When Psychiatrists Take The Stand, Science Itself Goes On Trial

Psychiatrist Kenneth Kool may have used the jargon of his profession, but you got the point: Gary Heidnik is delusional, he testified. And psychotic. And possessed of an unbalanced perception of reality. “I’m of the opinion,” he added, “that Gary Heidnik is not sane and has not been so over the years. Plus,” Kool tossed in almost gratuitously, “Heidnik’s lifestyle is bizarre and regressed.” Psychiatrist Robert Sadoff was equally obdurate. “Maybe he has a major mental illness,” he opined, “but the evidence indicates he was not so deprived of his reason that he did not know the nature and quality of his acts.” The two experts—both vastly experienced, both impressively credentialed—were testifying in a murder trial in a Philadelphia courtroom this summer. Not just any murder trial, this was an inquiry into one of the most hideous series of crimes this decade. Defendant Heidnik had kidnapped six women, held them captive in his basement for periods up to four months, subjected them to sexual abuse, tortured them, and nearly starved them. Indeed, two had died. The Commonwealth of Pennsylvania claimed Heidnik murdered them in cold blood and, since the state is one of 37 with a death penalty statute, asked that he be electrocuted. Heidnik pleaded not guilty by reason of insanity. At stake in this trial, therefore, was yet another life. If the jury agreed with Kool—that Heidnik was not guilty by reason of insanity—Heidnik’s life would be spared. But if the ruling came down on the side of Sadoff’s testimony, Heidnik would be sentenced to death. Was one of these experts right and the other wrong? How was the jury to know? Did the contradictory testimony help the jury get closer to the truth, or simply serve to confuse? And, of even deeper concern: If a lawyer is able to find an “expert” to substantiate any position in a case, as is becoming increasingly prevalent, is the jury hearing true science, or merely opinions for hire? Questions such as these are at the heart of a growing debate over whether psychiatry and psychology should play a role in decisions made in our courts of law. Each year, mental health experts testify in as many as one million legal cases—both criminal and civil—around the country. Such testimony frequently has a vital impact on the lives of people involved. Is this mother sufficiently competent to retain custody of her child? Is the executive injured in the auto accident sufficiently traumatized to hamper his earning capabiity? Should this grandfather be involuntarily committed to a mental institution? Each issue has its proponents and opponents, all of whom call themselves scientists—and all of whom take money for their testimony. The result is that, increasingly, the entire mental health profession—which has the status of a science outside the courtroom—is garnering the reputation of a pseudoscience within. The debate hinges, both sides seem to concur, on two points. The first is that psychiatry—in stark contrast to the black and white nature of the law or even the natural sciences—is inexact; it depends almost entirely on subjective interpretations. No one can pronounce with absolute confidence what goes on in another person’s mind. “Legal questions are answered in very simple terms,” says Dr. Russell Newman, director of legal and regulatory affairs for the American Psychological Association. “It’s either yes or no. On the other hand, clinical questions are never answered in simple terms. Behavior is as complicated as anything we know.” The second and equally thorny, issue is that there seems to be little quality control on either the individuals or the opinions offered under the guise of psychiatric testimony in court. Despite the majority of respectable mental health professionals, if a lawyer is looking for a psychiatrist or a psychologist to testify in a particular way, he can find one. ‘They’re like prostitutes,” says Jack Mallard, a Georgia prosecutor who successfully prosecuted Atlanta’s so-called child murderer, Wayne Williams, in 1982. ‘They will say what you pay them to say.” But those who argue against the power psychiatrists wield in the courtroom claim that, regardless of who is testifying, psychiatry is inherently just too imprecise a science to play a role in the legal world of absolutes. Psychiatrists are no better qualified than the man on the street to interpret or predict human behavior, they say, and point to the ubiquitous contradictions in testimony as proof of the lack of credibility of the professionals’ opinions. One of the most scathing attacks was recently issued by psychologists David Faust and Jay Ziskin. “When judgment rests on conventional beliefs or stereotypes rather than empirical knowledge, professionals are unlikely to surpass laypersons,” Faust and Ziskin wrote in an article published in the July 1988 issue of Science (volume 241, pages 31-35). “Clinicians frequently cannot agree on psychiatric diagnoses of current state, much less provide trustworthy answers to less famil iar and more difficult forensic questions,” noted Ziskin, a psychologist and a lawyer practicing in Marina del Rey, Calif., and Faust, director of psychology at Rhode Island Hospital in Providence, R.I., and an associate professor in the Brown University Program in Medicine. Claims Versus Findings “As the courts and the public come to realize the immense gap between experts’ claims about their judgmental powers and the scientists findings, the credibility of psy chology and psychiatry will suffer accordingly,” they prophesied. That article hit a raw nerve with psychologist Raymond D. Fowler, president of the 90,000-member American Psychological Association. “There is a general feeling that psychology is only folk wisdom; that all we’re doing is making shrewd guesses,” says Fowler. “I’ve had people tell me, ‘My grandmother was a great psychologist and she never had any training.’ But there has been research proving that the mental health person has an edge [in assessing human behavior].” While both sides agree that the accuracy of many diagnoses leaves a lot to be desired, the APA’s position is that the opinions of mental health experts, even though contradictory, are bolstered by research and expertise. In any case, the argument goes, the final judgment will be up to the judge or the jury, which will have a stronger basis for decision when it can factor in professional opinions. Rather than the diagnosis itself, adds Newman, what is helpful to the court is the information that went into the formulation of the diagnosis. To make a decision on a legal question (for example, is a defendant not guilty by reason of insanity? Answer yes or no) the judge or jury needs to have as much information as possible about non-legal, in this case psychiatric, issues. “They need the very valuable clinical information such as information about how this person handled different situations or his personality structure,” says Newman. And that, he purports, is a significant niche that the science of psychiatry can fill. Still, the fact that psychiatry and psychology cannot provide definitive yesses and nos is a sticking point for many judges, lawyers, and members of the public. Few, however, are as outspoken about it as Judge Lynne M. Abraham of the Common Pleas Court of Philadelphia, who presided at the Heidnik trial. In a surprising ruling, she refused to allow the defense to introduce the defendant’s voluminous medical record into evidence. Her reason: She said the court had no way of judging the credibility of the psychiatrists who made the diagnoses on Heidnik. “They might have been drunk or deranged,” she said. Although Judge Abraham’s position was an unusually extreme one, there is no denying that some of the testimony given on the stand each year is issued by quacks. And even proponents like Fowler concede that all mental health experts do not adhere to the same ethical code. For example, many psychiatric professionals acknowledge that it is virtually impossible to predict future criminal behavior except in very broad terms. One professional who consistently goes against that tenet, however, is Dallas psychiatrist James P. Grigson—a.k.a. “Dr. Death” and “Dr. Doom”—who is reported to charge $150 an hour for his court-related work. Grigson has won renown for consistently testifying in favor of the prosecution when it is seeking the death penalty against a defendant. In the last 18 years, Grigson has testified in 111 death penalty cases, taking the position that execution is necessary because the defendants cannot be rehabilitated. In all but nine of them, the jury agreed. Although many professionals look askance at claims of such predictability (“Each time an expert witness claims he can predict violent behavior with reasonable certainty, he endorses a falsehood,” claim Faust and Ziskin), such testimony has been sanctioned by the U.S. Supreme Court. One notable example was a decision in a case involving Grigson’s testimony against a defendant named Barefoot (Barefoot v. Estelle 463 U.S. 880, 1983). In that instance the high court not only found that Grigson should be allowed to make such prognostications during a trial, but that he could do so without even talking to the defendant. Presumably, the court factored in the belief that the judge or jury would be capable of balancing Grigson’s prediction with other evidence. Grigson’s self-professed abilities have been attacked by the national mental health organizations, the American Civil Liberties Union, and thousands of defense lawyers. But, as he is not a member of a national professional association, no mechanism currently exists to control or qualify such testimony. “Professional groups can regulate only those who are members of that group,” says the APA’s Fowler, who estimates there are an additional 20,000 to 30,000 practicing psychologists who are not members of his group. Though there are no ready-made solutions to many of these questions, particularly the furor over the ability to predict dangerousness—the most hotly debated single item among mental health professionals—Fowler has suggested that judges and lawyers take a more forceful stand in setting standards for psychiatric experts. “I’ve never heard a judge say he was not going to allow a mental health person tc testify because the witness was not a member of a professional association,” says Fowler. “But they should. The way the system is now I have to suffer because somebody who has never been a member of my professional association does something with which the association disagrees.” If the errant practitioner is a member of the APA, on the other hand, a special panel hears the case. If a violation of ethical standards is found, punishment can range from a reprimand to expulsion from the association. But as the controversy over what may or may not be said rages, many professionals feel that more major issues are being lost in the crossfire. The APA’s Russeil Newman, for one, feels that a resolution will come only when the legal and mental health professions learn to cooperate instead of working at cross purposes. “The legal profession has as much responsibility in this area as anyone,” he says. “They’re the ones who go out to try to find someone who will say what they want them to say. The two professions have to work together. We have to find a way to limit expert mental health testimony to those who are professional and doing their job.” But although no overall answers have been found, justice marches on, and some resolution is evident on individual cases. Take Gary Heidnik, for example. Despite the sharply contradictory testimony from psychiatrists about whether he was or was not insane, the jury apparently had little problem with the issue. Jurors came down heavily in favor of his sanity. He was convicted on 18 of the 19 charges against him, including two counts of first degree murder. The punishment: Two death sentences. Kenneth F. Englade is a freelance writer based in Atlanta.

When Psychiatrists Take The Stand, Science Itself Goes On Trial

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