(no subject)
This poor semi-abandoned journal! I read the flist every day and comment a lot, so it feels like I'm not MIA, even though the reality is that I probably look it.
I MUST SHARE THE HORROR OF THE PAST 2-3 WEEKS. Since I last served on a jury three years ago, I was eligible to be called again, and so of course I received a summons. I suppose there are worse cases than the one I served on. Serial killers and graphically horrific murder cases, for instance, would be considered worse than this (by some, but not all!), but that's it.
I have learned everything imaginable about the legal and psychological world of declaring someone a Sexually Violent Predator and committing them to a state mental hospital short of being able to litigate it myself. And even there I could probably provide tips for the council in the case. I am in a sharing mood and want to save these memories before they disappear.
Note that this is a summary as much for me as for anyone because I know I'm going to forget parts of this and it's going to bug me forever.
So, California has an SVP law that allows for involuntary commitment to Coalinga State Hospital (primarily, they used to go to Atascadero State Hospital - ASH, where Mentally Disturbed Offenders still go), even after the original criminal sentencing for the crime has passed. In this case, the defendant was nearing the end of his complete 27-year sentence (the entirety of his adult life, since he went to jail at age 21). (Bolded due to multiple readers missing this and mistakenly thinking this was a criminal proceeding to convict and punish him for rapes.)
Due to a relatively newer law passed by the people in 2006 (?), this commitment period is now indefinite, and so SVPs no longer come under revision with options for a retrial every two years like they used to. This means that the reality for most people found to be SVP is that it is a life sentencing to a mental institution, and good luck getting yourself out. This was not told to us during the trial because it would have biased us. We also were not able to know that the defendant had previously been found to be an SVP by a trial jury (thus, the prosecutor could never explicitly say why he was being bounced between prison and hospitals).
In order to prove (beyond a reasonable doubt, unanimously - due to the removal of civil liberties etc, criminal standards are used) that someone is an SVP, the following criteria have to be met (and if some parts sound vague, THEY ARE):
(a) Qualifying Offense in the past (this was a given in our case: convicted of rape (2 counts))
(b) Diagnosed with a current mental disorder that results in impairment of emotional and behavioral control. This disorder must predispose the individual to commit sexually violent acts which result in him being a menace to health and safety of others.
(c)As a result of this mental disorder, defendant is likely to commit criminal sexually violent predatory acts if released into the public and therefore poses a danger to the health and safety of others. A predator is someone whose victims are strangers, known persons with whom no close relationship has been established, or persons with whom a relationship has been established for the primary purposes of victimization. For a person to be deemed "likely" to reoffend, the risk posed does not have to exceed 50%. Qualifying sexually violent acts include rape, or if the victim is under 13, lewd and lascivious acts (masturbation of self or child) also count. (I'm not really interested in defining that last sentence in the detail that the law specifies.)
Note that "menace" in prong 2 went undefined, and that there is no actual list of qualifying mental disorders. No. List. I have since learned a lot of this is based on Sup Ct decisions - they didn't define a list, so the state law doesn't have to reflect it either. I think California had to add the volitional control aspect (impairment of emotional/behavioral control) because of one such recent case.
I should preface this by saying we did NOT find him to be an SVP, which as I understand it is fairly rare for a jury to do. Most of us admitted after tallying the final votes that we assumed it was going to be an easy trial where all the witnesses except one fringe-for-hire psychologist for the defense agreed, and that we expected the decision would be easy. So why didn't we find it this way? Journey on, masochists (DSM IV - Paraphilia #6?).
We had five witnesses, all psychologists (some with additional psychiatric degrees). The three for the prosecution all diagnosed him with "paraphilia NOS (nonconsent)", which means roughly that he is aroused by the nonconsenting feature of sex acts. Other paraphilias that all witnesses agreed he had were frotterism and exhibitionism -- however, these are not qualifying mental disorders because the crimes they lead to are not rape or child molest. Only the first diagnosis of paraphilia NOS (nonconsent) is actually relevant to the prosecution's case in part (b).
The defense witnesses diagnosed him with bipolar disorder, with the relevant symptom of hypersexuality. Neither witness would claim that this was a qualifying disorder for (b), even though you might think that hypersexuality could predispose one to committing criminal sex acts. I think the defense witnesses (at least one) intended to claim that they were "just" criminal rapes, caused by the bipolar symptom of mania, which results in disinhibition/hyperexcitablity (wherein hypersexuality is just one branch). Additionally the prosecution witnesses did not claim it would be a qualifying disorder either, had they diagnosed it. Theoretically any disorder could be, but I suspect that there is a reason cases are not built around them, but are rather most frequently built around paraphilia NOS (nonconsent).
I should note that there is a very fuzzy diagnostic and legal line drawn between "normal" criminal rapes, and rapes that are caused by the mental illnesses found in (b). If a person is committing criminal acts, while there is probably something wrong with them, it is not particularly relevant for meeting SVP criteria. Specifically, it actually hurt the prosecution (at least in the jury room) that the defendant had punched a former girlfriend and broken her jaw because there was absolutely no sexual content in the act. He was just angry, likely on drugs (based on witness testimony of his drug use), and crazed by mania -- or at least that is a "reasonable" conclusion one could reach. And if one can reach that conclusion about that criminal act, it is within reason to extend it to the violent sexual acts also, especially given the diagnosis of frotterism. This is especially true when you have no overt sex acts while in the state hospital (except maybe one instance of a grab-and-go or frotterism, a couple reports of exhibitionism, and a lot of extremely creepy comments reported) but a whole slew of various other nonsexual citations.
Another huge problem for the prosecution that they did not adequately address was the marked improvement in behavior after court-ordered involuntary medication was prescribed and given. He was so out of control and scary to the hospital staff that he was put on full bed restraints -- TWICE. If this was really someone who suffered from nothing but paraphilia (and antisocial personality disorder, prosecution witnesses also claimed), why would he be that crazed? It is more reasonable to go with a basic, known, well-researched and established diagnosis of bipolar, especially when you consider that post-medication his behavior did a 180. He was given a mood stabilizer/antipsychotic, which should NOT treat paraphilia. Granted, no hospital staff diagnosed him with bipolar until after the medication (reverse diagnosis is sketchy), BUT it was not the defense's job to prove their case beyond a reasonable doubt.
There was a lot of other stuff of interest, that maybe I'll flesh out later (it's gotten rather late).
WITNESSES:
--Prosecution witness Dr Selby clearly did not remember his own written evaluation advising commitment, had to be led through it, and only spent 25 minutes conducting the one on one interview with the defendant. He spent less than half an hour in a personal interview before determining that he had heard enough and was ready to make a determination that would affect the rest of the person's life. Uh, thanks! Oh, and he also diagnosed him with bipolar in his official evaluation, but on the stand he removed the diagnoses, for unclear reasons ("because I say so" does not count, FYI).
--Prosecution witness Dr Grosso reasoned that he diagnosed paraphilia NOS (nonconsent) because the rapes and other offenses (perhaps hundreds of grab-and-goes) were clearly driven by power, control and domination -- the exact things that you would expect from CRIMINAL, non-paraphilic rape! Oops.
--Prosecution witness Dr Hudak was only mentioned in passing a few times in the jury room, for reasons I cannot figure out. She just said what the two other witnesses who testified before her said, but with less obvious shadiness.
--Defense witness Dr Alumbaum was very jovial and almost infantilized the 48-year old defendant, but I am fairly convinced that her testimony made the case. She explained a reasonable scenario for bipolar disorder and hyperexcitation, drug use, frotterism, and maybe a couple other factors being what led to the behaviors. She was on the SVP panel like the prosecution's three witnesses, only she had been on it LONGER. She was almost insulted by their diagnoses, but still respected them. Mmhmm.
--Defense witness Dr Abbott is an expect at being an expert witness. He always testifies for the defense (is "retained" by them for this purpose), but his saving grace is that he does reject cases where he does not disagree with the evaluators. He essentially said their diagnostic techniques for determining paraphilia NOS (nonconsent) were "made up". Actual testimony. He also testified tons and tons about statistics and current research in the field, which would have been more applicable if we'd gotten to (c) risk assessment, but we never got past (b). The only truly crazypants thing he said was that he depends 100% on actuarial date in making his risk assessment because it's been found that clinical judgment (which everyone affiliated with the department of mental health, on the svp panel uses) results in less than 50% reliability. A coin toss would be better than clinical judgement according to him, but if the research really does support this, then it is not actually "crazypants", but it sure sounded that way to me.
Note how I haven't described the two rapes or the grab-and-goes? The rapes were really bad, but they weren't being re-tried in this case. They were HORROR MOVIE quality, though. Girl locks self in bathroom thinking someone is in the house because a formerly-closed door was now open, and SOMEONE IS. But she went out of the bathroom anyway, second-guessing herself. Other case, he says "I'll be back" and then reappears at the door and steals $10 (???) minutes after raping her. WTF you guys, I don't even know.
Jury selection was spread over three days and people cried during it. I got grilled twice, once in private. Also, one lady had a crazy outburst in which she shouted about the need for locking up "mad dogs", with the defendant sitting across the room. UMMMM. She seemed so normal talking about synesthesia with me in the hallway. Theory: it was rehearsed!
Inappropriate jury inside-jokes were ample. Including discussions of inability to eat at ANY fast-food place featuring the expression "grab and go", possible foot fetishism revealed during deliberations (guy, to girl who always took off her flip flops in the jury box), and off-topic debate about whether he would be able to do the "go" part of "grab and goes" as easily as before (older and way heavier).
Uhh. Notable events include defendant AND his attorney wiping their eyes at the result, although I mostly only was watching the defendant (who smiled the first time EVER -- mostly he had just been kind of glowering/sulking/staring). I do think they thought their probability of winning the case was quite low. Stayed after to talk with prosecutor and defense attorney. Defense attorney was reassuring that the SVP law was intended to get the 'worst of the worst' kind of offenders, and this guy was not in that category -- worst of the worst being serial rapists and child molesters who break into 20 homes, etc. Also, this was where we learned the stuff they couldn't tell us in the trial (ie, that this was the defendant's last chance at getting out of the state hospital), so it was worth it to me. One of my follow jurors did say, "I'm going to choose to believe that" to the defense attorney regarding the defendant not at all being how he was portrayed by the prosecution and the decision being sound, which was pretty funny. I figure, it is on the prosecution's head if anything terrible results from this decision, not mine.
I MUST SHARE THE HORROR OF THE PAST 2-3 WEEKS. Since I last served on a jury three years ago, I was eligible to be called again, and so of course I received a summons. I suppose there are worse cases than the one I served on. Serial killers and graphically horrific murder cases, for instance, would be considered worse than this (by some, but not all!), but that's it.
I have learned everything imaginable about the legal and psychological world of declaring someone a Sexually Violent Predator and committing them to a state mental hospital short of being able to litigate it myself. And even there I could probably provide tips for the council in the case. I am in a sharing mood and want to save these memories before they disappear.
Note that this is a summary as much for me as for anyone because I know I'm going to forget parts of this and it's going to bug me forever.
So, California has an SVP law that allows for involuntary commitment to Coalinga State Hospital (primarily, they used to go to Atascadero State Hospital - ASH, where Mentally Disturbed Offenders still go), even after the original criminal sentencing for the crime has passed. In this case, the defendant was nearing the end of his complete 27-year sentence (the entirety of his adult life, since he went to jail at age 21). (Bolded due to multiple readers missing this and mistakenly thinking this was a criminal proceeding to convict and punish him for rapes.)
Due to a relatively newer law passed by the people in 2006 (?), this commitment period is now indefinite, and so SVPs no longer come under revision with options for a retrial every two years like they used to. This means that the reality for most people found to be SVP is that it is a life sentencing to a mental institution, and good luck getting yourself out. This was not told to us during the trial because it would have biased us. We also were not able to know that the defendant had previously been found to be an SVP by a trial jury (thus, the prosecutor could never explicitly say why he was being bounced between prison and hospitals).
In order to prove (beyond a reasonable doubt, unanimously - due to the removal of civil liberties etc, criminal standards are used) that someone is an SVP, the following criteria have to be met (and if some parts sound vague, THEY ARE):
(a) Qualifying Offense in the past (this was a given in our case: convicted of rape (2 counts))
(b) Diagnosed with a current mental disorder that results in impairment of emotional and behavioral control. This disorder must predispose the individual to commit sexually violent acts which result in him being a menace to health and safety of others.
(c)As a result of this mental disorder, defendant is likely to commit criminal sexually violent predatory acts if released into the public and therefore poses a danger to the health and safety of others. A predator is someone whose victims are strangers, known persons with whom no close relationship has been established, or persons with whom a relationship has been established for the primary purposes of victimization. For a person to be deemed "likely" to reoffend, the risk posed does not have to exceed 50%. Qualifying sexually violent acts include rape, or if the victim is under 13, lewd and lascivious acts (masturbation of self or child) also count. (I'm not really interested in defining that last sentence in the detail that the law specifies.)
Note that "menace" in prong 2 went undefined, and that there is no actual list of qualifying mental disorders. No. List. I have since learned a lot of this is based on Sup Ct decisions - they didn't define a list, so the state law doesn't have to reflect it either. I think California had to add the volitional control aspect (impairment of emotional/behavioral control) because of one such recent case.
I should preface this by saying we did NOT find him to be an SVP, which as I understand it is fairly rare for a jury to do. Most of us admitted after tallying the final votes that we assumed it was going to be an easy trial where all the witnesses except one fringe-for-hire psychologist for the defense agreed, and that we expected the decision would be easy. So why didn't we find it this way? Journey on, masochists (DSM IV - Paraphilia #6?).
We had five witnesses, all psychologists (some with additional psychiatric degrees). The three for the prosecution all diagnosed him with "paraphilia NOS (nonconsent)", which means roughly that he is aroused by the nonconsenting feature of sex acts. Other paraphilias that all witnesses agreed he had were frotterism and exhibitionism -- however, these are not qualifying mental disorders because the crimes they lead to are not rape or child molest. Only the first diagnosis of paraphilia NOS (nonconsent) is actually relevant to the prosecution's case in part (b).
The defense witnesses diagnosed him with bipolar disorder, with the relevant symptom of hypersexuality. Neither witness would claim that this was a qualifying disorder for (b), even though you might think that hypersexuality could predispose one to committing criminal sex acts. I think the defense witnesses (at least one) intended to claim that they were "just" criminal rapes, caused by the bipolar symptom of mania, which results in disinhibition/hyperexcitablity (wherein hypersexuality is just one branch). Additionally the prosecution witnesses did not claim it would be a qualifying disorder either, had they diagnosed it. Theoretically any disorder could be, but I suspect that there is a reason cases are not built around them, but are rather most frequently built around paraphilia NOS (nonconsent).
I should note that there is a very fuzzy diagnostic and legal line drawn between "normal" criminal rapes, and rapes that are caused by the mental illnesses found in (b). If a person is committing criminal acts, while there is probably something wrong with them, it is not particularly relevant for meeting SVP criteria. Specifically, it actually hurt the prosecution (at least in the jury room) that the defendant had punched a former girlfriend and broken her jaw because there was absolutely no sexual content in the act. He was just angry, likely on drugs (based on witness testimony of his drug use), and crazed by mania -- or at least that is a "reasonable" conclusion one could reach. And if one can reach that conclusion about that criminal act, it is within reason to extend it to the violent sexual acts also, especially given the diagnosis of frotterism. This is especially true when you have no overt sex acts while in the state hospital (except maybe one instance of a grab-and-go or frotterism, a couple reports of exhibitionism, and a lot of extremely creepy comments reported) but a whole slew of various other nonsexual citations.
Another huge problem for the prosecution that they did not adequately address was the marked improvement in behavior after court-ordered involuntary medication was prescribed and given. He was so out of control and scary to the hospital staff that he was put on full bed restraints -- TWICE. If this was really someone who suffered from nothing but paraphilia (and antisocial personality disorder, prosecution witnesses also claimed), why would he be that crazed? It is more reasonable to go with a basic, known, well-researched and established diagnosis of bipolar, especially when you consider that post-medication his behavior did a 180. He was given a mood stabilizer/antipsychotic, which should NOT treat paraphilia. Granted, no hospital staff diagnosed him with bipolar until after the medication (reverse diagnosis is sketchy), BUT it was not the defense's job to prove their case beyond a reasonable doubt.
There was a lot of other stuff of interest, that maybe I'll flesh out later (it's gotten rather late).
WITNESSES:
--Prosecution witness Dr Selby clearly did not remember his own written evaluation advising commitment, had to be led through it, and only spent 25 minutes conducting the one on one interview with the defendant. He spent less than half an hour in a personal interview before determining that he had heard enough and was ready to make a determination that would affect the rest of the person's life. Uh, thanks! Oh, and he also diagnosed him with bipolar in his official evaluation, but on the stand he removed the diagnoses, for unclear reasons ("because I say so" does not count, FYI).
--Prosecution witness Dr Grosso reasoned that he diagnosed paraphilia NOS (nonconsent) because the rapes and other offenses (perhaps hundreds of grab-and-goes) were clearly driven by power, control and domination -- the exact things that you would expect from CRIMINAL, non-paraphilic rape! Oops.
--Prosecution witness Dr Hudak was only mentioned in passing a few times in the jury room, for reasons I cannot figure out. She just said what the two other witnesses who testified before her said, but with less obvious shadiness.
--Defense witness Dr Alumbaum was very jovial and almost infantilized the 48-year old defendant, but I am fairly convinced that her testimony made the case. She explained a reasonable scenario for bipolar disorder and hyperexcitation, drug use, frotterism, and maybe a couple other factors being what led to the behaviors. She was on the SVP panel like the prosecution's three witnesses, only she had been on it LONGER. She was almost insulted by their diagnoses, but still respected them. Mmhmm.
--Defense witness Dr Abbott is an expect at being an expert witness. He always testifies for the defense (is "retained" by them for this purpose), but his saving grace is that he does reject cases where he does not disagree with the evaluators. He essentially said their diagnostic techniques for determining paraphilia NOS (nonconsent) were "made up". Actual testimony. He also testified tons and tons about statistics and current research in the field, which would have been more applicable if we'd gotten to (c) risk assessment, but we never got past (b). The only truly crazypants thing he said was that he depends 100% on actuarial date in making his risk assessment because it's been found that clinical judgment (which everyone affiliated with the department of mental health, on the svp panel uses) results in less than 50% reliability. A coin toss would be better than clinical judgement according to him, but if the research really does support this, then it is not actually "crazypants", but it sure sounded that way to me.
Note how I haven't described the two rapes or the grab-and-goes? The rapes were really bad, but they weren't being re-tried in this case. They were HORROR MOVIE quality, though. Girl locks self in bathroom thinking someone is in the house because a formerly-closed door was now open, and SOMEONE IS. But she went out of the bathroom anyway, second-guessing herself. Other case, he says "I'll be back" and then reappears at the door and steals $10 (???) minutes after raping her. WTF you guys, I don't even know.
Jury selection was spread over three days and people cried during it. I got grilled twice, once in private. Also, one lady had a crazy outburst in which she shouted about the need for locking up "mad dogs", with the defendant sitting across the room. UMMMM. She seemed so normal talking about synesthesia with me in the hallway. Theory: it was rehearsed!
Inappropriate jury inside-jokes were ample. Including discussions of inability to eat at ANY fast-food place featuring the expression "grab and go", possible foot fetishism revealed during deliberations (guy, to girl who always took off her flip flops in the jury box), and off-topic debate about whether he would be able to do the "go" part of "grab and goes" as easily as before (older and way heavier).
Uhh. Notable events include defendant AND his attorney wiping their eyes at the result, although I mostly only was watching the defendant (who smiled the first time EVER -- mostly he had just been kind of glowering/sulking/staring). I do think they thought their probability of winning the case was quite low. Stayed after to talk with prosecutor and defense attorney. Defense attorney was reassuring that the SVP law was intended to get the 'worst of the worst' kind of offenders, and this guy was not in that category -- worst of the worst being serial rapists and child molesters who break into 20 homes, etc. Also, this was where we learned the stuff they couldn't tell us in the trial (ie, that this was the defendant's last chance at getting out of the state hospital), so it was worth it to me. One of my follow jurors did say, "I'm going to choose to believe that" to the defense attorney regarding the defendant not at all being how he was portrayed by the prosecution and the decision being sound, which was pretty funny. I figure, it is on the prosecution's head if anything terrible results from this decision, not mine.