozzy
psychoanalytic formulation of, 15–16 civil suit against, 105, 110
search for, 10, 12 Oswald, Lee Harvey, 5
Milk, Harvey, 70–72 assassination of John F. Kennedy and,
shooting of, 73–74, 76 19–20
Milligan, Rear Admiral Richard, 132 background of, 20–21, 22–23, 28–29
mind control, 3, 5, 81 death of, 20
Minnesota Multiphasic Personality Inven- juvenile delinquency proceedings of, 23,
tory (MMPI), 96, 211 29–30
M’Naughten test. See insanity defense psychiatric evaluation of, 23–27
Moore, Dr. Lawrence psychological testing of, 24–25
Tarasoff case and, 60–61 violence potential of, 23, 24, 26–27
treatment of Prosenjit Poddar, 58–59 Otto, Dr. Randy, 137
Moore, Timothy Owmby, Joseph, 236
comments on Judas Priest case, 111
testimony of, 109 Palermo, Dr. George
More, Thomas, 184 testimony in Dahmer case, 151
Moscone, George, 70–72 paranoid personality disorder, 181, 184
shooting of, 72–73, 76 paraphilias, 149, 150

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parens patriae, 21 Puryear, Dr. Lucy

Parnham, George testimony in Yates trial, 236, 238
cross-examination in Yates trial, 236
discovery of erroneous testimony, 237 Radiwker, Meriam, 118
Pate v. Robinson, 196 Ramona, Gary
pedophilia, 149 accusation against, 167
Penry v. Lynaugh, 222–223 daughter’s psychotherapy, 166, 167
People v. Smyth, 196 family life of, 165–166
People’s Temple, 71, 86 lawsuit of, 167, 168–175
Peterson, Bill, 108 Ramona, Holly
Peterson, Scott, 3, 115 father’s lawsuit and, 170–175
Phillips, Maryanne, 187 lawsuit of, 167–168
Poddar, Prosenjit psychological difficulties of, 165
background of, 58 Ramona, Stephanie
criminal trial of, 59–60, 67 daughter’s psychotherapy, 167
relationship with Tatiana Tarasoff, family life of, 165–166
58–59 Read, Dr. Dan
Tarasoff civil case and, 60–61 testimony of, 109, 111
polygraph, 38 Reagan, President Ronald, 65
positive response bias, 123 assassination attempt against, 92, 93–95,
Posner, Gerald, 26 234–235
postpartum depression Reichman, Dr. Allen
defined, 231 evaluation of Colin Ferguson, 181, 182
posttraumatic stress disorder, 35 repressed memories, 167, 168, 170, 255
Yates, Andrea, and, 236, 239 veracity of, 170, 171, 175
Powell v. Alabama, 178–179 Resnick, Dr. Phillip
Powelson, Dr. Harvey, 59 Yates trial and, 235
Tarasoff case and, 61 Richardson, Carole. See also Guildford Four
Powers, Michael. See Hooker, Cameron arrest of, 48
Poythress, Dr. Norman, 137 psychological evaluation of, 52–53
Pratkanis, Dr. Anthony, 111 Roberson, Aunetta, 104, 105
testimony of, 109 Rorschach inkblot method, 112, 211
presidential assassination syndrome, 27–28 Rose, Dr. Richard
Previn, André, 155 interview of Holly Ramona, 166–167
Previn, Soon-Yi, 155 lawsuit and, 168, 169, 170–175
relationship with Woody Allen, 155, 157, Rosenberg, Eiliyahu
158, 161 testimony of, 117
profiling, 132, 253 Rothman, Dr. Bert, 207
basis of, 15 Rothstein, Dr. David A., 27
D.C. sniper case and, 7 Rubenzer, Dr. Steven, 233
false leads and, 16, 17 Ruby, Jack, 20
of “Mad Bomber,” 10–11 Rusk, Susan, 108
role in criminal investigations, 14 Ryan, Leo, 71
projective psychological testing
controversy of, 25 Samenow, Dr. Stanton
projection hypothesis, 25 testimony in Atkins case, 220–222, 228
psychoanalytic theory, 111 Sandia National Laboratories, 134
psychological autopsy. See autopsies Saxbe, William, 32

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Scalia, Justice Antonin, 225 Socrates, 184

schizoid personality disorder, 96, 142 sodium amytal interview, 166, 168, 169–170,
schizophrenia 172–173
Dahmer, Jeffrey, and, 148 Sokolow, Irving, 24, 25
Hinckley, Jr., John W., and, 96 specific response bias, 123
Metesky, George, and, 13 Stained Class (album), 104, 105, 109
Oswald, Lee Harvey, and, 27 Stan, Colleen
Poddar, Prosenjit, and, 58, 59 abduction of, 81–82
Tortorici, Ralph, and, 191–192, 194 captivity period, 82–85
Yates, Andrea, and, 232 outcome for, 90
schizotypal personality disorder, 96 psychological evaluation of, 86
Schmahmann, Dr. Jeremy, 209, 210 testimony of, 85, 90
Schmidt, Douglas, 77–78 Star Chamber, 177
school shootings, 3 Starr, Laura, 137
Schouten, Dr. Ronald status offenses, 21
evaluation of Mike Tyson and, 208, 209, statute of limitations, 168
211–212, 214 Stevens, Justice John Paul, 180
Scotland Yard, 86 Stone, Dr. Alan, 59, 62–63, 67
self-esteem, 209 subliminal messages
self-representation, right of, 177–178 as cause of suicide, 103, 107, 108, 110–111,
serial murder, 3 112
sexual abuse ethical issues, 107
allegations of, 3, 5, 154–155, 163 First Amendment protection and, 106,
research on, 156 110, 112
veracity of, 158 Judas Priest music and, 105
Ramona case and, 166–167 research on, 106–107, 108–109
repressed memories and, 168, 170 suicide
Shaked, Michael contributing factors, 103, 113
cross-examination of, in Demjanjuk case, crew members of USS Iowa and, 131
123–124 USS Iowa explosion and, 133–134
Sheftel, Michael Symbionese Liberation Army (SLA), 31–34,
injury to, 126 36, 40, 42
Shepard, Dr. Sam, 35 Szasz, Dr. Thomas, 62
Shevrin, Dr. Howard, 111
testimony of, 107–108 Tarasoff v. Regents of the University of Cali-
Siegel, Evelyn, 29 fornia, 57, 61–67
Siegel, Dr. Lawrence, 194, 196, 199, 200, 201 Tarasoff, Lydia, 60, 61
report of, 201–202 Tarasoff, Tatiana
Silverstein, Dr. Elliott, 136 civil case and, 61–62, 67
Simpson, O. J., 3, 36, 115 relationship with Prosenjit Poddar,
Singer, Dr. Margaret, 37 58–59
Sinthasomphone, Anoukone, 141–142, 146 Tarasoff, Vitaly, 60, 61
Sinthasomphone, Konerak, 144–145 Taxi Driver (film), 92–93
Smail, Dr. Kenneth tender years doctrine, 154
psychological evaluation of Jeffrey Dah- Terr, Dr. Lenore
mer, 148 Franklin case and, 154
Smart, Elizabeth, 81, 85 Ramona case and, 172, 173–174

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terrorism, 86 hearings on, 134–137

bombings, 46 history of, 130
legal responses to, 47 problems aboard, 130–131
Thematic Apperception Test, 221
Thompson, Monica, 155 Vance, James
Tobriner, Justice Matthew, 62 civil suit of, 105–113
Tortorici, Ralph, 5 contributing factors to suicide, 110
appeal, 195, 202 influence of Judas Priest music and, 105
background of, 191–192 interrogation of, 105
competence to stand trial of, 193, 194, suicide attempt of, 103–104
197–203 Vicary, James, 106–107
hostage standoff of, 192–193 violence prediction, 4, 5, 214–215, 255
incarceration of, 196–197 actuarial vs. clinical, 213
trial of, 193, 195 Virginia Supreme Court, 222
Trafficant, James, 184 voir dire, 185
transsexualism. See also gender identity voyeurism, 149
disorder
marriages and, 242–243 Wagenaar, Dr. Willem
parenting and, 244–245 Demjanjuk case and, 122, 126
prevalence of, 244 testimony of, 122–124
transvestism, 149 Wahlstrom, Dr. Carl
Truitt, Kendall psychiatric evaluation of Jeffrey Dahmer,
outcome of USS Iowa case and, 138 148, 149
relationship with Clayton Hartwig, 133 Walpin, Gerald, 157–158
Turowski, Eugen, 119 Warren Commission, 19, 20, 25, 26, 29
“Twinkie” defense, 75–79, 89. See also weapon focus effect, 121
White, Dan Wechsler Adult Intelligence Scale, Third Edi-
myth of, 70 tion (WAIS–III), 219, 220, 221
Tyson, Mike, 4 Wechsler Intelligence Scale for Children,
administrative licensing hearings, 24
206–207 Wechsler Memory Scale, 221
background of, 205 Wesson, Maryanne, 187
fight with Evander Holyfield, 205 West, Dr. Louis Joloyn, 36–38, 40, 43
neurological evaluation of, 209–210 White, Dan
psychiatric evaluation of, 207–214 aftermath of trial, 78–79
background of, 70–72
unconscious transference, 118 interrogation of, 73–74
U.S. Immigration and Naturalization Service sentencing of, 78
(INS), 116 shooting spree of, 72–73
U.S. Secret Service, 86, 101 suicide of, 79
Exceptional Case Study Project, 27–28 trial of, 74–78
U.S. Supreme Court, 177, 178, 179, 222, 223, “Twinkie” defense and, 69
225, 227, 228 White, James, 133
USS Iowa, 5 White, Mary Ann, 70, 72
explosion aboard, 130, 131–132 Whitehead, Judge Jerry, 106
final disposition of, 139 decision in Judas Priest case, 107–108,
investigation of, 132–134 109–110, 111–112

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Wilk, Judge Elliott background of, 230–232

Allen-Farrow child custody case, 157, 158 drowning of children, 229–230
decision of, 160–161, 162 evaluation of, 233
Will, George, 98 psychiatric history of, 232, 234
Woroniecki, Rachel, 231 trial of, 232–237, 238–240
Yates children
Yale-New Haven Hospital death of, 229–230
Child Sexual Abuse Clinic, 158, 162 Yates, Russell
report in Allen-Farrow case, 158–159, 160, alleged culpability of, 232–233, 239
161 background of, 231
Yates, Andrea, 4 death of children, 229, 230
appeal, 238 psychiatric treatment of wife and, 234

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