Whores of the Court   Psychologists as De Facto Triers of Fact in Our Justice System In February 1992, [Eileen Lipsker] came to the Fairmont Hotel ballroom in San Francisco to explain the process of her memory return and her testimony at the trial to the American College of Psychiatrists. Afterward, the psychiatrists, including some of the most distinguished members of the profession in this country, crowded around Eileen. They believed her, they told her. They admired her. They felt intense compassion for her ordeal. At first, Eileen's big light-brown eyes looked doubtful. But along came another psychiatrist, and another, and yet another. With each one of their congratulations, Eileen brightened a bit. And soon she was glowing like the moon.  -Lenore Terr, Unchained Memories, 1994

THE PSYCHOLOGY-BASED COURT CASE

One afternoon in early 1989, Eileen Franklin Lipsker, a young American mother, gazed deeply into her daughter's dark eyes and fell directly into a nightmare twenty years past. The merest accident of expression in her daughter's eyes brought Eileen face-to-face with another child, long dead, brutally murdered in California in 1969. With the vision of the dead child's face as the key, a whole vault of terrible memories of that long ago death became unlocked in Eileen Franklin's mind and she began to remember, slowly at first, but then faster and faster, what her mind had fought so hard to keep hidden from view-that as a child herself she had witnessed the murder of her little friend, Susan Nason, at the hands of Eileen's own father, George Franklin. When these long-repressed memories were fully recovered and Eileen knew what she had, she also knew what she had to do. She brought before the legal authorities in California her memory of that terrible trauma from so long ago.

On November 28, 1989, the police arrested George Franklin and charged him with the murder of nine-year-old Susan Nason twenty years before.

There was not much direct evidence in this case. Susan's body had been found eight weeks after the murder in a rather remote wooded area. The material details of the case were widely published in the media-that Susan's head had been crushed by a rock, that she had worn a silver ring on her finger, that she was found lying not far from an old mattress-but at the time of the crime, no circumstantial evidence tied any particular individual to the crime and no eyewitnesses came forward.

Twenty years later there was still not much evidence other than Eileen's recovered memories. She said her father committed the murder; he said he did not. No one else saw anything. Eileen claimed that the trauma of witnessing the horrifying murder of her little friend had been so great that she repressed the memory for all those years and then, quite inexplicably, recovered it twenty years later. 

Given the lack of physical evidence and the heavy reliance on psychological claims in this case, it is not surprising that in Franklin's trial for murder the bulk of the "evidence" presented was the opinion of experts-psychiatrists and psychologists-concerning the repression and recovery of memory, and the consequent reliability of Eileen's accusations against her father. Dr. Lenore Terr, a California psychiatrist, was the prosecution's principal witness in explaining to the court the obscure psychological phenomena the jury had to consider in weighing the case against George Franklin.

The prosecution's case rested on certain psychopolitical assumptions that have become popular in some segments of the mental health community. It is assumed that children who experience terrible trauma, like witnessing murder or experiencing sex abuse, often suffer, like some Vietnam vets, from post traumatic stress syndrome. It is also said that one of the most common features of this stress disorder is the loss of the memory of the precipitating traumatic event-what psychiatrists call "repression" of the traumatic memories-because the mind seeks unconsciously to protect the person from having to re-experience the trauma in memory. Lastly, it is assumed that repressed memories can be recovered in the proper conditions, usually in the context of therapy, but perhaps through an accidental triggering as in Eileen's case.

These psychological assumptions and countless others like them-lacking any scientific basis but embraced unquestionably by their adherents-over the last twenty-five years have crept insidiously into our legal system, into legislative bodies and courtrooms all over the country.

In George Franklin's case, the judge and jury accepted as scientific fact Dr. Terr's testimony regarding trauma theory, repression, and recovered memories; they took as truth the startlingly assured statements of this psychological expert about historical facts and mental mix-ups, and her confident explanations of the way the mind works. On November 30, 1990, based on the word of his estranged daughter and the testimony of this expert psychological witness, George Franklin was convicted of murder and sentenced to life in prison.

Dr. Terr writes that when Elaine Tipton, the prosecutor, asked several jurors after the trial what led to their decision, "She told me that a number of them said my testimony had convinced them. I learned something from that: sometimes hypotheticals are just as compelling as specifics" (Terr 1994, p. 58).

Did George Franklin murder Susan Nason? Was Eileen really so scared by the awful event she witnessed that she immediately lost all memory of it, continuing to pal around happily with her father as before, riding around the state unconcernedly in the same vehicle where she supposedly witnessed the assault on her little friend? Can a memory really be blown out like a candle in an instant, only to be relit by accident twenty years down the line? When Dr. Terr lectured the courtroom in California on the mysterious operations of the mind that would permit just such a sequence of events to transpire, should the court have accepted what she said as reliable truth?

All over America today, psychological professionals like Lenore Terr are climbing confidently into the witness box to lecture judges and juries on just such matters: how the mind works, how memory works, what a trauma is, what effects trauma has on memory, which memories are trustworthy and which are not.

With nothing else to go on in most of these trials other than the word of the psychoexperts so confidently testifying, it is crucial that we know the answer to these questions: Do all these hundreds of very expensive experts really know what they are talking about? Can the rest of us trust them? Can we rely on what they tell us to be the last word in scientific knowledge about the workings of the mind?

Alas, no. Psychology's takeover of our legal system represents not an advance into new but clearly charted areas of science but a terrifying retreat into mysticism and romanticism, a massive suspension of disbelief propelled by powerful propaganda.

Thanks to the willingness of judges and juries to believe psychobabble with scientific foundations equal to horoscope charts, babble puffed about by psychological professionals with impressive credentials, what we've got now are thousands of self-styled soul doctors run amok in our courts, drunk with power, bedazzled by spectacular fees for the no-heavy-lifting job of shooting off their mouths about any psychological topic that sneaks a toe into a courtroom.

The demand is great, the supply is huge, and the science behind it all is nonexistent. But the reality does not matter.

With the passage of well-intentioned and broad-reaching social welfare and safety net legislation over the last decade buttressing Americans' willingness to buy into any claim made by a certified psychological professional-not just claims about trauma and memory our legal system today generates a virtually unlimited demand for psychoexpert services while the psychoexperts display an equally unlimited willingness to service those demands.

Lenore Terr sound-alikes are echoing around the country in hundreds of courtrooms in various types of trials both criminal and civil. Thousands of psychological "experts" confidently-and expensively- inform judges and juries, patients, plaintiffs and defendants not only about how memory works-as in the Franklin trial-but how the mind itself works, how the personality is formed, what aspects of character and behavior can be changed and how to go about it, as well as what wrong was done, when and how it was done, who did it, how much responsibility a party bears, and whether and when said party can be rehabilitated. In the civil realm, psychoexperts determine for the courts the nature and extent of psychic injury, disability, and discrimination; the presence or absence of abuse; and the relative fitness of parents.

The result is what has all too clearly become the rape of the American justice system.

A Mental Devil Made Him Do It

The man who stabbed the daughter of state Sen. Arthur Dorman 16 times in February did not know right from wrong at the time, making him guilty of the crime but not criminally responsible, a Howard County circuit judge ruled yesterday. 

Gary C. Moncarz was found guilty of murdering Barbara Susan Dorman, his girlfriend of about a year, but Judge Dennis M. Sweeney ruled that Moncarz suffers from a severe mental illness that prevented him from understanding his actions.

Moncarz, 42, a former accountant, was remanded to the custody of the state Department of Health and Mental Hygiene until he is deemed no longer a danger to society or to himself.

State's Attorney Marna McLendon said psychiatrists will determine when Moncarz can be released but that he likely will spend a long time in an institution. (Francke, Baltimore Sun, August 27, 1996)

In criminal trials, we have competing teams of psychoexperts analyzing the accused, first to tell the judge whether the defendant is competent to assist in his or her own defense; then, if the defendant is found competent, the defense hires another raft of experts to testify that competent or no, the defendant is mentally disordered in some way and so should be found not guilty by reason of insanity, or, if not completely insane, his or her criminal responsibility should be considered less due to some diminished mental capacity or state of mind.

"He cannot understand the charges against him. She couldn't tell right from wrong. He couldn't distinguish fantasy from reality.

She couldn't control her actions. He is the victim of an irresistible impulse. He was traumatized by the war. She was in a flashback. He suffers from an incapacitating mental disorder. She has a psychological disease. It's not his fault because he wasn't taking his medication."

A mental devil made him do it.

Che Rashawn Pope reportedly said five words before he pulled the trigger of the gun he was pointing at 17-~ear-old Sadrac Barlatier in Mattapan Square.

"This is your time, man."

Pope, 18, has been charged with first-degree murder in the October 11, 1995, shooting. His defense attorney is considering arguing that Pope . . . killed because he is afflicted with "urban psychosis" from living in an environment made "toxic" by exposure to gangs, poverty, fatherless families, drug use, teen-age pregnancy and violence. (Ellement, Boston Globe, October 14, 1996)

In old mystery stories, motives were assumed to be simple and the detective always asked first, "Who benefits from this crime?" That was yesterday. Today the psychiatrist asks, "Who traumatized this perpetrator?"

Psychological explanations invoked to get people out of impossible situations are much like the deus ex machina solution to irresolvable plots in ancient plays. When all the characters are inextricably knotted up with no hope of resolution in sight, suddenly the god descends from the heavens and takes everything in hand. And, like deus ex machina and all other good dramatic devices, psychological resolution tales require considerable suspension of disbelief to operate effectively.

What we want today is not retribution but the understanding that is the heart of a compelling narrative. We want a good story, preferably a classic tale if not an epic drama. We are no longer willing to judge the conduct of others as good or bad, because we no longer believe that the individual is actually responsible for his or her own conduct. 

Lately, in Massachusetts, we had the tragic and senseless murder of a brilliant young student at Harvard by her female roommate, who then committed suicide. The press was full of psychological experts speculating that this appalling action was caused by cultural isolation disorder or school stress disorder or rejected friendship disorder. Not one expert suggested that the fault lay with the murderer herself. Why not? Have we lost all belief in personal responsibility for good and bad?

Modern psychology, permeating our culture and our legal system, has convinced the larger society that responsibility for behavior belongs to the background and context in which it occurs, not to the individual performing the action. We believe that people act-when they act badly-for reasons that are essentially written in their history and outside their control.

Rehabbing Rapist Killers

This is also the reason that so many Americans are so ambivalent about punishment for crime. We vastly prefer the idea of rehabilitation over punishment, especially for criminals who can make even the remotest claim to victim status. Thus we have, despite any evidence of effectiveness, judge after judge sentencing criminals of every dangerous description and degree to so-called treatment programs.

When 0. J. Simpson pled "no contest" some years back to the charge of beating his wife, he was sentenced to psychotherapy. Cellular psychotherapy. He did it by telephone.

In 1975, Officer Matthew Quintiliano, a policeman in Connecticut, was sentenced to therapy after he killed his first wife. He was cured by the wonders of modern psychotherapy in three months and was freed. He married again and subsequently killed his second wife.

Why do we, the public, go along with psychotherapy as a sentence? Because it goes right along with the idea that no one is really responsible for his or her own actions. We are all victims of outside malevolent forces. Criminals are not bad; they are damaged. Since society caused the damage or allowed it to happen, society should repair it. Rehabilitation has long been a component of the criminal justice system, so rehabilitative psychotherapy fits well as a natural extension of that idea.

Does it work? Can psychotherapy really rehabilitate wife beaters and murderers and rapists and drunks and druggies? Our current method of measuring effectiveness is to ask psychotherapists if psychotherapy works. Mostly they say yes.

They are wrong. Even for what is probably the most important question-"Will this guy kill or rape again?" -the forensic clinician is correct in his or her predictions no more than one third of the time.

Constructing the Psychological Child

The demonstrated incompetence of forensic clinicians at seeing into the souls even of their own patients has not stopped the legal system from granting them terrifying power, not only in criminal domains but also in any and all cases involving children as defendant, victim, witness, or subject of some adult dispute.

When a fifteen-year-old, 220-pound "child" in Massachusetts is accused of stabbing the neighbor lady ninety-six times, unto death, it is the court-ordered psychological evaluator who counsels the judge whether the young man should be tried as a child who can be rehabilitated or as a man subject to a man's punishment for a man's crime. 

When ten- and eleven-year-old boys drop a five-year-old child to his death from the roof of a fourteen-story building, it is child specialists who peer with mental telescopes into their histories and into their futures and tell the judge what caused this terrible behavior and what can be done to fix the boys so it will not happen in the future. The courts accept this counsel from the highly paid professionals because they think they have no choice. Our courts accept at face value the claims of all these entrepreneurial experts that they understand what goes wrong with children and they understand how to fix them.

They don't.

Psychological professionals also claim to have special skills that allow them to detect unerringly what is in the best interests of a child. They tell our courts who will be the better parent, who is too crazy to have custody of a child, whether moving from one place to another will disturb the child's mental health, and whether the child was abused by one parent or another.

Are mental health professionals any more knowledgeable than you or I about whether a child has been abused in the home? About whether the child is better off removed from the home? About whether the child will grow up better under Mother's custody or under Father's? Of course not. How could they be? There are no special secret tests for any of the factors that child clinicians claim are so crucial to their so-called professional opinions.

It is essential for the future health of American children and their families that all these professionals be forced to lay their cards on the table so that everyone, parents-prosecutors, and judges alike can see what an empty deck they are dealing from. The system is a farce and it perpetrates awful injustices.

My Mind Has Fallen and It Can't Get Up

Like family law, the entire arena of civil litigation also has experienced a huge increase in the testimonial activities of the forensic clinician. The modern proliferation of mental disorders has provided a veritable bonanza for entrepreneurial psychologists, not to mention their associated attorneys, not only in traditional injury and liability tort cases but also in disability and discrimination claims.

How does it work? Simple. Hire a psychoexpert to come into court and testify that you are damaged invisibly-mentally, emotionally, psychologically-that you suffer from one of the hundreds of psychological disorders "recognized" today. Then you have two ways to go. In a straight injury claim, your expert can testify that your psychic injury was caused by the trauma you experienced at the hands of your neighbor, your employer, or an unfeeling institution. In a disability claim, the expert must testify that your employer or a public accommodation discriminated against you by refusing to recognize or make reasonable accommodation to your disability. In both cases, you require much money to repair the injustice.

A typical case is that of the employee fired from a radio station in Washington state for offensive on-the-job behavior, who recently was awarded $900,000 by a jury for a discriminatory firing and for the psychic injury done to her by the discrimination. Her poor job performance, according to professional opinion, was produced by a mental disability and therefore occurred entirely outside the realm of personal responsibility.

Psychological disabilities, not incidentally, can be diagnosed only by trained professionals whose word cannot be credibly disputed by anyone other than another trained professional. No mere layperson can hope to match or, God forbid, criticize the diagnostic skills of the clinical psychological professional.

The cost of the needed treatment, the psychotherapy, is always included in the requested compensation in civil injury trials. Thus you have therapists testifying that yes, it is absolutely crucial that this plaintiff receive plenty of expensive psychotherapy for her disorder. 

Having therapists testify about the need for psychotherapy is about as smart as answering an insulation ad that promises Free Analysis of Your Home's Heating Efficiency.

They Say This Is Science

In criminal trials like that of George Franklin, in which the psychoexpert Dr. Terr created a completely novel and entirely hypothetical model of the operations of mind and memory, and sold it to the jury as science-science!-and in the innumerable civil trials over just about everything, we now have countless psychoexperts shamelessly regaling the courts with their personal opinions about the workings of the mind and behavior, which they have wrapped in the trappings of science through nothing more than a liberal sprinkling of jargon and some fancy-sounding titles and credentials.

That the courts accept expertise on the experts' own valuation of it reflects desperation as much as acceptance. Our courts-we, the people-need help to understand past behavior, to control present actions, and to predict who's going to do what kinds of awful things in the future.

Common sense tells us some things. We believe that the older guys get, the less likely they are to rape anyone. We believe that if guys knock around one woman they will knock around another one, and if he hits you once he will hit you again. We believe that most men who beat up on their children in a real nasty way do so much more than once. We know that most killers don't kill more than once in a lifetime- which makes rehabilitation of murderers a kind of funny concept- and we know that the older a guy is, the less likely he is to be violent. (He is also more likely to drive slowly and to wear a hat.) 

We also know that all these little factoids gained from our own experience, newspapers, movies, and television are unreliable, the best-we-can-do, unscientific beliefs that don't give us absolute security or predictive accuracy. What's to say that this particular seventy- five-year-old man won't knock your head in with a baseball bat and rape you? Who's to know if this other guy wasn't so horrified by his hitting his wife once that he'd kill himself before doing it again?

We want more certainty than that provided by rules of thumb, and we want more safety than that provided by our own limited experience. Thus modern Americans will embrace almost any psycholegal theory or claim that highly paid and highly arrogant experts spin on the witness stand. We and our judges are blinded by jargon, fancy sounding credentials, and fancy degrees.

Does it drive all of us crazy to live with the myriad uncertainties that arise because the field of psychology is in its infancy and simply unable to answer-sometimes unable even to address-so many of the questions in our justice system for which definitive answers are desperately needed? Perhaps so. But relying on pseudo-experts who are simply not up to the job the courts demand of them will not further the cause of justice in this country. It will just make the whole system and the whole society sicker.

For all forensic psychologists who work one side of the courtroom or the other, the job is lucrative. However, the idea that much of professional psychology's move into the courtroom has been motivated by simple economic interest is not really all that alarming. Money is a motive we can all understand. As a society, we are used to people willing to do anything to chase a buck, and we understand them.

But we also must wake up to the fact that the present and growing dominance of psychology in the courtroom poses a graver danger to society than simple monetary corruption. Much of the present marriage of psychology and the law has been cemented by a virtually impregnable arrogance and institutionalized in both law and legal practice, and that is a scary thought indeed. Both the public and the practitioners themselves have been seduced into believing the pseudo-experts' bunkum, have managed to get that bunkum written into law, and have effected a wide acceptance of a crucial judicial role for the bunkum artists as well.

TWO ROADS DIVERGED-EXPERIMENTAL AND CLINICAL PSYCHOLOGY

The public and its legal system do not know that the psychology that holds such sway in their legislative chambers and courtrooms lacks any scientific foundation because most of the men and women who make up the scientific and academic discipline of psychology have kept their mouths shut about what's going on. The experimental scientists have clung to the mistaken belief that the practice of psychology in the public domain is the territory of the clinical practitioners. The scientists felt that if they didn't step on the clinicians' territory, the clinicians wouldn't step on theirs.

Who are the scientists and who are the clinicians among the different varieties of psychologists? The scientists, the experimentalists, are researchers who study perception, language, learning, cognition, and memory, mainly. The clinical types are the practitioners who focus on personality as well as on so-called abnormal behavior.

Another way of saying this is that the experimentalists don't see patients; the clinicians do. (That's why they are called "clinicians"; they go to clinics to see patients.) Also, the clinicians don't do experiments; the experimentalists do, sometimes in laboratories and sometimes in the real world. Of course, these divisions aren't clean. There are people who study personality for example, who do real experiments; there are learning theorists who see patients; and so on. But in general, the two divisions hold well enough.

The split into clinician/practitioner versus scientist/experimentalist also holds across the various psychological subdivisions of academic clinical psychology, professional psychology, psychiatry, counseling, and psychiatric social work and nursing. In each subdivision, the majority of the practitioners are clinicians untrained and inexperienced in scientific research; the minority were actually trained in or actively engage in science.

For social workers and for psychiatrists and psychiatric nurses in medical educational settings, the situation is even worse than for conventionally trained Ph.D. psychologists. In these fields, there is not even the rhetorical expectation that the future practitioner will be broadly educated in psychological theory and research.

(In this book, I will use common terms for psychological practitioners working within the realm of the justice or legal system-psychiatrists, psychologists, social workers, or other-whatever the particular education and training, unless that background is relevant to understanding or evaluation of some point.)

THE BIG LIE

Experimental psychologists know that the education commonly possessed by licensed mental health care providers, whatever their background and training, is woefully inadequate to the job demands.

They know too that with the present state of psychological knowledge, there are severe limitations on what any education could provide to the most diligent student. No education on earth today can be held to give an adequate account of how the mind works, how personality and character are formed, or what can be changed and how.

Psychology is a science in its infancy. With the best will in the world, it could not today meet the demands and expectations placed on it even by patients in need, much less by the legislative and judicial systems of the country. The entire psychological community knows all of this, at least the scientists do, and most of them ignore it.

The psychology establishment has permitted the tenets and practices of clinical psychology to be incorporated into our laws and our courtrooms, knowing full well that they are untested, untestable, profoundly unscientific, and not even generally held to be factually true. We have allowed the courts and the public to confuse the methodology and findings of scientific, experimental psychologists with the practice and interpretations of clinicians. We have allowed so-called clinical psychological experts we know to be utterly unequal to the task to presume to take over the roles of judge and jury as finders of fact in American courtrooms.

We know forensic psychology's massive infiltration of the judicial system has been wrong. But, because of the takeover, the prestige and the power experienced today by members of the psychological community-experimentalist and clinician alike-are unprecedented in history. Who can blame the ever-reaching branches of psychology for succumbing to temptation?

THEY MUST KNOW WHAT THEY ARE DOING

There has been another critical factor driving what must seem to the public like almost criminal negligence on the part of the profession of psychology: Many experimentalists would argue that because numerous troubled people seem to find in therapy the help they need, it is not just permissible but perhaps even desirable to ignore its complete lack of scientific foundation. This has been a grave error, with wide-ranging consequences for the field of psychology and the public alike.

"Hey, he cured me. He must know what he's doing, so I'm sure he can cure other people." It seems reasonable, doesn't it? I was better off after my time with a psychiatrist, so I assumed that the psychiatrist must have made me better. It follows that he must have known about what was wrong with me psychologically, what caused it and how to fix it, doesn't it?

No. The effectiveness of a therapeutic approach in treating a disorder is logically unrelated to the validity of the therapist's theory of causation of the disorder.

How can that be? Let us see.

Chapter 2