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What Mitigation is NOT: Defending Against A Lethal Diagnosis. Danalynn Recer Gulf Region Advocacy Center www.gracelaw.org. Not Just Any Diagnosis. No Diagnosis is Mitigating outside the context of a whole life Not every diagnosis is mitigating Diagnoses are just labels.

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What Mitigation is NOT: Defending Against A Lethal Diagnosis

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What Mitigation is NOT: Defending Against A Lethal Diagnosis

Danalynn Recer

Gulf Region Advocacy Center


Not Just Any Diagnosis

  • No Diagnosis is Mitigating outside the context of a whole life

  • Not every diagnosis is mitigating

  • Diagnoses are just labels

Anti-social Personality

  • Never Mitigating

  • Not a medical dx for treatment purposes

  • Punitive labeling

ASPD = Dehumanization masquerading as science

  • It’s justifiable “to kill those who are monsters or inhuman because of their abominable acts or traits, or those who are ‘mere animals’ (coons, pigs, rats, lice, etc.) . . .” because they are excluded “from the universe of morally protected entities.”

    • Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, 35 Santa Clara L. Rev. 547, 559 (1995).

Lucrative Quasi-Science!

“For the Worst of Us, The Diagnosis May be ‘Evil’”

NYT, February 8, 2008

“Hierarchy of evil”

“Evil” (ASPD) is convenient and marketable!

  • “Locating the causes of capital crime exclusively within the offender—whose evil must be distorted, exaggerated, and mythologized—not only makes it easier to kill them but also to distance ourselves from any sense of responsibility for the roots of the problem itself.”

    • Craig Haney

Quantifying Value Judgments for the Courts?

“To minimize the arbitrariness of how courts determine the worst of crimes, and to eliminate bias in sentencing, the Depravity Scale research aims to establish societal standards of what makes a crime depraved, and to develop a standardized instrument based on specific characteristics of a crime that must be proven in order to merit more severe sentences. “



Hare Psychopathy Checklist Revised (PCL-R)

Glibness / Superficial Charm

Grandiose Self-Worth

Need for Stimulation

Pathological Lying

Conning / Manipulative

Lack of Remorse

Shallow Affect

Callous / Lack of Empathy

Parasitic Lifestyle

Poor Behavioral Controls

Promiscuous Sexual Behavior

Early Behavior Problems

No Long-Term Goals



Failure to Accept Responsibility

Many Short-Term Marriages

Juvenile Delinquency

Revocation of Conditional Release

Criminal Versatility

Taking the PCL-R Into Capital Cases

“…convergent data…leads to an inescapableconclusion: Mr. X has significant psychopathic qualities which make him an aggressive and dangerous individual…he is more aggressive than typical violent offenders…”

“…even in prison, managing his aggressive tendencies will present an ongoing challenge…”


Penalty-Phase Testimony

“The psychopath, as I say, has the ability to look very normal. However, if you know what you are looking for, it is kind of like seeing a bowl of fruit, and you say to yourself, gosh that bowl of fruit looks wonderful, it looks very good. But when you get close to the bowl of fruit and pick it up you realize that it’s fake fruit. And the psychopath is a lot that way.”

U.S. v Barnette (2002)


The Take-Home Message(s)

Clearly, labeling someone with psychopathic traits and calling him a psychopath is highly stigmatizing and has a critical impact on how defendants are viewed.


Requirements for Diagnosis

  • Rule Out: Must eliminate other causes of behavior

  • Must have had conduct disorder prior to age 15

Is psychopathy a viable scientific construct?

Hare (1998):“…single most important clinical construct in the criminal justice system”


Lewis (1974): “…diagnostic subgroupings … seldom have sharp & definite limits … Worst of all is psychopathic personality”

Blackburn (1988): It “…remains a mythical entity…” & “…should be discarded”

Gunn (1998): “An elusive concept with moral overtones”


Is it just a tautology or post-hoc descriptor?

…for most if not all things society considers “bad” or “evil”?

Or at least people we really dislike?

“Why’d he do that?”

“Must be a psychopath.”

“What’s a psychopath?”

“Someone who’d do that.”

Ellard (1998)


Uncritical Acceptance within the Clinical/Forensic Field?

“…unparalleled as a measure for making risk assessments”

Salekin, Rogers, & Sewell (1996)

“…single most important clinical construct in the criminal justice system”

Hare (1998), Hemphill & Hare (2004)

“…failure to consider psychopathy when conducting a risk assessment may be unreasonable (from a legal perspective) or unethical (from a professional perspective)”

Hart (1998)


Concerns about the ethics, reliability, and validity of using the PCL-R and assessment of future dangerousness

  • Peer-Reviewed Journal Articles

    • Prediction of Future Dangerousness in Capital Murder Trials: Is it Time to Disinvent the Wheel? John Edens, et al., 2005. Law and Human Behavior, 29:1, 55-86.

Edens, et a., 2005

“Clinical assertions that a defendant is likely to commit future violent acts appears to be highly inaccurate and ethically questionable, at best…

…available research offers little support…that prediction will be appreciably improved by relying on more structured risk assessment [measures].”

Peer-Reviewed Journal Article

Does Interrater (Dis)agreement on Psychopathy Checklist Scores in Sexually Violent Predator Trials Suggest Partisan Allegiance in Forensic Evaluations? Daniel Murrie, et al., 2008. Law and Human Behavior, 32:352-356.

Murrie, et al., 2008

“Differences between scores from opposing evaluators were usually in a direction that supported the party who retained their services….Results raise concerns about the potential for a forensic evaluator’s “partisan allegiance” to influence PCL-R scores in adversarial proceedings.”

Peer-Reviewed Journal Article

Do Some Evaluators Report Consistently Higher or Lower PLC-R Scores than Others: Findings from a Statewide Sample of Sexually Violent Predator Evaluations.

Boccaccini, Murrie & Turner. (2008). Psychology, Public Policy and Law, 14(4), pp. 262-283.

Boccaccini, et al., 2008

“More than 30% of the variability in PCL-R scores was attributable to differences among evaluators…these findings raise concerns about the field reliability of the PCL-R…”

“[A]s the amount of variance attributable to evaluators approaches the amount of variance attributable to the offender, any score or opinion from the evaluator becomes less useful and fails to serve the purpose for which evaluators testify in court: to provide nonbiasing assistance to the trier of fact.”

Peer-Reviewed Journal Article

On Individual Differences in Person Perception: Raters’ Personality Traits Relate to Their Psychopathy Checklist-Revised Scoring Tendencies. Audrey Miller, et al., 2011. Assessment, online version of publication.

Miller, et al., 2011

“[T]his study is the first to demonstrate that raters’ personalities may explain some variability in scores they assign to offenders.”

Peer-Reviewed Journal Article

Do Core Interpersonal and Affective Traits of PCL-R Psychopathy Interact with Antisocial Behavior and Disinhibition to Predict Violence?

Kennealy, et al., 2010. Psychological Assessment, 22(3), 569-580.

Kennealy, et al., 2010

The interpersonal/affective scale of the PCL-R did not interact with the Social Deviance scale to predict violence

“Use of the PCL-R…invites mistaken assumptions that violence risk reflects emotional detachment, predation, and inalterable dangerousness.”

“[T]he results of this study challenge common assumptions about the interactive relationship assumed to exist between the PCL-R factor scores and violence.”

Peer-Reviewed Journal Article

The Efficacy of Violence Prediction: A Meta-Analytic Comparison of Nine Risk Assessment Tools.

Yang, et al., 2010. Psychological Bulletin, 136(5), 740-767.

Yang, et al., 2010 (con’t)

“After almost five decades of developing risk prediction tools, the evidence increasingly suggests that the ceiling of predictive efficacy may have been reached with the available technology….Although it may be possible to improve on our understanding about predicting what an individual may do in a hypothetical situation, it will be much more difficult to predict the situation that the individual actually encounters in the open community. Even predicting violence within an institutional environment is difficult, where the assessor has much more information about that environment.”

Yang, et al., 2010

Sophisticated analysis of the accuracy of nine leading violence risk assessment tools, including the PCL-R

All nine had only moderate predictive accuracy, with none leading the pack

“The moderate level of predictive accuracy of these tools suggests that they should not be used solely for some criminal justice decision making that requires a very high level of accuracy…”

Hare’s response to critique

Robert Hare threatened to sue the authors and publisher of a peer-reviewed journal to prevent publication of an article critiquing the PCL-R

Letter from Hare’s attorney

“…[We] have no choice but to seek financial damages from your publication and from the authors of the article, as well as a public retraction of the article…”

“[The paper] was fraught with misrepresentations…and a completely inaccurate summary of what amounts to [Hare’s] life work…”

Long delay before paper was published

“Is criminal behavior a central component of psychopathy? Conceptual directions for resolving the debate.”

Skeem, J.L. & Cooke, D.J. (2101) Psychological Assessment, 22(2), 433-445.

Skeem & Cooke (2010)

Skeem, J.L., & Cooke, D.J. (2010). Is criminal behavior a central component of psychopathy? Conceptual directions for resolving the debate. Psychological Assessment, 22, 433-445.

“The development of the PCL-R fueled intense clinical interest in the construct of psychopathy.

Unfortunately, a side effect of this interest has been conceptual confusion, and … the conflating of measures with constructs.

Indeed, the field is in danger of equating the PCL-R with the theoretical construct of psychopathy.

…a convenient fiction about the PCL-R and its relation to violence must be examined to avoid the view that psychopathy is merely a violent variant of APD…the authors believe the evidence favors viewing criminal behavior as a correlate, not a component, of psychopathy.”

Fallout: What is he afraid of? Chilling effects on academic freedom

“[T]he threat of litigation constitutes a serious threat to academic freedom and potentially to scientific progress…

Norman Poythress & John Petrila, International Journal of Forensic Mental Health

Trial Strategy & Credibility Issues

“…a zealous attorney may attempt to discredit the scientific underpinnings of the PCL-R by drawing attention to this threat to sue and accompanying demand to withhold publication of a paper that is critical of the PCL-R and which has been judged by peer review to be appropriate for dissemination in the professional literature.

  • Poythress & Petrila (2010)

What You Must Do in Response

  • Thorough investigation

    • Of all prior bad acts

    • Narrative of mental health status over time

    • Thorough social history investigation

    • Circumstances of prior diagnoses

  • Testing and Evaluation for other diseases and disorders

ASPD: What Else Could it Be? (a non-inclusive list)

PTSD or Traumatic Stress Responses

Bipolar Disorder or Major Depression

Schizophrenia or Delusional Disorder

Mental Retardation

Frontal or Temporal Lobe Brain Damage

Fetal Alcohol Syndrome or Effect

Learning Disabilities and their Effects

Pervasive Developmental Disorders

Obsessive Compulsive Disorder and/or Tourette’s Syndrome

ASPD or Brain Damage?

Inconsistent work performance

Irritability & aggression

Failure to plan ahead

Recklessness regarding safety

Lack of remorse

Trouble in academic/ occupational settings

Difficulty managing emotion; impulsivity

Planning deficits

Unable to anticipate consequences

Emotional flatness

Neuropsychological Factors

“…[T]he fact that children, adolescents, adults and elderly patients with prefrontal deficits are characterized by antisocial, aggressive behavior makes a compelling lifespan case for a prefrontal dysfunction theory of antisocial, aggressive behavior.”

“Annotation: The role of prefrontal deficits, low autonomic arousal, and early health factors in the development of antisocial and aggressive behavior in children.” Adrian Raine, 2002. Journal of child Psychology and Psychiatry, 43 (4), 417-434.

ASPD or Post-Traumatic Stress Disorder?


Irritability & aggression


Failure to follow social norms

Recklessness regarding safety

Lack of remorse


Affective lability, emotional reactivity


Persistent expectation of betrayal, distrust

Traumatic reenactments

Psychic numbing

ASPD or Bipolar Disorder?


Irritability & aggression

Failure to plan ahead, irresponsibility

Recklessness regarding safety

Superficial charm, glibness

Bipolar Disorder

Irritable mood states; mixed states

Impairment in functioning

Driven, goal-directed behavior

Grandiosity, flight of ideas

“Truancy” – antisocial / conduct disorder language

What is really going on?

What is the factual predicate?

Truancy – antisocial label

Factual predicate: misses school days

What might be going on?

Mood symptom: can’t concentrate

Anxiety/PTSD symptom: intrusions

Psychotic symptom: can’t function

Brain dysfunction symptom: LD/ID

Social symptom: hiding bruises, peer rejection

“Pathological liar”

What is really going on?

What is the factual predicate?

“Pathological Liar”

Factual predicate: Statement contradict evidence

What might be going on?

Mood symptom: delusions of grandeur

Anxiety/PTSD symptom: survival mode, protecting siblings

Psychotic symptom: misperceives reality

Brain dysfunction symptom: confabulation

Social symptom: covering up shame

“Cold-blooded killer”

What is really going on?

What is the factual predicate?

“Cold-blooded killer”

Factual predicate: Shows no emotion

What might be going on?

Mood symptom: anhedonia, flat affect

Anxiety/PTSD symptom: psychic numbing

Psychotic symptom: catonia, psychotropic meds

Brain dysfunction symptom: altered emotionality

Social symptom: cultural stoicism

DSM Text for Avoiding a Diagnosis ofConduct Disorder

May be misapplied in settings where patterns of undesirable behavior are sometimes viewed as protective

Immigrant youth from war-ravaged countries would not necessarily warrant a diagnosis

Social and economic context must be considered

DSM Text for Avoiding a Diagnosis of Personality Disorder

Evaluation of long-term functioning

Multiple interviews, spaced over time

Must be distinguished from situational stressors or more transient mental states

Must rule out symptoms as manifestations of another mental disorder, or effects of drugs or meds, or effects of medical condition (e.g., head trauma)

DSM Text for Avoiding a Diagnosis ofPersonality Disorder

Caution when diagnosing during mood or anxiety episodes (consider, e.g., PTSD)

Caution when behaviors follow intoxication or withdrawal, or activities sustaining a dependency

Caution when acculturation problems follow immigration

DSM Text for Avoiding a Diagnosis of Personality Disorder

Should take into account individual’s ethnic, cultural and social background

Should not be confused with “the expression of habits, customs, or religious and political values professed by the individual’s culture of origin”

DSM Rule-Outs for Antisocial Personality Disorder

Behaviors must not occur exclusively during the course of schizophrenia or a manic episode

May be misapplied to individuals in settings in which antisocial behavior may be part of a protective survival strategy

Must consider social and economic context

Problems with the Antisocial Diagnosis

There are 848 different ways to meet DSM-III-R diagnostic criteria for ASPD, yet only one diagnostic label is given to characterize all of these cases (Widiger and Francis, 2002)

Ethical obligations of the Capital defense lawyer

Loyalty to client

Thorough investigation (Wiggins, Rompilla)

Independent & informed professional judgment

Obtain expert, investigative, and other professional services reasonably necessary or appropriate to provide high quality legal representation… (Guideline 4.1B) (i.e., duty to reach out!)

Loyalty to the Client in Capital Sentencing Context

  • Establish a working relationship (rapport)

  • Avoid the human tendency to judge

  • Investigate all mitigating hypothesis of all negative behaviors:

    • Is it true?

    • Is there a broader cultural/factual context?

    • Is there a mitigating explanation or interpretation?

Loyalty to the Client

  • The entire team owes a duty of loyalty

  • Patience, understanding, rapport

  • Cultural sensitivity

  • Exhaustive investigation

  • Look for mitigating explanation of negative demeanor/conduct,

  • give client the benefit of the doubt!

Supp. Guideline 5.1: Rapport is Crucial

Rapport is a “dynamic, harmonious relationship in which information flows freely because patients feel accepted with both their assets and liabilities.”

“a relationship between the [client or witness] and [the defense team] that reflects warmth, genuine concern, and mutual trust.”

Sadock & Sadock, A Synopsis of Psychiatry

Ethical Duty: Observational caretaker

Because only defense team members have access to the client over time, it is their duty to “act as the observational caretakers for the mental status symptoms of the client.”

Therefore, defense team members must be trained to “perceive data from multiple sources,” including “history, . . . nonverbal cues, [and] listening at multiple levels.

Deana Logan

Understand the client’s past;Project into the future

  • lessen the client’s culpability;

  • show the client’s capacity for empathy, remorse;

  • illustrate the client’s desire to function in the world,

  • rebut or explain evidence presented by the prosecutor

Misdiagnosis, Case Example 1

Diagnosis based on single interview

Access to police reports

No comprehensive search for records

No independent social history information

Conclusions based solely on client self-report

Psychological Evaluation, 1991 (Based on self report)

“It…appear[s] that Mr. Stevens’ family background is relatively stable. His mother worked in local convalescent hospitals… Mr. Stevens was never placed out of the home. He does not recall having any broken bones or…needing sutures. Discipline in the family home involve corporal punishment. Mr. Stevens denies that this was excessive…His background is unremarkable…no history of abuse that I could determine.”

Juvenile Court Records, 1977

“The minors came to the attention of the juvenile authorities when the principal noticed a severe eye injury to Joey caused by a whipping given to him by his mother. The minor was seen to have multiple linear and loop-shaped lesions over his entire body in various stages of healing. His sister also had multiple linear and loop marks and scars over her entire upper body.”

Notable cases of misdiagnosed ASPD

  • Rompilla v. Beard, 545 U.S. 374 (2005)

    • Before: ASPD x 4 (Trial)

    • After: MR, schizophrenia, Fetal Alcohol Syndrome, (PCR Social history)

  • Parkus v. Delo, 219 S.W.3d 250 (Mo. 2007)

    • Before: ASPD x 3 + SVP (Trial)

    • After: MR, schizophrenia, Fetal Alcohol Syndrome (PCR Social History)

How do we avoid misdiagnoses?

Understand the difference between a fact and an interpretation of that fact

Nonjudgmental critical thinking is not an oxymoron!

Learn to recognize and identify symptoms. (Most important principle for investigation and development of mitigation)

Character and mental health

  • “…episodes of impulsive, …unprovoked violence … can certainly be consistent with brain damage, paranoia, irritability and other signs of mental illness.”

  • “Mr. Eaton is genuinely and deeply remorseful for his crime. Again, this information is helpful on many levels, and would help complete an accurate and humanizing clinical picture of Dale Eaton.”

    • Dr. Kenneth Ash, pretrial examiner

Character and mental health

“[Friends and family] describe Jeff Paul as a kind and sensitive person. He… cared for sick and injured animals, including a pet that was cruelly injured by [his father], and a raccoon and a duck Mr. Paul rescued in the wild. These behaviors weigh against his having an anti-social personality, and suggest that something different is at play.

  • Dr. Irving Kuo, pretrial examiner

Countering State’s Expert

  • Investigate them

    • Prior testimony, publications, etc.

    • Training, experience

  • Present them with Data to Flip Them

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